Arun Jimmy vs. State Tax Officer - Kerala High Court, 21 June 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941 WP(C).No.16450 of 2019 PETITIONER/S: ARUN JIMMY AGED 28 YEARS PROPRIETOR, M/S. CHOICE ASSOCIATES, X/31, MZHUVANCHERY MADATHIL BUILDINGS., THIRUMARADY, PIN-686 687, ERNAKULAM DISTRICT. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT/S: 1 STATE TAX OFFICER STATE GOODS AND SERVICES TAX DEPARTMENT, SQUAD NO.V, MATTANCHERY AT PERUMBAVOOR-633 542. 2 ASSISTANT STATE TAX INSPECTOR, STATE GOODS AND SERVICES TAX DEPARTMENT, SQUAD NO.V, MATTANCHERY AT PERUMBAVOOR-633 542. 3 STATE TAX OFFICER, STATE GOODS AND SERVICES TAX DEPARTMENT, MINI CIVIL STATION, MUVATTUPUZHA-686 661. 4 STATEOF KERALA REPRESENTED BY SECRETARY TO TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 5 ASSISTANT COMMISSIONER(APPEALS), COMMERCIAL TAXES, ERNAKULAM, SALES TAX COMPLEX, THEVARA, COCHIN-682 015. W.P.(C) No. 16450/2019 -2- 6 PUNJAB NATIONAL BANK, STATUE JUNCTION, THRIPOONITHURA-682 301, REPRESENTED BY ITS BRANCH MANAGER. OTHER PRESENT: GP. DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 16450/2019 -3-

J U D G M E N T Heard Mr. Tomson T. Emmanuel for petitioner and Dr.Thushara James for respondents.

The petitioner challenges Ext.P5 order under Section 47 of the KVAT Act, 2003. The petitioner has filed appeal before the fifth respondent in Ext.P6. The petitioner has also moved stay petition pending appeal. One of the reasons for invoking the writ juri iction is to restrain the authorities from encashing the Bank Guarantee already given by the petitioner and/or deliver the Demand Draft (DD) prepared pursuant to the encashment request made by the respondents.

On 17.06.2019 this Court has restrained the respondents either from encashing the Bank Guarantee or delivering the DD purchased in the name of the respondents. The statutory appeal in Ext.P6 since is pending, this Court is of the view that the interim order dated 17.06.2019 could be made the final order in the writ petition and the appeal disposed of expeditiously. Hence the following order:

-4- (a) The respondents are directed firstly not to encash the Bank Guarantee given by the petitioner in this behalf and/or, secondly not to deliver or realize the DD already taken in the name of respondents. (b) Ext.P6 appeal is considered and disposed of within three months from the date of receipt of a copy of this judgment. S.V.BHATTI JUDGE jjj -5- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF FORM NO.8B INVOICE DATED 22.06.2016 ISSUED TO AN END CUSTOMER FOR SALE OF CEMENT. EXHIBIT P2 COPY OF NOTICE UNDER SECTION 47(2) OF THE KVAT ACT DATED 22.06.2016 ISSUED TO PETITIONER BY 2ND RESPONDENT. EXHIBIT P3 COPY OF BANK GUARANTEE NO.435811LG000716 DATED 23.06.2016 FOR RS.36,540/- ISSUED BY 6TH RESPONDENT BANK, SUBMITTED BEFORE 2ND RESPONDENT. EXHIBIT P4 COPY OF REQUEST DATED 22.09.2017 SENT TO 1ST RESPONDENT BY SPEED POST, SEEKING ENLARGEMENT OF TIME, AGAINST NOTICE ISSUED UNDER SECTION 47(5) (5) OF KVAT ACT. EXHIBIT P5 COPY OF ORDER DATED 26.09.2018 IMPOSING PENALTY UNDER SECTION 47(6) OF KVAT ACT, SERVED TO PETITIONER ON 07.,06.2019 BY SPEED POST, BY 1ST RESPONDENT WITHOUT CONSIDERING EXT.P4 REQUEST. EXHIBIT P6 COPY OF APPEAL DATED 10.06.2019 SUBMITTED AGAINST EXT.P5 PENALTY, BEFORE 5TH RESPONDENT. EXHIBIT P7 COPY OF STAY PETITION DATED 10.06.2019 SUBMITTED ALONG WITH EXT.P6 APPEAL BEFORE 5TH RESPONDENT. EXHIBIT P8 COPY OF LETTER DATED 11.06.2019 ISSUED BY 1ST RESPONDENT TO 6TH RESPONDENT BANK REQUESTING ENCASHMENT OF BANK GUARANTEE BY A DEMAND DRAFT. EXHIBIT P9 COPY OF JUDGMENT DATED 11.04.2017 IN WPC NO.7358 OF 2017 PASSED BY THIS HON'BLE COURT.