T.K.Ummer vs. The State Tax Officer - 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. 18491 OF 2018 PETITIONER: T.K.UMMER PROPRIETOR, M/S NAVARATNA HYPER MARKET,ASHTAMICHIRA BY ADVS. SMT.S.K.DEVI SRI.SANTHOSH P.ABRAHAM RESPONDENTS: 1 THE STATE TAX OFFICER STATE GOODS & SERVICE TAX DEPARTMENT,CHALAKUDY 680307 2 THE COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT,THIRUVANANTHAPURAM 695001 3 THE SECRETARY TAXES DEPARTMENT, GOVERNMENT OF KERALA,SECRETARIAT, THIRUVANANTHAPURAM 695001 4 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,ROOM NO.46, NORTH BLOCK, 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.18491 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of one year from the date on which the nationwide goods and service tax was implemented or until the amendment was repealed by a competent legislature. The petitioner further challenges Ext.P1 notice issued by the first respondent under Section 25(1) of the KVAT Act, 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 Golden Jewels (supra), the petitioner is not entitled to get any relief against the said challenge.

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However, Ext.P1, which is under challenge in this writ petition, is a notice issued by the first respondent under Section 25(1) of the KVAT Act, 2003, for the assessment year 2011-12. The petitioner has not so far filed objection to the notice since the writ petition was pending before this Court. Hence, I am of the opinion that this writ petition can be disposed of with a direction to the petitioner to file objections, if any, to Ext.P1 notice, before the first respondent. Accordingly, the writ petition is disposed of as follows: The petitioner is directed to file objections, if any, to Ext.P1 notice with all supporting documents before the first respondent within a period of one month from the date of receipt of a copy of this judgment. The first 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. The petitioner shall produce a copy of this judgment along with a copy of this writ petition, before the first respondent. SHOBA ANNAMMA EAPEN, MBS/ JUDGE ..4.. APPENDIX OF WP(C) 18491/2018 PETITIONER'S EXHIBIT:- EXHIBIT P1:OF THE NOTICE NO.32080835711/2011-12 DATED 25-4- 2018