Lakshmi Narasimha Textles vs. The Commissioner Of Commercial Taxes - 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. 26354 OF 2018 PETITIONER: LAKSHMI NARASIMHA TEXTLES MISAB COMPLEX, POST OFFICE ROAD, MANANTHAVADY,WAYANAD-670645.REPRESENTED BY ITS PROPRIETOR G.RAMAKRISHNAVEL. BY ADVS. SRI.C.S.ARUN SHANKAR SRI.T.G.MADHAVANUNNI SRI.S.SHYAM KUMAR RESPONDENTS: 1 THE COMMISSIONER OF COMMERCIAL TAXES THIRUVANANTHAPURAM-695033. 2 THE STATE TAX OFFICER MANANTHAVADY, WAYANAD-6570645. 3 CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,UNION OF INDIA, NEW DELHI-110001. 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.26354 OF 2018 ..2..

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 (for short, “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of one year from the date on which the nationwide goods and service tax was implemented or until the amendment was repealed by a competent legislature and the petitioner further challenges Ext.P1 order under Sec.25(1) of the KVAT Act, 2003 for the assessment year 2015-16, passed by the second 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) 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.26354 OF 2018 ..3.. Golden Jewels (supra), the petitioner is not entitled to get any relief against the said challenge.

However, as far as Ext.P1 order passed by the second 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, 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 W.P.(C)No.26354 OF 2018 ..4.. not lost to the petitioner. No coercive steps shall be taken to recover the amount covered by Ext.P1 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 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 competent authority. SHOBA ANNAMMA EAPEN, JUDGE MBS/

W.P.(C)No.26354 OF 2018 ..5.. APPENDIX OF WP(C) 26354/2018 PETITIONER EXHIBITS EXHIBIT-P1:OF THE ASSESSMENT ORDER DATED 30.04.2018 ISSUED U/S.25(1) O THE KVAT ACT, 2003 BY THE 2ND RESPONDENT FOR THE YEAR 2015-16. EXHIBIT-P2:OF THE ORDER DATED 04.04.2018 OF THE HON'BLE HIGH COURT IN W.P.(C) NO.11335 OF 2018.