M/S. Padmavathi Electrometals (P) Limited vs. The Assistant Commissioner Of Commercial Taxes - Karnataka High Court, 02 February 2023

Cause title — parties, addresses and appearances

- 1 - WP No. 2460 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF FEBRUARY, 2023 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 2460 OF 2023 (T-RES) BETWEEN: M/S. PADMAVATHI ELECTROMETALS (P) LIMITED A COMPANY INCORPORATED UNDER COMPANIES ACT, 1956, NO.12, G. K. LANE, R.T. STREET CROSS, BENGALURU-560 053, REPRESENTED BY ITS DIRECTOR, MR. GAUTHAM JAIN. …PETITIONER (BY SMT. VEENA J. KAMATH.,ADVOCATE) AND: THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES LGSTO-010, MINTO ANJANEYA BUILDING, 5TH FLOOR, CHAMRAJPET, BENGALURU-560 018. …RESPONDENT (BY SRI.K. HEMA KUMAR., AGA) Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA - 2 - WP No. 2460 of 2023 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED PROCEEDINGS DATED 16.01.2023 BEARING NO.ACCT/LGSTO-10/T-/2022.23 ISSUED BY THE RESPONDENT AT ANNEXURE-A; DIRECT THE RESPONDENT TO CONSIDER THE REPRESENTATION DATED 15.09.2022 AT ANNEXURE-D. AND PASS APPROPRIATE ORDER IN ACCORDANCE WITH THE LAW,AFTER GIVING AN OPPORTUNITY OF PERSONAL HEARING BY ISSUANCE OF WRIT OF MANDAMUS OR ANY OTHER WRIT IN THE NATURE OF A WRIT OF MANDAMUS. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

The petitioner has impugned the respondent’s order dated 16.01.2023 bearing No.ACCT/LGSTO- 10/T-/2022.23 under Section 86(A) of the KGST/CGST Rules 2017. The learned counsel for the petitioner submits that the petitioner’s grievance is essentially as against the finding that the petitioner has neither challenged the wrongly availed ITC nor filed objections, nor appeared personally and hence there must be a presumption against the petitioner because this would be factually incorrect inasmuch as the petitioner has filed a detailed response dated 15.9.2022 as per Annexure-D.

- 3 - Sri K. Hema Kumar, the learned Additional Government Advocate for the respondent, submits that indeed there is a factual error in recording that the petitioner has not filed any objection, but after the impugned order, a corrigendum is issued in exercise of power under Section 161 of the KGST/CGST Rules, 2017. In this corrigendum the cause shown by the petitioner vide its response dated 15.9.2022 is considered. However, it is too salient that an order must stand tested for the reasons found in such orders and reasons cannot be supplemented subsequently.

Therefore, this Court is of the considered opinion that the petition must succeed on this short ground and the reply must be considered notwithstanding any observation in the corrigendum dated 19.01.2023. It must be emphasized that if there is mere repetition of what is stated in the corrigendum dated 19.01.2023 as against

- 4 - consideration of the cause shown and the reasons for the decision, the opportunity of hearing as contemplated would be an empty formality. Hence, the petition stands disposed of restoring the proceedings to the respondent to reconsider the cause shown by the petitioner in the light of the afore. The petitioner without further notice shall appear before the respondents on 28.02.2023. With this order, all pending applications, including IA No.1/2023, stands disposed of. JUDGE

SA ct:sr