Karnataka High Court
M/S. Rahul Automobiles vs The Assistant Commissioner Of ... on 11 December, 2023
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NC: 2023:KHC-D:14496
WP No. 102508 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. 102508 OF 2023 (T-RES)
BETWEEN:
M/S. RAHUL AUTOMOBILES
REP. BY ITS PROPRIETOR
SHRI. RAJU DATTOBA JADHAV,
AGE: 50 YEARS, R/O. CTS NO. 5319,
RAHUL AUTOMOBILES, NEAR BUS STAND,
JAMKHANDI 587301. GSTIN: 29AKLPJ4051H1Z1.
...PETITIONER
(BY SRI. H. R. KAMBIYAVAR, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER OF
COMMERCIAL TAXES, LGSTO 430,
GIRISH NAGAR, JAMKHANDI-587301.
2. THE ASSISTANT COMMISSIONER OF
COMERCIAL TAXES, (AUDIT),
JAMAKHANDI YADAWAD BUILDING,
Digitally signed
by
MOHANKUMAR
GIRISH NAGAR, JAMKHANDI-587301.
MOHANKUMAR B SHELAR
B SHELAR
Date:
2023.12.12
11:14:04 +0530
3. THE STATE OF KARNATAKA
REP. BY THE PRINCIPAL SECRETARY,
FINANCE DEPARTMENT,
GOVERNMENT OF KARNATAKA,
BENGALURU 560001.
4. GOVERNMENT OF INDIA
THROUGH ITS SECRETARY, (REVENUE)
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
NORTH BLOCK, NEW DELHI-110001.
5. THE GST COUNCIL,
THROUGH ITS CHAIRPERSON, MINISTRY OF FINANCE,
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WP No. 102508 of 2023
NORTH BLOCK, NEW DELHI 110001.
6. THE PRINCIPAL CHEIF COMMISSIONER OF
CENTRAL TAX, NO.1, QUEENS ROAD,
VASANATH NAGAR, BENGALURU-560001.
...RESPONDENTS
(BY SRI. SHIVAPRABHU HIREMATH, AGA FOR RESP. NO. 1 AND 2,
SRI. GIRISH HULMANI, ADV. FOR R4, R5 AND R6,
SRI. SHIVARAJ S. BALLOLI, ADV. FOR R3)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO 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(5) 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(5) 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 OR 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
SUMMARY OF SHOW CAUSE NOTICE BEARING NO.
CTO/LGSTO430/JKD/DRC01/2022-23/B-331 DATED 21.11.2022
ISSUED BY THE RESPONDENT-1 VIDE ANNEXURE-J, AS 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
IMPUGNED FINAL AUDIT OBSERVATION DATED 16.02.2023 ISSUED
BY RESPONDENT NO. 2 VIDE REF. NO. ACCT/AVD/JKD/2022-23
ANNEXURE-K, AS 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. 102508 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
NC: 2023:KHC-D:14496
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/ct-an
