M. Harees v. The Commercial Tax Officer, Alappuzha - Kerala High Court, 2 Feb 2023

Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI THURSDAY, THE 2ND DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 WP(C) NO. 3190 OF 2023 PETITIONER:

M. HAREES PROPRIETOR, A.S. STORES, MARKET ROAD, VAZHICHERRY P.O, ALAPPUZHA, PIN - 688001 BY ADVS.

V.DEVANANDA NARASIMHAM P.H.RIYAS RESPONDENTS:

1 THE COMMERCIAL TAX OFFICER, ALAPPUZHA SECOND CIRCLE, CIVIL STATION P.O, ALAPPUZHA, PIN - 688001 2 INTELLIGENCE OFFICER, ALAPPUZHA SQUAD NO.1, COMMERCIAL TAXES, CIVIL STATION ANNEX, ALAPPUZHA, PIN - 688011 3 THE SECRETARY, THIRUVANANTHAPURAM TAX DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 4 THE CENTRAL BOARD OF EXCISE AND CUSTOMS, NEW DELHI, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI, PIN - 110001 5 THE DEPUTY COMMISSIONER, ALAPPUZHA STATE GST DEPARTMENT, BSNL BHAVAN, HEAD POST OFFICE ROAD, ALAPPUZHA, PIN – 688001

WP(C) NO. 3190 & 3235 OF 2023 2 6 THE MANAGER, ALAPPUZHA THE FEDERAL BANK LTD, CONVENT SQUARE BRANCH, BAZAR P.O, ALAPPUZHA, PIN - 688001 DR. THUSHARA JAMES, SR.GP.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2023, ALONG WITH WP(C).3235/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 3190 & 3235 OF 2023 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE T.R.RAVI THURSDAY, THE 2ND DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 WP(C) NO. 3235 OF 2023 PETITIONER:

M.HAREES, PROPRIETOR, A.S STORES, MARKET ROAD, VAZHICHERRY P.O, ALAPPUZHA, PIN - 688001 BY ADVS.

V.DEVANANDA NARASIMHAM P.H.RIYAS RESPONDENTS:

WP(C) NO. 3190 & 3235 OF 2023 4 6 THE MANAGER, ALAPPUZHA THE FEDERAL BANK LTD, CONVENT SQUARE BRANCH, BAZAR P.O, ALAPPUZHA, PIN - 688001 DR. THUSHARA JAMES, SR.GP.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2023, ALONG WITH WP(C).3190/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 3190 & 3235 OF 2023 5 T.R. RAVI, J.

-------------------------------------------- W. P. (C). Nos. 3190 & 3235 of 2023 -------------------------------------------- Dated this the 2nd day of February, 2023 JUDGMENT There writ petitions are filed challenging the power of the State to initiate action for re-opening assessments for enforcing legal obligation/liability arising before 16.09.2016. The issue had been considered by a Division Bench of this Court in a batch of appeals and by Ext.P5 judgment, the Division Bench has held that the State has power. The petitioner relies on Ext.P6 order issued by the Hon'ble Supreme Court of India in the proceedings initiated against the judgment of the Division Bench wherein the Hon'ble Supreme Court has passed an interim order that no coercive steps shall be taken against the petitioners for recovery. It is hence contended that the judgment of the Division Bench has in effect been interfered with. The above contention cannot be countenanced. The Hon'ble Supreme Court has only admitted the Special Leave Petitions filed against the common judgment of the Division Bench of this Court and has not stayed the operation of the judgment. Coercive steps alone have been stayed. In such situation, I am bound to follow the

WP(C) NO. 3190 & 3235 OF 2023 6 Division Bench judgment of this Court.

These writ petitions are hence dismissed following the judgment in W.A.No.1035/2019 and connected cases.

Sd/- T.R. RAVI

JUDGE Pn

WP(C) NO. 3190 & 3235 OF 2023 7 APPENDIX OF WP(C) 3190/2023 PETITIONER'S EXHIBITS Exhibit-P1 TRUE COPY OF ANNUAL RETURN FOR THE YEAR 2015- 16 DATED 30-07-16 E-FILED THROUGH KVATIS BEFORE 1ST RESPONDENT BY THE PETITIONER.

Exhibit-P2 TRUE COPY OF PENALTY ORDER DATED 17-01-18 ISSUED U/S 67(1) OF THE KVAT ACT BY 2ND RESPONDENT TO THE PETITIONER.

Exhibit-P3 TRUE COPY OF THE 1ST APPELLATE ORDER DATED 12-05-21 FOR THE YEAR 2015-16 PASSED BY 1ST APPELLATE AUTHORITY ON THE PETITIONER.

Exhibit-P4 TRUE COPY OF THE CONSTITUTION [ONE HUNDRED AND FIRST AMENDMENTS] ACT, 2016 DATED 08-09-16 PUBLISHED IN THE EXTRAORDINARY GAZETTE OF INDIA.

Exhibit-P5 TRUE COPY OF THE JUDGMENT PASSED IN W.A NO.1035/2019 ON 30-11-22 BY THIS HON'BLE COURT IN AN ASSESSEE.

Exhibit-P6 TRUE COPY OF INTERIM ORDER GRANTED BY THE HON'BLE SUPREME COURT IN SPECIAL LEAVE TO APPEAL (CIVIL) NO.640/2023 DATED 16-01-23.

Exhibit-P7 TRUE COPY OF INTIMATION LETTER NO. APYB/CC- 3352-1/2022-23 DATED 05-01-23 PURSUANT TO PROHIBITORY ORDER ISSUED BY 6TH RESPONDENT BANK TO THE PETITIONER.

Exhibit-P8 TRUE COPY OF COMMON PROHIBITORY ORDER NO.A7- 356/18-19/296 DATED 04-01-23 ISSUED BY 5TH RESPONDENT TO 6TH RESPONDENT BANK.

WP(C) NO. 3190 & 3235 OF 2023 8 APPENDIX OF WP(C) 3235/2023 PETITIONER'S EXHIBITS Exhibit-P1 TRUE COPY OF ANNUAL RETURN FOR THE YEAR 2015-16 DATED 30-07-16 E-FILED THROUGH KVATIS BEFORE 1ST RESPONDENT BY THE PETITIONER Exhibit-P2 TRUE COPY OF ASSESSMENT ORDER NO.32040610301/2015-16 DATED 24-09-2018 ISSUED U/S 25(1) OF THE KVAT ACT BY 1ST RESPONDENT TO THE PETITIONER.

Exhibit-P3 TRUE COPY OF 1ST APPELLATE ORDER DATED 30-09-20 FOR THE YEAR 2015-16 PASSED BY 1ST APPELLATE AUTHORITY ON THE PETITIONER.

Exhibit-P4 TRUE COPY OF MODIFIED ASSESSMENT ORDER NO.

32040610301/2015-16 (MODIFIED) DATED 15-01-21 FOR THE YEAR 2015-16 PASSED BY 1ST RESPONDENT TO THE PETITIONER.

Exhibit-P5 TRUE COPY OF THE CONSTITUTION [ONE HUNDRED AND FIRST AMENDMENTS] ACT, 2016 DATED 08-09-16 PUBLISHED IN THE EXTRAORDINARY GAZETTE OF INDIA.

Exhibit-P6 TRUE COPY OF THE JUDGMENT PASSED IN W.A NO.1035/2019 ON 30-11-22 BY THIS HON'BLE COURT IN AN ASSESSEE.

Exhibit-P7 TRUE COPY OF INTERIM ORDER GRANTED BY THE HON'BLE SUPREME COURT IN SPECIAL LEAVE TO APPEAL (CIVIL) NO.640/2023 DATED 16-01-23.

Exhibit-P8 TRUE COPY OF INTIMATION LETTER NO. APYB/CC- 3352-1/2022-23 DATED 05-01-23 PURSUANT TO PROHIBITORY ORDER ISSUED BY 6TH RESPONDENT BANK TO THE PETITIONER.

WP(C) NO. 3190 & 3235 OF 2023 9 Exhibit-P9 TRUE COPY OF COMMON PROHIBITORY ORDER NO.A7- 356/18-19/296 DATED 04-01-23 ISSUED BY 5TH RESPONDENT TO 6TH RESPONDENT BANK.