High Court of KeralaSingle Judge2023-06-27Dismissed

S.K. Eldhose (Skaria Karikkamattathil Eldhose) v. The State Tax Officer, Works Contract, State GST Department; The Deputy Commissioner of State Tax (Arrear Recovery), State GST Department; The Joint Commissioner of State Tax, Taxpayer Services, Mini Civil Station, Aluva; The Commissioner of State Tax, Tax Tower, Karamana, Thiruvananthapuram

Case / Petition Number:WP(C) No.18803 of 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2023-06-27
Court Decision / Holding: The writ petition is merit-less and is consequently dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

S.K. Eldhose (Skaria Karikkamattathil Eldhose)

Respondents

The State Tax Officer, Works Contract, State GST Department; State GST Complex, Bazar Road, Mattancherry (re-designated as Assistant Commissioner of State Tax, Taxpayer Services Circle, State GST Department, Mudavoor P.O, Muvattupuzha)
The Deputy Commissioner of State Tax (Arrear Recovery), State GST Department, Aluva
The Joint Commissioner of State Tax, Taxpayer Services, Mini Civil Station, Aluva
The Commissioner of State Tax, Tax Tower, Karamana, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Aji V. Dev
• M.G. Shaji
• Alan Priyadarshi
• S. Sajeevan

Counsels for Respondents

• P.R. Sreejith
• Thushara James

Case Synopsis & Summary

The petitioner is a proprietary concern registered under CGST and KGST, challenging Ext.P5 proceedings and Ext.P5(a) summary order under the GST regime for the year 2017-18. He had received Ext.P1/Form GST ASMT-10 under Section 61 of the GST Act, along with a reply (Ext.P2) and later a Revenue Recovery Notice (Ext.P3) asserting excess input tax credit under Section 16(2)(c). The petitioner asserts that Ext.P4 Show Cause Notice and Ext.P5 assessment order (and Ext.P5(a) summary) were not properly served and that Ext.P5 was based on a ground different from Ext.P1, rendering the entire proceedings vitiated. He states he did not receive Exts.P5 and P5(a) and, consequently, could not file a statutory appeal under Section 107 within the four-month time limit, forcing him to approach the High Court under Article 226 for relief. The respondents contend the petition raises disputed questions of fact and that communications are portal-based post-GST, so non-receipt cannot be invoked. The Court cites the principle from Penuel Nexus that appeals under Section 107(4) cannot be filed beyond time and ultimately holds the petition meritless, dismissing it. The matter highlights tension between statutory time-bars and extraordinary relief under Article 226.

Provisions of Law Cited

Section 61 of the Goods and Services Tax Act, 2017Rule 99(1) of the GST RulesSection 16(2)(c) of the GST ActSection 73 of the GST ActSection 107 of the GST ActSection 107(4) of the GST ActSection 170 of the GST Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P5 and Ext.P5(a) are vitiated as they are based on a ground different from Ext.P1 and were not served on him; he claims non-receipt of Exts.P5 and P5(a) deprived him of the remedy to file a statutory appeal under Section 107 within four months, thus necessitating extraordinary relief under Article 226. He asserts that Exts.P5 and P5(a) were uploaded on the GST portal without proper notice, rendering the entire proceedings void ab initio and warranting quashing of the notices. He relies on preclusion of an appeal outside the statutory limit as highlighted in Penuel Nexus to justify interference. respondents: The respondents submit that the petition raises disputed questions of fact, unsuitable for a writ petition; communications post-GST regime are portal-based and a petitioner cannot feign ignorance; Ext.P5 and P5(a) were issued and the four-month time limit for Section 107(4) appeals is a statutory bar; the writ petition is meritless and should be dismissed, with reliance on the Penuel Nexus decision to emphasize time-bar.

Contentions of Respondents

The respondents emphasise that communications are portal-based after GST, the petitions involve disputed facts not appropriate for writ challenge, Ext.P5 and Ext.P5(a) were issued, and that the remedy under Section 107(4) could not be availed due to time-bar; they rely on Penuel Nexus (W.P(C) No.15574/2023) to argue the time limit is binding and cannot be circumvented via Article 226.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Penuel Nexus Pvt. Ltd v. Additional Commissioner and others	W.P(C) No.15574/2023	Positive	Court cites this precedent to affirm that an appeal under Section 107(4) cannot be filed beyond the prescribed time, reinforcing the time-bar principle.
M/S. Shyam Hardware Store v. The State of Jharkhand & Ors	2022 (7) TMI 805	Mentioned Only	Exhibited as a judgment in Appendix; no direct discussion or treatment in the reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 27[TH] DAY OF JUNE 2023/6TH ASHADHA, 1945** ## **WP(C) NO. 18803 OF 2023** ## **PETITIONER:** S.K. ELDHOSE (SKARIA KARIKKAMATTATHIL ELDHOSE), AGED 45 YEARS KARIKKAMATTATHIL HOUSE, MEKKADAMPU P.O., VALAKOM, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 682316 BY ADVS. AJI V.DEV M.G.SHAJI ALAN PRIYADARSHI DEV S.SAJEEVAN ## **RESPONDENTS:** 1 THE STATE TAX OFFICER, WORKS CONTRACT, STATE G.S.T DEPARTMENT, STATE GST COMPLEX, BAZAR ROAD, MATTANCHERRY - 682002, [PRESENTLY RE-DESIGNATED AS ASSISTANT COMMISSIONER OF STATE TAX, TAXPAYER SERVICES CIRCLE, STATE GST DEPARTMENT, MINI CIVIL STATION, MUDAVOOR P.O, MUVATTUPUZHA, PIN – 686669. 2 THE DEPUTY COMMISSIONER OF STATE TAX (ARREAR RECOVERY), STATE G.S.T DEPARTMENT, MINI CIVIL STATION, ALUVA, PIN - 683101 3 JOINT COMMISSIONER OF STATE TAX, TAXPAYER SERVICES, MINI CIVIL STATION, ALUVA,, PIN - 683101 4 THE COMMISSIONER OF STATE TAX, TAX TOWER, KARAMANA THIRUVANATHAPURAM, PIN - 695002 BY ADV SHRI.P.R.SREEJITH, SC, GSTN BY ADV.SMT.THUSHARA JAMES, SR.GOVT. PLEADER **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON 27.6.2023 DELIVERED THE FOLLOWING:** **2** ## **W.P (C) No.18803 of 2023** ## **C.S.DIAS, J.** **================== W.P (C ) No.18803 of 2023 ================== Dated this the 27[th] June, 2023** ## **JUDGMENT** The writ petition is filed to quash Ext.P5 proceedings and Ext.P5(a) summary order passed by the first respondent. 2. The petitioner's case is that, it is a proprietary-ship concern having CGST and KSGST registration. The petitioner was served with Ext.P1 – FORM GST ASMT-10 - notice under Section 61 of the Goods and Services Tax Act, 2017 (in short ' GST Act') and Rule 99(1) of the Goods and Services Tax Rules (in short 'GST Rules'] framed thereunder, alleging that the petitioner had claimed excess input ## **W.P (C) No.18803 of 2023** **3** tax (ITC) during the year 2017-2018 in violation of Section 16(2)(c) of the GST Act. The petitioner explained his case to the best of his understanding and pointed out the discrepancies. He was under the impression that the issue was settled forever. Surprisingly, in the last week, the petitioner has been served with Ext.P3 revenue recovery notice demanding an amount of Rs.2,82,040/-. The petitioner has not received any order passed pursuant to Ext.P1 notice. The first respondent has intimated that a show case notice and assessment order passed under Section 73 of the Act were uploaded on the GST portal relating to the year 2017-2018, but the same was not brought to the notice of the petitioner. Then the petitioner downloaded ## **W.P (C) No.18803 of 2023** **4** Ext.P4 show cause notice, Ext.P5 assessment order and Ext.P5(a) summary of the assessment order. A perusal of Exts.P4 and P5 show that Ext.P5 is passed entirely on a different ground from what is pointed out in Ext.P1. Hence, the entire proceedings leading to Exts.P5 and P5(a) are vitiated and bad in the eyes of law. Since Exts.P5 and P5 (a) were not brought to the notice of the petitioner, his remedy to file a statutory appeal under Section 107 of the GST Act is time barred. The petitioner has no alternative remedy, but to approach this Court. Hence, the writ petition. 2. Heard;SriAji.V.Dev, the learned counsel appearing for the petitioner and Smt.Thushara James, the learned Government Pleader appearing for the respondents. ## **W.P (C) No.18803 of 2023** **5** 3. Sri.Aji.V.Dev reiterated the contentions in the writ petition. He submitted that it is only because the petitioner did not receive Exts.P5 and P5(a) that he could not file the statutory appeal within the prescribed time period. Exts.P5 and P5(a) establish that the same is passed in egregious violation of the provisions of the GST Act and the GST Rules framed thereunder. The petitioner has made out extra-ordinary grounds warranting interference by this Court under Article 226 of the Constitution of India. Hence, Exts.P5 and P5(a) may be set aside. 4. Smt.Thushara James countered the above submissions by arguing that her office records reveal that the petitioner was served with DRC-01A notice on 3.3.2021 by email in ## **W.P (C) No.18803 of 2023** **6** the petitioner's registered e-mail ID. After the commencement of the GST regime, all the communications are sent through the GST portal. Therefore, the petitioner cannot feign ignorance and contend that he was unaware of the communications sent by the respondents. The contentions raised in the writ petition are disputed questions of fact, which may not be agitated in a writ petition. Hence, the writ petition may be dismissed. 5. The petitioner admits that Exts.P5 and P5(a) were passed on 7.1.2022. He now asserts that, as he was unaware of the abovementioned orders, he was precluded from filing a statutory appeal under Section 170 of the GST Act within the permitted time period of four months. ## **W.P (C) No.18803 of 2023** **7** 6. This Court in **Penuel Nexus Pvt. Ltd v. Additional Commissioner and others** [W.P(C) No.15574/2023] has categorically held that an appeal under Section 107(4) of the Act cannot be filed beyond the prescribed time period, in view of the stipulations in the enactment. 7. Now what the petitioner could not do directly by filing an appeal, cannot be permitted to be done in a writ petition filed under Article 226 of the Constitution of India, that too to decide on disputed questions of fact i.e, Ext.P5 show cause notice and Ext.P5(a) assessment order were allegedly not served on him. I do not find any extra-ordinary circumstance made out in the writ petition warranting interference with Exts.P5 and **8** ## **W.P (C) No.18803 of 2023** P5(a) by invoking the plenary powers of this Court under Article 226 of the Constitution of India. The writ petition is merit-less and is consequently dismissed. **Sd/- C.S.DIAS JUDGE** ma/26.7.2023 /True copy/ **9** ## **W.P (C) No.18803 of 2023** ## **APPENDIX OF WP(C) 18803/2023** ## PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE ISSUED IN FORM GST ASMT-10 FOR THE YEAR 2017-18 DATED 23.06.2020 Exhibit P2 TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 20.07.2020 TO EXT.P.1 Exhibit P3 TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 2ND RESPONDENT DATED 19.05.2023 Exhibit P4 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED IN FORM GST DRC-01 DATED 08.04.2021 Exhibit P5 TRUE COPY OF THE ASSESSMENT ORDER PASSED U/S. 73 OF THE GST ACTS FOR THE YEAR 2017-18 DATED: 07.01.2022 Exhibit P5(a) TRUE COPY OF THE SUMMERY OF ASSESSMENT/ORDER ISSUED IN FORM GST DRC-07 ALSO DATED: 07.01.2022 Exhibit P6 TRUE COPY OF THE SCREEN SHOT OF THE PORTAL SHOWING NOTICES/ ORDERS ISSUED ELECTRONICALLY Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 11.7.2022 IN M/S.SHYAM HARDWARE STORE VS. THE STATE OF JHARKHAND & ORS - 2022 (7) TMI 805