M/S M J Infrastructure vs. The Joint Commissioner (Appeal)

Heard learned counsel Ms.Prajwala Sathyaprakash, for petitioner and learned Additional Government Advocate Sri.K.Hemakumar for respondent Nos.1 to 3. Perused the writ petition papers.

Learned counsel for the petitioner would submit that the petitioner, a proprietary concern registered under the Karnataka Goods and Services Tax Act, 2017 (for NC: 2025:KHC:8318 short, ‘2017 Act’) is before this Court questioning the exparte order dated 30/31.03.2024 bearing No.ACCT(Audit)-4.8/DGSTO-4/73-24/23-24 (Annexure-F) passed under Section 73 of 2017 Act as well as appellate order bearing No.GST.AP.587/2024-25 dated 30.08.2024 under Section 107(11) of 2017 Act, rejecting the petitioner’s appeal only on the ground of delay.

It is submitted that the petitioner was suffering from heart ailment and it is submitted that from 2021 the petitioner was taking treatment for his heart ailment. In that regard, learned counsel would refer to the medical records at pages 51 and 52 of the writ petition and submits that the petitioner’s heart was functioning at 40%, which is recorded on 27.09.2021 and subsequently petitioner had to undergo surgery on 09.12.2024. In that regard, learned counsel would invite attention of this Court to the medical records placed on record dated 29.11.2024 onwards. It is submitted that when the petitioner was undergoing treatment, show cause notice under Section 73 NC: 2025:KHC:8318 of 2017 Act was issued and subsequently impugned order at Annexure-F dated 30/31.03.2024 was passed. It is submitted that due to ill-health of the petitioner, he could not participate in the proceedings initiated under Section 73 of 2017 Act. Further, learned counsel would submit that appeal filed against the impugned order under Section 107 of 2017 Act also came to be rejected on the ground that the appeal is filed beyond the period prescribed under Section 107 of 2017 Act. Learned counsel would submit that due to the health reasons, petitioner also could not file appeal within time. Hence, learned counsel would pray for an opportunity to the petitioner to file objections and participate in the proceedings initiated by the respondents under Section 73 of 2017 Act.

Per contra, learned Additional Government Advocate Sri.K.Hemakumar appearing for the respondents would submit that it is not the case of the petitioner that show cause notice was not served on the petitioner, but it is failure on the part of the petitioner to participate in the NC: 2025:KHC:8318 proceedings for whatsoever reasons. However, he admits that impugned order is exparte order.

Having heard the learned counsel appearing for the parties and on perusal of the writ petition papers, I am of the view that petitioner ought to be given an opportunity to participate in the proceedings initiated under Section 73 of 2017 Act, as he could not participate in the proceedings pursuant to show cause notice dated 31.12.2023 issued under Section (1)73 of 2017 Act, due to ill-health suffered by him which is established by placing medical records on record.

A co-ordinate Bench of this Court in W.P.No.3688/2024 dated 12.03.2024 has observed that merely because appeal preferred by the petitioner was dismissed by the Appellate Authority, it cannot be said that this Court is denuded of its power and juri iction to examine the claim of the petitioner under Article 226 of the Constitution of India or to examine the legality, NC: 2025:KHC:8318 validity and correctness of the order passed by the original authority.

In the instant case also, though the appeal filed by the petitioner is rejected solely on the ground of delay, this Court is denuded of its power to examine the original order dated 30/31.03.2024 (Annexure-f) passed under Section 73 of 2017 Act. On examination of the original order passed under Section 73 of 2017 Act, it is forthcoming that the said order is exparte order and without participation of the petitioner. The petitioner was not in a position to participate in the proceedings under Section 73 of 2017 Act due to his ill-health. The medical records placed on record would indicate that (Page 53 of writ petition) petitioner was suffering from heart ailment since 2011 and since his heart was functioning 40%, subsequently on 09.12.2024 the petitioner has undergone heart surgery. The above circumstances would justify the petitioner’s request for an opportunity to participate in the proceedings by filing objections. NC: 2025:KHC:8318

In the above circumstances, I deem it appropriate to pass the following: ORDER a) Annexure-F order bearing No.ACCT(Audit)-4.8/DGSTO-4/73-24/23- 24 dated 30/31.03.2024 passed under Section 73 of 2017 is quashed.