BharatTaxGST

M/S K S Enterprises vs. The Additional Chef Secretary

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WP/103858/2024HC KarnatakaGSTCNR KAHC02009220202408 July 2024Bench: PRADEEP SINGH YERUR7 pages
For Petitioner: SRI RAJEEV CHANNAPPA NULVI, ADVOCATEFor Respondent: SRI SHIVAPRABHU S. HIREMATH, AGA

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Cause title — parties, addresses and appearances
- 1 - NC: 2024:KHC-D:9341 WP No. 103858 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8TH DAY OF JULY, 2024 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO.103858 OF 2024 (T-RES) BETWEEN: M/S.K.S.ENTERPRISES, A PROPRIETARY CONCERN, D.NO.198/2188, 14TH WARD, K H B COLONY, SANDUR, BELLARY DISTRICT, KARNATAKA-583119, (GSTIN NO.29BFYPS2283F1ZN) REPRESENTED BY PROPRIETOR, MR. KOCHU SANJAY S/O SASHI KUMAR, AGED ABOUT 48 YEARS, PAN: BFYPS 2283 F. … PETITIONER (BY SRI RAJEEV CHANNAPPA NULVI, ADVOCATE) AND: 1. THE ADDITIONAL CHIEF SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BANGALORE-560001. 2. THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, LGSTO-500, HOSPETE, RAJAPUR SKIES, COLLEGE ROAD, HOSPET, BELLARY DISTRICT, KARNATAKA-583201. … RESPONDENTS (BY SRI SHIVAPRABHU S. HIREMATH, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF ISSUE A WRIT OF CERTIORARI OR A DIRECTION IN THE NATURE OF WRIT OF CERTIORARI QUASHING THE ORDER OF ADJUDICATION ASHPAK KASHIMSA MALAGALADINNI Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2024.07.11 11:04:46 +0530 - 2 - NC: 2024:KHC-D:9341 WP No. 103858 of 2024 U/S 73(9) R.W.S 6 AND 50 OF THE KGST ACT, 2017 BEARING NO.ACCT/LGSTO-500/HPT/ORDER(18-19)/311/2024-25 DATED 30/04/2024 PASSED BY THE RESPONDENT NO.2 AUTHORITY (ANNEXURE-‘G’) AND ETC. THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Heard learned counsel Sri Rajeev Channappa Nulvi appearing for the petitioner.

2.

Learned AGA is directed to take notice for respondents.

3.

This petition is filed by the petitioner seeking to quash the order of adjudication under Section 73(9) read with Section 6 and 50 of the Karnataka Goods and Services Tax Act, 2017 (for short, ‘the KGST Act, 2017’) dated 30.04.2024 passed by the 2nd respondent vide Annexure-G. The petitioner is a proprietary firm and engaged in the business of MS scrap steel, duly registered under the Goods Service Act. The petitioner had applied all relevant details in the department portal and as claimed under the GSTR-1, GSTR-3B, GSTR-9 and GSTR-9C which was filed online through relevant prescribed form in the said GST portal. NC: 2024:KHC-D:9341

4.

This being the state of affairs, 2nd respondent authority issued form ASMT-10 dated 05.01.2022 for the tax period of 2018-19, which according to the petitioner was not served on him through email or registered post. Thereafter, the 2nd respondent authority issued form DRC-01A, dated 21.11.2023. Thereafter, the 2nd respondent got issued show cause notice under Section 73 read with Section 50, 73(9) of the KGST Act 2017 read with Rule 142(1)(a) of the Karnataka Goods and Services Tax Rules, 2017 dated 04.01.2024 along with form GST-DRC-01, dated 04.01.2024 to show cause as to why tax amount along with interest and penalty of Rs.9,14,647/- inclusive of CGST and SGST for difference of output tax declared and output supplies furnished in the E-way bill for the period April-2018 to March-2019 should not be demanded and recovered.

5.

According to the petitioner, he has replied vide reply dated 19.01.2024 to the said show cause notice through his authorized representative. In the said reply, the petitioner sought for opportunity of being heard in person before passing an adjudication order. Thereafter, respondent No.2- NC: 2024:KHC-D:9341 authority sent a reminder letter dated 28.03.2024 calling for personal hearing on 05.04.2024. The petitioner had replied to the said remainder letter seeking personal hearing through virtual mode. Thereafter, the 2nd respondent issued an intimation to attend personal hearing dated 29.04.2024, a hard copy and an E-mail dated 30.04.2024 directing the petitioner to appear through virtual mode on 30.04.2024 at 04.00 p.m. without giving sufficient time to appear. Hence, the petitioner is aggrieved that he was not provided sufficient opportunity and fair hearing to either appear through virtual mode or through physically and he was not able to access his email. Hence, he contends that no sufficient opportunity was granted to him.

6.

Learned AGA representing the authorities contends that reasonable opportunity was given to appear physically and thereafter at the request of petitioner for a virtual appearance through video conferencing. But the petitioner has not availed the same and he has approached this Court with intent to evade payment of 10% of tax amount as contemplated under Section 107 of the CGST Act. Learned NC: 2024:KHC-D:9341 AGA also contends that the petition itself would not be maintainable as there is an alternative efficacious remedy available under Section 107 of the CGST Act, which the petitioner can avail by filing an appeal and all contentions could be urged before the appellate authority and the authorities will take into consideration and provide reasonable opportunity of hearing before passing any such order which he was unable to present through virtual mode on the 30.04.2024 taking all these into consideration, the primary objection of the learned AGA is that when there is an alternative efficacious remedy available, the petitioner cannot come before this Court to avail the remedy under Article 226 of the Constitution of India and opportunity has been granted to the petitioner to appear either physically or through video conferencing by virtual mode, which is not availed by him by stating that he has not received the email that is too late in the day to make such an allegation. It is the petitioner himself, who wanted a hearing through virtual mode and he has replied by way of email. Thus, this cannot NC: 2024:KHC-D:9341 be the ground taken to remand the matter to the authorities for consideration afresh.

7.

However, this Court is conscious of the fact that when a person is charged with any show cause notice, a reasonable opportunity of being heard is required to be given. Nevertheless, the present case, the appeal remedy being available, the petitioner shall make use of the same. The authorities shall provide a reasonable opportunity of hearing, either physically or through virtual mode (video conference) and after hearing the petitioner, by granting sufficient opportunity, pass suitable orders. Under the circumstances, I pass the following: ORDER (i) Petition is disposed of. (ii) Liberty is reserved to the petitioner to approach the appellate authority as contemplated under the CGST Act of 2017 and file appropriate appeal. (iii) On such appeal being filed, the authority shall provide reasonable opportunity of being NC: 2024:KHC-D:9341 heard either through physical mode or virtual mode and pass suitable orders in accordance with law. (iv) If such appeal being filed, the time availed before this Court shall be condoned. (v) It is made clear that this Court has not expressed any opinion on the merits of the matter. JUDGE

CKK CT:BCK LIST NO.: 1 SL NO.: 11

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.