K.Viswanath vs. State Tax Officer,State Goods And Services Tax Department

The petitioner prays for the following reliefs: “i) to call the records from 1st respondent leading to issuance of Ext.P4 order and Ext.P5 notice and to issue a writ of certiorari or any other appropriate writ or direction quashing Ext.P4 order and Ext.P5 notice for regular assessment for 2012-13 issued by 1st respondent; ii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing 2nd respondent to dispose of Ext.P6 appeal within a time limit fixed by this Hon'ble Court and while disposing the appeal reported decision referred in Ext.P3 judgment may be directed to be considered and stay all further proceedings to Ext.P4 and P5 till then, to the ends of justice; iii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing 1st respondent to allow two weeks time sought for in Ext.P7 to file reply against Ext.P5 from the date of service and till such time all further proceedings for regular assessment pursuant to Ext.P5 may be directed to be kept in abeyance; iv) to pass such other orders as this Hon'ble Court may deem justified, to the facts and circumstances of the case;

The circumstances relevant for disposing of the writ petition are stated thus: The first respondent through Ext.P4 proceedings dated 16.03.2019, in exercise of his powers under Section 8(f) of the KVAT Act, 2003, cancelled the permission to pay tax at compounded rate by the petitioner. Petitioner filed Ext.P6 appeal before the Appellate Tribunal under Section 60 of the Act. The first respondent through Ext.P5 dated 16.03.2019 issued notice under Section 25(1) of the Act. The first respondent through Ext.P5 proposes to complete the assessment for the Assessment Year 2012-

Hence the writ petition for the prayers referred to above.

Mr.Tomson T. Emmanuel, first tried to convince this Court to keep in abeyance Ext.P5 notice till Ext.P6 appeal is heard and disposed of. Alternatively, keeping in view the next date of hearing of appeal (Ext.P6) before the Tribunal on 24.07.2019, requests the Court to direct the Tribunal to dispose of Ext.P6 appeal -4- without further adjournments on 24.07.2019. The petitioner refers to and also relies on Ext.P8 judgment dated 13.04.2012 in W.P.(C) No.9815 of 2012. 5. Smt.M.M.Jasmin, opposes the writ prayer and her contentions are that the order under Section 8 in Ext.P4 is independent to the notice issued under Section 25 in Ext.P5. Staying proceedings in Ext.P5, which is independent in nature, does not go with the scheme of the Act. According to her, the assessing authority even if decides Ext.P5 notice the petitioner is not without legal remedies, including the remedy of appeal. She distinguishes the circumstances in Ext.P8 and the circumstances in the case on hand. With a view to giving quietus to the entitlement of petitioner for continuing to pay tax at compounded rate, this Court considers directing the Kerala Value Added Tax Appellate Tribunal, Cochin to dispose of Ext.P6 appeal.

I have perused the record and noted the rival submissions made by the counsel appearing for the parties.

After perusing the record, prima facie, I am of the view that by referring to Ext.P8 this Court while directing the appeal to be disposed of within time frame ought not to either keep in abeyance or stay Ext.P5 notice issued under Section 25 of the Act. Sri.Tomson T. Emmanuel insists for consideration of his alternate prayer: direct the Tribunal to dispose of Ext.P6 appeal on 24.07.2019. 8. To meet the ends of justice and also facilitate the petitioner to effectively contest Ext.P5 notice as well, the writ petition is disposed of by this judgment: (a) The Kerala Value Added Tax Appellate Tribunal, Kochi/ second respondent considers completing argument on 24.07.2019 or on a shorter date to which the appeal stands posted to and disposes of the appeal not later than 09.08.2019. (b) The petitioner is given liberty to make a request before the Tribunal by enclosing a copy of this judgment. S.V.BHATTI JUDGE jjj -6- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF ONLINE APPLICATION IN FORM NO.1B SUBMITTED BEFORE 1ST RESPONDENT,OPTING TO PAY TAX AT COMPOUNDED RATE U/S.8(F)(I) OF KAVAT ACT FOR 2012-13 EXHIBIT P2OF ANNUAL RETURN SUBMITTED FOR 2012- 13 BEFORE 1ST RESPONDENT IN ACCORDANCE WITH PERMISSION GRANTED IN EXT.P1 EXHIBIT P3OF JUDGMENT DATED 12.01.2010 PASSED BY THIS HON'BLE COURT IN WP(C) NO.942 OF 2010 IN OBSERVING A SETTLED LEGAL POSITION EXHIBIT P4OF ORDER DATED 16.03.2019 COMPLETED BY 1ST RESPONDENT I MECHANICALLY WITHDRAWING PERMISSION FOR COMPOUNDING ISSUED EARLIER AGAINST EXTP1 OPTION FOR 2012-13 EXHIBIT P5OF NOTICE DATED 16.03.2019 U/S.2591) OF KAVAT ACT, COMMUNICATED TO PETITIONER ON 18.03.2019 ALONG WITH EXTP4 ORDER, PROPOSING REGULAR ASSESSMENT EXHIBIT P6OF APPEAL DATED 21.03.2019 U/S.8(F)(III) OF KVAT ACT, SUBMITTED BEFORE 2ND RESPONDENT CHALLENGING EXTP4 ORDER ISSUED BY 1ST RESPONDENT EXHIBIT P6 AOF STAY PETITION DATED 21.03.2019 SUBMITTED BEFORE THE 2ND RESPONDENT ALONG WITH EXT.P6 STATUTORY APPEAL EXHIBIT P7OF LETTER DATED 23.03.2019 SENT BY SPEED POST TO 1ST RESPONDENT AGAINST EXT.P5 NOTICE FIXING PERSONAL HEARING WITH 7 DAYS -7- EXHIBIT P8OF JUDGMENT DATED 13.04.2012 IN W.P(C) NO.9815 OF 2012 EXHIBIT P9OF REPLY DATED 02/04/2019 SUBMITTED BEFORE 1ST RESPONDENT AGAINST EXT.P5 NOTICE FOR THE YEAR 2012-13. EXHIBIT P10INCOME TAX RETURN IN FORM NO.ITR-4 U/S.147 OF INCOME TAX ACT FOR AY:2013-2014 SUBMITTED BY PETITIONER.