Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 18TH DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 WP(C) NO. 30522 OF 2023 PETITIONERS:
1 T.H. FAZIL THEKKEKUDY HOUSE, RAYONPURAM P.O PERUMBAVOOR.ERNAKULAM DIST, PIN – 683 542.
2 T.A. HASSAN 27/196 (OLD NO.), THEKKEKUDY HOUSE, VALLAM, RAYONPURAM P.O. PERUMBAVOOR. ERNAKULAM DIST, PIN – 683 542.
3 SUBAIDA HASSAN 27/196 (OLD NO.), THEKKEKUDY HOUSE, VALLAM, RAYONPURAM P.O PERUMBAVOOR. ERNAKULAM DIST, PIN – 683 542.
4 NOUFAL HASSAN AGED 38 YEARS 27/196 (OLD NO.), THEKKEKUDY HOUSE, VALLAM, RAYONPURAM P.O PERUMBAVOOR. ERNAKULAM DIST, PIN – 683 542.
BY ADVS.
A.KUMAR P.J.ANILKUMAR G.MINI(1748) P.S.SREE PRASAD RESPONDENTS:
1 STATE TAX OFFICER OFFICE OF THE DEPUTY COMMISSIONER (INTELLIGENCE) STATE GOODS & SERVICES DEPARTMENT, KERALA ERNAKULAM AT EDAPALLY KOCHI, PIN – 682 024.
2 THE INTELLIGENCE OFFICER UNIT-II, OFFICE OF THE INTELLIGENCE OFFICER (INTELLIGENCE) STATE GOODS & SERVICES DEPARTMENT, KERALA ERNAKULAM, PIN – 682 015.
3 THE JOINT COMMISSIONER (I&E) STATE GST DEPARTMENT, ERNAKULAM., PIN – 682 015.
4 THE DEPUTY COMMISSIONER (INTELLIGENCE), STATE GST DEPARTMENT, ERNAKULAM., PIN – 682 015.
5 THE DEPUTY COMMISSIONER OF STATE TAX TAX PAYER SERVICES DIVISION, KAP COMMERCIAL CENTRE, SERVICES DIVISION, ALUVA, PIN – 683 101.
6 COMMISSIONER KERALA STATE GOODS & SERVICES TAX DEPARTMENT, ERNAKULAM, PIN – 682 015.
SMT. JASMINE M.M.,GOVERNMETN PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 30522/2023 : 2 :
DINESH KUMAR SINGH, J.
--------------------------------------------------------- W.P.(C). No. 30522 of 2023
--------------------------------------------------------- Dated this the 18th day of September, 2023.
JUDGMENT
The present writ petition has been filed under Article 226 of the Constitution of India questioning the seizure of cash from the premises of the petitioner vide Exhibits P1 and P2 seizure memos dated 22.12.2020. An amount of Rs.31,50,000/- and Rs.3,40,000/- was seized from the petitioner Nos. 1 and 4 respectively.
2. The learned counsel for the petitioners submits that the GST authorities have no power under the Act and the Rules thereto to seize the cash of a dealer, in as much as the cash seized is not ‘stock in trade’. The learned counsel for the petitioner has also placed reliance on the decision in Shabu George & another v. State Tax Officer (IB) State Goods & Services Tax Department and others [2023 (4) TMI 252-Kerala High Court].
3. The learned Government Pleader does not dispute the legal position as contended by the learned counsel for the petitioners. The cash was seized from the petitioners’ premises on 22.12.2020. The cash seized from the petitioners’ premises includes the currency of denomination of Rs.2000/- and the same would cease circulation by
W.P.(C) No. 30522/2023 : 3 :
the end of September, 2023. The Division Bench of this Court in Shabu George (supra) has held as follows:
“3… Moreover, as the respondent has retained the seized cash for more than six months and is yet to issue a show cause notice to the appellants in connection with the investigation, there can be no justification for a continued retention of the said amount with the respondent. We therefore, allow this appeal by directing the first respondent to forthwith release to the appellant the cash seized from the premises, against a receipt to be obtained from him. The amount shall be released to the appellant without any delay, and at any rate, within a week from the date of receipt of a copy of this judgment.
The writ appeal is allowed as above.” 4. Against the said judgment, the State had preferred an SLP before the Supreme Court and the same was dismissed.
Considering the aforesaid facts and the law, the present writ petition is allowed and the respondents are directed to release the cash seized from the petitioners and credit the same to the account of the petitioners within a period of five days from today.
sd/- DINESH KUMAR SINGH, JUDGE.
Rv
W.P.(C) No. 30522/2023 : 4 :
APPENDIX OF WP(C) 30522/2023 PETITIONER’S EXHIBITS:
Exhibit P1 TRUE COPY OF THE SEIZURE MEMO ISSUED IN FORM GST INS 02 TO THE 1ST PETITIONER DATED:22/12/2020 Exhibit P2 TRUE COPY OF THE SEIZURE MEMO ISSUED IN FORM GST INS 02 TO THE 4TH PETITIONER DATED:22/12/2020 Exhibit P3 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 22.12.2020 TOGETHER WITH THE ATTACHMENT WHICH IS THE CASH BOOK FILED BY THE 1ST PETITIONER Exhibit P4 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 22.12.2020 TOGETHER WITH THE ATTACHMENT WHICH IS THE CASH BOOK FILED BY SUBAIDA INDUSTRIES Exhibit P5 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 22.12.2020 PRODUCING CASH BOOK BY SUBAIDA &CO Exhibit P6 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 22.12.2020 PRODUCING CASH BOOK SUBAIDA PLYWOODS Exhibit P7 TRUE COPY OF THE E-MAIL COMMUNICATION DATED 22.12.2020 PRODUCING CASH BOOK BY ZIYA INDUSTRIES Exhibit P8 TRUE COPY OF THE REQUEST DULY ACKNOWLEDGED BY THE 1ST RESPONDENT ON 23.8.2023 Exhibit P9 TRUE COPY OF THE PROCEEDINGS UNDER SECTION 74(1) DATED 27.07.2023 Exhibit P10 TRUE COPY OF THE DRC 01 DATED 29.7.2023 Exhibit P11 TRUE COPY OF THE FORM DRC-01A SECTION 74(5) INTIMATION DATED 7.10.2022 RESPONDENTS’ EXHIBITS: NIL True Copy PS To Judge.
rv
W.P.(C) No. 30522/2023 : 5 :