M/S.KALYX PLASTI-PACK vs. THE ASSISTANT COMMISSIONER OF STATE TAX,

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WP(C)/23652/2019HC KeralaKLHC01060998201924 September 2019Author: HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR3 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that Ext.P2 was merely a notice issued by the Assessing Officer. The petitioner had the opportunity to respond to this notice and have the matter adjudicated before the said authority. Therefore, interference by the High Court at this stage, under Article 226 of the Constitution of India, was not warranted. The court dismissed the writ petition without prejudice to the petitioner's right to approach the High Court at a later stage if the final order passed by the adjudicating authority suffered from any jurisdictional error. The ratio decidendi is that a writ petition should not ordinarily entertain a challenge to a show-cause notice when a statutory remedy of adjudication is available to the assessee.

What were the facts?

The petitioner, M/s. Kalyx Plasti-Pack, a registered dealer under the Kerala Value Added Tax (KVAT) Act, 2003, filed a writ petition before the High Court of Kerala. The petition challenged Ext.P2, a notice issued by the Assistant Commissioner of State Tax (1st respondent) under Section 66 of the KVAT Act. The petitioner raised various contentions against this notice. The writ petition was filed under Article 226 of the Constitution of India. The respondents included the Assistant Commissioner of State Tax, the Commissioner of State Goods and Service Tax Department, and the State of Kerala.

What were the issues?

1. Whether the High Court should interfere under Article 226 of the Constitution of India at the stage of a notice issued by the Assessing Officer, when the assessee has an opportunity to respond and get the matter adjudicated before that authority. The assessee contended that the notice (Ext.P2) was challengeable on various grounds. The revenue did not record any specific arguments in the judgment, but the court's decision implies that the revenue's position would be that the statutory remedy should be exhausted first.

Which sections of the Income-tax Act were involved?

Section 66

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941 PETITIONER/S: M/S.KALYX PLASTI-PACK SWARAJ PLYWOOD ROAD, PAPPINISSERY P.O, KANNUR, REPRESENTED BY ITS MANAGING PARTNER, LABEEB P.T.P, BY ADVS. SRI.K.P.ABDUL AZEES SMT.SHOBA ANNAMMA EAPEN SHRI.AKHIL SURESH SMT.T.ARCHANA RESPONDENT/S:

THE ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICE TAX DEPARTMENT, KANNUR- 670002.

THE COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM-695002.

STATE OF KERALA, REPRESENTED BY SECRETARY(TAXES) SECRETARIAT, THIRUVANANTHAPURAM-695001. GOVERNMENT PLEADER DR.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Dated this the 24th day of September 2019 The petitioner, who is a registered dealer under the Kerala Value Added Tax Act (for short, KVAT Act) on the rolls of the 1st respondent, has approached this Court aggrieved by Ext.P2 notice issued to it invoking the provisions of Section 66 of the KVAT Act,2003. Although various contentions are raised in the writ petition in its challenge against Ext.P2 notice, I am of the view that Ext.P2 being only a notice issued by the Assessing Officer, and the petitioner has the opportunity of responding to the said notice and getting the matter adjudicated before the said authority, an interference by this Court at this stage, under Article 226 of the Constitution of India, is not warranted. Accordingly, without prejudice to the right of the petitioner to approach this Court at a later stage, if the order passed against him by the adjudicating authority suffers from any jurisdictional error, the writ petition is dismissed. Sd/- A.K.JAYASANKARAN NAMBIAR

JUDGE sd

APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF ASSESSMENT ORDER NO.32120209495/12-13 DATED 22.03.2019 PASSED BY THE ASSISTANT COMMISSIONER OF STATE TAX STATE GOODS AND SERVICE TAX DEPARTMENT, KANNUR. EXHIBIT P2 THE TRUE COPY OF NOTICE NO.32120209405/12- 13 DATED 19.07.2019 UNDER SECTION 66 OF THE KERALA VALUE ADDED TAX ACT 2003 ISSUED BY THE ASSISTANT COMMISSIONER OF STATE TAX GOODS AND SERVICE TAX DEPARTMENT, KANNUR. EXHIBIT P3 THE TRUE COPY OF RELEVANT PAGE OF FINANCE ACT 2013 AND EXHIBIT P4 THE TRUE COPY OF THE RELEVANT PAGE OF FINANCE ACT 2016. EXHIBIT P5 THE TRUE COPY OF CLARIFICATION NO.C3/22114/16 DATED 08.05.2018 ISSUED BY THE COMMISSIONER, STATE GOODS AND SERVICE TAX DEPARTMENT, THIRUVANANTHAPURAM. sd

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