Writ Petition No. 9262 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:14539 WP No. 9262 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 9262 OF 2025 (T-RES) BETWEEN: M/S SHIVAPRIYA ENTERPRISES NO.1, GROUND FLOOR, ERLAPPASWAMY NILAYA, KANNAMANGALA POST, KADUGODI, BENGALURU, BANGALORE URBAN BANGALORE -560 067 (REPRESENTED BY ITS PARTNER MR.KUNVARJI KANJI PATEL) (BY SRI. SANMATHI E I., ADVOCATE) AND: 1. THE ASSISTANT COMMISSIONER COMMERCIAL, LGSTO-038, NO.58, 2ND FLOOR, 100 FEET ROAD, INDIRANAGAR, BANGALORE-560 038. …PETITIONER
Legal Reasoning
Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA 2. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT)-5.11, VANIJYA TERIGE KARYALAYA-2, B-BLOCK, 6TH FLOOR, ROOM NO.608, NEAR NATIONAL GAMES VILLAGE, KORMANGALA, BANGALORE-560 047. 3. THE COMMISSIONER OF COMMERCIAL TAXES GANDINAGAR, VANIJYA THERIGE BHAVANA, BANGALORE -560 001 …RESPONDENTS
Legal Reasoning
(BY SMT. JYOTHI M MARADI, HCGP) - 2 - NC: 2025:KHC:14539 WP No. 9262 of 2025 THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH FORM GST-DRC-07 BEARING NO. ACCT/LGSTO-038/DRC 07/24-25 PASSED UNDER SECTION 73(9) OF CGST/KGST ACT, 2017 READ WITH SECTION 21 OF IGST ACT, 2017 BY THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, LGSTO-038 DATED 19/4/2024 (SUMMARY OF ORDER) ANNEXURE-C AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, petitioner seeks the following reliefs: " Wherefore, under the above facts and circumstances of the case the Petitioner prays that this Hon'ble High Court be pleased to: Issue Writ of Certiorari or writ in the nature of Certiorari quashing the, following :- A. Form GST-DRC-07 bearing No.ACCT/LGSTO- 038/DRC.07/24-25 passed under Section 73(9) of CGST/KGST Act, 2017 read with Section 21 of IGST Act, 2017 by the Assistant Commissioner of Commercial taxes, LGSTO-038 dated 19/4/2024 Annexure-G. (Summary of order) B. Order Under Section 73(9) of CGST/SGST Act, 2017 read with Section 21 of IGST Act, 2017, FORM GST DRC-07 bearing No.ACCT/LGSTO-038/DRC.07/24-25 passed by the Assistant Commissioner of Commercial taxes, LGSTO-038 dated 19/4/2024-Annexure-C, C. Form GST DRC-01 dated 17/5/2024-Show cause notice issued under Section 74(1) read with Section 50(1) read with Rule 142(1)(a) of KGST Act and Rules, 2017 read with concurrent provisions of CGST Act Rules, 2017 and read with Section 20 of IGST Act and Rules, 2017 bearing No.ACCT(A)-5.11/GST/ADJN-74/11/2022-23 the Assistant Commissioner of Commercial Taxes (Audit) 5.11, by - 3 - NC: 2025:KHC:14539 WP No. 9262 of 2025 Bangalore, Annexure-D. l.e., mail correspondence dated 4/9/2023- D. GRC DRC-01 dated 17/5/2024 bearing Ref No.ZD2905240486625 issued by Assistant Commissioner of, DGSTO-5, Bengaluru, Karnataka Annexure-E. E. Form GST DRC-07- Order passed under Section 74(9) read with Rule 142 (5) of the KGST Act and Rules 2017 read with Section 6 of the Central Goods and Services Tax act, 2017 read with Section 4 & Section 20 of the Integrated Goods and Service Tax Act, 2017 dated 28/6/2024 bearing No.ACCT(A)-5.11/GSTADIN-74/11/2022- 23 by the Assistant Commissioner of Commercial Taxes (Audit) 5.11, Bangalore - Annexure-F. F. Order passed under Section 74 bearing Ref No.ZD2906241351198 dated 28/6/2024 by the Assistant Commissioner, DGSTO-5, Bengaluru, Karnataka - Annexure-G. G. Form GST DRC-07 Summary of Order dated 28/6/2024 bearing Ref No.ZD2906241351198 by the Assistant Commissioner, DGSTO, Bangalore -Annexure-H & Grant any other relief as this Hon'ble Court deems fit." 2. Heard learned counsel for the petitioner and learned HCGP for the respondents and perused the material on record. 3. A perusal of the material on record will indicate that respondent No.1 has initiated proceedings under Section 73 of the Central Goods and Services Tax/State Goods and Services Tax, 2017 (for short, "CGST/SGST Act"), which culminated in an order passed under Section 73(9) of the CGST/SGST Act, dated 19.04.2024, followed by notices issued in this regard to the - 4 - NC: 2025:KHC:14539 WP No. 9262 of 2025 petitioner. Subsequently, the respondents have once again initiated proceedings under Section 74 of the CGST/SGST Act, against the petitioner, which also culminated in the impugned order dated 28.06.2024, passed by respondent No.2. It is submitted that show cause notices issued by the respondents prior to passing of both the aforesaid orders were not received by the petitioner and it would not reply to the same and as such, the petitioner is before this Court inter alia contending that, if the impugned orders were set aside and the matter is remitted back for reconsideration afresh by directing the respondents to continue the proceedings under Section 73 of the CGST/SGST Act i.e., at the stage of submitting reply by the petitioner to the show cause notice dated 29.12.2023, the petitioner will submit its reply to the same. It is also submitted that the respondents may be directed to proceed further in accordance with law. 4. Per contra, learned High Court Government Pleader appearing for the respondents submits that there is no merit in the petition and the same is liable to be dismissed. 5. A perusal of the material on record will indicate that, at the first instance, the respondents have issued show cause notice - 5 - NC: 2025:KHC:14539 WP No. 9262 of 2025 dated 29.12.2023 invoking Section 73(1) of the CGST/SGST Act, which culminated in the impugned order dated 19.04.2024. However, subsequently, the respondents have also initiated proceedings under Section 74 of the CGST/SGST Act, by issuing show cause notice dated 17.05.2024, which culminated in the impugned order dated 28.06.2024, which is impermissible in law since the respondents are not entitled to parallelly initiate proceedings both under Section 73, as well as, Section 74 of the CGST/SGST Act. It is also relevant to state that both the impugned orders are ex parte orders, inasmuch as, the petitioner has not submitted its reply or contested the proceedings. 6. In so far as the impugned order dated 28.06.2024 vide Annexure-F, passed under Section 74(9) of the KGST Act, by respondent No.1 is concerned, it is an undisputed fact that the said order was passed after and subsequent to respondent No.1 already passing an order dated 19.04.2024 under Section 73(9) of the KGST Act, in relation to the very same tax period and in respect of the very same assessee and on the very same subject matter. - 6 - NC: 2025:KHC:14539 WP No. 9262 of 2025 7. Under these circumstances, having already passed an order under Section 73(9) of the CGST/SGST Act, dated 19.04.2024, it is impermissible in law for the 1st respondent to pass one more order in respect of the very same subject matter subsequently by invoking Section 74(9) of the CGST/SGST Act and the same deserves to be quashed. Therefore, by adopting justice oriented approach and in order to provide one more opportunity to the petitioner to submit its reply and contest the proceedings, I deem it just and appropriate to set aside the impugned orders and remit the matter back to respondent No.1 for reconsideration afresh in accordance with law. 8.
Decision
In the result, pass the following: ORDER (i) The Petition is hereby allowed. (ii) Impugned order at Annexure-F, dated 28.06.2024, is hereby quashed. (iii) Impugned order at Annexure-C1, dated 19.04.2024, is also hereby quashed. (iv) Matter is remitted back to respondent No.1 for reconsideration of the proceedings under Section 73(9) of - 7 - NC: 2025:KHC:14539 WP No. 9262 of 2025 the CGST/SGST Act, from the stage of the petitioner submitting reply to the show cause notice dated 29.12.2023 and to proceed further in accordance with law. (v) Liberty is reserved in favour of the petitioner to submit additional pleadings, documents, etc., to the respondent, who shall consider the same by providing proper and reasonable opportunity to the petitioner and proceed further in accordance with law. (vi) The petitioner is directed to appear before respondent No.1 on 28.04.2025 without waiting for the further notice from respondent No.1. (vii) It is made clear that in the event the petitioner does not appear before respondent No.1 on 28.04.2025, the present order shall stand automatically recalled and the present petition shall stand revived without further orders or reference to the Bench. Sd/- (S.R.KRISHNA KUMAR) JUDGE BK: List No.: 1 Sl No.: 29