Abdurahim vs. The Assistant State Tax Officer - Kerala High Court, 21 January 2022

WP(C) NO. 2119 OF 2022 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 21ST DAY OF JANUARY 2022 / 1ST MAGHA, 1943 WP(C) NO. 2119 OF 2022 PETITIONER/S: ABDURAHIM, AGED 43 YEARS PROPRIETOR, M/S. PLATINUM TRADE LINKS, 369B, MARAYAMKUNNU, KAPPUR, PALAKKAD-679 552. BY ADVS. HARISANKAR V. MENON MEERA V.MENON R.SREEJITH K.KRISHNA RESPONDENT/S: 1 THE ASSISTANT STATE TAX OFFICER, MOBILE SQUAD MANJESHWAR, STAATE GOODS AND SERVICES TAX DEPARTMENT, KASARGOD-671 323. 2 THE STATE TAX OFFICER, MOBILE SQUAD MANJESHWAR, STATE GOODS AND SERVICES TAX DEPARTMENT, KASARGOD-671 323. 3 THE COMMISSIONER OF STATE TAX, STATE GST DEPARTMENT, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM-695 002. OTHER PRESENT: SMT.THUSHARA JAMES .SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 2119 OF 2022 2 BECHU KURIAN THOMAS, J. ======================== W.P.(C)No.2119 of 2022 ------------------------------------------------ Dated this the 21st day of January, 2022 JUDGMENT Despite the petitioner having suffered an adverse judgment of this Court in the form of Ext.P9, this writ petition has been filed challenging the order issued under Section 130 of the Central Goods and Services Tax Act, 2017 (CGST Act) . The distinction from Ext.P9, drawn by the petitioner for preferring this writ petition is that at the time when Ext.P9 judgment was rendered, petitioner was not in possession of the impugned order.

A perusal of Ext.P9 reveals that, the said Judgment was rendered on the basis of the submission of the learned Government Pleader that the order under Section 130 had been issued and was already uploaded though the counsel for petitioner had submitted that petitioner had not received a copy of the order. Since this Court find justification in the petitioner preferring this writ petition for the above reasons, the merits of this writ petition are being considered.

Petitioner impugns Ext.P10 order issued by the 1st respondent under Section 130 (2) of the CGST Act. It is contended by

WP(C) NO. 2119 OF 2022 3 the petitioner that all the findings entered into by the first respondent had been referred to and dealt with specifically in the reply submitted as Ext.P8. In spite of specific replies, the 1st respondent has gone on a mechanical manner and repeated the same reasoning that “there was unwillingness on the part of the petitioner to participate in the adjudication”, “business premises remain closed round clock”, “none appeared to contest the matter”, “invoices and corresponding E way bills are fake” etc. The learned Counsel submitted that the impugned order is therefore liable to be set aside.

I have heard the arguments of Sri.Harisankar V Menon, learned Counsel appearing for the petitioner as well as Dr.Thushara James, learned Senior Government Pleader.

On a perusal of the impugned order, this Court notices that various factual situations have been detailed by the 1st respondent in the impugned order. All those fall within the realm of disputed facts as far as this writ petition is concerned. It is trite law that, this Court, in exercise of powers conferred under Article 226 of the Constitution of India, cannot enter into disputed facts, especially when, the officer has specifically given reasons for coming to the conclusion that there was intend to evade tax.

In view of the above, the remedy of the petitioner as has already been observed by this Court in Ext.P9 judgment is to prefer the

WP(C) NO. 2119 OF 2022 4 statutory remedy of appeal under 107 of the CGST Act. I find no merit in this writ petition and accordingly, the same is dismissed. However, the liberty of the petitioner to pursue his statutory remedies shall stand reserved. BECHU KURIAN THOMAS

JUDGE jm/

WP(C) NO. 2119 OF 2022 5 APPENDIX OF WP(C) 2119/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF INVOICE NO.4 ISSUED BY THE PETITIONER. Exhibit P2 COPY OF E-WAY BILL GENERATED BY THE PETITIONER. Exhibit P3 COPY OF FORM GTST MOV 01ISSUED BY THE 1ST RESPONDENT. Exhibit P4 COPY OF FORM GST MOV 02 ISSUED BY THE 1ST RESPONDENT. Exhibit P5 COPY OF ORDER IN FOR,M GST MOV 03 ISSUED BY THE DY.COMMISSIONER (ENFORCEMENT), KASARGOD Exhibit P6 COPY OF FORM GST MOV 06 ISSUED BY THE 1ST RESPONDENT. Exhibit P7 FORM GST MOV 10 ISSUED BY THE 2ND RESPONDENT. Exhibit P8 COPY OF REPLY SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P9 COPY OF JUDGMENT IN WPC NO.26158/2021 OF THIS HON'BLE COURT. Exhibit P10 COPY OF ORDER IN FORM GST MOV 11 ISSUED BY THE 2ND RESPONDENT. Exhibit P11 COPY OF RETURN IN FORM GSTR 3B FILED BY THE PETITIONER. Exhibit P12 COPY OF JUDGMENT IN WPC NO.21907/2020 OF THIS HON'BLE COURT.