Mas Make Polymers vs. The Commercial Tax Officer - Kerala High Court, 12 August 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THUR AY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943 WP(C) NO. 16523 OF 2021 PETITIONER: MAS MAKE POLYMERS VELLALACHIPOTTA, ELAPPULLI, EDUPPUKULAM P.O, PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER, K.P.ABDUL SALEEM. BY ADVS. S.ANIL KUMAR (TRIVANDRUM) RAHUL A. APARNA ANIL RESPONDENTS: 1 THE COMMERCIAL TAX OFFICER (NOW RE-DESIGNATED AS STATE TAX OFFICER), 3RD CIRCLE, GST OFFICE COMPLEX, NEAR CIVIL STATION, PALAKKAD, PIN-678001. 2 THE DEPUTY COMMISSIONER (APPEALS) STATE GST DEPARTMENT, GST OFFICE COMPLEX, NEAR CIVIL STATION, PALAKKAD, PIN-678001. SMT. THUSHARA JAMES - SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 16523 OF 2021 2 JUDGMENT The petitioner has approached this Court impugning Ext.P3 order of the 2nd respondent Appellate Authority, asserting that the said order, though dated 14.10.2020, was received by them only on 12.07.2021. The petitioner says that even though, in Ext.P2 Memorandum of Appeal, the grounds for the challenge of the assessment were specifically pleaded, none of them have been considered by the Appellate Authority, while Ext.P3 order has been issued. They, therefore, pray that Ext.P3 be set aside and the 2nd respondent - Appellate Authority be directed to reconsider Ext.P2 in its proper perspective.

I have heard Shri.S.Anil Kumar, learned counsel for the petitioner and Smt.Thushara James, learned Senior Government Pleader appearing for the respondents.

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The learned Senior Government Pleader submitted that this writ petition is not maintainable because the petitioner has an effective, alternative remedy, of filing a Second Appeal against Ext.P3. She submitted that without exhausting the said remedy, the petitioner could not have approached this Court, particularly because the challenge against the impugned order is not merely on law but on the facts involved also. She, therefore, prayed that this writ petition be dismissed.

In reply, Shri.S.Anil Kumar, learned counsel for the petitioner, conceded that his client has a remedy of Second Appeal; but contended that, in spite of the same, they are entitled to approach this Court because the challenge is based on law, namely that the 2nd respondent – Appellate Authority has disposed of the Appeal without following due procedure.

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Even when I hear Shri.S.Anil Kumar on the afore lines, the pleadings on record would clearly show that the attempt of the petitioner is to challenge Ext.P3 on its merits and I am certain that when the petitioner has an alternative, efficacious statutory remedy available, it would not be proper for this Court to exercise any power under Article 226 of the Constitution of India.

In the afore circumstances, I am certain that the petitioner must invoke their alternative remedy; for which purpose, I also leave them liberty to file necessary application for condonation of delay, if so necessary, before the 2ndrespondent - Appellate Authority; with a concomitant order that the same shall be considered by the said Authority in terms of law.

In order to enable the petitioner to invoke their second Appellate remedy without the threat of imminent action, I direct that all recovery based on Ext.P1 assessment shall remain deferred for a

WP(C) NO. 16523 OF 2021 5 period of one month from the date of receipt of a copy of this judgment. This writ petition is thus ordered. DEVAN RAMACHANDRAN JUDGE MC/18.8

WP(C) NO. 16523 OF 2021 6 APPENDIX OF WP(C) 16523/2021 PETITIONER EXHIBITS Exhibit P1 COPY OF THE PENALTY ORDER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11. Exhibit P1(A) COPY OF THE PENALTY ORDER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12. Exhibit P1(B) COPY OF THE PENALTY ORDER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13. Exhibit P2 COPY OF APPEAL MEMORANDUM AGAINST EXT.P1 FILED BEFORE THE 2ND RESPONDENT. Exhibit P2(A) COPY OF APPEAL MEMORANDUM AGAINST EXT.P1(A) FILED BEFORE THE 2ND RESPONDENT. Exhibit P2(B) COPY OF APPEAL MEMORANDUM AGAINST EXT.P1(B) FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P3 COPY OF THE COMMON ORDER DATED 14.10.2020 DISMISSING EXTS. P2 TO P2(B) APPEALS BY THE 2ND RESPONDENT.