M/S Zik Metals vs The Joint Commissioner (In-Situ)
2023 Latest Caselaw 5451 Kant

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                                                           NC: 2023:KHC:28084
                                                      WP No. 15433 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 9TH DAY OF AUGUST, 2023

                                          BEFORE

                       THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                       WRIT PETITION NO.15433 OF 2023 (T-RES)

                   BETWEEN:

                   M/S. ZIK METALS,
                   PROPRIETORSHIP CONCERN,
                   REP. BY ITS PROPRIETOR,
                   MR. IRFAN KHAN,
                   AGED ABOUT 21 YEARS,
                   SEETHANAYANAYAKANAHALLI VILLAGE,
                   H. HOSAKOTE POST, MALUR TALUK,
                   KOLAR DISTRICT, KARNATAKA - 563 130.
                                                                ...PETITIONER
                   (BY SRI. SHANKARE GOWDA M.N., ADVOCATE)

                   AND:

                   THE JOINT COMMISSIONER (IN-SITU)
Digitally signed   OFFICE OF THE PRINCIPAL COMMISSIONER OF
by SHARADA         CENTRAL TAX,
VANI B             GST COMMISSIONERATE,
Location: HIGH     BENGALURU EAST TRAFFIC AND TRANSIT
COURT OF
KARNATAKA          MANAGEMENT CENTRE, BMTC BUS STAND,
                   HAL AIRPORT ROAD, DOMMALURU,
                   BENGALURU - 560 071.
                                                               ...RESPONDENT
                   (BY SRI. JEEVAN J NEERALGI, ADVOCATE)

                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                   AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
                   QUASH      THE     IMPUGNED       NOTICE     BEARING
                   NO.GEXCOM/AE/VRFN/ITCB/17/2020-CGST-RANGE-B-DIV-9,
                   ALONG      WITH      FORM      GST     DRC-01      IN
                   DIN.20230557000000001E07/1083/23 BOTH DATED 23.5.2023
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                                              NC: 2023:KHC:28084
                                         WP No. 15433 of 2023



ISSUED BY THE RESPONDENT UNDER SECTION 74 (1) OF THE
ACTS (ANNEXURE-C AND D) AND ETC.

     THIS PETITION COMING ON FOR PRILIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The subject matter of this writ petition is

substantially similar to the one in W.P.Nos.1607,1609 &

1613 of 2022 & connected cases between M/s. V.R.S.

Traders v/s Assistant Commissioner (State Taxes) decided

by the Hon'ble High Court of Judicature at Madras vide

judgment dated 10.02.2022 granting relief of quashment

and remand, to the litigant. The penultimate paragraph of

the judgment reads as under:

"Therefore, this Court has no hesitation to hold that the impugned order cannot stand in the legal scrutiny and in that view of the matter, these writ petitions are disposed of with the following orders:

"The respective impugned orders in these writ petitions are hereby quashed. All these three matters are remitted back to the respondent for re-consideration. While re-considering the same, they shall commence the proceedings from where, it has already been stopped i.e., till DRC- 01A notice, which means, they should issue DRC-01 notice to the petitioner and thereafter after giving a fair opportunity

NC: 2023:KHC:28084 WP No. 15433 of 2023

of being heard to the petitioner, necessary orders shall be passed with regard to the assessment, if any."

2. The vehement submission of learned counsel

for the Revenue that the judgment of other High Courts

have only persuasive value and therefore, they need not

be followed is difficult to countenance in the light of the

decision of Apex Court in KUSUM INGOTS & ALLOYS

LIMITED vs. UNION OF INDIA, (2004) 6 SCC 254. When a

Central Legislation is interpreted by one High Court,

ordinarily other High Courts would tread the same path

since certainity of law is of immense importance. An

argument to the contrary would put the legal position

varying depending upon the vagaries of provincial

interpretations.

3. Further contention of learned counsel Sri.

Jeevan J. Neeralgi that after amendment of the Act, the

word 'shall' having been replaced by the word 'may' under

Section 74(5) read with extant Rule 142(1A), now

discretion lies with the Authorities to issue

notice/intimation or not, and therefore, non-sending of

NC: 2023:KHC:28084 WP No. 15433 of 2023

such notice/intimation should pale into insignificance, is

difficult to countenance. The word 'may' ordinarily can be

construed to imply some amount of discretion, is true;

however that is not the discretion of a Mughal Emperor;

Lord Halsbury says that 'discretion' means according to

the rules of reason and justice; that being the position, the

impugned action does not reflect the elements of justice

nor reason.

In view of the above, the petition is disposed off

granting same relief as has been accorded by the Hon'ble

Madras High Court to the assessees in the cognate

petitions. Impugned orders having been quashed, matter

is remitted for consideration afresh, keeping open all

contentions.

Costs made easy.

Sd/-

JUDGE

ABK

CT:SNN