Karnataka High Court
M/S Hiremath Paints vs The Assistant Commissioner Of on 22 April, 2024
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NC: 2024:KHC-D:6596
WP No. 108041 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
WRIT PETITION NO.108041/2023(T-RES)
BETWEEN:
M/S. HIREMATH PAINTS,
HARDWRE AND ELECTRICAL,
REP. BY PROP. BASAVRAJ R. HIREMATH,
S NO. 3625, MISKIN BUILDING,
WARD NO.6,
KUSTAGI BADAMI ROAD,
HANAMASAGAR - 583 281,
AGED ABOUT 49 YERS,
GSTIN: 29AHVPH2803C1ZE.
...PETITIONER
(BY SRI H. R. KAMBIYAVAR, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER OF
COMMERCIAL TAXES,
Digitally signed
(ENFORCEMENT),
by MANJANNA
E
RANA PRATHAP SINGH CIRCLE,
Location: High JULIE NAGAR,
Court of
Karnataka GANGAVATHI - 583 117.
2. THE STATE OF KARNATAKA,
REP. BY THE PRINCIPAL SECRETARY,
FINANCE DEPARTMENT,
GOVERNMENT OF KARNATAKA,
BENGALURU - 560 001.
3. GOVERNMENT OF INDIA,
THROUGH ITS SECRETARY,
(REVENUE)
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
NORTH BLOCK,
NEW - DELHI - 110 001.
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NC: 2024:KHC-D:6596
WP No. 108041 of 2023
4. THE GST COUNCIL,
THROUGH ITS CHAIRPERSON,
MINISTRY OF FINANCE,
NORTH BLOCK, NEW DELHI - 110 001.
...RESPONDENTS
(BY SMT. KIRTILATA R. PATIL, HCGP FOR R1 AND R2)
THIS WP IS FILED UNDER ARTICLES 226 AND 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 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. 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].
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. ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR QUASH A
IMPUGNED THE RESPONDENT NO. 1 HAS PASSED ISSUED AN
IMPUGNED SHOW CAUSE NOTICE U/S. 73(1) OF ACT, 2017, FOR
THE F.Y 2018-19 BEARING NO. ACCT/ENF/GVT/SUM-ENDO/2023-
24/T-475 DATED 06-11-2023 VIDE ANNEXURE-M AS VIOLATIVE OF
ARTICLES 14, 19, 265 AND 300A BEING UNREASONABLE,
ARBITRARY, OPPRESSIVE, EXCESSIVE AND PREMEDITATED AND
ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 108041 of 2023
ORDER
Heard learned counsel for the petitioner and learned High
Court Government Pleader for respondent Nos.1 & 2-State.
2. The petitioner has questioned the constitutional
validity of Section 16(4) of CGST/SGST Act, 2017 read with
Rule 61(5) of Karnataka Goods and Services Tax Rules, 2017,
being illegal, unreasonable, arbitrary and discriminatory. In
addition, the petitioner also sought writ in the nature of
certiorari to quash the impugned show cause notice as violative
of Articles 14, 19, 265, and 300A, being unreasonable,
arbitrary, oppressive, excessive and premeditated.
3. Learned High Court Government Pleader submits
that, the constitutional validity of Section 16(4) of the
CGST/SGST Act, 2017 read with Rule 61(5) of CGST Rules are
upheld in terms of the judgment passed in Thirumalakonda
Plywoods Vs. The Assistant Commissioner1 by the High
Court of Andhra Pradesh at Amaravati and also in Gobinda
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Construction Vs. Union of India and others2 by High Court
of Judicature at Patna.
4. It is the further submission of the learned High
Court Government Pleader 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 Another3 and
in ALD Automotive Private Limited Vs. Commercial Tax
Officer (CT) and others4.
5. The learned High Court Government Pleader
submits that since the impugned provisions of the CGST Act are
upheld in the judgments of various 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 provisions in the present writ
petition is to be rejected.
6. When the challenge regarding constitutional validity
of aforementioned Section is already decided by the various
Civil Writ Jurisdiction Case No.9108/2021
(2016) 15 SCC 125
(2019) 13 SCC 225.
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High Courts in terms of the law laid down by the Hon'ble Apex
Court referred to above, the writ petition is liable to be
dismissed. When the said prayer challenging the constitutional
validity is rejected, the other prayer is to question the
impugned notice.
7. It is not in dispute that the petitioner is having
remedy under CGST and KGST Act after issuing the reply, if he
deems appropriate. Therefore the writ petition is liable to be
dismissed without expressing any opinion on the merits with
liberty to the petitioner to take recourse to the law.
Accordingly the writ petition is dismissed.
SD/-
JUDGE
EM/CT-ASC
