Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 17TH DAY OF JULY 2024 / 26TH ASHADHA, 1946 WP(C) NO. 18409 OF 2024 PETITIONER/S:
DENNISH KOLLIKKARA VIJAYAN,AGED 49 YEARS PROPRIETOR, SREE KRISHNA OIL MILS, CHENGALUR P.O, THRISSUR, KERALA, PIN - 680312 BY ADVS.
T.K.SREEKALA S.PARVATHI NIKITHA SUSAN PAULSON ANAND GEO V.V.ASOKAN (SR.)
RESPONDENT/S:
1 ASSISTANT STATE TAX OFFICER, OFFICE OF THE STATE TAX OFFICER, TAXPAYER SERVICE CIRCLE, IRINJALAKUDA, THRISSUR, KERALA, PIN - 680125 2 THE COMMISSIONER, OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, COCHIN COMMISSIONERATE, CR BUILDING, I.S. PRESS ROAD, ERNAKULAM NORTH P.O.,KOCHI, PIN - 682018 3 STATE OF KERALA,REPRESENTED BY ADDITIONAL CHIEF SECRETARY (TAXES), ROOM NO. 396, 1ST FLOOR, NEAR SOUTH CONFERENCE HALL, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAPURAM GPO, PIN - 695001 4 UNION OF INDIA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI, PIN - 110001 5 SREE TRADERS,GSTN 32ASOPA6482G1ZR,5/1248, BYE PASS ROAD, KODUVAYUR, PALAKKAD- REPRESENTED BY ITS PROPRIETOR MR. S. ARUNCHAMY, PIN - 678501 6 DEPUTY COMMISSIONER OF STATE TAX, CHITTUR, PALAKKAD, STATE GST DEPARTMENT, MINI CIVIL STATION, KACHERIMEDU, CHITTUR, PALAKKAD, PIN - 678101 BY ADV I.SHEELA DEVI SMT. JASMINE M M (GP) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 18409 OF 2024 2 JUDGMENT
The petitioner has approached this Court, being aggrieved by the fact that, without complying with the directions contained in Ext.P8 judgment of this Court in W.P.(C.) No.4201 of 2024, the authorities have issued Ext.P14, intimating the petitioner that recovery proceedings will continue against the petitioner.
2.
In Ext.P8 judgment in W.P.(C.) No.4201 of 2024, this Court directed as follows:-
‘’5. Considering the fact that it was for the financial year 2017-18 and the petitioner has produced some proof regarding tax, invoice and payment etc., this Court deem it appropriate to set aside the impugned assessment order, Ext.P6. I do so and remand the matter back to the assessing authority to take into consideration the Circular No.183/15/2022-GST dated 27.12.2022 and other documents that will be submitted by the petitioner to prove his case that he had received the supply and paid the tax to the supplier/dealer. The petitioner may also obtain a certificate from the supplier/dealer as is required under paragraph No.4.1.2 of the aforesaid Circular. After considering all the materials available and to be produced by the petitioner as above, the assessing officer will pass a fresh order, in accordance with law. The petitioner is directed to appear before the assessing officer within a period of three weeks from today with all the relevant documents and evidence in his possession to prove his case.’’ It is the case of the petitioner that the competent authority was therefore required to pass fresh orders before proceeding with recovery in terms of earlier orders.
WP(C) NO. 18409 OF 2024 3
3.
Learned Government Pleader would submit, on instructions, that the petitioner was required to produce materials before the authority to show that he had discharged his liability by paying the tax to the supplier/dealer. It is submitted that a reading of Ext.P14 will show that the officer had only intimated the petitioner that since the petitioner had not produced any material, the demand finalized in terms of the earlier proceedings will have to be recovered from him. It is submitted that the competent authority will pass fresh orders, after hearing the petitioner.
4.
Having heard the learned counsel appearing for the petitioner and the learned Government Pleader and having regard to the facts and circumstances of the case, the writ petition will stand disposed of, directing the 1st respondent to comply with the directions contained in Ext.P8 judgment of this Court in WP(C.)
No.4201 of 2024. If the petitioner wishes to place on record any material before the 1st respondent, the petitioner shall do so, within a period of two weeks from today. The 1st respondent shall thereafter, pass fresh orders as directed in Ext.P8 judgment in WP(C.) No.4201 of 2024, after affording an opportunity of hearing
WP(C) NO. 18409 OF 2024 4 to the petitioner. Any recovery proceedings initiated against the petitioner shall stand deferred till fresh orders are passed in the matter.
Sd/- GOPINATH P.
JUDGE ajt
WP(C) NO. 18409 OF 2024 5 APPENDIX OF WP(C) 18409/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE SAID INVOICE DATED 16.11.2017 ISSUED BY THE 5TH RESPONDENT Exhibit P2 TRUE COPY OF THE LEDGER FOLIO IN THE NAME OF SREE TRADERS, KODUVAYUR, PALAKKAD MAINTAINED BY THE PETITIONER Exhibit P2(a) TRUE COPY OF THE VOUCHER OBTAINED FROM THE DRIVER OF THE LORRY (LORRY NO. TN 27 - 1755) Exhibit P2(b) TRUE COPY OF THE BANK STATEMENT OF THE PETITIONER WITH THE SOUTH INDIAN BANK, CHENGALOOR BRANCH DISCLOSING BANK TRANSFER PAYMENT OF RS.13,08,338/- TO THE 5TH RESPONDENT ON 17.11.2017 Exhibit P3 TRUE COPY OF THE INVOICE NO. 30 ISSUED BY THE 5TH RESPONDENT DATED 27.7.2017 Exhibit P3(a) TRUE COPY OF THE BANK STATEMENT OF THE PETITIONER WITH THE SOUTH INDIAN BANK, CHENGALOOR BRANCH DISCLOSING BANK TRANSFER PAYMENT OF RS.12,28,500/- TO THE 5TH RESPONDENT ON 31.7.2017 Exhibit P4 TRUE COPY OF THE NOTICE DATED 04.05.2023 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P5 TRUE COPY OF THE REPLY FILED BY THE PETITIONER IN FORM- 11 GST ASMT DATED 03.06.2023 Exhibit P6 TRUE COPY OF THE SHOW-CAUSE NOTICE DATED 04.07.2023 ALONG WITH SUMMARY ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P7 TRUE COPY OF THE ORDER ALONG WITH SUMMARY AND ANNEXURE ISSUED BY THE 1ST RESPONDENT DATED 19.08.2023 Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 07.02.2024 OF THIS HON'BLE COURT IN WP(C) NO.4201 OF 2024 Exhibit P9 TRUE COPY OF CIRCULAR NO. 183/15/2022-GST DATED 27.12.2022 ISSUED BY THE 4TH RESPONDENT Exhibit P10 TRUE COPY OF THE NOTICE DATED 16.03.2024 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P11 TRUE COPY OF THE LETTER DATED 20.03.2024 ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT
WP(C) NO. 18409 OF 2024 6 Exhibit P12 TRUE COPY OF THE LETTER DATED 22.03.2024 ADDRESSED TO THE 6TH RESPONDENT BY THE PETITIONER Exhibit P13 TRUE COPY OF THE REPLY DATED 22.03.2024 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P14 TRUE COPY OF THE PROCEEDINGS DATED 30.04.2024 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER