Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 19TH DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 WP(C) NO. 10921 OF 2024 PETITIONER/S:
RAVINDRAN V., AGED 62 YEARS PROPRIETOR, BLUE NILE, BUSINESS AND LEISURE HOTEL, SN PARK ROAD, KANNUR, PIN - 670001 BY ADVS.
T.K.SREEKALA S.PARVATHI ATHIRA PRASAD ANAND GEO V.V.ASOKAN (SR.)
RESPONDENT/S:
1 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 2 DEPUTY COMMISSIONER OF STATE TAX TAXPAYER SERVICES DIVISION, STATE GOODS AND SERVICES TAX DEPARTMENT, ADDITIONAL CIVIL STATION, KANNUR SOUTH, KANNUR., PIN - 670002 3 COMMISSIONER, KERALA STATE GST DEPARTMENT, 9TH FLOOR, TAX TOWER, KILLIPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM., PIN – 695002.
4 DEPUTY COMMISSIONER (ARREAR RECOVERY) STATE GOODS AND SERVICES TAX DEPARTMENT, ADDITIONAL CIVIL STATION, KANNUR SOUTH, KANNUR, PIN - 670002 OTHER PRESENT:
SMT.JASMIN M.M.-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 10921 OF 2024 2 J U D G M E N T The present writ petition has been filed mainly seeking the following reliefs:
“(a) Call for the records of the case leading to the issuance of Ext. P5 and Assessment Order by the 2nd respondent and Ext.P7 arrear notice issued by the 4th respondent and quash the same by issuance of a writ of certiorari or other appropriate writ or order;
(b) Issue an appropriate writ or order directing the 2nd respondent to pass fresh assessment orders for the AY -2021-2022 according to the directions contained in Ext.
P6 – judgment;
(c) Issue an appropriate writ or order declaring that the tax (TOT) remittance made by the petitioner for AY-2021-2022 were in time and no interest liability can be fastened and appropriated the TOT remittance towards interest under Section 55C of the KGST Act, 1963 under the facts and circumstances of this case;
(d) Issue an appropriate writ or order directing the 2nd respondent to pass fresh assessment order for the AY -2021-2022 according to the directions in Ext. P6 – judgment;
(e) Issue a writ of mandamus or other appropriate writ or order directing the
WP(C) NO. 10921 OF 2024 3 respondents 2 and 4 not to pursue any coercive recovery steps against the petitioner in pursuance of Ext. P5 Assessment Order and Ext.P7 arrear notice pertaining to AY 2021-2022 (KGST)” 2.
Learned counsel for the petitioner submits that the issue is covered by Ext.P6 judgment of this Court in Sreevalsam Residency v. State of Kerala [WP(C) No.32408/2023 and connected cases] dated 30.11.2023 and order of this Court in State Of Kerala, Represented By Additional Chief Secretary [Taxes] v. Sreevalsam Residency (Review Petition No.81/2024 and connected cases) dated 5.2.2024. However, the assessing officer has not considered/applied the aforesaid judgment and order while issuing the impugned assessment order, Ext.P5.
3.
Smt.Jasmine M.M., learned Government Pleader, submits that the petitioner did not appear before the assessing officer in pursuance to the notice issued and, therefore, the assessment order has been passed.
WP(C) NO. 10921 OF 2024 4 4.
The question whether the case of the assessee is covered by the aforesaid judgment and order of this Court or not, ought to have been looked into by the assessing officer, even in the absence of the petitioner's presence before him.
5.
In view of the above, the present writ petition is allowed and the impugned assessment order, Ext.P5, and demand notice, Ext.P7, are set aside and the matter is remanded back to the 2nd respondent to pass fresh order, in accordance with law, after hearing the petitioner. The petitioner is directed to appear before the 2nd respondent on 25.3.2024 with all relevant records.
Pending interlocutory application, if any, in the present writ petition stands dismissed.
Sd/- DINESH KUMAR SINGH
JUDGE jg
WP(C) NO. 10921 OF 2024 5 APPENDIX OF WP(C) 10921/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO.
41/2020 TD DATED 18.05.2020 ALONG WITH ENGLISH TRANSLATION.
Exhibit P2 TRUE COPY OF THE SRO NO. 297/2022 (G.O.(P) NO. 26/2022/TAXES) DATED 26.03.2022 Exhibit P3 TRUE COPY OF THE RELEVANT EXTRACT OF THE BUDGET SPEECH OF THE FINANCE MINISTER OF THE STATE DATED 11.03.2022.
Exhibit P4 TRUE COPY OF THE RELEVANT EXTRACT OF THE CABINET DECISION DATED 23.02.2022 ALONG WITH ENGLISH TRANSLATION Exhibit P5 TRUE COPY OF THE ASSESSMENT ORDER ISSUED BY THE 2ND RESPONDENT FOR AY-2021-22 DATED 29.11.2023 Exhibit P6 TRUE COPY OF THE COMMON JUDGMENT DATED 30.11.2023 IN W.P.(C) NO. 32408/2023 AND CONNECTED CASES OF THIS HON'BLE COURT Exhibit P6(a) TRUE COPY OF THE JUDGMENT DATED 20.12.2023 IN W.P.(C) NO.23378/2023 OF THIS HON'BLE COURT Exhibit P7 TRUE COPY OF THE ARREAR NOTICE DATED 05.03.2024 ISSUED BY THE 4TH RESPONDENT FOR THE AY -2021-22 ALONG WITH ENGLISH TRANSLATION