Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 WP(C) NO. 28995 OF 2023 PETITIONER:
ADIMALYLABOUR CONTRACT CO-OPERATIVE SOCIETY LTD. NO.1682 X/144, ANCHIL BUILDING, ADIMALY, MANNAMKANDAM, IDUKKI, PIN – 685 561 REPRESENTED BY IT'S SECRETARY, SRI. T.S AMALRAJ BY ADV BLOSSOM MATHEW RESPONDENTS:
1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695 001.
2 STATE TAX OFFICER TAXPAYER SERVICES CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, PUTHEYATHU BUILDING, ADIMALI, IDUKKI, PIN – 685 561.
3 THE STATE TAX OFFICER (ARREAR RECOVERY) STATE G.S.T DEPARTMENT, STATE G.S.T. COMPLEX, KATTAPPANA SOUTH -P.O, IDUKKI, PIN – 685 515.
BY ADV JASMINE M.M-GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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DINESH KUMAR SINGH, J.
-------------------------------------------- WP(C) NO. 28995 OF 2023 -------------------------------------------- Dated this the 11th day of September, 2023 J U D G M E N T 1.
The writ petition has been filed under Article 226 of the Constitution of India, seeking the following prayers;
“a.
Issue a writ of mandamus or any other appropriate writ, order or direction staying any revenue recovery proceedings against the petitioner pursuant to Exhibit P4 Recovery Notice to the extent it pertains to the tax year 2021-22.
b.
Call for the records leading to Exhibit P4 Assessment Order and to quash the same by issuing Writ of Certiorari or any other appropriate writ, order or direction.
c.
Issue any other appropriate Writ, order or direction as this Honorable Court may deem fit and proper on the facts and circumstances of the case.” 2.
The writ petition is filed for impugning Ext.P4 Assessment order dated 21.10.2022 and Recovery Notice dated 21.07.2023 in pursuance to Ext.P4 assessment order.
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3.
The petitioner is a dealer, registered under the Kerala State Goods & Services Tax Act, 2017 as Cooperative Society. The petitioner received Ext.P3 show cause notice dated 28.06.2022 as evident from Ext.P2 alleging short payment of tax due. The petitioner filed reply dated 22.07.2022 to the said show cause notice. After examining the reply the assessing authority by the impugned order found the petitioner liable to pay CGST of Rs.7,60,601/- and SGST of Rs.7,60,601/- and the total amount of Rs.15,21,202/-. The time period for which short payment was made from April, 2019 to March, 2020 by 18% interest and penalty. Total Tax including interest and penalty in which the petitioner has been assessed is Rs. 20,57,792/-. Admittedly, the Assessment Order is passed by the appellate authority under section 73 of the GST Act, 2017, the petitioner did not take any step to file the appeal. After the impugned recovery notice Ext.P5 is issued for the recovery of the said amount, the petitioner has approached this Court
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under Article 226 of the Constitution of India impugning the assessment order. This Court is not inclined to interfere in the writ petition. The Court finds that the writ petition has been filed to avoid delay caused for not filing the appeal on time. In other words, there is an appellate forum provided under the statute itself, this court should not entertain the writ petition against the assessment order wherein the disputed questions of facts are involved.
4.
In view of the above, I do not find that the writ petition is maintainable and therefore, the same is dismissed.
Sd/- DINESH KUMAR SINGH JUDGE rpr
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APPENDIX OF WP(C) 28995/2023 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE FORM GST ASMT-10 NOTICE DATED 07.05.2022.
Exhibit P2 TRUE COPY OF THE DRC 01A DATED 28.06.2022.
Exhibit P3 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 10.08.2022.
Exhibit P4 TRUE COPY OF THE ORDER UNDER SEC.73 DATED 21.10.2022 ISSUED BY THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF THE RECOVERY NOTICE DATED 21.07.2023 ISSUED BY THE 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF THE FORM GSTR 3B RETURN SUMMARY FOR THE FINANCIAL YEAR 2021-22.
Translation of Exhibit P5 Translation of Exhibit P5