Thrissur Fashion Jewellery vs. Assistant Commissioner - Kerala High Court, 07 October 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THUR AY, THE 7TH DAY OF OCTOBER 2021 / 15TH ASWINA, 1943 WP(C) NO. 19934 OF 2021 PETITIONER : THRISSUR FASHION JEWELLERY, NEAR AKSHAYA SHOPPING COMPLEX, NEYYATTINKARA.P.O, THIRUVANANTHAPURAM-6950121, REPRESENTED BY JOSE PAUL.C.J, MG.PARTNER. BY ADVS. P.S.SOMAN T.RADHAMONY B.PRABHAKARAN NANCY PRABHAKAR RESPONDENTS : 1 ASSISTANT COMMISSIONER SQUAD-III, STATE GOODS AND SERVICE TAX DEPARTMENT, NEYYATTINKARA.P.O, THIRUVANANTHAPURAM – 695 121. 2 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 3 THE COMMISSIONER OF STATE TAX, GOVERNMENT OF KERALA, TAX TOWER, KARAMANA.P.O, THIRUVANANTHAPURAM, PIN-695002. BY SENIOR GOVT.PLEADER DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 19934 OF 2021 2 BECHU KURIAN THOMAS, J. =-=-=-=-=-=-=-=-=-=-=-=-=-= W.P.(C).No.19934 of 2021 =-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 7th day of October, 2021 JUDGMENT Petitioner challenges Ext.P9 order of assessment issued by the first respondent.

Petitioner is registered under the Central Goods and Service Tax Act, 2017 (for short 'CGST' Act) and is engaged in the purchase and sale of gold ornaments. Pursuant to an inspection of the business place of the petitioner on 03.09.2019, proceedings were initiated under Section 74 (1) of the CGST Act, proposing to impose penalty. Ext.P8 reply was filed by the petitioner to the show cause notice issued and thereafter by Ext.P9 order, the first respondent imposed penalty under Section 74(9) of the CGST Act, alleging suppression of turnover and evation of tax detected for the year 2019-20. 3. Adv.P.S.Soman, the learned counsel for the petitioner vehemently contended that, in spite of all the objections that may arise on the maintainability of the writ petition, the petitioner is justified in invoking the remedy under Article 226 of the Constitution

WP(C) NO. 19934 OF 2021 3 of India for the sole reason that the copies of all documents purportedly used by the assessing officer against the petitioner to impose penalty was not given to the petitioner. Referring to the mahazar, wherein data as recovered for the period 14.01.2013 to 14.12.2017 was mentioned, according to the learned counsel, the assessing officer proceeded to deal with data recovered for the period from 14.01.2013 to 01.09.2019. According to the learned counsel, the said approach is perverse and violative of principles of natural justice, since documents have been used against the petitioner behind its back.

The learned Senior Government Pleader Dr.Thushara James, on the other hand submitted that copies of every document utilised against the petitioner was served to the petitioner and that no evidence or documents were utilised behind the back of the petitioner. It was further submitted that even otherwise, whether the copies of all documents were given to the petitioner or not itself requires appreciation of facts and even a disputed fact by itself and hence this Court ought not to interfere in exercise of the juri iction under Article 226 of the Constitution of India.

On a consideration of the rival contentions, I am of the view that the remedy under Article 226 cannot be invoked by

WP(C) NO. 19934 OF 2021 4 the petitioner. It is noticed from a reading of paragraph 37 of Ext.P9 that the very same contentions, now raised by the petitioner before this Court, was raised by the petitioner before the assessing officer also. Adverting to the said contentions, it was held by the assessing officer that the allegations raised against the period and the date to which the data relates have no basis. It was also observed by the assessing officer that in the mahazar prepared on 26.11.2019, it was specifically mentioned that the data related to the business transactions of the dealer for the period 14.01.2013 to 01.09.2019 and the dealer signed it without any objection. On an appreciation of the findings recorded by the assessing officer, this Court is of the view that the contentions raised by the petitioner alleging violation of natural justice was in fact raised before the assessing authority itself and even considered. The correctness or otherwise of the said finding is a matter which requires appreciation of evidence and documents. It is not proper on the part of this Court to appreciate such disputed questions of fact while invoking the writ juri iction. In such circumstances, there is no merit in the contentions raised.

The learned counsel for the petitioner also submitted that Ext.P10 is challenged in the writ petition and that there is no

WP(C) NO. 19934 OF 2021 5 appellate remedy available against Ext.P10. Though this Court was impressed with the said contention initially, on an appreciation of the reliefs claimed in this writ petition, it is noticed that no specific relief is claimed in the writ petition against Ext.P10. Even otherwise Ext.P10 is a decision which is subject to an appeal under Section 107 and therefore the same is not maintainable even on that score.

As held by the Supreme Court repeatedly including in the latest decision of Assistant Commissioner of State Tax and Others v. M/s. Commercial Steel Limited where an alternate remedy exists under the statute, unless exceptional circumstances exists, the juri iction of this Court under Article 226 is not liable to be invoked. On a consideration of the contentions raised and the deliberations as above, I am of the view that this is not a fit case to invoke the juri iction under Article 226 of the Constitution of India.

Hence this writ petition is dismissed reserving the liberty of the petitioner to pursue his statutory remedies in accordance with law. BECHU KURIAN THOMAS, JUDGE RKM

WP(C) NO. 19934 OF 2021 6 APPENDIX OF WP(C) 19934/2021 PETITIONER'S EXHIBITS : Exhibit P1OF THE GST REGISTRATION CERTIFICATE OF THE PETITIONER Exhibit P2OF THE MAHAZER PREPARED BY THE 1ST RESPONDENT AT THE TIME OF INSPECTION Exhibit P3OF THE SEIZURE ORDER ISSUED BY THE 1ST RESPONDENT Exhibit P4OF THE SUMMONS NO.GSTINS 13/2019-20 DATED 26.09.2019 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P5OF THE 2ND MAHAZER PREPARED BY THE 1ST RESPONDENT ON 26-11-2019 Exhibit P6OF THE SHOW CAUSE NOTICE NO.GSTINS 13/2019-20(19-20)DATED 14-12- 2020 ISSUED BY THE 1ST RESPONDENT UNDER SECTION74(1) OF THE CGST/SGST ACT FOR THE YEAR 2019-20 Exhibit P7OF THE REQUEST FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 10.03.2021 FOR GETTING COPY OF RECOVERY NO.7 IN EXHIBIT-P3 Exhibit P8OF THE REPLY FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 08.03.2021. Exhibit P9OF THE ORDER NO.GSTINS-13/2019- 20 (19-20) DATED 23-03-2021 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER Exhibit P10OF THE INTIMATION NO.GSTINS- 13/2019-20 DATED 29-03-2021 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER REJECTING THE REQUEST FOR PROVIDING COPY OF RECOVERY NO.7.