Urc Constructions PVT.LTD. vs. The State Tax Officer (Works Contract) - Kerala High Court, 27 February 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNE AY,THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940 WP(C).No. 79 of 2019 PETITIONER/S: M/S.URC CONSTRUCTIONS PVT.LTD. KANJIKODE, PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER, KANAKA SABAPATHI, AGED 37, S/O.BALAN. BY ADVS. SRI.HARISANKAR V. MENON SMT.K.KRISHNA SMT.MEERA V.MENON RESPONDENT/S: 1 THE STATE TAX OFFICER (WORKS CONTRACT) STATE GST DEPARTMENT, PALAKKAD -678001. 2 THE COMMISSIONER OF STATE GST, TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM-695002. OTHER PRESENT: DR. THUSHARA JAMES, GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) No.79/2019 -2- J U D G M E N T The petitioner, an assessee under the KVAT Act 2003, claimed refund for the Assessment Year 2015-16. Accordingly, it submitted the Ext.P2 application for refund. Later, complaining of the authorities not acceding to the petitioner's request for refund, the petitioner filed W.P.(C) No.26540 of 2018. This Court, through the Ext.P3 judgment disposed it of directing the authorities to consider the petitioner's representation expeditiously. Then the authorities passed the Ext.P5 order, styled as notice.

In the Ext.P5 notice (if it were called so) the operative portion reads as follows: “Therefore it is informed that your refund application will be processed only after [your] remitting the CST dues for 2015-16 and final disposal of the WP(C) related to the year 2010-11.” Aggrieved, the petitioner has filed this writ petition.

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In response to the submissions made by the petitioner's counsel, the Government Pleader contends that though the Ext.P5 cannot be termed an order Section 90 of the KVAT Act; the fact, according to her, remains that there are pending assessment proceedings for another Assessment Year. Until those assessment proceedings conclude, the petitioner cannot demand for refund. She also asserts that an interim suspension of the proceedings in a writ petition would not wipe out the petitioner's liability.

Admittedly, the petitioner is entitled to refund. And indeed, for another Assessment Year, there are proceedings pending. But this Court in W.P.(C) No.13442 of 2018, through an interim order dated 13.04.2018, stayed all further proceedings. So long as the order of stay continues, the respondent cannot maintain that the petitioner is still liable to pay, though the very liability may not get wiped out.

Under these circumstances, the Ext.P5 cannot be sustained. I accordingly set it aside, and remand the matter to the respondent Corporation. The authority concerned will

W.P.(C) No.79/2019 -4- consider the petitioner's claim for refund, without reference to the pending proceedings for the Assessment Year 2010-11, which already stand stayed by this Court. The writ petition is disposed of. DAMA SESHADRI NAIDU JUDGE jjj APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2015-16. EXHIBIT P2 COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P3 COPY OF JUDGMENT IN WP(C)NO.26540/18 OF THIS HON'BLE COURT. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 COPY OF ORDER STYLED AS A NOTICE ISSUED BY THE 1ST RESPONDENT.