M/S Sri Radha Krishna Enterprises vs. The Assistant Commissioner Of - Karnataka High Court, 26 July 2023

Cause title — parties, addresses and appearances

- 1 - NC: 2023:KHC:26010 WP No. 14706 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY, 2023 BEFORE THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV WRIT PETITION NO. 14706 OF 2023 (T-RES) BETWEEN: M/S SRI. RADHA KRISHNA ENTERPRISES, I D NO. 13-2-9-134B, WARD NO.13, KHATTA NO. 23/12024/381, OPP: MALNADWHEEL ALIGNMENT UPPALI, MALANDUR ROAD, CHIKAMAGALUR, KARNATAKA - 577 101. [GSTIN NO.29AHZPK3923A1Z4] REPRESENTED BY PROPRIETOR: MR. BELUR THIMMAPPASETTY KRISHNAKUMAR, AGED ABOUT 55 YEARS, PAN: AHZPK 3923 A. …PETITIONER (BY SRI. RAJEEV CHANNAPPA NULVI, ADVOCATE) AND: THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT-3), SHIVAMOGGA, SUVARNA KARNATAKA VANIJYA TERIGE BHAVANA, 12TH CROSS, 'A' BLOCK, GOPALAGOWDA EXTENSION, SHIVAMOGGA, KARNATAKA - 577 205. …RESPONDENT (BY SRI. K. HEMAKUMAR, AGA) Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2023:KHC:26010 WP No. 14706 of 2023 THIS WP IS FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA PRAYING TO DIRECT IN THE NATURE OF WRIT OF CERTIORARI QUASHING THE ORDER-IN- ADJUDICATION U/S 73(1) OF THE CGST/KGST ACT, 2017, BEARING NO. ACCT (AUDIT - 3)/ SMG.T.143/2023-24 ON 17/06/2023 PASSED BY THE RESPONDENT AUTHORITY (ANNEXURE-H) AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER The petitioner has sought for quashing of the Order- in-Adjudication passed under Section 73(1) of CGST/KGST Act, 2017 dated 17.06.2023 at Annexure-'H' and has sought for setting aside of the demand notice seeking interest and penalty at Annexure-'J'.

The petitioner submits that the order is passed in violation of principles of natural justice and he may be afforded another opportunity of personal hearing as requested, to address his grievance. Attention is drawn to the submission of the petitioner to the show cause notice at Annexure-'G', wherein, a request was made to provide NC: 2023:KHC:26010 an opportunity of being heard. Such request having been made in the submission at Annexure-'G' to the show cause notice is not in dispute.

However, the learned AGA appearing for the respondent-Revenue submits that by way of endorsement dated 06.06.2023, three days time was granted and that opportunity has not been utilized.

Perused the reply to the show-cause notice which makes it clear that request of personal hearing has been sought for. During the process of adjudication in terms of Section 75(4) of the Karnataka Goods and Services Tax Act (for short 'the KGST Act'), opportunity of personal hearing is required to be made out. No doubt endorsement dated 06.06.2023, does indicate three days time was granted.

However, wordings of the said endorsement appears to be ambiguous and does not provides an express opportunity of personal hearing as sought for and NC: 2023:KHC:26010 requires compliance to be made. Accordingly, extending the benefit of ambiguity in favour of the petitioner, the Order of Adjudication at Annexure-'H' is set aside and Order of the demand at Annexure-'J' is set aside. The matter is relegated to the stage of personal hearing as sought for. The remaining proceedings prior to this stage before the adjudicating Authority will remain intact. The petitioner to present himself for personal hearing before the respondent on 11.08.2023. 6. It is made clear that petitioner is not to take any unnecessary adjournments.

All contentions are kept open.

Accordingly, this matter is disposed off. JUDGE MCR List No.: 1 Sl No.: 17 CT: ABS