Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 5TH DAY OF MAY 2023 / 15TH VAISAKHA, 1945 OP(C) NO. 903 OF 2023 AGAINST THE ORDER/JUDGMENTCA 13/KOB/2022 OF NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH, KAKKANAD PETITIONER/APPELLANT IN COMPANY APPEAL:
STATE TAX OFFICER TAX PAYER SERVICE, KAKKANAD, KERALA STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM, PIN - 682030 BY ADV GOVERNMENT PLEADER RESPONDENTS/TRIBUNAL & RESPONDENT IN COMPANY APPEAL:
1 NATIONAL COMPANY LAW TRIBUNAL COMPANY LAW BHAVAN, BMC ROAD, THRIKKAKKARA P S, KAKKANAD, KOCHI, KERALA, PIN – 682 021.
2 MR. VINOD BALACHANDRAN (LIQUIDATOR OF M/S ALBANA ENGINEERING(INDA) PVT. LTD.)
HAVING REGISTERED OFFICE AT 70/1909, ASOKA ROAD, KALOOR, KOCHI, PIN – 682 017.
BY ADV K B ARUNKUMAR Advocate OTHER PRESENT:
SMT.THUSHARA JAMES; SR GP SRI. K.B ARUNKUMAR - R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) No.903 of 2023 2 JUDGMENT Dated this the 5th day of May, 2023 This is an original petition filed by the State Tax Officer. The grievance of the petitioner is that the claim made by the petitioner before the 2nd respondent liquidator of M/s Albanna Engineering India Pvt Ltd.
was rejected on the ground that the same claim was being adjudicated by the Central Authorities under the Central Goods and Services Tax Act (CGST Act). The petitioner challenged the order of the liquidator before the 1st respondent National Company Law Tribunal and the Tribunal by Ext.P6 order rejected the same holding as follows;
“ We have heard the Learned Government Pleader and the learned counsel for the Respondent/Liquidator. It is found that the Liquidator has already communicated the same issues through email on 10.08.2022, thereafter, this application was filed on 10.10.2022 before this Tribunal. We are therefore, of the view that as the similar matter regarding taxable value of invoices issued of AEIPL is already under adjudication by the Central GST (Commissionerate Office) for which explanations and documents have been submitted, this claim, if considered now by the Liquidator will become duplicate adjudication for the same matter and therefore, the Liquidator is directed to consider this claim as ‘De Novo’, if the claim before CGST is dismissed.”
O.P.(C) No.903 of 2023 3 2.
The learned Senior Government Pleader would contend with reference to an order to the order passed by the Commissioner of Central Taxes on 13.03.2023 (ORDER-IN-ORIGINAL No.COC-EXCUS-000- COM-13/2022-23/ST/Commr) that the proceedings before the Central Authorities are in relation to the pre-GST periods and the adjudication was in relation to service tax under the provisions of the Finance Act, 1994, and not in relation to any claim under the GST Laws. It is submitted that the said proceedings have culminated in the aforesaid order, adjudicating a liability for the period up to June 2017. It is submitted that the claim raised by the petitioner before the liquidator is post GST and therefore the aforesaid proceedings before the Central Authorities cannot have any bearing whatsoever on the claim of the petitioner.
3.
The learned counsel appearing for the 2nd respondent would submit that the Tribunal has permitted the petitioner to raise a de novo claim after the culmination of proceedings before the Central Authorities. It is submitted that the petitioner cannot therefore have any grievance in the matter.
4.
Having heard the learned Senior Government Pleader appearing for the petitioner and the learned counsel appearing for 2nd respondent and taking into account the submission of the learned Senior
O.P.(C) No.903 of 2023 4 Government Pleader that the proceedings before the Central Authorities relate to the provisions of the Finance Act, 1994 and for the period up to June 2017, and not to any claim under the GST Laws, I dispose of this original petition permitting the petitioner to file a fresh application before the 2nd respondent along with a copy of the proceedings of the Central Authorities referred to above. On receipt of such an application the 2nd respondent shall de novo adjudicate the claim of the petitioner, notwithstanding the fact that the earlier claim of the petitioner was rejected and the said order had been upheld by the National Company Law Tribunal. On a fresh petition being filed by the petitioner, the 2nd respondent shall endeavor to adjudicate the same without any further delay.
Sd/- GOPINATH P.
JUDGE AMR
O.P.(C) No.903 of 2023 5 APPENDIX OF OP(C) 903/2023 PETITIONER’S EXHIBITS Exhibit P1 TRUE COPY OF THE FORM "C" DATED 05.01.2022 WITH SUPPORTING DOCUMENTS.
Exhibit P2 COPY OF THE MAIL REPLY ADMISSION OF CLAIM DATED 15.02.2022 BY THE 2ND RESPONDENT.
Exhibit P3 A COPY OF THE SHOW CAUSE NOTICE UNDER SECTION 73(1) CGST & SGST ACT 2017 DATED 08.08.2022.
Exhibit P4 A COPY OF THE MAIL REPLY REJECTION OF CLAIM DATED 27.07.2022 BY THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF THE COMPANY APPEAL NO.
(IBC)/13/KOB/2022 DATED 31.08.2022 FILED BEFORE THE NCLT, KOCHI.
Exhibit P6 TRUE COPY OF THE IMPUGNED ORDER BY THE 1ST RESPONDENT IN COMPANY APPEAL (IBC)/13/KOB/2022 DATED 16.12.2022.
Exhibit P7 TRUE COPY OF THE ORDER NO. ZD320722026206U OF THE STATE TAX OFFICER, WORKS CONTRACT, MATTANCHERY, DATED 25.07.2022.
Exhibit P8 TRUE COPY OF THE WRIT PETITION NO: WP(C) 37941 OF 2022 DATED 23.11.2022.
Exhibit P9 TRUE COPY OF THE PETITIONER NOTICE BY MAIL DATED 27.12.2022 AND REPLY OF THE CENTRAL GST (COMMISSIONERATE OFFICE) BY FORWARDING SHOW CAUSE NOTICE DATED 16.03.2023.