M/S. Benlion Coir Industries vs. The Assistant Commissioner (Assessment) - 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. 27585 OF 2018 PETITIONER: M/S. BENLION COIR INDUSTRIES,ASSOCIATED WEIGH BRIDGE BUILDINGS, 358K, M C ROAD, VATTAKKATTUPADY, PERUMBAVOOR, REPRESENTED BY ITS PROPRIETOR BENNY MATHEW RESIDING AT 2/509, VANCHIYAPURAM,PIRIVU,SULEESWARANPATTY.P.O., POLLACHI-642 006, COIMBATORE DISTRICT, TAMIL NADU. BY ADVS. P.M. POULOSE BROONO P.D. RESPONDENTS: 1 THE ASSISTANT COMMISSIONER (ASSESSMENT) SPECIAL CIRCLE, COMMERCIAL TAXES, PERUMBAVOOR, PIN - 683542 2 THE INTELLIGENCE SQUAD NO.V,MATTANCHERRY AT MINI CIVIL STATION, PERUMBAVOOR, PIN-, PIN - 683542 3 COMMISSIONER OF STATE TAXES, TAX TOWER, KARAMANA,THIRUVANANTHAPURAM., PIN - 695002 4 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO TAXES, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695002 5 CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS,REPRESENTED BY ITS CHAIRMAN, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI, PIN - 110001 W.P.(C)No.27585 OF 2018 ..2.. 6 UNION OF INDIA, REPRESENTED BY ITS PRINCIPAL SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI, PIN - 110001 7 THE DEPUTY COMMISSIONER OF STATE TAXES(INT),STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM., PIN - 695001 BY ADVS. R5 BY SR.ADV.SRI.SREELAL WARRIER OTHER PRESENT: SMT. RESMITHA R. CHANDRAN – GP R1 TO R4 & R7 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.27585 OF 2018 ..3..

J U D G M E N T 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of one year from the date on which the nationwide goods and service tax was implemented or until the amendment was repealed by a competent Legislature and the petitioner further challenges Exts.P2 and P5 orders under Sec.67(1) of the KVAT Act, 2003 for the assessment year 2012-13 and 2013-14, passed by the respondents 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) 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

W.P.(C)No.27585 OF 2018 ..4.. Golden Jewels (Supra), the petitioner is not entitled to get any relief against the said challenge.

However, as far as Exts.P2 and P5 orders passed by the respondents are concerned, the petitioner has to avail the remedy of appeal/revision 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, shall 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. 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 W.P.(C)No.27585 OF 2018 ..5.. statutory remedy of appeal/revision is not lost to the petitioner. The respondents shall not take any coercive steps to recover the amount covered by Ext.P2 and Ext.P5 for a period of two months from the date of receipt of a copy of this judgment. In case of failure by the petitioner to comply with the directions as above in filing the appeal/revision and petitions, the stay of recovery of Ext.P2 and Ext.P5 granted shall stand vacated. The petitioner shall produce a copy of this judgment along with a copy of this writ petition, before the second respondent. SHOBA ANNAMMA EAPEN, JUDGE MBS/

W.P.(C)No.27585 OF 2018 ..6.. APPENDIX OF WP(C) 27585/2018 PETITIONER'S EXHIBITS: EXHIBIT P1OF THE REPLY DATED 8.2.2017 SENT BY PETITIONER TO THE INTELLIGENCE OFFICER, EXHIBIT P2OF THE ORDER NO.ISM/V/20/2014-15(2012-13) DATED 18.12.2017 ISSUED BY 2ND RESPONDENT. EXHIBIT P3OF THE DEMAND NOTICE DATED 6.1.2018 ISSUED BY 2ND RESPONDENT. EXHIBIT P4OF THE REPLY DATED 8.2.2017 GIVEN BY PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P5OF THE PENALTY ORDER NO.ISM/V/20/2014-15(2013-14)DATED 18.12.2017 ISSUED BY 2ND RESPONDENT. EXHIBIT P6OF THE DEMAND NOTICE DATED 6.1.2018 DIRECTING THE PETITIONER TO PAY THE AMOUNT OF RS.48,22,708/- ISSUED BY 2ND RESPONDENT. EXHIBIT P7OF THE ORDER IN WPC.NO.11355/2018 DATED 4.4.2018. EXHIBIT P8OF THE ORDER IN WPC.NO.13136/2018 DATED 12.4.2018. EXHIBIT P9OF THE ORDER IN WPC.NO.14276/2016 DATED 24.4.2018