R Thillaikarasan, v. The Deputy State Tax Officer,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.03.2024
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY W.P.
No.5430 of 2024 and W.M.P.No.5997 of 2024 R.Thillaikarasan, Proprietor of Royal Blue Metals, Flat No.20, P.A.Apartments, 2nd Main Road, Gandhi Nagar, Adyar, Chennai 600 020.
... Petitioner -vsThe Deputy State Tax Officer, Intelligence, Hosur Division, Office of the Joint Commissioner (ST) (Intelligence), 3/47, Sapthagiri Complex, Commercial Taxes Building, 2nd Floor, Gandhi Nagar, Near Five Star Petrol Bunk, Hosur 635 109.
... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India, pleased to issue a Writ of Certiorari, calling for the records 1/6
relating to the impugned Notice of the respondent in Ref: GSTIN: 33ABYPT2591A1ZD, dated 22.01.2024 for levying GST on the lease amount for grant of mining lease, quash the same. For Petitioner : Mr.V.Sanjeevi For Respondent : Mr.V.Prasanth Kiran, GA (T) **********
ORDER
In this writ petition, the petitioner has assailed the intimation communicating the GST liability under applicable GST laws in respect of mining lease amounts paid by the petitioner to the Government.
2. Learned counsel for the petitioner relies on Notification No.13/2017 - Central Tax (Rate) insofar as the claim relates to GST on mining lease and points out that services supplied by the Central, 2/6
State Government or local authority to a business entity by way of renting of immovable property is excluded from GST. Reliance is also placed on interim orders issued by the Hon'ble Supreme Court in a batch of cases, including SLP(C) No.37326 of 2017. The Supreme Court has granted an interim stay not only in respect of royalty but also in respect of mining lease. It is stated that the nine judge bench is scheduled to hear the batch of cases tomorrow.
3. Learned counsel further placed for consideration the Division Bench Judgment in a batch of cases where the lead case is A.Venkatachalam v. Assistant Commissioner (ST), Palladam, in W.P.No.30974 of 2022.
4. Mr.Prasanth Kiran, learned Government Advocate, accetps notice for the respondent.
5. The Division Bench of this Court issued the following 3/6
directions at paragraph 9 of the judgment:
"9. In these circumstances, we deem it fit and appropriate to issue the following directions:
(i) In the cases, where the challenge is made to the show cause notices, the writ petitioners shall submit their objections / representations within a period of four weeks from the date of receipt of a copy of this order. (ii) Upon receipt of the objections / representations from the writ petitioners, the authority concerned shall proceed with the adjudication, on merits and in accordance with law, after affording reasonable opportunity of being heard to the petitioners. However, the orders of adjudication shall be kept in abeyance until the Nine Judge Constitution Bench decides the issue as to the nature of royalty.
(iii) It is made clear that there shall be no recovery of GST on royalty until the Nine Judge Constitution Bench takes a decision. (iv) Needless to state that on the matters being decided, the writ petitioners if still aggrieved, shall redress their grievance(s), if any, before the appropriate forum, including by filing appeal(s). (v) Insofar as the challenge to the notification as well as the circular, it is open to the writ petitioners to act upon, after the outcome of the case pending before the Nine Judge Constitution Bench. (vi) It is also made clear that all the contentions are left open for the writ petitioners to raise in appropriate proceedings, after the outcome of the decision of the Nine Judge Constitution Bench." 4/6
6. In view of the said judgment, this petition is liable to be disposed of on the same terms. Consequently, in this case, the petitioner is permitted to submit his reply to the intimation within a maximum period of four weeks from the date of receipt of a copy of this order.
7. W.P.No.5430 of 2024 is disposed of on the above terms. No costs. Consequently, W.M.P.No.5997 of 2024 is closed. 05.03.2024 (1/2) rna Index : Yes / No Internet : Yes / No To The Deputy State Tax Officer, Intelligence, Hosur Division, Office of the Joint Commissioner (ST) (Intelligence), 3/47, Sapthagiri Complex, Commercial Taxes Building, 2nd Floor, Gandhi Nagar, Near Five Star Petrol Bunk, Hosur 635 109.
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SENTHILKUMAR RAMAMOORTHY,J rna and W.M.P.No.5997 of 2024 05.03.2024 (1/2) 6/6