M/S Sri Om Traders vs. State Of Karnataka
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Cause title — parties, addresses and appearances
ORAL ORDER
In this petition, the petitioner is seeking the following reliefs: (a) Issue a writ of certiorari or writ in the nature of certiorari quashing the order of adjudication passed under Section 74 of the KGST / CGST Act for the Assessment year 2018-19, at Annexure-C, NC: 2024:KHC:39863 bearing No.ACCT (AUDIT-4):Smg:2023-24, dated 31.08.2023 issued by the respondent No.3 in so far as the petitioner is concerned. (b) Issue a Writ of Certiorari or writ in the nature of Certiorari quashing the demand notice in DRC-07 for the assessment year 2018-19, issued by respondent No.3 dated 31.08.2023, vide order No.288758 at Annexure-D, in so far as the petitioner is concerned. (c) Issue a Writ of Certiorari or Writ in the nature of Certiorari quashing the order passed under Section 107 of the KGST / CGST Act, for the assessment year 2018-19, at Annexure-F, in GST/AP No.85/203-24 dated 21.06.2024, issued by the respondent No.2 in so far as the petitioner is concerned. (d) Issue a Writ of Mandamus or Writ in the nature of mandamus directing the respondent No.2 to condone the delay and pass the orders on the merits of the case, in so far as the petitioner is concerned. (e) Issue a writ of mandamus or writ in the nature of mandamus directing the Senior Intelligence Officer, DGCI, BZU, Bengaluru to return the seized documents as per the seizure order dated NC: 2024:KHC:39863
2020 in so far as the petitioner is concerned. (f) Issue writ of mandamus or writ in the nature of mandamus directing respondent No.2 to recover the input tax credit claimed by the petitioner from the registered supplier, in so far as the petitioner is concerned. (g) Issue any other directions as this Hon'ble Court deems fit to pass in the facts and circumstances of the case in the interest of justice, equity including the cost of the writ petition.
A perusal of the material on record would indicate that aggrieved by the adjudication order dated 31.08.2023 passed under Section 74 of the KGST / CGST, Act by the Assistant Commissioner of Commercial Taxes (Audit)-4, Shivamoga for the assessment year 2018-19, the petitioner filed an appeal on 29.12.2023, which was well within extended / condonable period of limitation as contemplated under Section 107(1) & (4) of the KGST / CGST Act, which indicates that the petitioner had actually filed an appeal within the maximum condonable / extendable period of four months (3+1) months, which expired on 31.12.2024. NC: 2024:KHC:39863
Despite the petitioner having filed the appeal within the aforesaid period of four months (3+1) as contemplated under Section 107 (1) & (4) of the KGST / CGST, Act, the respondent No.2 - appellate authority has dismissed the appeal as barred by limitation as well as on the ground of non deposit of the mandatory pre-deposit of 10%, aggrieved by which the petitioner is before this court by way of present appeal.
A perusal of the impugned order would indicate that the appellate authority has dismissed the appeal on two grounds viz., firstly, the appeal is barred by limitation; secondly, the petitioner has not made the mandatory pre- deposit of 10%. As stated supra the finding of respondent No.2 that the appeal was barred by limitation was factually incorrect inasmuch as the appeal was filed on 29.12.2023 before expiry of 4 months (3+1) and consequently, the said finding regarding the appeal being barred by limitation by proceeding on a factually incorrect premise coupled with the fact that the affidavit for condonation of delay has not been considered by respondent No.2 - appellate authority warranting interference by this court in the present petition. NC: 2024:KHC:39863
Insofar as the finding recorded by respondent No.2
as regards non payment of mandatory pre-deposit of 10% is concerned, the same would also have to be reconsidered by the respondent in accordance with law. In the result, the petition is hereby allowed. The order dated 31.08.2023 passed under Section 74 of the KGST / CGST passed by the Assistant Commissioner of Commercial Taxes (Audit)-4, Shivamoga for the assessment year 2018-19 is set aside. The delay in filing the appeal stands condoned. The matter is remitted back for re-consideration of the appeal on merits as well as non payment of deposit of 10% and in accordance with law. (S.R.KRISHNA KUMAR) JUDGE
SS List No.: 3 Sl No.: 7
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.