Ms. Red Bee Enterprises vs. The Assistant Commissioner Of State Tax - Kerala High Court, 31 October 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THUR AY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941 WA.No.2179 OF 2019 AGAINST THE JUDGMENT IN WP(C) 20290/2019(I) OF THIS COURT APPELLANT/PETITIONER: MS. RED BEE ENTERPRISES, FANTACY COMPLEX, PLYWOOD ROAD, CHERANI, THRIKKALANGODE, MANJERI, REPRESENTED BY ITS MANAGING PARTNER P. NUSARATH. BY ADVS. SRI.PREMJIT NAGENDRAN SRI.P.RAGHUNATH RESPONDENT/RESPONDENT: THE ASSISTANT COMMISSIONER OF STATE TAX, STATE GST DEPARTMENT, KERALA, SPECIAL CIRCLE, MALAPPURAM-676505. OTHER PRESENT: SR.GP.SRI.MOHAMMED RAFIQ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A. No.2179/2019 -:2:-

C.K. ABDUL REHIM, J. & ANU SIVARAMAN, J. ----------------------------------------------------- W.A. No. 2179 OF 2019 ------------------------------------------------------- Dated this the 31st day of October, 2019 J U D G M E N T Abdul Rehim

, J. Challenge raised in the writ petition against the order of assessment finalized against the appellant/writ petitioner, was declined by the Single Judge, by holding that an exercise to examine the errors pointed out in the assessment cannot be undertaken in the writ petition unless a re-examination of relevant circumstances are made. On the other hand, it was observed that, if a statutory appeal is filed against the impugned assessment, the assessee will get an opportunity to

W.A. No.2179/2019 -:3:- demonstrate all those aspects by producing relevant records in assailing the reasons mentioned for finalizing the impugned assessment. Having found so, the learned Single Judge gave liberty to the writ petitioner to file appeal and stay application, within the time stipulated in the judgment. Further, the appellate authority was directed to dispose of the stay application, if any filed, within four weeks from the date of filing of the appeal. The respondents are also directed to maintain status quo with respect to recovery based on the assessment, for a period of six weeks from the date of the judgment.

Vehement contentions are raised by the learned counsel for the appellant that the errors in the assessment could be appreciated in the first blush itself and the refusal on the part of the Single Judge to interfere with the same was illegal and erroneous. True, that existence of an alternate statutory remedy is not an absolute bar for entertaining the writ petition. But whether the error pointed out against the

W.A. No.2179/2019 -:4:- assessment need to be examined by exercise of powers vested under Article 226 of the Constitution of India or whether the petitioner need to be relegated to avail the statutory remedy, is a matter of discretion left with the writ court to decide. If the Single Judge was reluctant to exercise the discretion in favour of the assessee/writ petitioner, it cannot be said that there occurred any an illegality, irregularity or impropriety, which warrants interference in an intra-court appeal. Therefore we are not persuaded to entertain the above writ appeal.

However, learned counsel for the appellant made an appeal to this court for indulgence to extend the period stipulated in the impugned judgment for facilitating the appellant to seek the appellate remedy. If the appellant files the statutory appeal against the impugned assessment within two weeks from today, the stay application if any accompanying such appeal shall be disposed of by the appellate authority within four weeks from the date of filing of such appeal. Collection

W.A. No.2179/2019 -:5:- and recovery of the amounts due under the impugned assessment shall be kept in abeyance for a period of six weeks from today, in order to facilitate the appellant to take appropriate steps as directed above.

We further make it clear that the appellate authority shall take into consideration of the time spent by the appellant in prosecuting the writ petition as well as this writ appeal, while considering application if any filed seeking condonation of delay in filing the appeal. C.K. ABDUL REHIM, JUDGE. ANU SIVARAMAN, JUDGE.

ul/- //// P.S. to Judge.