Dismissed

Kerala Co-Operative Deposit Guarantee Fund Board v. Commissioner of Central GST and Central Excise

Kerala HC10 Jan 2019WP(C)/203/2019

Case brief

AI extract

What is this about?

Writ petition challenging a notice for the assessment year 2016-17 on the ground that identical issues for other years were pending in appeal. The court held it cannot stultify statutory provisions by mandamus. It directed the CBDT (2nd respondent) to dispose of pending appeals within two months but allowed the notice for 2016-17 to proceed as the law permits fresh proceedings. (120 words: In WP(C

What did the court decide?

Directed 2nd respondent to dispose of Exts.P2 and P3 appeals within two months; Ext.P5 proceedings to continue without delay.

Kerala Co-Operative Deposit Guarantee Fund Board Vs… — Banking and Recovery | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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THURSDAY ,THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940

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WP(C).No. 203 of 2019

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PETITIONER/S:

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KERALA CO-OPERATIVE DEPOSIT GUARANTEE FUND BOARD TC 25/1955 (4),MANJALIKULAM ROAD, THIRUVANANTHAPURAM695 001, REPRESENTED BY THE SECRETARY-TREASURER

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BY ADV. SRI.ASOK M.CHERIAN

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RESPONDENT/S:

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1 COMMISSIONER OF CENTRAL GST AND CENTRAL EXCISE GST BHAVAN, PRESS CLUB ROAD, THIRUVANANTHAPURAM-695 001

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2 THE CUSTOMS

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EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WTC BUILDING, FKCCI COMPLEX, KG ROAD, BANGALORE-560 009

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OTHER PRESENT:

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SC SRI. SREELAL M. WARRIER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.203/2019

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-2-

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J U D G M E N T

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After suffering adverse orders, the petitioner filed the Exts.P2

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and P3 appeals for the Assessment Years 2012-13 to 2014-15 and 2015-16. Pending those appeals, the petitioner received the Ext.P5

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notice, on the same issue, for the Assessment Year 2016-17.

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The petitioner, in this writ petition, questions the Ext.P5

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notice. The ground of challenge is this: when an identical issue is pending in appeal concerning other assessment years, the authorities should not insist on the petitioner's facing one more proceeding. Of the Exts.P2 and P3 appeals, the petitioner also seeks an early disposal.

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The petitioner's counsel contends that if the Exts.P2 and P3 appeals are disposed of, it will obviate any adjudication on the Ext.P5 notice. He nevertheless submits that the petitioner has already replied to the Ext.P5. In this context, he submits that, now, on an identical issue, the petitioner is compelled to fight another

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round of litigation after paying a huge amount as pre-deposit.

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W.P.(C) No.203/2019

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-3-

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The learned Senior Standing Counsel for the Customs

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Department, on the other hand, fairly concedes that the appellate authority will consider the Exts.P2 and P3 appeals expeditiously.

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As to the Ext.P5 notice, the learned Senior Standing Counsel assures the Court that as the petitioner has already replied to it, the primary authority will consider it without further delay.

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The learned Senior Standing Counsel nevertheless submits that law does not permit staying the proceedings concerning other assessment years merely because appeals are pending for other assessment years. According to him, it is especially so when the assessee has already suffered adverse orders, which are now in appeal.

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I reckon there is force in the learned Senior Standing Counsel's contentions. This Court cannot use its power of mandamus to stultify the statutory provision. True, on an identical issue, compelling the tax payer to make pre-deposit and then contest the case may workout some hardship. But that is how the

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W.P.(C) No.203/2019

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-4-

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Statute has contemplated the proceedings. So long as those procedural parameters have not been called in question as illegal, this Court will not interfere.

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Under these circumstances, I dispose of the writ petition holding that the second respondent will dispose of the Exts.P2 and P3 appeals expeditiously in two months. As with the Ext.P5, the proceedings may take their own course.

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Sd/-

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DAMA SESHADRI NAIDU JUDGE

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jjj

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF THE ORDER IN ORIGINAL NO. TVM EXCUS -000-COM-64 AND 65-17-18 DATED 17.10.2017 PASSED BY THE 1ST RESPONDENT.

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EXHIBIT P2 A TRUE COPY OF THE APPEAL NO. ST/20164/2018-DB, WITHOUT ANNEXURE, FILED BY THE PETITIONER AGAINST ORDER IN ORIGINAL NO. TVM-EXCUS-000COM-64-17-18 DATED 17.10.2017 OF THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT.

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W.P.(C) No.203/2019

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-5-

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EXHIBIT P3 A TRUE COPY OF THE APPEAL NO. ST/20162/2018-DBDB, WITHOUT ANNEXURE, FILED BY THE PETITIONER AGAINST ORDER IN ORIGINAL NO. TVM-EXCUS-000COM-65-17-18 DATED 17.10.2017 OF THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 12.4.2018 OF THIS HON'BLE COURT IN WP(C) NO. 11200 OF 2018 EXHIBIT P5 A TRUE COPY OF THE SHOW CAUSE NOTICE NO. 16/20119/ST (COMMR) DATED 24.10.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P6 A TRUE COPY OF THE REPLY NO. KCDGFB/1035/2018 DATED 21/11/2018

Kerala Co-Operative Deposit Guarantee Fund Board v. Commissioner of Central GST and Central Excise

Case brief

What is this about?

What did the court decide?

Kerala Co-Operative Deposit Guarantee Fund Board v. Commissioner of Central GST and Central Excise

Case brief

What is this about?

What did the court decide?

What the court decided

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