Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR & THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 2ND DAY OF AUGUST 2023 / 11TH SRAVANA, 1945 WA NO. 1380 OF 2023 AGAINST THE JUDGMENT DATED 27.06.2023 IN WP(C) 18803/2023 OF HIGH COURT OF KERALA APPELLANT/PETITIONER:
S.K. ELDHOSE (SKARIA KARIKKAMATTATHIL ELDHOSE), AGED 45 YEARS KARIKKAMATTATHIL HOUSE, MEKKADAMPU P.O., VALAKOM, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN – 682316 BY ADVS.
SRI.AJI V.DEV SRI..G.SHAJI SRI.ALAN PRIYADARSHI DEV SRI.S.SAJEEVAN RESPONDENTS/RESPONDENTS:
1 THE STATE TAX OFFICER, WORKS CONTRACT, STATE G.S.T DEPARTMENT, STATE GST COMPLEX, BAZAR ROAD, MATTANCHERRY - 682 002 [PRESENTLY RE-DESIGNATED AS ASSISTANT COMMISSIONER OF STATE TAX, TAXPAYER SERVICES CIRCLE, STATE GST DEPARTMENT, MINI CIVIL STATION, MUDAVOOR -P.O, MUVATTUPUZHA ], PIN – 686669 2 THE DEPUTY COMMISSIONER OF STATE TAX , (ARREAR RECOVERY), STATE G.S.T DEPARTMENT, MINI CIVIL STATION, ALUVA, PIN – 683101 3 JOINT COMMISSIONER OF STATE TAX, TAXPAYER SERVICES, MINI CIVIL STATION, ALUVA, PIN – 683101 4 THE COMMISSIONER OF STATE TAX, TAX TOWER, KARAMANA,
:2:
W.A.No.1380 of 2023 THIRUVANANTHAPURAM, PIN - 695002 BY GOVERNMENT PLEADER SMT. MM JASMINE THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
:3:
W.A.No.1380 of 2023 JUDGMENT A.K.Jayasankaran Nambiar, J.
This Writ Appeal is preferred against the judgment dated 27.06.2023 of a learned Single Judge in WP(C).No.18803 of 2023.
2. The brief facts necessary for the disposal of the Writ Appeal are as follows:
The appellant is a proprietary-ship concern having CGST and KSGST registration. It was served with a notice under Section 61 of the Goods and Services Tax Act, 2017 (hereinafter referred to as 'the GST Act') alleging that it had claimed excess input tax during the year 2017- 2018 in violation of the provisions of Section 16(2)(c) of the GST Act.
The proceedings initiated against it culminated in an order and a revenue recovery notice demanding an amount of Rs.2,82,040/-.
Although the appellant had a case that it had not received any order pursuant to the notice issued to it, the Department contended that the show cause notice and assessment order passed under Section 73 of the Act were uploaded on the GST portal relating to the year 2017-2018. In
:4:
W.A.No.1380 of 2023 the Writ Petition, the appellant impugned the demand notice issued under the Revenue Recovery Act, contending that it had not been served with any assessment order, and therefore, it could not file an appeal and left with any other option it had approached this Court under Article 226 of the Constitution of India.
3. The learned Single Judge found that inasmuch as assessment orders were passed on 07.01.2022 and had been communicated to the appellant through the GST portal, the appellant was obliged to file a statutory appeal under Section 170 of the GST Act within the prescribed time limit of four months, including the condonable period of delay, under the statute. Inasmuch as the appellant had not done so, it could not maintain a Writ Petition. The Writ Petition was, therefore, dismissed by the learned Single Judge.
4. Before us, it is the submission of the learned counsel for the appellant that it was only on account of the peculiar circumstances where it was not aware of the assessment order that it could not take steps to file the appeal within time. We find ourselves unable to accept the said contention of the appellant. It is not in dispute that the assessment order was served on the appellant in a manner prescribed
:5:
W.A.No.1380 of 2023 under the statute, namely, an intimation through the GST portal. The statutory period of limitation for preferring an appeal is three months from the date of communication of the order, with a further period of one month towards condonation of delay, if any. The appellant, not having availed the alternate remedy under the statute, cannot feign ignorance of the statutory scheme under the GST Act, which accords a finality to those orders that have not been appealed against. The said statutory scheme of finality is not one that the learned Single Judge could have ignored either while considering whether or not to entertain the Writ Petition. This settled position in law has been reiterated in Assistant Commissioner (CT) LTU, Kakinada and Others v. Glaxo Smith Kline Consumer Health Care Limited [(2020) 77 GSTR 342 (SC) as also in Oil and Natural Gas Corporation Limited v.
Gujarat Energy Transmission Corporation Limited and Others [(2017) 5 Supreme Court Cases 42]. In the former decision, it was clearly held that even though the High Court can entertain a Writ petition against any order or direction passed or action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law. Taking note of the said settled position of law and finding that all that the
:6:
W.A.No.1380 of 2023 learned Single Judge did was to follow the said dictum while dismissing the Writ Petition, we see no reason to interfere with the judgment of the learned Single Judge. The Writ Appeal fails and is accordingly dismissed.
Sd/- A.K.JAYASANKARAN NAMBIAR JUDGE Sd/- MOHAMMED NIAS C.P.
JUDGE mns