T.K.Shoukathali vs. The Assistant Commissioner - Kerala High Court, 02 April 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI TUE AY ,THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941 WP(C).No. 10196 of 2019 PETITIONER: T.K.SHOUKATHALI, AGED 55 YEARS KOYA HAJI, THONDIYIL HOUSE, KARUVARAKUNDU, PROPRIETOR, M/S. BISMI ENTERPRISES, KARUVARAKUNDU MALAPPURAM. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE, MALAPPURAM 676 505. 2 THE DEPUTY COMMISSIONER STATE TAX, STATE GOODS AND SERVICES TAX DEPARTMENT, MALAPPURAM 676 505. 3 THE STATE TAX OFFICER-1, STATE GOODS AND SERVICES TAX DEPARTMENT, NILAMBUR 679 329. 4 THE COMMISSIONER, DEPARTMENT OF STATE GST, KILLIPPLAM, KARAMANA, THIRUVANANTHAPURAM 695 002. SR. GP. SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 10196 of 2019 2 JUDGMENT The petitioner prays for Writ of Certiorari to quash Exts.P4 and P7 issued by the 2nd and 3rd respondents respectively. The circumstances relevant for disposing of the writ petition are briefly stated thus: The 1st respondent through Ext.P1 Order No. 32100257062/2011-12 dated 02-09-2013 completed the assessment. The 2nd respondent issued Ext.P2 notice under Section 56 of the KVAT Act, 2003. The petitioner through Ext.P3 replied to the notice in Ext.P2, the first and foremost objection taken by the petitioner is under sub-section (c) of Section 56 (2) the Act which reads thus: (2) The Deputy Commissioner shall not pass any order under sub-section (1) if,- (a)...... (b)...., or (c) more than four years have expired from the year in which the order referred to therein was passed.

WP(C).No. 10196 of 2019 3

The 2nd respondent adverting to the objection of limitation raised by the petitioner finds that the starting point of limitation is from the date of detection of fraud. This finding of the 2nd respondent among other findings are challenged in this writ petition.

The learned Government Pleader opposes the writ prayer by contending that the petitioner has effective remedy of further revision under Section 59 of the KVAT Act, 2003. The petitioner as well could avail the statutory remedy and there could be a direction from this Court to consider the objection of limitation raised by the petitioner in the manner prescribed in law.

The counsel for the petitioner does not object to availing the remedy under Section 59 of the Act but contends that having regarded to a question of importance by way of limitation is raised by the petitioner, the interest of the petitioner is reasonably protected keeping in view the swift decision taken through Ext.P7. I have perused Exts.P4 and P7 and I am of the view that the petitioner can be

WP(C).No. 10196 of 2019 4 relegated to work out the relief available under Section 59 within four weeks from today by enclosing a copy of this order and this Court directs that no coercive step is taken by the respondents pursuant to Ext.P7 till the revision is disposed of and order communicated to the petitioner. The revision filed by the petitioner is heard and disposed of in four months from the date of receipt of a copy of this judgment. S.V.BHATTI JUDGE SVP

WP(C).No. 10196 of 2019 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12 DATED 2.9.2013. EXHIBIT P2 COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT DATED 23.2.2019. EXHIBIT P3 COPY OF REPLY FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 5.3.2019. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2011-12 DATED 15.3.2019. EXHIBIT P5 COPY OF NOTICE ISSUED BY THE 3RD RESPONDENT DATED 19.3.2019. EXHIBIT P6 COPY OF REPLY FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 25.3.2019. EXHIBIT P7 COPY OF ORDER ISSUED BY THE 3RD RESPONDENT DATED 27.3.2019. RESPONDENT'S EXHIBITS : NIL //// PA TO JUDGE