Karnataka High Court
Shri Bhimappa S/O Durgappa Simikeri vs The Commercial Tax Officer Audit - 2 on 11 December, 2023
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NC: 2023:KHC-D:14497
WP No. 100168 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 100168 OF 2023 (T-RES)
BETWEEN:
SHRI BHIMAPPA S/O. DURGAPPA SIMIKERI,
AGE: 33 YEARS, OCC. CIVIL CONTRACTOR,
R/O NO. 529, AT POST ITAGI 582211,
DIST: GADAG, GSTIN: 29GNGPS9214G1ZI.
...PETITIONER
(BY SRI. H. R. KAMBIYAVAR, ADVOCATE)
AND:
1. THE DEPARTMENT OF COMMERCIAL TAXES,
COMMERCIAL TAX OFFICER, AUDIT-2,
1ST FLOOR, "NISARGA"
MULGUND ROAD, GADAG 582103.
2. THE STATE OF KARNATAKA,
REP. BY THE PRINCIPAL SECRETARY,
MOHANKUMAR
B SHELAR
FINANCE DEPARTMENT,
GOVERNMENT OF KARNATAKA,
Digitally signed
by
BENGALURU-560001.
MOHANKUMAR
B SHELAR
Date: 2023.12.12
11:13:20 +0530 3. GOVERNMENT OF INDIA
THROUGH ITS SECRETARY, (REVENUE),
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
NORTH BLOCK, NEW DELHI-110001.
4. THE GST COUNCIL,
THROUGH ITS CHAIRPERSON,
MINISTRY OF FINANCE,
NORTH BLOCK, NEW DELHI-110001.
5. THE PRINCIPALCHIEF COMMISSIONER
OF CENTRAL TAX, NO.1, QUEENS ROAD,
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NC: 2023:KHC-D:14497
WP No. 100168 of 2023
VASANATH NAGAR, BENGALURU-560001.
...RESPONDENTS
(BY SRI. SHIVAPRABHU HIREMATH, AGA FOR R1 AND R2,
SRI. GIRISH HULMANI, ADV. FOR R4 AND R5,
SRI. SHIVARAJ S. BALLOLI, ADV. FOR R3,
SRI. M. B. KANAVI, ADV. FOR R3)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF ISSUE A
WRIT OF DECLARATION OR ANY OTHER APPROPRIATE WRIT OR
DIRECTION DECLARING THE PROVISIONS OF SECTION 16(4) OF
CGST/SGST ACT, 2017 R/W RULE 61 OF KGST RULES ENCLOSED
VIDE ANNEXURE-E BEING ILLEGAL, UNREASONABLE, ARBITRARY
AND DISCRIMINATORY AND THEREFORE TO BE STRUCK, DOWN AS
VIOLATIVE OF ARTICLE 14, 19 AND 300A OF THE CONSTITUTION OF
INDIA AND IN THE ALTERNATIVE, THIS HON'BLE COURT MAY TO
READ DOWN THE SAID WORDINGS CONTAINED IN SECTION 16(4)
OF CGST/SGST ACT, 2017 R/W RULE 61 OF KGST RULES, VIDE
ANNEXURE-E SO AS TO INTERPRET THE TIME LIMIT FOR TAKING
INPUT TAX CREDIT AS PROCEDURAL AND DIRECTORY IN NATURE
AND ISSUE A WRIT OF DECLARATION CERTIORARI ANY OTHER
APPROPRIATE WRIT OR DIRECTION DECLARING THE PROVISIONS
OF RULE 61(5) OF CGST/SGST RULES, 2017 VIDE ANNEXURE-H,
NOTIFICATION NO.49/2019 CENTRAL TAX DISCRIMINATORY AND
THEREFORE TO BE STRUCK DOWN AS VIOLATIVE OF ARTICLE 14
AND/OR 19 OF THE CONSTITUTION OF INDIA AND ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR QUASH THE
FORM GST ADT-02 BEARING NO.CTO (AUDIT)/GDG/GST/ADT/2022-
23/B-523 DATED 14.09.2022 ISSUED BY THE RESPONDENT-1 VIDE
ANNEXURE-J, VIOLATIVE OF ARTICLES 14, 19 AND 300A BEING
UNREASONABLE, ARBITRARY, OPPRESSIVE, EXCESSIVE AND
PREMEDITATED AND ISSUE A WRIT OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT OR QUASH THE FORM GST DRC-OIA BEARING
GSTIN-29 GNGPS9214 F1 Z1,/B-676 DATED 29.11.2022 ISSUED BY
THE RESPONDENT NO.1 TO THE PETITIONER HEREIN VIDE
ANNEXURE-K VIOLATIVE OF ARTICLES 14, 19 AND 300A BEING
UNREASONABLE, ARBITRARY, OPPRESSIVE, EXCESSIVE AND
PREMEDITATED.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 100168 of 2023
ORDER
The petitioner has questioned the constitutional
validity of Section 16(4) of Central Goods and Services Tax
Act, 2017 (for short 'CGST Act') and also the Karnataka
Goods and services Tax Act, 2017 (for short 'KGST Act')
r/w Rule 61(5) of Karnataka Goods and Services Tax
Rules, 2017 (for short 'KGST Rules'). In addition, the
petitioner has also questioned the notices and orders
issued under the aforementioned Acts and Rules.
2. The writ petition was entertained as the
constitutional validity of the provisions noted above was
under challenge. Else the petitioner has remedy provided
under the CGST Act and KGST Act.
3. The learned counsel for the respondents jointly
submit that constitutional validity of Section 16(4) of
CGST/SGST Act, 2017 r/w Rule 61(5) of CGST Rules are
upheld in terms of the judgment passed in
Thirumalakonda Plywoods vs The Assistant
Commissioner in W.P.No.24235/2022 by the High
Court of Andhra Pradesh at Amarvati and also in Gobinda
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Construction Vs Union of India and Others in Civil
Writ Jurisdiction Case No.9108/2021 by the High
Court of Judicature at Patna.
4. It is the further submission of the learned
counsel for the respondents that similar provisions of
Tamil Nadu Value Added Tax Act were held to be
constitutional in terms of the law laid down by the Hon'ble
Apex Court in Jayam and Company vs Assistant
Commissioner and Another (2016) 15 SCC 125 and in
ALD Automotive Private Limited vs Commercial Tax
Officer (CT) and Others in (2019) 13 SCC 225.
5. The learned counsel for the respondents submit
that since the impugned provisions of the CGST Act are
upheld in the judgments of the High Courts referred to
above by following the law laid down by the Apex Court
interpreting similar provisions of law, the challenge to the
constitutional validity of the provision in the present writ
petition is to be rejected.
6. The learned counsel for the petitioner submitted
that at this juncture, the petitioner will not press his
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prayer challenging the constitutional validity of Section
16(4) of CGST Act and KGST Act, r/w Rule 61(5) of KGST
Rules and the alternative prayer to read down Section
16(4) of CGST Act and KGST Act, r/w Rule 61 of KGST
Rules as directory in so far as time limit for taking input
tax credit. The submission is placed on record.
7. Since the prayer challenging the constitutional
validity or the prayer to read down the provision as prayed
in the petition is not pressed, this Court need not examine
the constitutional validity of the aforesaid provisions and
the prayer to read down the said provision. Once the
aforesaid prayers are excluded, then the Court has to
examine the validity of the impugned order and impugned
notice. In that event, the petitioner has to approach the
Appellate Authority provided under the CGST Act and
KGST Act. In so far as impugned show-cause notices are
concerned, the petitioner has to issue reply or take such
measures as provided under law.
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8. Hence, the writ petition is disposed of without
expressing anything on the merits of the orders passed or
show-cause notices issued by the Authorities.
9. The petitioner is at liberty to avail such remedy
as provided under the CGST Act and KGST Act in respect
of the orders passed and show-cause notices issued which
are impugned in the writ petition.
10. In case the petitioner avails any such remedy
as provided under law, the time spent in prosecuting the
writ petition shall be excluded while computing the
limitation, if any prescribed to file appeal or to respond to
the said notices.
11. With these observations, the writ petition is
disposed of. Nothing is expressed on merits of the claim.
Sd/-
JUDGE
KGK/AT-AN
