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2025 Supreme(Online)(KER) 13716
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
M/S. OLIVE TRADERS II – Appellant
Versus
THE ASSISTANT STATE TAX OFFICER - II – Respondent
WP(C) 11283/2025
For the Appellants/Petitioners: AJI V.DEV, ALAN PRIYADARSHI DEV, S.SAJEEVAN, JASH C JAMES
For the Respondents: GP JASMIN M.M
A party withdrawing an appeal under a specific provision cannot later contest the validity of the assessment order based on a subsequent judicial decision.
Headnote:The judgment examines the withdrawal of an appeal under Section 128A of the GST Act and the implications of a subsequent amendment. The petitioner aimed to leverage a court ruling (Rejimon Padickapparambil Alex v. Union of India) post-withdrawal which the court found impermissible, thereby upholding the assessment order. The court decided that withdrawal signified acceptance of the assessment, preventing the petitioner from contesting it thereafter.
Result: The writ petition is dismissed.
| Table of Content |
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| 1. the petitioner filed an appeal under a specific provision of the gst act. (Para 1) |
| 2. petitioner aimed to use benefits of a later court decision. (Para 2) |
| 3. court observed the withdrawal of the appeal as an acceptance of the order. (Para 3) |
| 4. the judgment concluded that withdrawal estopped the petitioner from contesting. (Para 4) |
JUDGMENT
Aggrieved by an order of the first respondent under Section 73 of the GST Act , petitioner preferred an appeal before the second respondent. During the pendency of the said appeal, Section 128A was introduced into the Statute as per amendment dated 16.08.2024. In order to avail the benefit under the said provision, petitioner withdrew the appeal, which is evident from Ext.P2 order dated 06.11.2024. It was specifically recorded in the order that appeal is being withdrawn to avail the benefit of waiver of interest and penalty under Section 128A of CGST Act.
2. Subsequently, a Division Bench of this Court rendered a decision in Rejimon Padickapparambil Alex v. Union of India and others 2024 KHC Online 7215. According to the petitioner, the principles laid down in the said decision can be availed of by the petitioner to its advantage, and therefore, the assessment order should be set aside and a re- consideration be directed, instead of petitioner availing the benefit under Section 128A of the CGST Act.
3. Having heard the learned counsel for the petitioner as well as the learned Government Pleader, I am of the view that this writ petition cannot be entertained.
4. After withdrawing the appeal to avail the benefit of Section 128A of GST Act , petitioner cannot backtrack from the same and seek the benefit of a subsequent decision. In order to avail the benefit of the decision in Rejimon’s case (supra), the assessment order has to be set aside. However, by Ext.P2, the assessment order had been practically upheld. The appeal was withdrawn by the petitioner practically conceding the correctness of the said order. Since petitioner has already requested the appellate authority to withdraw the appeal in order to avail the benefit of waiver of interest and penalty under Section 128A of , he is estopped from going back upon it. After accepting the order of assessment, which is a requirement to avail the benefit of Section 128A , petitioner cannot now turn around and question it.
Hence, there is no merit in this writ petition, and it is dismissed.
