Allowed

M/S. Esaf (Evangelical Social Action Forum) Society, v. the Additional Commissioner of Central Tax and Central Excise

Kerala HC8 Oct 2021WP(C)/18410/2021

Case brief

AI extract

What is this about?

In a writ petition, the Kerala High Court set aside an appellate authority order that disposed of only the department's appeal over penalty, leaving the petitioner's appeal pending. The court directed fresh orders after a joint hearing.

What did the court decide?

Petitioner's writ petition allowed; Ext.P7 order set aside; 3rd respondent directed to consider and pass fresh orders on both appeals after fresh hearing.

M/S. Esaf (Evangelical Social Action Forum) Society… — Writ and Judicial Review | Kerala HC (2021)

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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 BECHU KURIAN THOMAS

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FRIDAY, THE 8^TH DAY OF OCTOBER 2021 / 16TH ASWINA, 1943

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WP(C) NO. 18410 OF 2021

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PETITIONER:

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M/S. ESAF (EVANGELICAL SOCIAL ACTION FORUM) SOCIETY, VISWAS BHAVAN, KUNDUMKULAM ROAD, MANNUTHY P.O., THRISSUR 680 651, REPRESENTED BY ITS SECRETARY MEREENA PAUL. BY ADVS. S.ANIL KUMAR (TRIVANDRUM) RAHUL A. APARNA ANIL

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RESPONDENTS:

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1 THE ADDITIONAL COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE,I.S PRESS ROAD, KOCHI 682 018.

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2 THE ASSISTANT COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, THRISSUR DIVISION C.R., BUILDING, S.T. NAGAR, THRISSUR 680 001.

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3 THE COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE (APPEALS), I.S. PRESS ROAD, KOCHI 682 018.

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BY ADV DENNIS VARGHESE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 18410 OF 2021

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BECHU KURIAN THOMAS, J

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................................................

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W.P.(C) NO. 18410 OF 2021

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…........................................ Dated this the 8th day of october, 2021

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JUDGMENT

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Petitioner challenges Ext.P7 order in

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appeal issued by the 3^rd respondent.

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The grievance of the petitioner is

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that there were two appeals, one preferred by

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the petitioner and the other preferred by the Department and though both appeals were heard together on 20/11/2020 orders were issued only in one appeal.

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Aggrieved by Ext.P1 order of the 1^st

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respondent for the period April 2011 to

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September 2015, petitioner preferred Ext.P2

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appeal before the 3^rd respondent. The 2^nd

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respondent preferred Ext.P3 appeal against

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WP(C) NO. 18410 OF 2021

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Ext.P1, itself. Both appeals were pending

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before the 3^rd respondent.

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The challenge in Ext.P2 appeal

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preferred by the petitioner was in respect of transactions relating to Ext.P1 order of the Assessing Authority, while the challenge in Ext.P3 appeal related to the legality or the reduction of the quantum of penalty as per

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the order in Ext.P1, itself, and imposed under Section 78 of the Finance Act.

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Admittedly both appeals were

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pending before the same Appellate Authority. It related to the same assessment period too and covered by the same order even. Obviously both these appeals having been heard together ought to have been disposed of together. However, for some queer reason when Ext.P7 was

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issued the same disposed of only the appeal

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preferred by the department which related to reduction of the quantum of penalty. The

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WP(C) NO. 18410 OF 2021

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appeal preferred by the petitioner still

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remains on the files of the 3^rd respondent

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without being disposed of. The same is a

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perversity and is an error that requires to be corrected.

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In view of my finding that both

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these appeals were liable to be disposed of together and disposal of one appeal alone will

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not serve the interest of justice, I set aside Ext.P7. While setting aside Ext.P7 I direct the 3^rd respondent to consider and pass fresh orders on Ext.P3 appeal as well as Ext.P2 appeal, after conducting a fresh

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hearing of both parties.

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The writ petition stands allowed as

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above.

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Sd/-

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BECHU KURIAN THOMAS JUDGE

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AJM

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WP(C) NO. 18410 OF 2021

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APPENDIX OF WP(C) 18410/2021

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PETITIONER’S EXHIBITS:

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Exhibit	P1 COPY OF ORDER- IN-ORIGINAL DATED 11/3/2019 ISSUED BY THE IST RESPONDENT FOR THE PERIOD APRIL, 2011 TO SEPTEMBER 2015.
Exhibit	P2 COPY OF APPEAL FILED BY THE PETITIONER AGAINST EXT.P1 ORDER BEFORE THE 3RD RESPONDENT.
Exhibit	P3 COPY OF APPEAL FILED BY THE 2ND RESPONDENT AGAINST EXT.P1 ORDER BEFORE THE 3RD RESPONDENT.
Exhibit	P4 COPY OF CROSS OBJECTION FILED BY THE PETITIONER AGAINST EXT. P3 APPEAL.
Exhibit	P5 COPY OF HEARING NOTE DATED 20.11.2020 PREPARED BY THE 3RD RESPONDENT IN RESPECT OF EXT. P2 AND EXT. P3.
Exhibit	P6 COPY OF ADDITIONAL SUBMISSION DATED 20.11.2020 FILED BY THE PETITIONER IN
	RESPECT OF EXT. P2 AND EXT. P3 APPEALS.
Exhibit	P7 COPY OF ORDER DATED 9.12.2020 ISSUED BY THE 3RD RESPONDENT ON EXT. P3 APPEAL.
Exhibit	P8 COPY OF EMAIL DATED 6.01.2021 SENT BY THE PETITIONER TO THE 3RD RESPONDENT.
Exhibit	P8(A) COPY OF EMAIL DATED 01.03.2021 SENT BY THE PETITIONER TO THE 3RD RESPONDENT.

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RESPONDENT’S EXHIBITS : NIL

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AJM //TRUE COPY// PA TO JUDGE

M/S. Esaf (Evangelical Social Action Forum) Society, v. the Additional Commissioner of Central Tax and Central Excise

Case brief

What is this about?

What did the court decide?

M/S. Esaf (Evangelical Social Action Forum) Society, v. the Additional Commissioner of Central Tax and Central Excise

Case brief

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What did the court decide?

What the court decided

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