J And B Blue Metals vs. State Of Kerala - Kerala High Court, 02 December 2019

Cause title — parties, addresses and appearances

WP(C).No.24911 & 25043 OF 2019 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941 WP(C).No.24911 OF 2019(L) PETITIONER/S: M/S.J AND B BLUE METALS, KOODAPULAM P.O., VELLILAPPILLY RAMAPURAM, KOTTAYAM DISTRICT REP. BY ITS MANAGING PARTNER, JAISON JACOB. BY ADVS. SRI.ROY CHACKO SRI.K.C.VINCENT RESPONDENT/S: 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF TAXES, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES PALA, KOTTAYAM-686 575. 3 THE ASSISTANT COMMISSIONER (APPEALS), OFFICE OF THE STATE GOODS AND SERVICES TAX DEPARTMENT, KOTTAYAM - 686 002. 4 THE DEPUTY COMMISSIONER (APPEALS), OFFICE OF THE STATE GOODS AND SERVICES TAX DEPARTMENT, KOTTAYAM - 686 002. SMT.M.M.JASMINE, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.12.2019, ALONG WITH WP(C).25043/2019(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.24911 & 25043 OF 2019 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941 WP(C).No.25043 OF 2019(E) PETITIONER/S: M/S. J AND B BLUE METALS KOODAPULAM P.O., VELLILAPPILLY RAMAPURAM, KOTTAYAM DISTRICT REPRESENTED BY ITS MANAGING DIRECTOR, JAISON JACOB. BY ADVS. SRI.ROY CHACKO SRI.K.C.VINCENT RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY SECRETARY TO DEPARTMENT OF TAXES, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES PALA, KOTTAYAM-686 575. 3 THE ASSISTANT COMMISSIONER(APPEALS), OFFICE OF THE STATE GOODS AND SERVICES TAX DEPARTMENT, KOTTAYAM-686 002. 4 THE DEPUTY COMMISSIONER(APPEALS), OFFICE OF THE STATE GOODS AND SERVICES TAX DEPARTMENT, KOTTAYAM-686 002. GOVERNMENT PLEADER SMT.M.M.JASMINE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.12.2019, ALONG WITH WP(C).24911/2019(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.24911 & 25043 OF 2019 3

JUDGMENT [ WP(C).24911/2019, WP(C).25043/2019 ]

As both these writ petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment.

The petitioner in both these writ petitions is aggrieved by the revised assessment orders passed by the assessing authority, pursuant to a remand by the first appellate authority (Exts.P5 and P6 respectively). The contention of the petitioner in both these writ petitions is essentially that, while passing revised orders based on the remand order of the appellate authority, the assessing authority did not take into account the contention of the petitioner with regard to non-applicability of the findings in a report of the Pollution Control Board for determining the jaw size of the crushers used by the petitioner. The revised assessment orders are thus stated to be vitiated through a patent non-application of mind by the assessing authority.

I have heard the learned counsel for the petitioner as also the learned Government Pleader for the respondents.

On a consideration of the facts and circumstances of the case and also the submissions made across the Bar, I find that when the matters came up for admission, this Court had granted an interim stay for a period of eight weeks from the date of admission and the said period has been extended thereafter. I find, however, that the petitioner has an effective alternate remedy by way of an appeal before the First Appellate Authority against the orders impugned in this WP(C).No.24911 & 25043 OF 2019 4 writ petition. The nature of the dispute urged by the petitioner, being mostly factual, it would be more appropriate for the appellate authority to consider the said objections raised by the petitioner including the contention that the assessing authority did not comply with the strict terms and directions in the remand order of the First Appellate Authority. I do not find the impugned orders to be vitiated by any error of juri iction or violation of the principles of natural justice so as to warrant an interference with the same in these proceedings under Article 226 of the Constitution of India. Resultantly, I reject the writ petitions in their challenge against the impugned assessment orders and relegate the petitioner to his alternate remedy of filing appeals before the First Appellate Authority against the impugned orders.

Taking note of the stay already granted by this Court against the recovery proceedings pursuant to the orders impugned in these writ petitions, I direct that the said interim orders shall continue to be in force for a further period of three weeks from the date of receipt of a copy of this judgment so as to enable the petitioner to move the First Appellate Authority in the meanwhile. The writ petitions are disposed as above. A.K.JAYASANKARAN NAMBIAR JUDGE WP(C).No.24911 & 25043 OF 2019 5 APPENDIX OF WP(C) 24911/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 AOF THE ORDER NO.32050962674/2013-14 AND NOTICE OF DEMAND BOTH DATED 01/07/2017. EXHIBIT P2 AOF THE CERTIFICATE/LETTER DATED 29/11/2017 ISSUED BY THE PCB. EXHIBIT P3 AOF THE ORDER IN KVATA NO.684/2017 DATED 03/10/2018. EXHIBIT P4 AOF THE NOTES SUBMITTED BY THE PETITIONER DATED 21/06/2019. EXHIBIT P5 AOF THE ORDER DATED 05/08/2019 ISSUED BY THE 2ND RESPONDENT. WP(C).No.24911 & 25043 OF 2019 6 APPENDIX OF WP(C) 25043/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ORDER NO.32050962674/2013-14 DEMAND DATED 01.07.2017. EXHIBIT P1 A AOF THE CERTIFICATE/LETTER DATED 29.11.2017 ISSUED BY THE PCB. EXHIBIT P1 B AOF THE ORDER IN KVATA NO.684/2017 DATED 03.10.2018. EXHIBIT P1 C AOF THE ORDER DATED 05.08.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2 AOF THE INTIMATION DATED 17.10.2014. EXHIBIT P3 AOF ORDER NO.32050962674/2014-15 DATED 15.07.2017. EXHIBIT P4 AOF THE APPELLATE ORDER DATED 03.10.2018. EXHIBIT P5 AOF THE NOTE SUBMITTED BY THE PETITIONER DATED 21.06.2019. EXHIBIT P6 AOF THE ORDER DATED 06.08.2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7 AOF THE CERTIFICATE DATED 14.12.2017 ISSUED BY THE GEOLOGIST. EXHIBIT P8 AOF THE CERTIFICATE DATED 16.07.2019 ISSUED FROM THE OFFICE OF THE GEOLOGY DEPARTMENT.