M/S.K.L.Johar & Company vs. Asst. State Tax Officer - Kerala High Court, 04 October 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940 WP(C).No. 6417 of 2018 PETITIONER/S: 1 M/S.K.L.JOHAR & COMPANY MARKET ROAD, ERNAKULAM, KOCHI 11, REPRESENTED BY ITS MANAGER, RAVIKUMAR B. 2 MS. GENERAL TRANSPORT 2ND FLOOR, PUNNACHALIL BUILDINGS, OPP. RADDISON HOTEL, ELAMKULAM, KOCHI-20, REPRESENTED BY ITS PARTNER, RAMANI ABRAHAM. BY ADVS. SRI.HARISANKAR V. MENON SMT.K.KRISHNA SMT.MEERA V.MENON RESPONDENT/S: 1 ASST. STATE TAX OFFICER STATE GOODS & SERVICES TAX DEPARTMENT, SQUAD NO.I, MATTANCHERRY AT MINI CIVIL STATION, ALUVA-683101. 2 STATE TAX OFFICER STATE GOODS & SERVICES TAX DEPARTMENT, SQUAD NO.I, MATTANCHERRY AT MINI CIVIL STATION, ALUVA-683101. 3 THE SOUTH INDIAN BANK LTD. TOC H ROAD, VYTTILA, KOCHI-19, REPRESENTED BY ITS ASST. MANAGER. 4 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001. BY GOVERNMENT PLEADER DR. THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 WP(C).No. 6417 of 2018

JUDGMENT The petitioner, a distributor, had its goods intercepted and detained. Later, under Section 129 of the Central State Goods and Services Tax Act, 2017, the petitioner had those goods released, too.

In the adjudication undertaken by the State Tax Officer, the petitioner submitted its explanation. Nevertheless, the authority passed the Ext.P8 order, imposing penalty. Assailing that order, the petitioner has filed this writ petition.

Faced with the respondents plea that the petitioner has an efficacious alternate remedy—an appeal—the petitioner's counsel submits that when the State Tax Officer passed the Ext.P8, the appellate mechanism was not in place. He however admits that, now, the Appellate Authority has become functional.

Under these circumstances, the petitioner's counsel wants this Court to permit the petitioner to withdraw this writ petition and approach the Appellate Authority. For that, the learned counsel seeks the Court's indulgence to have the delay condoned because the petitioner, according to him, bona fide pursued this writ petition.

The learned Government Pleader, on the other hand, submits that the Appellate Authority had been functioning even by the time the Ext.P8 was passed. At any rate, she submits that the petitioner can approach the Appellate Authority, file an application for condonation of delay, and plead its case.

Heard the learned counsel for the petitioner and the learned Government Pleader.

Indeed, the petitioner's counsel fairly concedes that in the face of an alternate remedy, the petitioner cannot persist with this writ petition. So he wants the leave of this Court.

Under these circumstance, I hold that the petitioner can approach the Appellate Authority by filing a statutory appeal against the Ext.P8. As the order was passed on 06.02.2018, indeed the appeal may face the problem of limitation. I must acknowledge that the petitioner has bona fide pursued this matter, for, by then, the appellate mechanism had not been fully functional, when the Ext.P8 order was passed.

Therefore, if the petitioner files a statutory appeal, it meets the ends of justice if the Appellate Authority, while revoking limitation, excludes the time the petitioner spent here in this writ petition. I order so. Accordingly, the writ petition stands disposed of. DAMA SESHADRI NAIDU SB/05/10/2018 JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF INVOICE NO. R517103193 ISSUED BY M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LTD., KALAMASSERY. EXHIBIT P1(A) COPY OF INVOICE NO. R417100353 ISSUED BY M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LTD., KALAMASSERY. EXHIBIT P1(B) COPY OF INVOICE NO. R17102500 ISSUED BY M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LTD., KALAMASSERY. EXHIBIT P1(C) COPY OF INVOICE NO. R617102501 ISSUED BY M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LTD., KALAMASSERY. EXHIBIT P2 COPY OF INVOICE NO. R517103192 ISSUED BY M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LTD., KALAMASSERY. EXHIBIT P2(A) COPY OF INVOICE NO. R617102499 ISSUED BY M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LTD., KALAMASSERY. EXHIBIT P3 COPY OF LORRY RECEIPT NO. 440 RAISED BY THE 2ND PETITIONER. EXHIBIT P3(A) COPY OF LORRY RECEIPT NO. 441 RAISED BY THE 2ND PETITIONER. EXHIBIT P4 COPY OF NOTICE UNDER SECTION 129 (3) ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 COPY OF LETTER SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P5(A) COPY OF LETTER SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESP0NDENT.

EXHIBIT P6 COPY OF BANK GUARANTEE FROM THE 3RD RESPONDENT. EXHIBIT P7 COPY OF REPLY FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P7(A) COPY OF LETTER FILED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P7(B) COPY OF LETTER FILED BY M/S. GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD., KALAMASSERY BEFORE THE 2ND RESPONDENT. EXHIBIT P8 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.