Mini Premjit vs. The State Tax Officer - Kerala High Court, 22 September 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNE AY, THE 22ND DAY OF SEPTEMBER 2021 / 31ST BHADRA, 1943 WP(C) NO. 10505 OF 2021 PETITIONER: MINI PREMJIT AGED 58 YEARS PROPRIETOR AESTHEITKS, 41/587, KRISHNA, KRISHNASWAMY ROAD, COCHIN-682 035. BY ADVS.HARISANKAR V. MENON SMT.MEERA V.MENON SMT.K.KRISHNA RESPONDENTS: 1 THE STATE TAX OFFICER WORKS CONTRACT, SGST DEPARTMENT, CLASS TOWER, OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI-682 018. 2 THE JOINT COMMISSIONER GST, TAX TOWERS, M.G.ROAD, ERNAKULAM-682 016. BY ADV DR.THUSHARA JAMES, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 10505 OF 2021 2 BECHU KURIAN THOMAS, J =========================== W.P.(C) No.10505 of 2021 --------------------------------- Dated this the 22nd day of September, 2021 JUDGMENT The limited prayer in this writ petition is to dispose of Ext.P2 appeal filed under Section 107 of the Central Goods and Services Tax Ac, 2017 [for short, the Act] in a time bound manner and to defer proceedings pursuant to Exts.P3 and P4 till the appeal preferred by the petitioner is considered.

A perusal of Ext.P1 order shows that the 1st respondent was considering the question whether the activities undertaken by the petitioner was in the nature of works contract service under Section 2(119) or a manufacture and sale of goods under the Act. If it was the former, petitioner was liable to pay tax under Section 9(1) while if it was the latter, she

WP(C) NO. 10505 OF 2021 3 would be eligible to opt for composition under Section 10 of the Act. In Ext.P1, it was concluded that petitioner was engaged in the supply of works contract service from 01.07.2017 and therefore denied the option of the petitioner to pay tax under Section 10 in lieu of tax payable under Section 9(1) for the period from 01.07.2017 to 31.03.2019. 3. Ext.P1 order does not contemplate any payment of tax, fine or default. Hence, Ext.P2 appeal preferred by the petitioner against Ext.P1, can be considered without there being any need for a deposit as contemplated under Section 107(6) of the Act.

However, it is pointed out that in the meantime petitioner has been served with intimation under Section 73(5) as is seen from Exts.P3 and P4 notices. The said intimations are in persuance to the order that is under challenge in Ext.P2 appeal.

I have heard Adv.Harisankar V.Menon, the learned

WP(C) NO. 10505 OF 2021 4 counsel for the petitioner and Dr.Thushara James, the learned Senior Government Pleader.

Having regard to the circumstances of the case and the submissions made by the learned counsel for the petitioner as well as for the respondents, I am of the opinion that, interest of justice could be subserved, if the appeal filed by the petitioner is considered in a time bound manner, while the proceedings proposed to be initiated as per Exts.P3 and P4 notices are kept pending till such consideration. If the proceedings pursuant to Exts.P3 and P4 are kept in abeyance till a decision is rendered by the appellate authority, unnecessary complications and proceedings could be avoided. Ultimately it will enure to the benefit of both parties.

In view of the above, there will be a direction to the 2nd respondent to consider and pass appropriate orders at the earliest, at any rate, within a period of

WP(C) NO. 10505 OF 2021 5 two months from the date of receipt of a certified copy of this judgment. Until such a decision is taken, all proceedings pursuant to Exts.P3 and P4 shall be kept in abeyance. The writ petition is disposed of as above. BECHU KURIAN THOMAS, JUDGE AMV/22/09//2021

WP(C) NO. 10505 OF 2021 6 APPENDIX OF WP(C) 10505/2021 PETITIONER EXHIBITS EXHIBIT P1 COPY OF ORDER NO.DIN 320120210026271 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 COPY OF THE APPEAL FILED BY THE PETITIONER UNDER SECTION 107. EXHIBIT P3 COPY OF NOTICE 32AEMPP9619Q1ZL/17-18/DRC01A/1 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4 COPY OF NOTICE 32AEMPP9619Q1ZL/18-19/DRC01A/1 ISSUED BY 1ST RESPONDENT. EXHIBIT P5 APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. RESPONDENTS EXHIBITS : NILP.A.TO JUDGE