Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 18TH DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 WP(C) NO. 9765 OF 2024 PETITIONER/S:
M/S. MANJALLY JEWELLERY, X/1011, AMALA STREET, NEW CHURCH ROAD, THRISSUR, REPRESENTED BY ITS MANAGING PARTNER, SRI. M V JOSEPH, PIN - 680001 RESPONDENT/S:
1 STATE TAX OFFICER, TAX PAYER SERVICES CIRCLE, THRISSUR CITY, STATE GST COMPLEX, POOTHOLE, THRISSUR, PIN - 680004 2 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI -110 023, REPRESENTED BY ITS UNDER SECRETARY, PIN - 110023 3 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF TAXES, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
4 COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICE TAX DEPARTMENT, 9TH FLOOR, TAX TOWER, KILLIPALAM, KARAMANA P O;
THIRUVANANTHAPURAM, PIN – 695022 SMT.JASMINE M.M, GP THIS WRIT PEITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 9765 OF 2024 2 J U D G M E N T The present writ petition has been filed mainly seeking the following reliefs:
“(i) To call for the entire records leading to issuance of Ext.P4 show cause notice and completion of Ext.P6 order by 1st respondent and quash Ext-P4 show cause notice and Ext.P6 order completed by the 1st respondent, by issuing a Writ in nature of certiorari or any other appropriate writ, order or direction;
(ii) To issue a Writ or Certiorari or any other appropriate Writ, Order or directing, 1st respondent to provide the Petitioner with a statement containing details of tax not paid for 2017-18 under proper show cause notice for filing reply, against the allegation short payment of self- assessed tax 2017-18, while re-considering the matter;
(iii) To declare that Section 16(2)(C) of the CGST Act, 2017 and SGST Act, 2017 and Sub Rule (4) of Rule 36 of the CGST Rules and Kerala SGST Rules as unconstitutional, arbitrary, discriminatory and violative of Article 14, 19(1)(g), 265 and 300A of the Constitution of India;
(iv) To declaring/reading down Section 16(2)(c) of the Central Goods and Service Tax Act 2017 being ultra vires Section 16(1) and
WP(C) NO. 9765 OF 2024 3 objective of the Central Goods and Services Tax Act, 2017;
(v) To hear this matter along with Ext P12, granting stay on Ext P6 and grand the Petitioner with such other incidental reliefs, including cost of these proceedings;
(vi) To issue a Writ in the nature of mandamus or any other appropriate writ or order in directing 1st respondent to consider Ext P2 amendment carried out by the Petitioner against the GSTR-1 reflected in Ext P1 along with Ext P5 reply, under a personal hearing to Petitioner, while reconsidering the matter for 2017-18;” 2.
The limited ground which has been argued before this Court is that the petitioner's reply to the show cause notice has not been considered while passing the impugned order, Ext.P6. The petitioner has alternate remedy under the provisions of the Goods and Services Tax Act.
3.
The ground urged in the present writ petition that some of the arguments or some of the contentions raised in reply to the show cause notice has not been considered by the Assessing Officer, cannot be enforced by this Court while
WP(C) NO. 9765 OF 2024 4 invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
I find no substance in the present writ petition, which is hereby dismissed.
Pending interlocutory application, if any, in the present writ petition stands dismissed.
Sd/- DINESH KUMAR SINGH
JUDGE jg The words “cannot be enforced by this Court while” occurring in the 5th line of the 3rd paragraph of the judgment dated 18.3.2024 in WP(C) No.9765/2024 stand suo motu corrected and read as “are not enough for” as per order dated 02.04.2024 in WP(C) No.9765/2024.
Sd/- JOINT REGISTRAR
WP(C) NO. 9765 OF 2024 5 APPENDIX OF WP(C) 9765/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF GSTR-1 AND GSTR-3B ONLINE RETURNS SUBMITTED FOR THE MONTH FEBRUARY 2018, UNDER THE GST ACT DURING THE YEAR 2017-18.
Exhibit P2 TRUE COPY OF GSTR-1 AND GSTR-3B RETURN SUBMITTED FOR SEPTEMBER 2018, IN DELETING THE DUPLICATIONS NOTICED IN GSTR-1 FOR FEBRUARY 2018, BY AMENDMENT.
Exhibit P3 TRUE COPY OF GSTR-9 ANNUAL RETURN DATED 11.03.2020 SUBMITTED FOR 2017-18, ALONG WITH DRC-03 DATED 11.03.2020 FOR PAYMENT OF BALANCE TAX.
Exhibit P4 TRUE COPY OF SHOW CAUSE NOTICE DATED 21.06.2023 ISSUED BY 1ST RESPONDENT, FOR THE PERIOD JULY 2017 TO MARCH 2018, IN PROPOSING TO COMPLETE ASSESSMENT U/S.73(1) OF GST ACT, IN COMPARING EXT P1 RETURN WITH GSTR-2A INTRODUCED IN SEPTEMBER 2018.
Exhibit P5 TRUE COPY OF REPLY DATED 08.09.2023 SUBMITTED ALONG WITH STATEMENT OF DUPLICATION RECTIFIED UNDER AMENDMENT AND PROOF OF VOLUNTARY PAYMENT.
Exhibit P6 TRUE COPY OF MECHANICAL ORDER DATED 10.11.2023 COMPLETED FOR 2017-18 BY 1ST RESPONDENT WITHOUT PROPER CONSIDERATION OF EXT P5 REPLY.
Exhibit P7 TRUE COPY OF THE COPY OF THE PRESS RELEASE DATED 04.05.2018 ISSUED BY THE CBIC.
Exhibit P8 TRUE COPY OF THE PRESS RELEASE DATED 18.10.2018 ISSUED BY THE CBIC.
WP(C) NO. 9765 OF 2024 6 Exhibit P9 TRUE
COPY
OF
THE
CIRCULAR
BEARING NO.123/42/2019-GST DATED 11.11.2019 ISSUED BY 2ND RESPONDENT.
Exhibit P10 TRUE
COPY
OF
THE
CIRCULAR
BEARING NO.183/15/2022-GST DATED 27.12.2022 ISSUED BY 2ND RESPONDENT IN CLARIFYING TO DEAL WITH DIFFERENCE IN ITC AVAILED IN GSTR-3B COMPARING WITH GSTR-2A.
Exhibit P11 TRUE COPY OF JUDGMENT OF THE HON'BLE MADRAS HIGH COURT IN W.P(MD). 2127/2021 (M/S. D.Y.
BEATHEL ENTERPRISES VERSUS THE STATE TAX OFFICER (DATA CELL), (INVESTIGATION WING) COMMERCIAL TAX BUILDINGS, TIRUNELVELI).
Exhibit P12 EXHIBIT P12: TRUE COPY OF INTERIM ORDER DATED 04.07.2022 IN WP(C) NO. 21545 OF 2022, PASSED BY THIS HON'BLE COURT IN SIMILAR SET OF FACT.
Exhibit P13 TRUE COPY OF JUDGMENT DATED 12.09.2023 IN WP(C) NO. 29769 OF 2023, PASSED BY THIS HON'BLE COURT IN SIMILAR SET OF FACT.