The Hon’ble High Court of Kerala vide its order dated 15th of February 2022 in the matter of Nico Tiles Vs. The State Tax Officer & Ors. in WP ( C) No. – 26301 of 2021 held that the asseesee cannot approach the High Court in order to avoid Pre-deposit once it is already availing the appellate remedy as per the Statute.
The Petitioner preferred the Writ Petition challenging the series of monthly assessment orders issued to the petitioner under section 62 of the CGST Act. As per the petitioner the assessments have been carried for respective period in spite of provision of notice under section 46 of the Act for non furnishing of returns.
- The issuance of assessment orders under Section 62 are illegal, since the petitioner requested for cancellation of registration from 31.12.2017 and the aforesaid assessment orders have been issued ignoring the request of the petitioner.
- It was also the contention of the petitioner that its registration has been cancelled effective from 31.12.2017 by the proper officer acting on its request, thus the assessment orders issued for period November, 2017 to May, 2019 are without authority.
- The Hon’ble High Court after considering the submissions from the both sides observed that the order of cancellation of registration shows it was cancelled with effect from 31.12.2017 as stated by the petitioner however the application for cancellation was after the issuance of assessment orders.
- The Petitioner has already preferred an appeal under section 107 of State Goods and service tax against the aforesaid assessment orders which mandated pre-deposit of 10%, and a defect in the appeal has been pointed out for not making the pre-deposit.
- The Hon’ble High Court taking note of the Petitioner’s contention that, if it pays the mandatory pre-deposit it would cause prejudice to the petitioner, observed that the petitioner has already undertaken a remedy of statutory appeal under Section 107 of the Act.
- The Hon’ble High Court, as observed above, held that the petitioner now cannot turn around an approach this court relying on subsequent events to avoid mandatory pre-deposit.
- It was further held that pre-deposit is to be made on the date of filing of appeal itself i.e 11.03.2020, and it cannot be avoided on the basis of subsequent events.
- The subsequent events cannot be availed to overcome the mandate of pre-deposit under Section 107 of the Act.
The Hon’ble High Court with the above findings dismissed the writ petition finding that there are no circumstances warranting the invocation of extra ordinary jurisdiction since the petitioner had already invoked the appellate remedy under the Act.