Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 29TH DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 WP(C) NO. 4948 OF 2022 PETITIONER:
1 ABDUL SAMAD P., AGED 56 YEARS SON OF PAREETH RAWTHER BROTHERS, XII/190, ATHIKKATTUKULANGARA, NOORANADU, ALAPUZHA 690 504.
BY ADVS.
K.P.PRADEEP HAREESH M.R.
RASMI NAIR T.
T.T.BIJU T.THASMI M.J.ANOOPA RESPONDENT
S :
1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY (TAXES), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 COMMISSIONER OF KERALA STATE GST, KERALA STATE GST DEPARTMENT, TAX TOWERS, KILLIPALAM, KARAMANA P.O., THIRUVANANTHAPURAM 695 002.
3 JOINT COMMISSIONER OF STATE AX, (INTELLIGENCE), KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, TAX TOWER, KILLIPALAM, KARAMANA P.O., THIRUVANANTHAPURAM 695 002.
4 DEPUTY COMMISSIONER (INTELLIGENCE), KERALA STATE GOODS AND SERVICE TAX DEPARTMENT, 4TH FLOOR, MINI CIVIL STATION, ALAPUZHA 688 013.
5 STATE TAX OFFICER- SQUAD NO. 2, ALAPUZHA AT CHENGANNUR, KERALA STATE GOODS AND SERVICE TAX, MINI CIVIL STATION, CHENGANNUR, ALAPUZHA 689 121.
BY ADV.THUSHARA JAMES, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.4948 of 2022 2 JUDGMENT Dated this the 29th day of November, 2022 The petitioner has filed this writ petition challenging Ext.P8 prohibitory order issued under the provisions of the GST laws. It is the case of the petitioner that certain goods belonging to the petitioner were detained in terms of Ext.P8 order illegally and without any justifiable reason.
2. The records suggest that when this writ petition was pending consideration of this Court, the matter was adjudicated and the 5th respondent State Tax Officer (Intelligence), State Goods and Service Tax Department, Mini Civil Station, Chengannur, has issued Exts.P13 and P14 orders treating the petitioner as an unregistered dealer and granting him a temporary ID for the purpose of issuing the proceedings/demand etc.
3. Learned counsel appearing for the petitioner
WPC No.4948 of 2022 3 submitted that the petitioner may be permitted to file an appeal against Exts.P13 and P14 orders (Ext.P14 is an order in a rectification application filed by the petitioner) and all the contentions of the petitioner on merits may be left open for adjudication by the Appellate Authority. It is also submitted that the detention of goods by the Officer is causing serious prejudice.
4. Learned Senior Government Pleader on instructions points out that the facts and circumstances of the case. It is submitted that a reading of Ext.P13 will suggest though the petitioner was having registration for a particular premises, he voluntarily shifted his business from that premises to another premises without permission and without intimating the Goods and Service Tax Department. It is submitted that Ext.P13 clearly records that the petitioner was conducting a parallel business to escape from the liability to pay Goods and Services
WPC No.4948 of 2022 4 Tax. It is also submitted that the goods seized from the petitioner cannot be released pending consideration of the matter by the Appellate Authority.
5. Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader, this writ petition will stand disposed of permitting the petitioner to file statutory appeals against Exts.P13/P14 orders. It is made clear that since Exts.P13 and P14 orders were issued at a time when this writ petition was pending before this Court, any appeal that may be filed by the petitioner challenging Exts.P13 and P14 shall be heard and decided treating the period from 26.05.2022 to till date as excluded for the purposes of determining any period of limitation within which such appeals had to be filed. This benefit will be available only if the petitioner files appeals within a period of two weeks from today.
WPC No.4948 of 2022 5 It is made clear that I have not expressed any opinion on the merits of the matter. It will be open for the respondent to consider the matter in accordance with law. All the contentions of the petitioner are left open for adjudication before the Appellate Authority and the Appellate Authority shall endeavour to hear and dispose of the appeals that may be filed by the petitioner against Exts.P13 and P14, within a period of two months from the date of receipt of a certified copy of this judgment. It is also made clear that the question as to whether the petitioner is to be treated as a registered dealer or not is also a matter that can be agitated by the petitioner before the Appellate Authority.
Sd/- GOPINATH P.
JUDGE SKP/29-11
WPC No.4948 of 2022 6 APPENDIX OF WP(C) 4948/2022 PETITIONER’S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE NO 32ESCPS5404QIZC DATED 17.7.2018 IN FORM GST REG.06.
EXHIBIT P2 TRUE COPY OF THE LICENSE O NO. 40/2021-2022/C - 5/1973/ 21 DATED 8.4.2021 ISSUED BY THE PALAMEL GRAMA PANCHAYATH.
EXHIBIT P3 TRUE COPY OF THE FORM GSTR -3B FOR DECEMBER 2021.
EXHIBIT P4 TRUE COPY OF THE GSTR I FOR JANUARY 2022.
EXHIBIT P5 TRUE COPY OF THE NOTICE NO. PCB/ALP/TG-404/19 DATED 6.10.2021 ISSUED BY THE ASSISTANT ENVIRONMENT ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, ALAPUZHA.
EXHIBIT P6 TRUE COPY OF THE REPLY DATED 22.10.2021 SUBMITTED BY THE PETITIONER TO EXT P5 NOTICE.
EXHIBIT P7 TRUE COPY OF THE CONSENT LETTER DATED 1.2.2022 ISSUED BY THE MR. TAJUDHEEN HANEEFA.
EXHIBIT P8 TRUE COPY OF THE ORDER OF PROHIBITION ISSUED IN FOR GST INS-03 DATED 9.2.2022 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE MAHAZAR DATED 9.2.2022 PREPARED AND ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE REGISTRATION CERTIFICATE IN KL 41 N 3301 ISSUED BY THE MOTOR VEHICLE DEPARTMENT, GOVERNMENT OF KERALA ON 16/3/2018 EXHIBIT P11 TRUE COPY OF THE FORM GST ASMT -14 DATED 05-05- 2022 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER EXHIBIT P12 TRUE COPY OF THE FORM GST DRC-01 DATED 05-05- 2022 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER EXHIBIT P13 TRUE COPY OF THE ORDER ISSUED BY THE 5TH RESPONDENT IN CASE ID NO.CR/07/2021-22 DATED 26-05-2022 EXHIBIT P14 TRUE COPY OF THE RECTIFICATION ORDER ISSUED BY THE 5TH RESPONDENT IN CASE NO.CR/07/2021-22 DATED 20-07-2022 RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A.TO JUDGE