R.S. Enterprises vs. The Assistant Commissioner Of
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Cause title — parties, addresses and appearances
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR)
Learned counsel for the petitioner Sri.H.R.Kambiyavar is present physically along with the learned AGA for respondent Nos.1 to 3 and the learned counsel Sri.Girish Hulmani for respondent No.5. 2. This petition is filed to strike down Section 16(2) of the CGST/SGST Act, 2017 as unconstitutional and violative of Article 14(19)(i) of the Constitution of India and to read down the phraseology “has been actually paid” occurring in Section 16(2) of the CGST/SGST Act to “ought to have been paid”.
The petitioner has also questioned the impugned order dated 19.12.2023 passed by the HC-KAR NC: 2025:KHC-D:7271 respondent No.1-Assistant Commissioner of Commercial Taxes (Audit-1) and for consequential relief of certiorari. During the course of arguments learned counsel does not press for the prayers made in I and II.
Learned counsel for the petitioner submits that the impugned order passed by respondent No.1 is illegal, violative of the principles of natural justice, barred by the law of limitation and cannot be sustained in view of the provisions of the CGST/SGST Act. Therefore he is before this Court.
Learned AGA submits that the petition itself is not maintainable on the ground that there is alternative efficacious remedy available under the Statute namely the Karnataka Goods and Services Tax Act, 2017 more specifically Section 107. He relies upon the judgment of this Court in Writ Petition No.102932/2024 wherein in similar circumstances this Court dismissed the writ petition reserving liberty to the petitioner to approach the HC-KAR NC: 2025:KHC-D:7271 appropriate authority for filing the appeal as prescribed under Section 107 of the KGST Act, 2017. 6. I have heard the learned counsel for the petitioner and the learned counsel for the respondents.
The facts are almost similar to the one relied upon by the learned AGA in the above mentioned writ petition. Though learned counsel for the petitioner submits that he is questioning the orders passed under the provisions of Section 73(9) and he would fall within the category of Section 73(10) whereby the time period prescribed is 3 years from the date of furnishing the annual returns for financial year to which the tax is not paid or short paid or input tax credit is wrongly availed.
Therefore since within 3 years no proceedings are initiated against him, the proceedings and orders passed by the 1st respondent is bad in law, illegal and the same requires to be set aside. However on careful perusal of the provisions of Section 107 of the KGST Act which prescribes that on any decision or order passed and a person aggrieved by HC-KAR NC: 2025:KHC-D:7271 it under the Karnataka Goods and Services Tax Act by any adjudicating authority may appeal to such appellate authority as may be prescribed within 3 months on the date on which such decision or order is communicated to such person. Therefore on a bare perusal and reading of Section 107 of Clause I, there is no ambiguity that on any order passed by the adjudicating authority an appeal remedy is provided before the appellate authority and the same is already held and decided by this Court in the above mentioned Writ Petition No.102932/2024. Under the circumstances, since the matter is already covered by a Coordinate Bench of this Court, I do not find any good reason to go into the merits of the matter. Accordingly I pass the following: ORDER i. This petition is dismissed. HC-KAR NC: 2025:KHC-D:7271 ii. Liberty is reserved to the petitioner to approach the appropriate appellate authority if so advised. iii. The time spent before this Court shall be condoned on petitioner approaching the appellate authority. (PRADEEP SINGH YERUR) JUDGE
KGK CT-MCK List No.: 1 Sl No.: 19
Reproduced from the public record of the Karnataka High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.