Darshan Nagaraja vs. Commercial Tax Officer

Heard learned counsel for the petitioner and learned AGA for the respondent No.1 and perused the material on record.

A perusal of material on record will indicate that pursuant to the pre-intimation in Form GST ASMT-10 dated 24.01.2024, the 1st respondent issued an intimation in Form GST DRC-01A dated 13.03.2024. Since the petitioner did not reply to the aforesaid notices, the 1st respondent issued a show-cause HC-KAR NC: 2025:KHC:40514 notice dated 27.03.2024 under Section 73(1) of the CGST/KGST Act, 2017 alleging that the petitioner had wrongly / excessively availed ITC in GSTR-3B than that of ITC available in GSTR-2A. Since the petitioner did not submit his reply to the said show-cause notice also, the 1st respondent proceeded to pass the impugned order dated 18.07.2024 under Section 73(9) of the KGST/CGST Act, 2017 confirming the total demand of Rs.49,58,651/- including the tax, interest and penalty. Aggrieved by the said impugned order, the petitioner having no option has approached 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 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.

Learned counsel for the petitioner submits that the said show-cause notice was uploaded under the tab "Additional Notices and Order" in the GST Portal and not on the main column i.e. "Notices/Orders" and the same went unnoticed by the petitioner. HC-KAR NC: 2025:KHC:40514 So also, the learned counsel for the petitioner submits that the said notices / intimations that were sent to the petitioner was received under in 'Spam' folder and the same have been auto deleted. Since the respondents uploaded the Show Cause Notice under different head and the same were not brought to the notice of the petitioner, the petitioner couldn't submit replies / documents to the show-cause notice under Section 73(1) of the CGST/KGST Act, 2017. Pursuant to the impugned adjudication order dated 18.07.2024, the 1st respondent issued a Third Party notice dated 13.03.2024 under Section 79(1)(c) to the 2nd respondent. It is submitted by the learned counsel for the petitioner that upon receiving of the aforesaid Section 79(1)(c) notice, the petitioner realized regarding the aforesaid ex-parte proceedings and aggrieved by the impugned adjudication order, the petitioner with no option has approached 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 show-cause notice was due to bonafide reasons, unavoidable circumstances and sufficient cause and submits that if one more opportunity is provided by setting HC-KAR NC: 2025:KHC:40514 aside the impugned order, the petitioner would submit a reply to the show-cause notice and contest the proceedings.

Per contra, learned AGA for respondent No.1 submits that since the show-cause notice was 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 notice and as such, there is no merit in the petition and the same is liable to be dismissed.

Though several contentions have been urged by both sides as regards to the petitioner not having noticed show-cause notice and his inability and omission to reply to the said show cause notice, is a matter of record and an undisputed fact that the petitioner did not submit his reply to the show-cause notice, which culminated in the impugned ex-parte order.

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 HC-KAR NC: 2025:KHC:40514 and provide one more opportunity to the petitioner by setting aside the impugned order dated 18.07.2024 and remitting the matter back to the 1st respondent for reconsideration of the matter afresh in accordance with law from the stage of petitioner submitting reply to the impugned show-cause notice dated 27.03.2024. 8. In the result, I pass the following: ORDER