Dismissed

The Ayarkunnam Service Co-Operative Bank Limited, v. the Commissioner of Central Tax and Central Excise (Appeals)

Kerala HC23 May 2023WP(C)/2/2023

Case brief

AI extract

What is this about?

This court dismissed a writ petition seeking to quash a tax demand order. The court held that the petition was filed with undue delay (over seven years) without availing the alternative remedy of an appeal, making it untenable for this court to entertain the matter under Article 226 of the Constitution.

What the court decided

AI extract

The Ayarkunnam Service Co-Operative Bank Limited, Vs the… — GST and Indirect Tax | Kerala HC (2023)

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WP(C) NO. 2 OF 20231

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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 C.S.DIAS

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TUESDAY, THE 23RD DAY OF MAY 2023 / 2ND JYAISHTA, 1945

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WP(C) NO. 2 OF 2023

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PETITIONER/S:

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THE AYARKUNNAM SERVICE CO-OPERATIVE BANK LIMITED,
AGED 50 YEARS
AYARKUNNAM SERVICE COP OPERATIVE BANK LIMITED, NO.
4147, AYARKUNNAM. P.O., KOTTAYAM DISTRICT REPRESENTED
BY ITS SECRETARY, PIN - 686564
BY ADV O.D.SIVADAS

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RESPONDENT/S:

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1THE COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE
(APPEALS),
DEPARTMENT OF REVENUE, OFFICE OF THE COMMISSIONER OF
CENTRAL TAX AND CENTRAL EXCISE, CENTRAL REVENUE
BUILDINGS, I.S. PRESS ROAD, KOCHI., PIN - 682018

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2 THE ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, DEPARTMENT OF REVENUE, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, SREENIVASA IYER ROAD KOTTAYAM -, PIN - 686001

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3 THE SUPERINTENDENT, DEPARTMENT OF REVENUE, OFFICE OF THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE, SREENIVASA IYER ROAD, KOTTAYAM,, PIN - 686001 BY ADVS. SRI.SREELAL WARRIAR, C.G.C S.MANU

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 2 OF 2023

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JUDGMENT

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The writ petition is filed to quash Ext.P1 order passed by the 2^nd respondent under Section 77(1)(a) and 77(2) of the Finance Act, 1994, and also to quash Ext.P2 demand notice dated 12.12.2022.

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Petitioner’s case is that, the petitioner is a bank registered under the Kerala Co-operative Societies Act. The 3^rd respondent had issued a notice to the petitioner to furnish the statement of accounts for various periods alleging that the petitioner was providing taxable service as classified under the Banking and Other Financial Services. Subsequently, the 2^nd respondent issued a show cause notice to which the petitioner had submitted a detailed reply. Without adverting to the reply, the 2^nd respondent has issued Ext.P1 order holding that the petitioner is liable to pay tax for Rs.35,714/-. Thereafter, the 3^rd respondent has issued Ext.P2 demand notice directing the petitioner to deposit the confirmed amount. Exts.P1 and P2 are untenable. The petitioner is not liable

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WP(C) NO. 2 OF 20233

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to pay any amount in view of the law laid down by the Honourable Supreme Court. Hence, the writ petition.

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Heard; Sri.O.D. Sivadas, the learned counsel appearing for the petitioner and Sri.Sreelal N. Warriar, the learned counsel appearing for the respondents.

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Sri.O.D.Sivadas submitted that even though

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Ext.P1 order was passed as early as on 27.11.2015, the petitioner was precluded from filing an appeal in view of the condition of pre-deposit. Now, in view of the law laid down by the Honourable Supreme Court, there is no restriction in this Court entertaining the writ petition.

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Sri. Sreelal N. Warriar submitted that the petitioner has an alternative remedy which is very well written in Ext.P1 order itself. At this distance of time this Court shall not entertain the writ petition.

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Having considered the pleadings and materials on record and taking note of the fact that Ext.P1 order was passed as early as on 27.11.2015, which is seven and a half years back, I do not find any reason to entertain the writ petition. It is trite that a writ petition has to be filed within

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WP(C) NO. 2 OF 2023

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a reasonable time. What the petitioner has not done directly, cannot be permitted to be done indirectly, that too in a writ petition under Article 226 of the Constitution of India. Furthermore, it is clearly mentioned in Ext.P1 order that the petitioner has a remedy of appeal, which the petitioner has not availed. For the aforesaid reasons, I am not inclined to entertain the writ petition.

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Resultantly, without prejudice to the right of the petitioner to work out his remedies in accordance with law, the writ petition is dismissed.

Sd/-

C.S.DIAS, JUDGE

okb/5.23

WP(C) NO. 2 OF 2023

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APPENDIX OF WP(C) 2/2023

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PETITIONER EXHIBITS
Exhibit P1THE COPY OF THE ADJUDICATION ORDER NO.
45/2015/ST DATED 27.11.2015 ISSUED BY THE 2ND
RESPONDENT
Exhibit P2THE COPY OF NOTICE DATED 12/12/2022 ISSUED BY
THE 3RD RESPONDENT TO THE PETITIONER.
Exhibit P3TRUE COPY OF THE REPLY DATED 19/12/1022
SUBMITTED BY THE PETITIONER TO THE 3RD
RESPONDENT.
Exhibit P4TRUE COPY OF THE INTERIM ORDER IN W.P(C) NO.
27779/2021 DATED 6.12.2021

The Ayarkunnam Service Co-Operative Bank Limited, v. the Commissioner of Central Tax and Central Excise (Appeals)

Case brief

What is this about?

What the court decided

The Ayarkunnam Service Co-Operative Bank Limited, v. the Commissioner of Central Tax and Central Excise (Appeals)

Case brief

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What the court decided

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