M/S Alblanc Private Limited vs. Assistant Commissioner Of Central Tax - Karnataka High Court, 28 April 2025

In this petition, petitioner seeks for the following reliefs:- (A) Issue a writ or certiorari or mandamus or writ in the nature of certiorari or mandamus, or any other writ or order or direction calling for the records relating to Order-in-Original Ref. No.292/2024-2025 AC 5, dated 27.03.2025 issued by the Respondent No.1, enclosed as Annexure-A and quash the same, along with consequential relief and pass any other writ, order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice and equity. (B) Issue a writ of certiorari or mandamus or writ in the nature of certiorari or mandamus, or any other writ or direction or order to quash the impugned summary of the order in Form DRC-07 vide reference No. ZD290325093883U dated 270.03.2025 issued by the Respondent no.1, enclosed as Annexure-A1. (C) Issue a writ of certiorari or mandamus or writ in the nature of certiorari or mandamus, or any other writ or direction or order to quash the impugned show cause notice Sl. No.03/2023-24 GST/1041/23 dated 12.05.2023 issued by the Respondent no.1, enclosed as Annexure-B. (D) Alternatively, direct Respondent No.1 to re-adjudicate the show cause notice under section 73 and permit NC: 2025:KHC:17589 WP No. 12074 of 2025

the petitioner to avail the scheme under section 128A of CGST Act, 2017 and for this purpose to issue directions on time limits to ensure that the scheme can be availed off effectively. (E) Grant such other consequential reliefs as this Honourable High Court may think fit including refund of amounts paid, if any, and the cost of this writ petition.”

Heard learned Senior counsel for the petitioner and learned counsel for the respondent and perused the material on record.

In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned Senior counsel for the petitioner invited my attention to the Joint Development Agreement dated 02.08.2013 and Supplementary Agreement dated 05.11.2018 entered into between the petitioner and three others viz., Sri. S.Sharadaprasad, M/s.OASIS constructions and Sri.S.Lakshminarayan in order to contend that insofar as Sri.S.Lakshminarayan and Sri.S.Sharadaparasad are concerned, the Revenue has initiated proceedings by invoking Section 73 of the CGST / KGST Act and necessary orders have been passed by the Revenue in this regard. It is also pointed out NC: 2025:KHC:17589 WP No. 12074 of 2025

that the aforesaid Lakshminarayan, against whom, orders under Section 73 of the CGST / KGST Act were passed, is none other than the Director of the petitioner – company in the present petition. It is also submitted that under identical circumstances, this Court in the case of M/s.Sree Balaji Pakaging Industry vs. Union of India & others – W.P.No.6425/2025 dated 28.03.2025, disposed of the petition treating the proceedings as one under Section 73 instead of Sectiojn 74 of the CGST / KGST Act by reserving liberty in favour of the petitioner therein to avail the benefit of Amnesty Scheme under Section 128(A) of the CGST Act and the present petition also deserves to be disposed of accordingly.

Learned counsel for the respondent – Revenue submits that there is no merit in the petition and that the same is liable to be dismissed.

As rightly contended by the learned Senior counsel for the petitioner, a perusal of the Joint Development Agreement and Supplementary Agreement will indicate that the petitioner-company herein is one of the co-owners of the lands in question, among whom, the remaining owners are Sri.Lakshminarayan, Sri.Sharadaprasad and M/s.Oasis Constructions; it is also NC: 2025:KHC:17589 WP No. 12074 of 2025

significant to note that insofar as Sri.Lakshminarayan and Sri.Sharadaprasad are concerned, the respondent had undisputedly initiated proceedings under Section 74 and not under Section 73 of the CGST / KGST Act, which have culminated in adjudication orders passed under Section 74(9) against the said persons. Under identical circumstances, in Balaji Packaging’s case supra, this Court disposed of the petition by holding as under:- In this petition, the petitioner seeks the following reliefs: “a) Issue a writ or order or direction in the nature of any writ declaring that Section 146 of the Finance (No.2) Act, 2024 (Annexure-‘A’) and Notification No.21/2024 – Central Tax dated 08.10.2024 (Annexure-‘B’) issued by the 1st Respondent in extending the benefit of waiver of interest and penalty only to notices issued under Section 73 of the Central Goods and Service Tax Act, 2017 are ab initio void, illegal and ultra vires the constitution; and thereby,

b) Issue a writ, order or direction in the nature of Certiorari by quashing the impugned Show Cause Notice (GST) bearing SCN No. 96/2021-22 (CTA-1)/AC (DIN-20210857TD0000332103) dated 18-08-2021 issued by the 4th Respondent (Annexure- 'C') and consequential impugned Order-In-Original bearing Sl.No. 195/2024-25 9 (DIN-20241057YV000000D0DC) dated 28.10.2024 in FORM GST DRC-07 passed by the 5th Respondent (Annexure- 'D');

c) Alternatively, issue a writ or order or direction in the nature of certiorari by quashing the impugned Show Cause Notice (GST) bearing SCN No. 96/2021-22 (СТА-1)/AC (DIN- 20210857TD0000332103) dated 18-08-2021 issued by the 4th Respondent (Annexure- 'C') by invoking the provisions of Section 74 of the CGST Act, 2017 and thereby issue a writ or order or direction in the nature of mandamus directing the Respondents to treat the show cause notice as if it were issued under Section 73 NC: 2025:KHC:17589 WP No. 12074 of 2025

of the CGST Act, 2017 and thereby to extend the benefit of Section 146 of the Finance (No. 2) Act, 2024 (Annexure- 'A') and Notification No.21/2024-Central Tax dated 08.10.2024 (Annexure- 'B') issued by the 1st Respondent;

d) Alternatively, issue a writ or order or direction in the nature of any writ by extending the benefit of waiver of interest and penalty to the Petitioner as per Section 128A of the Central Goods and Service Tax Act, 2017 inserted through Section 146 of the Finance (No. 2) Act, 2024 (Annexure- 'A') and Notification No.21/2024- Central Tax dated 08.10.2024 (Annexure- 'B');

e) Pass such other order/s or direction/s as deemed fit and proper in the facts and circumstances of the case in the interest of justice.

Heard learned counsel for the petitioner and learned CGC for respondent No.1 and learned counsel for respondent No.2 and perused the material on record.

After arguing the matter for sometime, learned counsel for the petitioner submits that the petitioner intends to avail the benefit of Amnesty Scheme as contemplated under Section 128(A) of the Central Goods and Service Act, 2013 (for short “the CGST Act”) and as such, the impugned order purported to have been passed under Section 74 of the CGST Act may be set aside and the matter may be remitted back to respondent No.5 for reconsideration afresh, in accordance with law, by treating the proceedings as proceedings under Section 73 of the CGST Act and pass appropriate order under Section 73(9) of the CGST Act and by directing respondent No.5 to grant the benefit of Amnesty Scheme, in favour of the petitioner, who would file such an application before respondent No.5. 4. The aforesaid submission is placed on record. NC: 2025:KHC:17589 WP No. 12074 of 2025

In view of the aforesaid facts and circumstances and the submission made by learned counsel for the petitioner that the petitioner intends to avail the benefit of Amnesty Scheme under Section 128(A) of the CGST Act, I deem it just and appropriate to set aside the impugned order at Annexure-D and remit the matter back to respondent No.5 for reconsideration afresh, in accordance with law by issuing certain directions.

In the result, I pass the following: ORDER i. The petition is allowed. ii. The impugned Order-in-Original at Annexure-D dated 28.10.2024 passed by respondent No.5, is hereby set aside. iii. The matter is remitted back to respondent No.5 for reconsideration afresh, in accordance with law. iv. The petitioner shall appear before respondent No.5 on 01.04.2025 without awaiting further notice from respondent No.5. v. Respondent No.5 shall pass appropriate orders by treating the proceedings under Section 73 of the CGST Act and pass appropriate orders under Section 73(9) of the CGST Act, within one week from 01.04.2025. vi. The petitioner is also entitled to file an application to avail the benefit of Amnesty Scheme and if such an application is filed before respondent No.5, respondent No.5 shall grant petitioner the benefit of Amnesty Scheme, as contemplated under Section 128(A) of the CGST Act, in accordance with law. vii. All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same. NC: 2025:KHC:17589 WP No. 12074 of 2025

In view of the aforesaid facts and circumstances and the order passed by this Court, I am of the considered opinion that the present petition also deserves to be disposed of in terms of the aforesaid judgment passed by this Court.

In the result, I pass the following:- ORDER (i) Petition is hereby allowed. (ii) The impugned Order-in-Original at Annexures-A and A1 both dated 27.03.2025 passed by the respondent is hereby set aside. (iii) The matter is remitted back to the respondent for reconsideration afresh in accordance with law. (iv) The petitioner shall appear before the respondent on 03.06.2025 without awaiting further notice from the respondent. (v) Respondent shall pass appropriate orders by treating the proceedings as one under Section 73 of the CGST Act instead of Section 74 of the CGST Act and pass appropriate orders under Section 73(9) of the CGST Act, within a period of two weeks from 03.06.2025. NC: 2025:KHC:17589 WP No. 12074 of 2025

(vi) The petitioner is also entitled to file an application to avail the benefit of Amnesty Scheme and if such an application is filed before the respondent, the respondent shall grant petitioner the benefit of Amnesty Scheme, as contemplated under Section 128(A) of the CGST Act, in accordance with law. (S.R.KRISHNA KUMAR) JUDGE

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