Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 21ST DAY OF DECEMBER 2022 / 30TH AGRAHAYANA, 1944 WP(C) NO. 39092 OF 2022 PETITIONER:
ANNAMALAI ARUNACHALAM, AGED 55 YEARS, S/O ANNAMALAI CHETTIYAR PROPRIETOR OF M/S VITTUNIYAR AGENCIES, 9/405M, BOYATHARA, KOZHINJAMPARA, PALAKKAD- 678 555.
RESIDING AT ANANDANTHERUVU, NALLEPPULLY, CHITTUR, PALAKKAD- 678 553.
BY ADVS.
K.P.PRADEEP HAREESH M.R.
SANAND RAMAKRISHNAN T.T.BIJU T.THASMI M.J.ANOOPA SANU S MALAKEEL RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TAXES, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM, PIN – 695 001.
2 2. STATE TAX OFFICER SQUAD III- KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, STATE GST COMPLEX, BEHIND CIVIL STATION, PALAKKAD, PIN – 678 001.
3 3. DEPUTY COMMISSIONER OF STATE TAX(INTELLIGENCE), KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, STATE GST COMPLEX, BEHIND CIVIL STATION, PALAKKAD, PIN – 678 001.
W.P.(C)No.39092/2022 2 4 THE JOINT COMMISSIONER (APPEALS), KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, STATE GST COMPLEX , BEHIND CIVIL STATION, PALAKKAD, PIN – 678 001.
5 ASSISTANT COMMISSIONER, MOBILE SQUAD NO.III KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, STATE GST COMPLEX,BEHIND CIVIL STATION, PALAKKAD, PIN – 678 001.
OTHER PRESENT:
ADV. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.39092/2022 3 JUDGMENT Petitioner preferred orders of assessment under the GST enactments for the assessment year 2018-2019 and 2019-2020.
Appeals filed by the petitioner resulted in modification of the assessment order for the assessment year 2018-2019, while the assessment order for the year 2019-2020, has been affirmed completely by the First Appellate Authority.
2.
The petitioner is aggrieved by the orders of the First Appellate Authority and wishes to file appeals before the Goods and Services Tax Appellate Tribunal, which has not been so far constituted. In the meanwhile recovery proceedings have been initiated against the petitioner to recover amounts due under the orders of assessment as modified by the First Appellate Authority (in respect of the assessment year 2018-2019).
3.
The learned Senior Government Pleader refers to the provisions of Section 112 of the Central Goods and Services Tax/State Goods and Services Tax Act (CGST/SGST Act) and points out that for maintaining an appeal before the Appellate Tribunal, the petitioner has to deposit a sum equivalent to 20% of the remaining amount of tax in dispute. It is submitted that this is a pre-condition for maintaining an appeal and therefore if the
W.P.(C)No.39092/2022 4 petitioner is to be granted any stay on recovery proceedings on the ground that the Appellate Tribunal has not been constituted, the petitioner may be required to deposit a sum equivalent to 20% of the remaining amount of the tax in dispute as a condition for stay.
4. Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing for the respondents, this writ petition will stand disposed of in the following manner:
i.
The petitioner shall remit the amount payable in terms of Section 112 (8) b of the CGST/ SGST Act, within a period of one month from today. On such amount being deposited, the steps, if any, initiated for recovery of amounts due under the orders of assessment for the assessment year 2018-2019 and 2019-2020 shall be kept in abeyance.
ii. If the petitioner deposits the amount required to be paid in terms of Section 112 (8) b of the CGST/ SGST Act, the petitioner shall not be required to make further deposit for maintaining an appeal as and when the Appellate Tribunal is constituted.
iii. The recovery proceedings against the petitioner shall be kept in abeyance on compliance of the aforesaid condition of payment, for a period up to two months after the date of
W.P.(C)No.39092/2022 5 constitution of the State Goods and Services Tax Appellate Tribunal. Thereafter the petitioner shall be governed by any interim orders that may be issued by that Tribunal.
iv. If any amount have been recovered pursuant to Ext.P4, this judgment will not have any bearing on such recovery, except that the amount so recovered shall be treated as provisional and subject to the result of the appeal that may be filed by the petitioner on constitution of the Goods and Services Tax Appellate Tribunal.
Sd/- GOPINATH P.
JUDGE ats
W.P.(C)No.39092/2022 6 APPENDIX OF WP(C) 39092/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE COMBINED ORDER UNDER SECTION 74(9) OF THE CGST AND KSGST DATED 16-07-2021 FOR THE YEAR 2018-19 AND 2019-20 ISSUED BY THE 2ND RESPONDENT Exhibit P2 TRUE COPY OF THE APPELLATE ORDER NO.GSTA 101/2021 DATED 19-02-2022 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER Exhibit P2(a) TRUE COPY OF THE APPELLATE ORDER NO.GSTA 102/2021 DATED 19-02-2022 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER Exhibit P3 TRUE COPY OF THE NOTICE DATED 19-10-2022 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER Exhibit P4 TRUE COPY OF THE NOTICE DATED 29-11-2022 ISSUED BY THE 5TH RESPONDENT TO THE BANK Exhibit P5 TRUE COPY OF REPLY FILED BY THE PETITIONER DATED 21-06-2021 TO THE SHOW CAUSE ISSUED BY THE 3RD RESPONDENT