BharatTaxGST

M/S Kalebudde Logistics vs. The Commercial Tax Officer

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WP/104157/2021HC KarnatakaGSTCNR KAHC02023475202131 August 2024Bench: JYOTI MULIMANI6 pages
For Petitioner: SRI. H.R. KAMBIYAVAR., ADVOCATEFor Respondent: SRI. SHIVAPRABHU.S.HIREMATH., AGA FOR R1-R3; SRI. M.B.KANAVI., CGSC FOR R4; SRI. GIRISH.S.HULAMANI., ADVOCATE FOR R5

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Cause title — parties, addresses and appearances
- 1 - NC: 2024:KHC-D:12523 WP No. 104157 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF AUGUST, 2024 BEFORE THE HON'BLE MS. JUSTICE JYOTI MULIMANI WRIT PETITION NO. 104157 OF 2021 (T-RES) BETWEEN: M/S. KALEBUDDE LOGISTICS, NO. 75/28, KALEBUDDE WAREHOUSE, COMPOUND, GABBUR, HUBBALLI-580 028, DIST: DHARWAD, REP. BY ITS MANAGING, PARTNER, SRI. FAZALUL S/O ABDUL HAMEED KALEBUDDE, AGED 58 YEARS. …PETITIONER (BY SRI. H.R. KAMBIYAVAR., ADVOCATE) AND: 1. THE COMMERCIAL TAX OFFICER, ENFORCEMENT-14, VTK BLDG., NAVANAGAR, HUBBALLI. 2. THE JOINT COMMISSIONER OF COMMERCIAL TAXES (APPEALS), DHARWAD DIVISION, VTK BLDG., NAVANAGAR, HUBBALLI. 3. THE STATE OF KARNATAKA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF FINANCE, DR. AMBEDKAR VEEDHI, VIDHANA SOUDHA, BENGALURU-560 001. 4. GOVERNMENT OF INDIA, MINISTRY OF FINANCE, (DEPARTMENT OF REVENUE), RAJPATH MARG, ‘E’ BLOCK, Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC-D:12523 WP No. 104157 of 2021 CENTRAL SECRETARIAT, NEW DELHI, DELHI-110 011. 5. THE CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, REPRESENTED BY ITS CHAIRMAN, NORTH BLOCK, RASHTRAPATHI BHAVAN, DEFENCE HEAD QUARTERS, NEW DELHI-110 011. …RESPONDENTS (BY SRI. SHIVAPRABHU.S.HIREMATH., AGA FOR R1-R3; SRI. M.B.KANAVI., CGSC FOR R4; SRI. GIRISH.S.HULAMANI., ADVOCATE FOR R5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS. THIS WRIT PETITION IS LISTED FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, AN ORDER IS MADE AS UNDER:

ORAL ORDER Sri.H.R.Kambiyavar., learned counsel for the petitioner, Sri.Shiva Prabhu Hiremath., learned AGA for respondents 1 to 3 have appeared in person. Sri.Girish S.Hulamani., learned counsel for respondent No.5 has appeared through video conferencing. NC: 2024:KHC-D:12523

2.

The order dated 17.09.2021 passed by the Joint Commissioner of Commercial Taxes (Appeals), Dharwad Division, Hubli in Appeal No.GST-05/2019-20 vide Annexure-A is called into question in this Writ Petition on several grounds as set out in the Memorandum of Writ Petition.

3.

Learned counsel for the respective parties urged several contentions.

4.

Heard the contentions and perused the Writ papers with utmost care. Suffice it to note that in FORM GST MOV-09 order, while calculating applicable tax under Section 129(1)(a) of KGST and CGST Act, 2017, Cess amount of Rs.18,36,651/- (Rupees Eighteen Lakhs Thirty-Six Thousand Six Hundred Fifty-One only) was levied. The MOV-9 order was questioned before the Joint Commissioner of Commercial Tax (Appeals), Dharwad Division, Hubli in Appeal No.AP/GST-05/2019-20. The NC: 2024:KHC-D:12523 JCCT vide order dated 29.07.2019 dismissed the appeal. As against the order of JCCT (Appeals), a Writ Petition was filed before this Court in W.P.No.112365/2019. This Court vide order dated 19.01.2021 allowed the writ petition and remanded the matter to the JCCT (Appeals) for fresh consideration. After remand, the JCCT (Appeals) vide order dated 17.09.2021 dismissed the appeal. Counsel Sri.H.R.Kambiyavar., in presenting his arguments submits that the levy of Cess is governed by the GST Compensation Act, 2017 and not by the GST Act. He argued by saying that due to inadvertence, the ground about the levy of Cess had not been taken before the JCCT (Appeals). Counsel, therefore, submits that the petitioner may be permitted to raise this ground before the JCCT (Appeals). Hence, he prayed that the order passed by the JCCT (Appeals) may be quashed and the matter may be remanded. By way of reply to this contention, learned AGA submits that the authority has the power to levy Cess. NC: 2024:KHC-D:12523 Hence, he justified the order. Counsel Sri.Girish S.Hulamani., submits that an appropriate order may be passed.

5.

The grievance of the petitioner is that the Commercial Tax Officer was not justified in levying the Cess while calculating the applicable tax under section 129 (1) (a) of the KGST and CGST Act. However, the contention regarding the levy of Cess was not raised before JCCT (Appeals). Hence, he is seeking a remand. Since the ground regarding the levy of Cess is raised for the first time before this Court hence, in my opinion, an opportunity may be accorded for the petitioner to raise this as a ground before the Joint Commissioner of Commercial Taxes (Appeal). Therefore, the matter requires a remand.

6.

The Writ of Certiorari is ordered. The order dated 17.09.2021 passed by the Joint Commissioner of Commercial Taxes (Appeals), Dharwad Division, Hubli in Appeal No.GST-05/2019-20 vide Annexure-A is quashed. NC: 2024:KHC-D:12523 The matter is remanded to the Joint Commissioner of Commercial Taxes (Appeals) permitting the petitioner to raise the ground regarding the levy of Cess. All other contentions are kept open. The JCCT is directed to consider the ground regarding Cess and pass an order following the law. Since the petitioner is represented by its counsel, the petitioner is directed to appear before the Joint Commissioner of Commercial Taxes (Appeals) on 30.09.2024 without awaiting further notice.

7.

Resultantly, the Writ Petition is allowed and remanded. (JYOTI MULIMANI) JUDGE TKN LIST NO.: 2 SL NO.: 37

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.