Rani Tomy vs. The Assistant Commissioner - Kerala High Court, 20 May 2022

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944 WP(C) NO. 15332 OF 2022 PETITIONER: RANI TOMY AGED 52 YEARS W/O. TOMY SEBASTIAN, PROPRIETOR, M/S DEVAMATHA TRADERS, MOOLAMATTOM, IDUKKI - 685589. BY ADVS. G.HARIHARAN PRAVEEN.H. K.S.SMITHA T.T.SHANIBA M.V.VIPINDAS AMAL DEV D SISIRA M.SHIRINE RESPONDENTS: 1 THE ASSISTANT COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT, 2ND CIRCLE, THODUPUZHA, IDUKKI - 685581. 2 THE DEPUTY COMMISSIONER OF STATE TAX & AUTHORISED OFFICER UNDER THE RR ACT STATE GOODS AND SERVICES TAX DEPARTMENT, IDUKKI AT KATTAPPANA - 685515. OTHER PRESENT: SMT.M.M.JASMINE -GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15332 OF 2022 2 BECHU KURIAN THOMAS, J. =========================== W.P.(C) No.15332 of 2022 ============================ Dated this the 20th day of May, 2022

JUDGMENT Aggrieved by an order of assessment dated 20.02.2018, petitioner preferred an application for rectification under Section 66 of the KVAT Act. However, by the impugned order dated 31.03.2022, the rectification petition has been rejected.

The petitioner assails the order declining rectification and points out that the only reason mentioned is that the petitioner had an effective remedy in the form of an appeal.

Sri.Praveen Hariharan, the learned counsel for the petitioner contended that the reason for rejection of the rectification petition is not legally tenable and that the 1st respondent has committed material irregularity in issuing an order, which is perverse in nature also.

I have heard Shri.Praveen Hariharan, the learned counsel

WP(C) NO. 15332 OF 2022 3 for the petitioner as well as Smt.M.M.Jasmin, the learned Government Pleader.

On an appreciation of the contentions raised as well as on a perusal of the pleadings and the impugned order, I find that the learned counsel for the petitioner is justified in the submission that the sole reason for declining to exercise the juri iction under Section 66 of the KVAT Act is the alleged availability of remedy in the form of an appeal.

The existence of a remedy in the form of an appeal is dehors the provisions under Section 66 of the KVAT Act. Merely because the assessee has a right by way of an appeal, the same does not bar the exercise of juri iction under Section 66, as the statute provides such an enabling provision.

In view of the above, the reason mentioned in Ext.P1 is perverse, warranting interference under Article 226 of the Constitution of India.

Accordingly, I set aside Ext.P1 and direct the 1st respondent to consider and pass appropriate orders on the WP(C) NO. 15332 OF 2022 4 rectification application afresh, after granting an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. BECHU KURIAN THOMAS JUDGE ssa/

WP(C) NO. 15332 OF 2022 5 APPENDIX OF WP(C) 15332/2022 PETITIONER’S EXHIBITS Exhibit P1OF THE ORDER NO.32061493271/2016 - 17 DATED 31.03.2022 PASSED BY THE 1ST RESPONDENT. Exhibit P2OF THE ORDER PASSED BY THE STATE TAX OFFICER, 2ND CIRCLE, THODUPUZHA DATED 20.02.2018. Exhibit P3OF THE NOTIFICATION NO.SRO 804/2008 DATED 31.07.2008. Exhibit P4OF THE NOTIFICATION NO.SRO 753/2011 DATED 30.11.2011. Exhibit P5OF THE CLARIFICATION ORDER PASSED BY THE COMMISSIONER OF COMMERCIAL TAXES VIDE ORDER NO.CT/815/17-C3 DATED 22.08.2017. Exhibit P6OF THE REVENUE RECOVERY NOTICE UNDER SECTION 7 OF THE RR ACT DATED 05.02.2022 ISSUED BY THE 2ND RESPONDENT. Exhibit P7OF THE RECTIFICATION APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.