Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 29TH DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 WP(C) NO. 36195 OF 2022 PETITIONER:
HERCULES AUTOMOBILES INTERNATIONAL (P) LTD., TC 78/1644/2, HERCULES AUTOMOBILES, BY PASS ROAD, MUTTATHARA, VALLAKADAVU P O., THIRUVANANTHAPURAM, - 695 008 (FORMERLY AT 6TH MILE STONE, VAZHAYILA, PEROORKADA, THIRUVANANTHAPURAM - 695 564), REPRESENTED BY ITS MANAGING DIRECTOR, MR. ABDUL LATHEEF MEERA SAHIB.
BY ADVS.
KURYAN THOMAS K.JOHN MATHAI JOSON MANAVALAN RAJA KANNAN ASHER REVI JOB PAULOSE C. ABRAHAM M.GOPIKRISHNAN NAMBIAR RESPONDENTS:
1 UNION OF INDIA , REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI - 110 004.
2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001 3 THE ASSISTANT COMMISSIONER, THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE OF STATE TAX, CIVIL STATION, ALAPPUZHA - 688 001 4 THE DEPUTY COMMISSIONER OF STATE TAX (SPECIAL CIRCLE), THE DEPUTY COMMISSIONER OF STATE TAX (SPECIAL CIRCLE), 2ND FLOOR, TAX TOWER, KILLIPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002 5 THE JOINT COMMISSIONER, THE JOINT COMMISSIONER, 1ST FLOOR, TAX TOWER, KILLIPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002 6 THE COMMISSIONER OF STATE TAX, 9TH FLOOR, TAX TOWER, KILLIPPALAM, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002
WP(C) NO. 36195 OF 2022 2 OTHER PRESENT:
JASMINE M.M.-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 36195 OF 2022 3 J U D G M E N T This writ petition has been filed seeking the following prayers:
“i) Declare that the 30 days period stipulated under Section 62 of the Act is arbitrary and ultra vires the basic scheme of the GST Acts, and hence liable to be struck down by this Hon'ble Court.
ii) Declare that Section 62 of the Act should be read down so that the assessee is granted an opportunity to be heard in person prior to the issuance of an assessment order as envisaged under Section 72 of the Finance Act, 1994.
iii) Call for the records leading to Ext.P2 series Assessment Order issued by the 3rd and 4th respondents and quash the same by the issuance of a writ of certiorari or such other writ, order or direction;
iv) Call for the records leading to Ext.P3 series of Form GST DRC-o7 issued by the 4th respondent and quash the same by the issuance of a writ of certiorari or such other writ, order or direction;
v) issue a writ of mandamus or such other writ, order or direction, directing the respondents not to proceed with any coercive steps for recovery of the tax & interest assessed in Ext.P2 series of Assessment Orders;
vi) grant such other and incidental reliefs as this Hon'ble Court may deem just and necessary on the facts and circumstances of this case;
vii) Allow this Writ petition (civil) with costs to the petitioner.” 2.
Ms. Jasmine M.M., the learned Government Pleader submits that this writ petition has become infructuous as the entire tax liability has been settled by the petitioner and nothing is to be recovered from
WP(C) NO. 36195 OF 2022 4 the petitioner in respect of the impugned Ext.P2 series of assessment orders. In the light of the submission made by the learned Government Pleader that the entire liability has been settled, this Court is of the view that this writ petition is only liable to be closed. Accordingly, this writ petition is closed, giving the benefit of notification No.6 of 2023 central tax dated 31.03.2023.
This order has been passed in the writ petition after considering the stand of the respondents that the entire tax liability pursuant to Ext.P2 series of assessment orders has been settled by the petitioner.
Sd/- DINESH KUMAR SINGH JUDGE rp
WP(C) NO. 36195 OF 2022 5 APPENDIX OF WP(C) 36195/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE FORM GSTR-1 DATED 13.07.2019 FOR THE MONTH OF MARCH, 2019.
Exhibit P1(a) A TRUE COPY OF THE FORM GSTR-1 DATED 31.07.2019 FOR THE MONTH OF APRIL, 2019 Exhibit P1(b) A TRUE COPY OF THE FORM GSTR-1 DATED 26.08.2019 FOR THE MONTH OF MAY, 2019.
Exhibit P1(c) A TRUE COPY OF THE FORM GSTR-1 DATED 01.10.2019 FOR THE MONTH OF JUNE, 2019 Exhibit P1(d) A TRUE COPY OF THE FORM GSTR-1 DATED 29.10.2019 FOR THE MONTH OF JULY, 2019.
Exhibit P1(e) A TRUE COPY OF THE FORM GSTR-1 DATED 08.11.2019 FOR THE MONTH OF AUGUST, 2019.
Exhibit P1(f) A TRUE COPY OF THE FORM GSTR-1 DATED 23.12.2019 FOR THE MONTH OF SEPTEMBER, 2019.
Exhibit P1(g) A TRUE COPY OF THE FORM GSTR-1 DATED 17.01.2020 FOR THE MONTH OF OCTOBER, 2019.
Exhibit P1(h) A TRUE COPY OF THE FORM GSTR-1 DATED 22.01.2O2O FOR THE MONTH OF NOVEMBER, 2019 Exhibit P1(i) A TRUE COPY OF THE FORM GSTR-1 DATED 04.02.2020 FOR THE MONTH OF DECEMBER, 2019 Exhibit P1(j) A TRUE COPY OF THE FORM GSTR-1 DATED 28.02.2020 FOR THE MONTH OF JANUARY, 2020.
Exhibit P1(k) A TRUE COPY OF THE FORM GSTR-1 DATED 25.05.2020 FOR THE MONTH OF FEBRUARY, 2020 Exhibit P1(l) A TRUE COPY OF THE FORM GSTR-1 DATED 27.06.2020 FOR THE MONTH OF MARCH, 2020.
Exhibit P1(m) A TRUE COPY OF THE FORM GSTR-1 DATED 22.08.2020 FOR THE MONTH OF APRIL, 2020.
Exhibit P1(n) A TRUE COPY OF THE FORM GSTR-1 DATED 29.08.2020 FOR THE MONTH OF MAY, 2020.
Exhibit P1(o) A TRUE COPY OF THE FORM GSTR-1 DATED 06.10.2020 FOR THE MONTH OF JUNE, 2020.
Exhibit P1(p) A TRUE COPY OF THE FORM GSTR-1 DATED 27.10.2020 FOR THE MONTH OF JULY, 2020.
Exhibit P1(q) A TRUE COPY OF THE FORM GSTR-1 DATED 03.11.2020 FOR THE
WP(C) NO. 36195 OF 2022 6 MONTH OF AUGUST, 2020.
Exhibit P1(r) A TRUE COPY OF THE FORM GSTR-1 DATED 12.11.2020 FOR THE MONTH OF SEPTEMBER, 2020.
Exhibit P1(s) A TRUE COPY OF THE FORM GSTR-1 DATED 30.11.2020 FOR THE MONTH OF OCTOBER, 2020.
Exhibit P1(t) A TRUE COPY OF THE FORM GSTR-1 DATED 30.12.2020 FOR THE MONTH OF NOVEMBER, 2020.
Exhibit P1(u) A TRUE COPY OF THE FORM GSTR-1 DATED 28.01.2021 FOR THE MONTH OF DECEMBER, 2020.
Exhibit P2 A TRUE COPY OF THE ASSESSMENT ORDER DATED 30.07.2019 (ALONG WITH TYPED COPY OF ANNEXURE) ISSUED BY THE 3RD RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH MARCH, 2019 Exhibit P2(a) A TRUE COPY OF THE ASSESSMENT ORDER DATED 30.08.2019 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH APRIL, 2019.
Exhibit P2(b) A TRUE COPY OF THE ASSESSMENT ORDER DATED 30.08.2019 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH MAY, 2019.
Exhibit P2(c) A TRUE COPY OF THE ASSESSMENT ORDER DATED 15.11.2019 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH JUNE, 2019.
Exhibit P2(d) A TRUE COPY OF THE ASSESSMENT ORDER DATED 18.11.2019 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH JULY, 2019.
Exhibit P2(e) A TRUE COPY OF THE ASSESSMENT ORDER DATED 18.11.2019 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH AUGUST, 2019.
Exhibit P2(f) A TRUE COPY OF THE ASSESSMENT ORDER DATED 23.12.2019 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH SEPTEMBER, 2019.
Exhibit P2(g) A TRUE COPY OF THE ASSESSMENT ORDER DATED 26.02.2020 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH OCTOBER, 2019.
Exhibit P2(h) A TRUE COPY OF THE ASSESSMENT ORDER DATED 26.02.2020 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE FOR THE MONTH NOVEMBER, 2019.
Exhibit P2(i) A TRUE COPY OF THE ASSESSMENT ORDER DATED 15.12.2020 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH DECEMBER, 2019.
Exhibit P2(j) A TRUE COPY OF THE ASSESSMENT ORDER DATED 15.12.2020
WP(C) NO. 36195 OF 2022 7 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH JANUARY,2020.
Exhibit P2(k) A TRUE COPY OF THE ASSESSMENT ORDER DATED 15.12.2020 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH FEBRUARY,2020 Exhibit P2(l) A TRUE COPY OF THE ASSESSMENT ORDER DATED 15.12.2020 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH MARCH,2020.
Exhibit P2 (m) A TRUE COPY OF THE ASSESSMENT ORDER DATED 15.12.2020 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH APRIL,2020.
Exhibit P2 (n) A TRUE COPY OF THE ASSESSMENT ORDER DATED 15.12.2020 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH MAY,2020.
Exhibit P2(o) A TRUE COPY OF THE ASSESSMENT ORDER DATED 15.12.2020 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH JUNE,2020.
Exhibit P2(p) A TRUE COPY OF THE ASSESSMENT ORDER DATED 09.02.2021 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH JULY,2020.
Exhibit P2(q) A TRUE COPY OF THE ASSESSMENT ORDER DATED 09.02.2021 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH AUGUST,2020.
Exhibit P2(r) A TRUE COPY OF THE ASSESSMENT ORDER DATED 09.02.2021 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH SEPTEMBER,2020.
Exhibit P2(s) A TRUE COPY OF THE ASSESSMENT ORDER DATED 09.02.2021 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH OCTOBER,2020.
Exhibit P2(t) A TRUE COPY OF THE ASSESSMENT ORDER DATED 12.03.2021 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH NOVEMBER, 2020.
Exhibit P2(u) A TRUE COPY OF THE ASSESSMENT ORDER DATED 12.03.2021 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 62 OF THE ACT FOR THE MONTH DECEMBER, 2020.
Exhibit P3 A TRUE COPY OF THE FORM GST DRC-07 DATED 23.12.2019 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH JUNE, 2019.
Exhibit P3(a) A TRUE COPY OF THE FORM GST DRC-07 DATED 23.12.2019 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH JULY, 2019.
Exhibit P3(b) A TRUE COPY OF THE FORM GST DRC-07 DATED 23.12.2019 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH AUGUST, 2019.
Exhibit P3(c) A TRUE COPY OF THE FORM GST DRC-07 DATED 28.10.2020 ISSUED
WP(C) NO. 36195 OF 2022 8 BY THE 3RD RESPONDENT FOR THE MONTH SEPTEMBER, 2019.
Exhibit P3(d) A TRUE COPY OF THE FORM GST DRC-07 DATED 28.10.2020 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH OCTOBER, 2019.
Exhibit P3(e) A TRUE COPY OF THE FORM GST DRC-07 DATED 28.10.2020 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH NOVEMBER, 2019 Exhibit P3(f) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH DECEMBER, 2019.
Exhibit P3(g) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH JANUARY, 2020.
Exhibit P3(h) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 4TH RESPONDENT FOR THE MONTH FEBRUARY, 2020.
Exhibit P3(i) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH MARCH, 2020 Exhibit P3(j) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH APRIL, 2020.
Exhibit P3(k) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH MAY, 2020.
Exhibit P3(l) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 4TH RESPONDENT FOR THE MONTH JUNE, 2020 Exhibit P3(m) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH JULY, 2020.
Exhibit P3(n) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH AUGUST, 2020.
Exhibit P3(o) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH SEPTEMBER, 2020.
Exhibit P3(p) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH OCTOBER, 2020 Exhibit P3(q) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH NOVEMBER, 2020.
Exhibit P3(r) A TRUE COPY OF THE FORM GST DRC-07 DATED 17.06.2021 ISSUED BY THE 3RD RESPONDENT FOR THE MONTH DECEMBER, 2020.
Exhibit P4 A TRUE COPY OF THE FORM GSTR-3B DATED 30.12.2019, FOR THE MONTH OF MARCH, 2019 Exhibit P4(a) A TRUE COPY OF THE FORM GSTR-3B DATED 30.05.2020 FOR THE MONTH OF APRIL, 2019 Exhibit P4(b) A TRUE COPY OF THE FORM GSTR-3B DATED 25.02.2021 FOR THE MONTH OF MAY, 2019.
Exhibit P4(c) A TRUE COPY OF THE FORM GSTR-3B DATED 26.02.2021 FOR THE
WP(C) NO. 36195 OF 2022 9 MONTH OF JUNE, 2019 ExhibitP4(d) A TRUE COPY OF THE FORM GSTR-3B DATED 26.02.2021 FOR THE MONTH OF JULY, 2019.
Exhibit P4(e) A TRUE COPY OF THE FORM GSTR-3B DATED 26.02.2021 FOR THE MONTH OF AUGUST, 2019 Exhibit P4(f) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF SEPTEMBER, 2019.
Exhibit P4(g) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF OCTOBER, 2019.
Exhibit P4(h) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF NOVEMBER, 2019.
Exhibit P4(i) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF DECEMBER, 2019.
Exhibit P4(j) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF JANUARY, 2020.
Exhibit P4(k) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF FEBRUARY, 2020.
Exhibit P4(l) A TRUE COPY OF THE FORM GSTR-3B DATED 28.08.2021 FOR THE MONTH OF MARCH, 2020 Exhibit P4(m) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF APRIL, 2020 Exhibit P4(n) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF MAY, 2020.
Exhibit P4(o) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF JUNE, 2020.
Exhibit P4(p) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF JULY, 2020.
Exhibit P4(q) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF AUGUST, 2020.
Exhibit P4(r) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF SEPTEMBER, 2020.
Exhibit P4 (s) A TRUE COPY OF THE FORM GSTR-3B FOR THE MONTH OF OCTOBER, 2020.
Exhibit P4(t) A TRUE COPY OF THE FORM GSTR-3B DATED 1.09.2021 FOR THE MONTH OF NOVEMBER, 2020.
Exhibit P4(u) A TRUE COPY OF THE FORM GSTR-3B DATED 1.09.2021 FOR THE MONTH OF DECEMBER, 2020.
Exhibit P5 A TRUE COPY OF NOTIFICATION NO.76/2018-CT DATED
WP(C) NO. 36195 OF 2022 10 31.12.2018, AS AMENDED.
Exhibit P6 A TRUE COPY OF THE REQUEST LETTER NO. HAIPL: GST-1801 DATED 18.01.2022 SENT TO THE 6TH RESPONDENT.
Exhibit P6(a) A TRUE COPY OF THE REQUEST LETTER NO. HAIPL: GST-1802 DATED 18.01.2022 SENT TO THE 4TH RESPONDENT.
Exhibit P6(b) A TRUE COPY OF THE REQUEST LETTER NO. HAIPL: GST-1803 DATED 18.01.2022 SENT TO THE 5TH RESPONDENT Exhibit P7 A TRUE COPY OF THE REPRESENTATION VIDE LETTER NO.
HAIPL/GST/201 DATED 20.01.2022 (ALONG WITH ENCLOSURES) SENT BY THE PETITIONER TO THE 6TH RESPONDENT.
Exhibit P8 A TRUE COPY OF THE LETTER NO. HAIPL/GST/2802/1 DATED 28.02.2022 (ALONG WITH ANNEXURE) SENT TO THE 4TH RESPONDENT BY THE PETITIONER Exhibit P8(a) A TRUE COPY OF THE LETTER NO. HAIPL/GST/2802/2 DATED 28.02.2022 (ALONG WITH ANNEXURE) SENT TO THE 3RD RESPONDENT BY THE PETITIONER Exhibit P9 A TRUE COPY OF THE LETTER NO. 32AABCN2898MIZ2/2022 DATED 02.03.2022 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER Exhibit P10 A TRUE COPY OF CIRCULAR NO.122/41/2019-GST DATED 05.11.2019 ISSUED BY THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS.
Exhibit P10(a) A TRUE COPY OF CIRCULAR NO.128/47/2019-GST DATED 23.12.2019 ISSUED BY THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS