Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 14TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 WP(C) NO. 14609 OF 2023 PETITIONER:
BINSHAD P. M., AGED 39 YEARS, S/O. MOHAMMED BASHEER, RESIDING AT PANDANATTU HOUSE, AROOKUTTY P.O., AROOKUTTY, CHERTHALA, ALAPPUZHA-688535.
BY ADVS.
SRI. N. ANAND SRI. RAJESH O. N.
RESPONDENTS:
1 STATE OF KERALA, DEPARTMENT OF TAXES, REPRESENTED BY IT SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE COMMISSIONER, STATE GOODS & SERVICES TAX DEPARTMENT, 9TH FLOOR, TAX TOWER, KARAMANA P. O., THIRUVANANTHAPURAM- 695002.
3 JOINT COMMISSIONER OF STATE TAX (INTELLIGENCE & ENFORCEMENT), I FLOOR, TAX TOWERS, KARAMANA P. O., THIRUVANANTHAPURAM – 695002.
4 DEPUTY COMMISSIONER OF TAXES (INTELLIGENCE), MINI CIVIL STATION, COLLECTORATE, ALAPPUZHA-688001.
5 THE STATE TAX OFFICER, CHENGANNUR, STATE GOODS AND SERVICES TAX DEPARTMENT, MINI CIVIL STATION, CHENGANNUR -689121.
6 THE STATE TAX OFFICER, 4TH FLOOR, MINI CIVIL STATION, ALAPPUZHA -688013.
BY ADV.
SMT. JASMINE M. M.- GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP (C) NO. 14609 OF 2023 2 DINESH KUMAR SINGH, J.
-------------------------- WP(C) No.14609 of 2023 ------------------------- Dated this the 14th day of September, 2023 JUDGMENT 1.
The present writ petition under Article 226 of the Constitution of India has been filed challenging Exhibits P-10 and P-13 orders whereby the petitioner requested for remand Rs.6,11,000/- (Rupees six lakh eleven thousand only), the amount recovered during the raid conducted on the business and the residential premises of the petitioner has been refused to be released on the ground that the seized money is required for further investigation.
2.
The petitioner is the partner of the firm M/s. Prime Metal Coats at Edayar with the other partners Mr. Haris B. E. and Shabeer K. P. The GST authorities conducted search operation on 20.05.2022 at the business premises of Premier Electro Coats & Prime Metal Coats. The residential premises of the petitioner also searched. During the search operation, Rs.6,11,000/- (Rupees six lakh eleven thousand only) was recovered from the possession of the petitioner.
WP (C) NO. 14609 OF 2023 3 3.
Learned Counsel for the petitioner submits that the GST authorities has no power vested under the Act or Rules made thereunder to seize the cash of the petitioner. He further submits that the impugned orders Exhibits P-10 and P-13 refusing to refund the amount is wholly illegal and liable to be set aside and the authorities directed to refund the amount of Rs.6,11,000/- (Rupees six lakh eleven thousand only) which was seized from the house of the petitioner.
4.
In support of the contention, the Learned Counsel for the petitioner has placed reliance on the Judgment of the Division Bench of this Court in W.A. No.514 of 2023 (Shabu George and another v. State Tax Officer and others). The Learned Division Bench in the said Judgment has held that the seizure of cash from the premises of the appellant in the said case was wholly uncalled for and unwarranted. The GST Act and Rules made thereunder do not authorise the GST authorities to seize the cash, if any, found in possession of the assessee. The Learned Division Bench found no justification for continued detention of the cash amount found from the premises of the appellant. Direction was given to release the amount seized from the premises of the appellant inasmuch as the cash do not form part of the stock in trade of the
WP (C) NO. 14609 OF 2023 4 business stated to have been carried out by the appellant.
5.
Against the said Judgment of the Division Bench, the State had approached the Supreme Court by filing Special Leave Petition (Civil) Diary No. 27670/2023. The said SLP has been dismissed by the Supreme Court by the order dated 31.07.2023. In the circumstances, the Learned Government Pleader is not in a position to dispute the legal position as propounded by the Division Bench of this Court in Shabu George and another (supra).
6.
In view thereof, the present writ petition is allowed.
Respondent Nos.2 and 3 are directed to refund the seized cash amount of the petitioner which is said to be Rs.6,11,000/- (Rupees six lakh eleven thousand only) forthwith.
The present writ petition is allowed with the aforesaid directions.
Sd/- DINESH KUMAR SINGH JUDGE Svn
WP (C) NO. 14609 OF 2023 5 APPENDIX OF WP(C) 14609/2023 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF THE AUTHORISATION OF SEARCH DATED 11.05.2022 ISSUED BY RESPONDENT NO.3 EXHIBIT P2 TRUE COPY OF THE AUTHORISATION OF SEARCH OF PETITIONER'S HOUSE DATED 11.05.2022 ISSUED BY RESPONDENT NO.3 EXHIBIT P3 TRUE COPY OF THE MAZHAR DATED 20.05.2022 PREPARED FOR THE SEARCH ON M/S. PREMIER ELECTRO COATS EXHIBIT P4 TRUE COPY OF THE PANCHNAMA DATED 20.05.2022 PREPARED BY RESPONDENT NO.5 EXHIBIT P5 TRUE COPY OF THE REQUEST DATED 28.05.2022 PREFERRED BY THE PETITIONER TO RESPONDENT NO.6 EXHIBIT P6 TRUE COPY OF THE REPLY DATED 13.06.2022 ISSUED BY M/S. PRIME METAL COATS TO RESPONDENT NO.4 EXHIBIT P7 TRUE COPY OF THE REQUEST DATED 13.06.2022 ISSUED BY M/S PREMIER ELECTRO COATS TO RESPONDENT NO.4 EXHIBIT P8 TRUE COPY OF THE REQUEST DATED 22.06.2022 PREFERRED BY THE PETITIONER BEFORE RESPONDENT NO.7 EXHIBIT P9 TRUE COPY OF THE REPLY DATED 08.07.2022 ISSUED BY RESPONDENT NO. 4 IN NO. CR/1/22-23 EXHIBIT P10 TRUE COPY OF THE REPLY DATED 11.07.2022 ISSUED BY RESPONDENT NO. 4 IN NO. CR-1/22-23 EXHIBIT P11 TRUE COPY OF THE REQUEST DATED 15.09.2022 PREFERRED BY PETITIONER TO RESPONDENT NO. 2 EXHIBIT P12 TRUE COPY OF THE REQUEST DATED 23.01.2023 PREFERRED BY M/S PREMIER ELECTRO COATS TO RESPONDENT NO. 3
WP (C) NO. 14609 OF 2023 6 EXHIBIT P13 TRUE COPY OF THE COMMUNICATION DATED 15.02.2023 ISSUED BY RESPONDENT NO. 3 IN NO.
DCI(T) E1-581/2022 EXHIBIT P14 TRUE COPY OF THE REQUEST DATED 21.02.2023 PREFERRED BY PETITIONER TO RESPONDENT NO. 3 EXHIBIT P15 TRUE COPY OF THE RELEVANT PROVISIONS OF THE KERALA STATE GOODS & SERVICES TAX ACT, 2017 EXHIBIT P16 A TRUE COPY OF THE JUDGMENT DATED 24.03.2023 PASSED BY THIS HONOURABLE COURT IN WA NO.
514 OF 2023