## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE AMIT RAWAL**
**FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942**
## **WP(C).No.12710 OF 2020(K)**
## **PETITIONER/S:**
**1 SURESH KUMAR P.P. AGED 44 YEARS S/O.P.S.PARAMESWARAN, MANAGING DIRECTOR, KERALA COMMUNICATORS CABLE LTD., ADMIN OFFICE AT FIRST FLOOR, 142-H 1A, COA BHAVAN, TOUNDIYAL ROAD, PANAMPILLY NAGAR, COCHIN, KERALA-682 036, FORMERLY AT CC 28/491, GIRI NAGAR, KADAVANTHARA, COCHIN-20.**
**2 ABOOBACKER SIDHIQUE, AGED 59 YEARS S/O.CHERIYA HAMZA, DIRECTOR, KERALA COMMUNICATORS CABLE LTD., ADMIN OFFICE AT FIRST FLOOR, 142-H 1A, COA BHAVAN, THOUNDIYAL ROAD, PANAMPILLY NAGAR, COCHIN, KERALA-682 036, FORMERLY AT CC 28/491, GIRI NAGAR, KADAVANTHARA, COCHIN-20.**
## **BY ADV. SRI.SANDEEP GOPALAKRISHNAN**
## **RESPONDENT/S:**
**1 THE DEPUTY DIRECTOR DIRECTORATE GENERAL OF GST INTELLIGENCE (DGGI), THIRUVANANTHAPURAM ZONAL UNIT, SREEDHARNYA BOULEVARD, TC NO.2/3603, OPPOSITE BIG BAZAR, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM-695 004, E-MAIL IDDGGSTI.TRU@GOV.IN**
**2 THE SUPERINTENDENT, ERNAKULAM RANGE-3, CENTRAL EXCISE BHAVAN, KATHIKKADAVU, KOCHI-682 017. E-MAIL IDEGST.TIO403@GOV.IN**
**3 ASSISTANT COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE (AUDIT) CIRCLE-IV, CENTRAL EXCISE BHAVAN, KATHIKKADAVU, KOCHI-682 017, E-MAIL ID-CGSTAUDIT43@GMAIL.COM**
- **4 SENIOR INTELLIGENCE OFFICER, DIRECTORATE GENERAL OF GOODS AND SERVICES TAX INTELLIGENCE, THIRUVANANTHAPURAM REGIONAL UNIT,**
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**2**
**SREEDHANYA BOULEVARD, TC NO.14/3603, OPPOSITE BIG BAZAR, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM-695 004. E-MAIL IDDGGSTI.TRU@GOV.IN**
**5 RENN ABRAHAM, ASSISTANT COMMISSIONER-GST, BUILDING NO.41/3945 ABC, CLAS TOWERS, KARGIL LANE, OLD RAILWAY STATION ROAD, NEAR JC (LAW), ERNAKULAM-682 018. E-MAIL -EKMACISPLCIRI@KERALATAXES.GOV.IN**
## **OTHER PRESENT:**
**SRI MATHAI M PAIKADAY, SR ADV FOR P, GP DR THUSHARA JAMES , SRI SREELAL N WARRIER , SC**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **JUDGMENT**
## **Dated this the 26[th] day of June 2020**
Petitioners, 2 in numbers, Managing Director and Director of Kerala Communicators Cable Ltd., through the instant writ petition under Article 226 of the Constitution of India has approached this Court with the following prayers:
“i. Issue a writ in the nature of Certiorari or any other appropriate writ, order or direction quashing Exhibit P2 as illegal and unauthorized.
ii. Issue a direction to refund with interest to the petitioners Rupees One Crore collected by the Respondent Nos.4 and 5 as evidenced by Exhibit P3.
iii. Issue an appropriate writ, order or direction quashing the Search and seizure proceedings initiated by the 1[st] respondent against the petitioner under Section 67, to the extent that Audit under Section 65 of the Act for the Financial year 2017-18 is still pending.
iv. Issue a writ in the nature of declaration, declaring that petitioner is not liable to pay GST on the revenue share retained by the LCO.
v. An appropriate Writ, Order or Direction to Respondents 4 and 5 to adequately compensate the Petitioners for causing damage to the adequately compensate the Petitioners for causing damage to the reputation of the Petitioners and for their mental agony.”
2. In support of the aforementioned reliefs, it is
alleged that they are compelled to approach this Court against arbitrary, illegal and malafide action of respondents, particularly, No.5, Assistant Commissioner-GST, in harassing them by taking cover under Section 67 of the CGST Act, 2017 and their
**WP(C).No.12710 OF 2020(K) 4**
personal liberty is violated by respondents 4 and 5 by taking them into custody on 9.6.2020 and an amount of Rs.One Crore has been extorted. It is averred that they were released from custody at the intervention of their Advocate at midnight and there has been a threatened violation by respondents 4 and 5, Senior Intelligence Officer and Assistant Commissioner-GST much less against the guidelines issued by the Central Board of Indirect Taxes and Customs. Even for a less harmful summons provisions, it is strictly laid down by CBIC that such provisions should not be misused in the field. Vide notice dated 17.3.2020 Ext.P2, Respondent No.4, Senior Intelligence Officer, requested the 1[st] petitioner to provide details of entire list of Local Cable Operators. Pursuant to the aforementioned notice, a group of 9 officials under Respondent No.4, came to the residence of the Petitioner No.1 at 7.30 AM on 9.6.2020 in three vehicles has taken him in custody. So called Summon was issued to them under Section 70(1) of the Act. Petitioners had no
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other choice but under protest given a cheque of Rs.One Crore.
3. It is submitted that the action of the respondents was purportedly under Section 67 of the Act, read with Rule 139 of the GST Rules, 2017. The respondents have taken into custody so many documents and have issued an order of seizure. In fact the Kerala Communicators Cable Ltd., is a company registered under the Companies Act, 2013 and also with the GST Department with Registration No.AACCK9882F1ZD and engaged in providing cable services to its customers as Multi Service Operator under the regulation issued by the Telecom Regulatory Authority of India (TRAI). As per the mandate of the TRAI Regulations, the petitioner KCCL is required to execute an interconnection Agreement with the Local Cable Operators on the terms provided by the TRAI. It is contended that the subscription for the Cable Services is collected by the LCO from the subscribers against the invoice issued as per the Agreement. The petitioners issue
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an invoice on the LCO for the eligible revenue share. The responsibility to pay taxes on the revenue share is on the respective parties. Petitioners also received a notice purportedly, under Section 65 of the Act intimating conduct an audit.
4. Learned counsel buttressed the arguments by saying that the petitioners assessee had never defaulted any of the statutory responsibilities and there is not a single instance brought on record by the Department of any wilful or knowledgeable violation. Even the seizure of documents have not been done by a proper officer. It is well settled law that the statutory authority must exercise the jurisdiction within the four corners of the statute. There is no provision in the Act forcing the petitioners to issue a cheque of Rs.one crore which has erroneously been accepted by the Intelligence Officer as evidenced from Ext.P3 dated 9.6.2020. Even two months have gone by, the petitioners received the notice for conducting an audit only on 15/18.5.2018, Ext.P5.
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**7**
5. The procedure adopted for conducting audit would result into inaction contemplated in Chapter 15 of Central Goods and Service Tax Act, 2017. But without referring to the provisions of the Act, officers empowered cannot misuse their powers to detain a person without any authority of law or accept the payment. Ext.P2 notice issued by the 4[th] respondent is without authority of law. It does not show the provisions of Act; whether it is summoned under Section 70 or some other procedure
6. Mr.Sreelal Warrier raises objection regarding the maintainability of the writ petition. Section 70 of the Act empowers the Intelligence officer to issue summons and give evidence and produce documents. Even Section 69 envisages the procedure of arrest. Section 71 also gives liberty to access the business premises. The issuance of notices for auditing is a parallel procedure; the other provisions of the statute cannot impose any restrictions. None of the notices envisage that officer at any point of time demanded money it was
**WP(C).No.12710 OF 2020(K) 8**
the voluntary act of making the payment toward of the liability. There has been no demand so far. Even the alleged cheque given by the petitioners on the perpetual request has not been presented as they don't have sufficient money in account and urging this Court for dismissal of the writ petition.
7. I have heard the learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the submission of the learned Senior counsel for the petitioners, Sri. Sandeep Gopalakrishnan, on account of the following reasons:
a) The provisions of the Act like inspection of the premises, powers of arrest and summons to produce documents have been incorporated with the aim to prevent evasion of GST at the hands of the unscrupulous taxpayers. Observation of mine would not be connected with the act of the petitioners as it is a general observation. If at all, the residences of the petitioners were visited by the officers of the GST, they could have produced on record the video
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recording, as it cannot be expected that the petitioners, who are Managing Director and Director of a Media Company would not have installed cameras outside their houses.
b) This Court during the course of the hearing specifically asked the learned senior counsel for the petitioners as to whether the cheque has been encashed or not. On instructions, he said that there is no such information with the same. Thus the statement of the Mr.Sreelal Warrier that the cheque has not been presented on the perpetual request for the time being remained unrebutted. c) Be that as it may, in my view, interference in the process issued for auditing of the books as well as order of seizure of the documents would help the department in co-relating the entries in the documents and at the time of auditing of the account. The procedure for taking further action has been prescribed under Chapter 15 of 2017 Act regarding the determination of the tax not paid, short paid, erroneously refunded, input tax credit
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wrongly availed, utilized etc., and Section 74 deals with short payment of tax or not paid or erroneously refunded or input tax wrongly availed or utilized for any willful misstatement of suppression of the facts. d) In my view it would be too premature to comment upon the act of the respondents and cannot be said to be against the provisions of the statute or misuse, warranting interference under Article 226 of the Constitution of India. It would not be appropriate for this Court to form an opinion with regard to the alleged conduct of the petitioners which is not supported by any material to prima facie bring the case within the realm of judicial review.
For the reason aforementioned, the writ petition sans merit and accordingly dismissed.
**Sd/-**
**AMIT RAWAL**
sab
**JUDGE**
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**11**
## **APPENDIX**
**PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 GUIDELINES ISSUED BY CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, NEW DELHI ON GOODS AND SERVICE TAX (GST), 3RD EDITION, DATED 15.12.2018.**
**EXHIBIT P2 NOTICE DATED 17.03.2020 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONERS.**
**EXHIBIT P3 ACKNOWLEDGEMENT OF PAYMENT UNDER PROTEST DATED 09.06.2020 SIGNED BY THE 4TH RESPONDENT.**
**EXHIBIT P4**
**ORDER OF SEIZURE IN FORM GST INS-02 DATED 09.06.2020 ALONG WITH LIST OF DOCUMENTS SEIZED.**
**EXHIBIT P5**
**NOTICE FOR CONDUCTING AUDIT IN FORM GST ADT-01 DATED 15/18.05.2020 ISSUED BY THE 3RD RESPONDENT.**
