Writ Petition No. 7660 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:13374 WP No. 7660 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 7660 OF 2025 (T-RES) BETWEEN: SHRI HARI CONSTRUCTION’R A SOLE PROPREITORSHIP FIRM (REGISTERED) REPRESENTED BY ITS PROPRIETOR, MR.CHINNATHAMBI ELLANGO, GOKUL FLAT S-1 83/B, 2ND MAIN ROAD, YADHAVAGIRI, MYSORE, KARNATAKA- 570 020 (BY SRI. MAHIMA S.,ADVOCATE) AND: …PETITIONER 1. ASSISTANT COMMISSIONER OF COMEMRCIAL TAXES ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, LOCAL GOODS AND SERVICE TAX OFFICE-200, SHESHADRI BHAVAN, DEWANS ROAD, MYSORE- 570 024 Digitally signed by NANDINI D Location: High Court of Karnataka 2. 3. JOINT COMMISSIONER OF COMMERCIAL TAXES (APPEAL), MYSORE DIVISION, C.V. ROAD, BANNIMANTAP, MYSORE- 570015. INDIAN OVERSEAS BANK, REPRESENTED BY ITS BRANCH MANAGER, 43, STATION ROAD, VILLIVAKKAM, CHENNAI, TAMILNADU - 600 049
Legal Reasoning
(BY SRI. HEMA KUMAR.K., AGA FOR R-1 AND R-2) …RESPONDENTS THIS WP IS FILED UNDER ARTICLE 226 AND 227 OF THE INDIA, 1950; PRAYING TO A WRIT OF CONSTITUTION OF - 2 - NC: 2025:KHC:13374 WP No. 7660 of 2025 CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION IN THE NATURE OF A WRIT, QUASHING THE FOLLOWING ORDERS AND CALLING FOR THE RECORDS RELATING TO THE.(1) IMPUGNED ORDER NO.1, DATED 11.07.2023 OF THE RESPONDENT NO.1 ISSUED UNDER SECTION 73(9) READ WITH SECTION 6 AND SECTION 50 OF THE KARNATAKA GOODS AND SERVICES TAX ACT/CENTRAL GOODS AND SERVICES TAX NO.ACCT/LGSTO- ACT, 200/TDS/ADG-22/2023-24, AND ETC. (ANNEXURE-A) BEARING 2017 THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, the petitioner sought for following relief: "a) A writ of Certiorari or any other appropriate writ, order or direction in the nature of a writ, quashing the following orders and calling for the records relating to the : (i) Impugned Order No.1, dated 11.07.2023 of the Respondent No.1 issued under Section 73(9) read with Section 6 and Section 50 of the Karnataka Goods and Services Tax Act/Central Goods and Services Tax Act, 2017 (Annexure A) bearing No.ACCT/LGSTO- 200/TDS/ADG-22/2023-24. (ii) Impugned Notice No.1 i.e., the Consequential Demand Notice dated 11.07.2023, in FORM GST DRC-07 issued by the Respondent No.1, under Rule 100(1), 100(2), 100(3) and 142(5) of the CGST/KGST Rules, bearing Reference No.’ZD29072309195B’, (Annexure B). - 3 - NC: 2025:KHC:13374 WP No. 7660 of 2025 b) A writ of Certiorari or any other form of writ, order or direction in the nature of a writ, quashing the following orders and calling for the records relating to the: (i) The impugned Notice No.2, dated 14.08.2024 issued to the Respondent No.3 by the Respondent No.1, under Section 79(1)(e) of the CGST/KGST Act, 2017 in FORM GST DRC – 13 (Annexure C) bearing No.ACCT/LGSTO-200/MYS/DRC-13/2024-25. (ii) The impugned Order No.2 of the Respondent No.2 dated 01.10.2024, in Form GST APL-02, bearing reference No.ZD2910240016170 (Annexure E), rejecting the appeal. c) Such other direction that this Hon’ble High Court deems fit in the facts and circumstances of the above case. OR d) In the alternative, the petitioner most respectfully prays that this Hon’ble Court be pleased to pass an order restoring the appeal in Form GST APL 01 dated 09.08.2024, bearing Reference No.ZD29102400161TO (Annexure-D) of Respondent No.2 to hear, consider and dispose off the said appeal on merits and in accordance with law and/or e) Pass any such other direction that this Hon’ble High Court deems fit in the facts and circumstances of the above case." 2. Heard learned counsel for the petitioner and learned Additional Government Advocate for the respondents and perused the material on record. - 4 - NC: 2025:KHC:13374 WP No. 7660 of 2025 3. A perusal of material on record will indicate that the respondent No.1 issued a pre- intimation notice dated 19.11.2022 under Rule 142(1A) of the CGST/KGST Rules, 2017, to the petitioner, who did not issue any reply/response to the same. Subsequently, the first respondent issued a show-cause notice dated 27.04.2023 under Section 73(1) of the CGST/KGST Act, 2017. Since the petitioner did not submit his reply to the said show- cause notice also, the respondent No.1 proceeded to pass the impugned order dated 11.07.2023 under Section 73(9) of the CGST/KGST Act, 2017 confirming the total demand of Rs.3,75,680/- including the tax, interest and penalty. In pursuance of the same, the respondent No.1 issued notice dated 14.08.2024 under Section 79(1)(e) of the CGST/KGST Act, 2017 directing attachment of the petitioner's bank accounts for recovery of the alleged tax dues. 4. Learned counsel for the petitioner submits that neither the pre-intimation notice under Rule 142(1A) nor the show-cause notice under 27.04.2023 of the CGST/KGST Act, 2017 were communicated or served upon the petitioner and he was not aware of the said proceedings. So also, physical copies of the aforesaid - 5 - NC: 2025:KHC:13374 WP No. 7660 of 2025 notices were not communicated to the petitioner and consequently, he was not in a position to submit a reply to the same or contest the proceedings, which culminated in the impugned ex-parte order. It is submitted that the petitioner was not aware of the impugned proceedings till he received the notice dated 14.08.2024 under Section 79(1)(e) of the CGST/KGST Act, 2017 directing the attachment of his bank accounts, pursuant to which, the petitioner filed an appeal on 09.08.2024 which was dismissed as barred by limitation vide impugned order dated 01.10.2024. It is submitted that since the GST Appellate Tribunal has not been constituted as on today, the petitioner has no option but to approach this Court by way of the present petition interalia contending that the inability and omission on the part of the petitioner to submit a reply to the pre- intimation notice and show-cause notice and contest the proceedings was due to bonafide reasons, unavoidable circumstances and sufficient cause and submits that if one more opportunity is provided, by setting aside the impugned order, the petitioner would submit a reply to the show-cause notice and contest the proceedings. - 6 - NC: 2025:KHC:13374 WP No. 7660 of 2025 5. Per contra, learned HCGP for the respondents submits that since the pre-intimation notice and show-cause notice were duly communicated electronically to the petitioner by uploading the same on GST portal as well as e-mail, the petitioner cannot complain that he was not aware of impugned proceedings and as such, there is no merit in the petition and the same is liable to be dismissed. 6. Though several contentions have been urged by both sides as regards to the petitioner not having received the pre- intimation notice and show-cause notice and his inability and omission to contest the proceedings, it is a matter of record and an undisputed fact that the petitioner did not submit his reply to the show-cause notice or pre-intimation notice nor contested the proceedings, which culminated in the impugned ex-parte order. So also, the appeal filed by the petitioner before the second respondent has been dismissed as barred by limitation. Insofar as the appeal filed by the petitioner being rejected by the appellate authority vide order dated 01.10.2024 is concerned, since the same was dismissed as barred by limitation, the same would not - 7 - NC: 2025:KHC:13374 WP No. 7660 of 2025 constitute merger to come in the way of this Court exercising its jurisdiction under Articles 226 and 227 of the Constitution of India. 7. Under these circumstances, having regard to the specific assertion on the part of the petitioner that his inability and omission to submit replies and contest the proceedings was due to bonafide reasons, unavoidable circumstances and sufficient cause, I deem it just and appropriate to adopt a justice oriented approach and provide one more opportunity to the petitioner by setting aside the impugned order dated 11.07.2023 and remitting the matter back to the first respondent for reconsideration of the matter afresh in accordance with law to the stage of petitioner submitting reply to the impugned show-cause notice. 8.
Decision
In the result, I pass the following: ORDER (i) The petition is hereby allowed. (ii) The impugned order dated 11.07.2023 passed by the respondent No.1 under Section 73(9) of the CGST/LGST Act, 2017 at Annexure-A is hereby set aside. - 8 - NC: 2025:KHC:13374 WP No. 7660 of 2025 (iii) The matter is remitted back to the respondent No.1 for reconsideration afresh in accordance with law. (iv) The petitioner is directed to appear before the first respondent on 28.04.2025 without awaiting further notice from the first respondent. (v) It is further made clear that in the event petitioner does not appear before respondent No.1 on 28.04.2025, the present order shall stand automatically recalled/cancelled and the present petition shall stand revived/ restored without further orders and without reference to the Bench. (vi) Liberty is reserved in favour of the petitioner to submit replies, documents etc., which shall be considered by respondent No.1 who shall provide sufficient and reasonable opportunity to the petitioner and hear them and proceed further in accordance with law. (vii) 10% amount deposited before the Appellate Authority by the petitioner would be subject to the final outcome of the proceedings. MDS; List No.: 1 Sl No.: 63 Sd/- (S.R.KRISHNA KUMAR) JUDGE