Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 26TH DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 WP(C) NO. 1573 OF 2024 PETITIONER:
DELIZA RESIDENCY, AGED 31 YEARS, VAZHANI ROAD, WADAKKANCHERY, THRISSUR-680582, REPRESENTED BY ITS MANAGING PARTNER - ATHIRA MOHAN.
BY ADVS.
SRI. K. I. MAYANKUTTY MATHER SMT. S.PARVATHI SMT. KALLIYANI KRISHNA B.
RESPONDENTS:
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, SPECIAL CIRCLE, THRISSUR, SGST DEPARTMENT, POOTHOLE, THRISSUR, PIN – 680004.
3 DEPUTY COMMISSIONER, TAX PAYER SERVICES DIVISION - WADAKKANCHERY, SGST DEPARTMENT, POOTHOLE, THRISSUR, PIN – 680004.
4 COMMISSIONER, KERALA STATE GST DEPARTMENT, 9TH FLOOR, TAX TOWER, KILLIPPALAM, KARAMANA P. O., THIRUVANANTHAPURAM, PIN – 695002.
5 DEPUTY COMMISSIONER (ARREAR RECOVERY), TAX PAYER SERVICES, STATE GST DEPARTMENT, POOTHOLE, THRISSUR, PIN – 680004.
BY ADV.
SMT. JASMINE M. M. - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 1573 OF 2024 2 DINESH KUMAR SINGH, J.
-------------------------- W.P.(C) No. 1573 of 2024 ------------------------- Dated this the 26th day of February, 2024 JUDGMENT 1.
The present writ petition has been filed seeking the following reliefs;
(a) Call for the records of the case leading to the issuance of Ext. P5 and Ext. P5(a) and Ext.
P-6 – Assessment Orders by the 2nd and 3rd 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 and 3rd respondents to pass fresh assessment orders for the AY – 2020-2021 and AY – 2021-2022 according to the directions contained in Ext. P7 – judgment.
(c) Issue an appropriate writ or order declaring that the tax (TOT) remittance made by the petitioner for AY – 2020-2021 and AY – 2021- 2022 were in time and grand refund/credit of the excess amount paid towards interest for the future assessment years;
WP(C) NO. 1573 OF 2024 3 (d) Grant such other reliefs that this Hon’ble Court deem fit to grant under the facts and circumstances of the case;
2.
It is not in dispute that the issue involved in this writ petition is covered by Exhibit P-7 Judgment dated 30.11.2023 which is upheld by this Court in Review Petitions filed by the State Government seeking review of Exhibit P-7 common Judgment. In view of the aforesaid undisputed fact, the present writ petition is disposed of with the following observations and directions;
(i) If the petitioner had filed their returns by 31.03.2022, and ToT was cleared on or before 30.04.2022, the FL3/FL11 licensees are not liable to pay interest for delayed payment of the turnover tax for the period from 22.05.2020 to 21.12.2020 and from 15.06.2021 to 25.09.2021 in Financial Years 2020-21 and 2021-22.
(ii) If the petitioner being an FL3/FL11 licensee did not file the return of ToT in respect of the taxable turnover of the parcel sales of IMFL for the period of authorised sale on or before 31.03.2022 and not paid the ToT at 5% by 30.04.2022, then the petitioner/dealer would be liable to pay interest for delayed payment of ToT with effect from
WP(C) NO. 1573 OF 2024 4 01.05.2022 till the date of payment and for delay in filing returns.
(iii) The impugned orders are quashed and the case is remitted back to the Assessing Authority to pass fresh Assessment Order as per the (i) and (ii) mentioned above.
Sd/- DINESH KUMAR SINGH JUDGE Svn
WP(C) NO. 1573 OF 2024 5 APPENDIX OF WP(C) 1573/2024 PETITIONER’S 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 FOR AY- 2020-21 DATED 12.09.2022 EXHIBIT P5(A) TRUE COPY OF THE RECTIFIED ORDER DATED 28.11.2023 EXHIBIT P5(B) TRUE COPY OF THE DEMAND NOTICE DATED 09.03.2023 ISSUED BY THE 5TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE ASSESSMENT ORDER FOR AY- 2021-22 DATED 13.09.2023 EXHIBIT P7 TRUE COPY OF THE COMMON JUDGMENT DATED 30.11.2023 IN W.P.(C) NO. 32408/2023 AND CONNECTED CASES EXHIBIT P7(A) TRUE COPY OF THE JUDGMENT DATED 20.12.2023 IN W.P.(C) NO.23378/2023