Inart Creations PVT LTD vs. State Tax Officer, (Wc) - Kerala High Court, 14 September 2023

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THUR AY, THE 14TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 WP(C) NO. 16676 OF 2018 PETITIONER: M/S INART CREATIONS PVT LTD DOOR NO.4/204, KANNADI, PALAKKAD,PIN-678701 (REPRESENTED BY ITS DIRECTOR, MR.YASHRAJ,NO.202, CHIRANGDEEP APARTMENTS, 6TH MASS BCC LAYOUT,VIJAYANAGAR, BANGALORE) BY ADVS. DR.PAULY MATHEW MURICKEN SRI.AMEER.K.M. SMT.ASHA JOSE SMT.O.A.NURIYA RESPONDENTS: 1 STATE TAX OFFICER, (WC) COMMERCIAL TAX OFFICE,WORKS CONTRACT, PALAKKAD,678001. 2 THE STATE TAX OFFICER(WC) SGST DEPARTMENT,CIVIL STATION, PALAKKAD, 678001. 3 THE ASSISTANT COMMISSIONER OF STATE TAXES S.G.S.T. DEPARTMENT, CIVIL STATION, PALAKKAD,678001. BY ADV.ARUN AJAY SHANKAR -GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 16676 OF 2018 ..2.. JUDGMENT The writ petition is filed by the petitioner challenging 101st Constitutional Amendment of the Kerala State Goods and Services Tax Act, 2017 stating that the provisions of the Kerala Value Added Tax Act,2003 can be enforced only until the expiry of one year from the date on which the nationwide goods and service tax was implemented or until the amendment was repealed by a competent Legislature and the petitioner further challenges Ext.P1 order under Sec.25(1) of the KVAT Act, 2003 for the assessment year 2013-14, passed by the first respondent stating that it is unconstitutional as it is ultra vires of the Constitution of India.

Heard the learned counsel for the petitioner and the learned Government Pleader.

The aforesaid challenge of 101st Constitutional Amendment of the Kerala State Goods and Services Tax Act, 2017 has been considered in Sheen Golden Jewels (India)

WP(C) NO. 16676 OF 2018 ..3.. Pvt.Ltd. v. State Tax Officer (IB)-1, Investigation Branch, Thiruvananthapuram and others [2019 KHC 205] and decided against the petitioner. Hence, in view of the judgment in Sheen Golden Jewels (Supra), the petitioner is not entitled to get any relief against the said challenge.

However, as far as Ext.P1 assessment order by the first respondent is concerned, the petitioner has to avail the remedy of appeal before the appellate authority and I am of the opinion that, the writ petition can be disposed of directing the petitioner to approach the statutory authorities by way of appeal. Hence, the writ petition is disposed of as follows:-

The petitioner, if so advised, may file an appeal along with petition for condonation of delay and petition for stay before the competent appellate authority,

WP(C) NO. 16676 OF 2018 ..4.. within a period of one month from the date of receipt of a copy of this judgment.

If the petitioner files appeal and petitions as above, the appellate authority shall consider and pass orders on the petition for condonation of delay as well as the petition for stay, within a period of one month thereafter, after affording an opportunity of hearing to the petitioner.

The appellate authority shall take a lenient view while considering the petition for condonation of delay, taking into account the pendency of the writ petition before this Court and pass appropriate orders so that the statutory remedy of appeal is not lost to the petitioner.

The first respondent shall not take any coercive steps to recover the amount covered by Ext.P1 for a period of two months from the date of receipt of a copy

WP(C) NO. 16676 OF 2018 ..5.. of this judgment.

In case of failure by the petitioner to comply with the directions as above in filing the appeal and petitions, the stay of recovery of Ext.P1 granted shall stand vacated. The petitioner shall produce a copy of this judgment along with a copy of this writ petition, before the first respondent. SHOBA ANNAMMA EAPEN JUDGE SMF

WP(C) NO. 16676 OF 2018 ..6.. APPENDIX OF WP(C) 16676/2018 PETITIONER EXHIBITS EXHIBIT P1 AOF ASSESSMENT ORDER PASSED FOR 2013-14 DATED 31.03.2018. EXHIBIT P2 AOF THE CONSTITUTIONAL (101ST AMENDMENT)ACT-2016. EXHIBIT P3 AOF THE UNION LIST (LIST 1) TO THE SEVENTH SCHEDULE TO THE CONSTITUTION OF INDIA EXHIBIT P4 AOF THE STATE LIST (LIST II) TO THE SEVENTH SCHEDULE TO THE CONSTITUTION OF INDIA. EXHIBIT P5 AOF THE NOTIFICATION NO. SO 2986 (E) DATED 16-09-2016 ISSUED BY THE DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA.