Karnataka High Court
Sangappa Tippanna Kandagal vs The Commercial Tax Officer on 11 December, 2023
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NC: 2023:KHC-D:14457
WP No. 107234 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. 107234 OF 2023 (T-RES)
BETWEEN:
SANGAPPA TIPPANNA KANDAGAL
OCC: CIVIL CONTRACTOR,
BILAGI, DIST: BAGALKOTE,
GSTIN: 29ARNPK7931B1ZK.
...PETITIONER
(BY SRI. H. R. KAMBIYAVAR, ADVOCATE)
AND:
1. THE COMMERCIAL TAX OFFICER,
LGSTO-420, SECTOR NO.7,
VANIJYA TERIGE BHAVAN,
NAVANGAR, BAGALKOT 587101.
2. THE STATE OF KARNATAKA
REP. BY THE PRINCIPAL SECRETARY,
FINANCE DEPARTMENT,
MOHANKUMAR GOVERNMENT OF KARNATAKA,
B SHELAR
BENGALURU-560001.
Digitally signed by
MOHANKUMAR B
SHELAR
Date: 2023.12.12
3. GOVERNMENT OF INDIA,
11:15:47 +0530
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 PRINCIPAL CHIEF COMMISSIONER
OF CENTRAL TAX, NO.1,
QUEENS ROAD, VASANANT NAGAR,
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NC: 2023:KHC-D:14457
WP No. 107234 of 2023
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)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
DECLARATION OF 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
VIOLTIVE 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 OR CERTIORARI ANY OTHER
APPROPRIATE WRIT OF 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
IMPUGNED INTIMATION OF TAX LIABILITY IN FORM GST DRC-01A,
DTD. 23/02/2023, BEARING NO. ACCT/LGSTO-420/BGK/2021-
22/491(20) AND DATED 28-02-2023, FOR THE A.Y. 2018-19. A COPY
OF THE SAME IS PRODUCED HEREWITH VIDE ANNEXURE-J. AS
VIOLATIVE OF ARTICLES 14, 19, 265 AND 300A CONSTITUTION OF
INDIA BEING UNREASONABLE, ARBITRARY, OPPRESSIVE,
EXCESSIVE AND PREMEDITATED AND ISSUE A WRIT OF CERIORARI
OR ANY OTHER APPROPRIATE WRIT OR QUASH THE IMPUGNED
INTIMATION OF TAX LIABILITY IN FORM GST DRC-01A, DTD.
28/02/2023, BEARING NO. ACCT/LGSTO-420/BGK/B/2021-
22/497(51) FOR THE A.Y. 2018-19, A COPY OF THE SAME IS
PROEUCED HEREWITH VIDE ANNEXURE-K, AS VIOLATIVE OF
ARTICLES 14, 19, 265 AND 300A CONSTITUTION OF INDIA BEING
UNREASONABLE, ARBITRARY, OPPRESSIVE, EXCESSIVE AND
PREMEDITATED AND ISSUE A WRIT OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT OR QUASH THE A SUMMARY OF ORDER IN FORM
GST DRC-07, BEARING NO. ACCT/LGSTO-420/BGK/2023-24/B-952,
DTD 10/07/2023, ISSUED BY RESPONDENT NO.1 FOR THE A.Y.
2017-18, VIDE ANNEXURE-L AS VIOLATIVE OF ARTICLES 14, 19, 265
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WP No. 107234 of 2023
AND 300A CONSTITUTION OF INDIA BEING UNREASONABLE,
ARBITRARY OPPRESSIVE, EXCESSIVE AND PREMEDITATED.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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
NC: 2023:KHC-D:14457
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
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
NC: 2023:KHC-D:14457
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
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
NC: 2023:KHC-D:14457
concerned, the petitioner has to issue reply or take such
measures as provided under law.
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
