Thrissur Fashion Jwellery vs. Assistant Commissioner - Kerala High Court, 16 September 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THUR AY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943 WP(C) NO. 19172 OF 2021 PETITIONER/S: THRISSUR FASHION JWELLERY NEAR AKSHAYA SHOPPING COMPLEX, NEYYATTINKARA P. O., THIRUVANANTHAPURAM - 695 121, 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 & SERVICE TAX DEPARTMENT, NEYYATTINKARA P. O., THIRUVANANTHAPURAM - 695 121. 2 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 3 THE COMMISSIONER OF STATE TAX GOVERNMENT OF KERALA, TAX TOWER, KARAMANA P. O., THIRUVANANTHAPURAM, PIN - 695 002. OTHER PRESENT: SRGP.DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2021, ALONG WITH WP(C).19199/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 19172 & 19199 OF 2021 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THUR AY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943 WP(C) NO. 19199 OF 2021 PETITIONERS: THRISSUR FASHION JEWELLERY NEAR ASKHAYA SHOPPING COMPLEX, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695 121, REPRESENTED BY JOSE PAYL C.J, M.G PARTNER BY ADVS.P.S.SOMAN T.RADHAMONY B.PRABHAKARAN NANCY PRABHAKAR RESPONDENTS: 1 ASSISTANT COMMISSIONER SQUAD-II, 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-695 001 3 THE COMMISSIONER OF STATE TAX, GOVERNMENT OF KERALA, TAX TOWER, KARAMANA P.O., THIRUVANANTHAPURAM,PIN-695 002 OTHER PRESENT: SRGP.DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2021, ALONG WITH WP(C).19172/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 19172 & 19199 OF 2021 3 BECHU KURIAN THOMAS, J =========================== W.P.(C) Nos.19172 and 19199 of 2021 --------------------------------- Dated this the 16th day of September, 2021 JUDGMENT These two writ petitions are filed challenging the penalty orders issued under Section 74 of the Act, for evasion of tax allegedly detected for the years 2017-18 and 2018-19. Ext.P9 is the order of penalty in both these cases. W.P(C) No.19172 of 2021 relates to assessment year 2017-18 while W.P.(C) No.19199 of 2021 relates to assessment year 2018-2019. 2. The contention raised by the petitioner against the orders of penalty is based upon the allegation of non service of documents that were made the basis for imposing penalty. According to the petitioner, due to non service of documents principles of natural justice have been violated.

I have heard Adv.P.S.Soman, the learned counsel for

WP(C) NO. 19172 & 19199 OF 2021 4 the petitioner as well as Dr.Thushara James, the learned Sr.Government Pleader.

It was submitted on behalf of the petitioner that in Ext.P2 mahazar it was noted that the dates relating to the documents inside the pen drive seized, was for the period 14.01.2013 to 14.12.2017. However, in Ext.P6 show cause notice and the impugned order, the period reckoned was different. According to the learned counsel, the data utilised against the petitioner was not given to the petitioner and that the same had caused infraction of the principles of natural justice.

I have considered the contentions advanced by the learned counsel for the petitioner as well as the respondents.

The contentions raised in these writ petitions are disputed questions of fact and are all matters which can effectively be adjudicated in the statutory appeal

WP(C) NO. 19172 & 19199 OF 2021 5 provided under Section 107 of the Central Goods and Service Tax Act, 2017 [for short, the Act]. While the petitioner denies having received the documents used against him, the assessment order clearly mentions that the copies of the documents used against the petitioner were given to him. In either case it remains within the realm of disputed facts. The Supreme Court as well as this Court have, time and again cautioned about entertaining a writ petition, when there is an alternative remedy. Writ petitions, in such cases must be entertained only in exceptional cases. (See Assistant Commissioner of State Tax and Others v. M/s.Commercial Steel Ltd., C.A.No.5121 of 2021).

As mentioned earlier, the ground of violation of principles of natural justice on the ground of non- serving of documents used against the petitioner, requires an appreciation of disputed facts, which this

WP(C) NO. 19172 & 19199 OF 2021 6 Court cannot go into in writ juri iction.

The learned counsel for the petitioner on noticing the disinclination of this Court to entertain the challenge under Article 226, especially when appellate remedies are available under Section 107 of the Act, therefore, sought to pursue the statutory remedies available under the Act.

In view of the aforesaid, without rendering any finding on merits in the matter, I refuse to entertain these writ petitions, leaving liberty to the petitioner to take up all the contentions raised in these writ petitions also, before the Appellate Authority. These writ petitions are therefore dismissed. BECHU KURIAN THOMAS, JUDGE AMV/16/09//2021

WP(C) NO. 19172 & 19199 OF 2021 7 APPENDIX OF WP(C) 19199/2021 PETITIONER EXHIBITS Exhibit P1OF THE GST REGISTRATION CERTIFICATE OF THE PETITIONER Exhibit P2OF THE MAHAZER PREPARED BY THE 1ST RESPONDENT AT THE TIME OF INSPECTOR 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 13/19-20(18-19) DATED 14.12.2020 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 74(1) OF THE CGST/SGST ACT FOR THE YEAR 2018-19 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 REPLY FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 08.03.2021 Exhibit P9OF THE ORDER NO.GSTINS-13/2019-20 (18- 19) DATED 23.02.2021 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 RESPONDENTS EXHIBITS NILP.A.TO JUDGE

WP(C) NO. 19172 & 19199 OF 2021 8 APPENDIX OF WP(C) 19172/2021 PETITIONER 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 13/19-20(17-18) DATED 14.12.2020 ISSUED BY THE 1ST RESPONDENT UNDER SECTION 74(1) OF THE CGST/SGST ACT FOR THE YEAR 2018-19. 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 (17- 18) 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.

RESPONDENTS EXHIBITS NILP.A.TO JUDGE