M/S. Nanma Properties PVT. Limited vs. State Of Kerala - Kerala High Court, 01 July 2022

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944 WP(C) NO. 25848 OF 2018 PETITIONER: M/S. NANMA PROPERTIES PVT. LIMITED 5B-6, 34/137G, EASTERN CORPORATE OFFICE,N.H.BYEPASS ROAD, EDAPALLY-682 034,REPRESENTED BY ITS MANAGING DIRECTOR ASHEEN PANAKKAT. BY ADV SRI.JOSE JACOB RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE SECRETARY,TAXES(A) DEPARTMENT, GOVERNMENT OF KERALA,SECRETARIAT, TRIVANDRUM-695 001. 2 STATE TAX OFFICER (WORKS CONTRACT) OFFICE OF THE DEPUTY COMMISSIONER OF STATE TAX,WORKS CONTRACT, DEPARTMENT OF STATE GOODS & SERVICES TAX, REVENUE TOWER, 9TH FLOOR, ERNAKULAM-682 011. OTHER PRESENT: SMT. RESMITHA R. CHANDRAN - GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.25848 of 2018 ..2..

JUDGMENT The writ petition is filed challenging Ext.P4 penalty order under Section 67 (1) of the Kerala Value Added Tax Act, 2003 (for short, “the KVAT Act”) and Exts.P6 and P7 notices issued by the second respondent under Section 25(1) of the KVAT Act. The main challenge in this writ petition is against the 101st Constitutional Amendment of the Kerala State Goods and Services Tax Act, 2017, stating that the provisions of the KVAT Act 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of one year from the date on which the nationwide goods and service tax was implemented or until the amendment was repealed by a competent Legislature.

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

The aforesaid issue has been decided against the petitioner in Sheen Golden Jewels (India) Pvt.Ltd. v. State Tax Officer (IB)-1, Investigation Branch, Thiruvananthapuram and others [2019 KHC 205]. Hence, in view of the judgment in Sheen Golden Jewels (supra), the petitioner is not entitled to get any relief against the said challenge.

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However, as far as Ext.P4 order passed by the Intelligence Officer is concerned, it is a penalty order under Section 67 (1) of the KVAT Act,2003. The petitioner has to avail the remedy of appeal/revision before the competent authority. Similarly, Exts.P6 and P7 are notices issued by the second respondent Section 25(1) read with Sec.42(3) of the KVAT Act, 2003. The petitioner may have to file objections to the said notices before the second respondent. I am of the opinion that the writ petition can be disposed of as follows:- The petitioner, if so advised, may file an appeal/revision along with petition for condonation of delay and petition for stay before the competent appellate authority within a period of one month from the date of receipt of a copy of this judgment. If the petitioner files appeal/revision as above, the competent 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 competent authority shall take a lenient view while considering the petition for condonation of delay, taking into account the pendency of the ..4.. writ petition before this Court and pass appropriate orders so that the statutory remedy of appeal/revision is not lost to the petitioner.

No coercive steps shall be taken to recover the amount covered by Ext.P4 for a period of two months from the date of receipt of a copy of the judgment. If the petitioner fails to comply with the directions as above in filing the appeal and petitions, then, the stay of recovery of Ext.P4 granted shall stand vacated.

The petitioner, if so advised, may file reply, if any, to Exts.P6 and P7 notices with all supporting documents before the second respondent within a period of one month from the date of receipt of a copy of this judgment. The second respondent shall consider the objections on merits and pass appropriate orders, if not already passed, in accordance with law, after affording an opportunity of hearing to the petitioner within a period of two months thereafter. The petitioner shall produce a copy of this judgment along with a copy of this writ petition, before the second respondent.

..5.. The writ petition is disposed of as above. SHOBA ANNAMMA EAPEN, MBS/ JUDGE ..6.. APPENDIX OF WP(C) 25848/2018 PETITIONER'S EXHIBITS EXHIBIT P1:OF THE OFFICE INSPECTION REPORT ISSUED BY THE INTELLIGENCE DEPARTMENT. EXHIBIT P2:OF THE NOTICE FOR ISSUED PRODUCTION OF BOOKS OF ACCOUNTS. EXHIBIT P3:OF NOTICES ISSUED UNDER SECTION 67(1) OF THE KAVAT ACT FOR THE YEAR 2015-16 & 2016-17. EXHIBIT P4:OF ORDER ISSUED BY THE INTELLIGENCE DEPARTMENT. EXHIBIT P5:OF NOTICE ISSUED UNDER THE KVAT ACT. EXHIBIT P6:OF NOTICES ISSUED UNDER SECTION 25(1) OF THE KVAT ACT FOR THE YEAR 2014-15. EXHIBIT P7:OF NOTICES ISSUED UNDER SECTION 25(1) OF THE KVAT ACT FOR THE YEAR 2015-16.