Karnataka High Court
M/S Mahalakshmi Agencies vs The Commercial Tax Officer on 11 December, 2023
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NC: 2023:KHC-D:14456
WP No. 107230 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. 107230 OF 2023 (T-RES)
BETWEEN:
M/S. MAHALAKSHMI AGENCIES,
DOOR NO.21, CMC WARD NO.12,
CBS COMPLEX, GANGAVATHI,
KOPPAL DISTRICT-583227,
REP. BY ITS PROPRIETOR,
AGED 47 YEARS,
SMT. DAROJI SHOBHA RANI,
GST NO.29BHUPS5334RIZ0.
...PETITIONER
(BY SRI. H. R. KAMBIYAVAR, ADVOCATE)
AND:
1. THE COMMERCIAL TAX OFFICER,
(AUDIT)-2, BALLARI,
VANIJYA TERIGE BHAVANA,
2ND FLOOR, 2ND STAGE,
MOHANKUMAR 6TH CROSS, RAGHAVENDRA COLONY,
B SHELAR
ANANTHPUR ROAD, BALLARI 583101.
Digitally signed by
MOHANKUMAR B
SHELAR 2. THE STATE OF KARNATAKA
Date: 2023.12.12
11:15:35 +0530 REP. BY THE PRINCIPAL SECRETARY,
FINANCE DEPARTMENT,
GOVERNMENT OF KARNATAKA,
BENGALURU-560001.
3. GOVERNMENT OF INDIA,
THROUGH ITS SECRETARY, (REVENUE),
MINISTRY OF FINANACE,
DEPARTMENT OF REVENUE,
NORTH BLOCK, NEW DELHI-110001.
4. THE GST COUNCIL,
THROUGH ITS CHAIRPERSON,
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WP No. 107230 of 2023
MINISTRY OF FINANACE,
NORTH BLOCK, NEW DELHI-110001.
5. THE PRINCIPAL CHIEF COMMISSIONER
OF CENTRAL TAX NO 1, QUEENS ROAD,
VASANTH NAGAR, BENGALURU-560001.
...RESPONDENTS
(BY SRI. SHIVAPRABHU HIREMATH, AGA FOR RESP. NO.1 AND 2,
SRI. GIRISH HULMANI, ADV. FOR R4 AND R5,
SRI. SHIVARAJ 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 CERTIORARI ANY OTHER APPROPRIATE WRIT OR
DIRECTION DECLARING THE PROVISIONS OF RULE 61(5) OF
CGST/SGST RULES, 2017 VID ANNEURE-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 AUDIT
REPORT BEARING NO. CTO(AUDIT-2)/BIR/GST/2023-24/T-58,
DATED 16.05.2023 ISSUED BY RESPONDENT, VIDE ANNEXURE-E,
VIOLATION 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 AUDIT REPORT BEARING NO.
CTO(AUDIT-2)/BIR/GST/2023-24/T-58, DATED 16.05.2023, ISSUED
BY RESPONDENT NO.1, VIDE ANNEXURE-J, VIOLATION OF ARTICLES
14, 19 AND 300A BEING UNREASONABLE, ARBITRARY, OPPRESSIVE,
EXCESIVE AND PREMEDITATED.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 107230 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
