Karnataka High Court
M/S Sree Krishna Hot Dip Galvanizers vs State Of Karnataka on 16 January, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:2212
WP No. 25648 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 25648 OF 2023 (T-RES)
BETWEEN:
M/S SREE KRISHNA HOT DIP GALVANIZERS
NO.07, CHINNAGIRIYAPPA INDUSTRIAL ESTATE
VISHWANEEDAM POST ANDRAHALLI
BANGALORE-560 091.
REPRESENTED BY ITS PROP
LAKSHMAN NAIK
AGED ABOUT 46 YEARS.
...PETITIONER
(BY SRI. K M SHIVAYOGISWAMY.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF FINANCE
VIDHANA SOUDHA
BANGALORE-560001
REPRESENTED BY ITS
FINANCE SECRETARY.
Digitally 2. THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES
signed by (ENFORCEMENT), VANUJYA THERIGEGALA SANKERNA
VANDANA S 80 FEET ROAD, SIDDARAMESHWARA EXTENSION
Location: TUMKUR-572 101.
HIGH
COURT OF 3. THE COMMISSIONER OF COMMERCIAL TAXES(KARNATAKA)
KARNATAKA DEPARTMENT OF COMMERCIAL TAXES
VANIJYA THERIGE KARYALAYA
KALIDASA MARG, GANDHI NAGAR
BENGALURU-560 009.
4. THE JOINT COMMISSIONER OF COMMERCIAL TAXES(APPEALS)-3
2ND FLOOR, BMTC, TTMC B BLCOK
SHANTHI NAGAR
BANGALORE-560 027.
...RESPONDENTS
(BY SRI. SHAMANTH NAIK, HCGP)
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NC: 2024:KHC:2212
WP No. 25648 of 2023
THIS W.P IS FILED UNDER ARTICLE 226 AND 227 OF THE
COSNTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ENDORSEMENT ISSUED BY THE R4 BEARING NO.JCCT(AP-
3)/T.NO.581/2023-24 DTD 19.08.2023 VIDE ANNEXURE-J.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this petition petitioner is aggrieved by the impugned
Endorsement in Annexure - J dated 19.08.2023 issued by the
respondents whereby the appeal preferred by the petitioner under
Section 107 of the CGST / KGST Act, 2017 was dismissed by the
respondents on the ground of the limitation.
2. Heard learned counsel for the petitioner and learned
HCGP for respondents and perused the material on record.
3. The material on record discloses that aggrieved by the
impugned penalty order dated 14.09.2022 passed by the second
respondent under the petitioner preferred an appeal before the
second respondent in the bonafide / wrong impression that it was
the Appellate Authority. It is the contention of the petitioner that
subsequently he realized that the appellate authority was actually
the respondent No.4 and not the respondent No.2 as a result of
which the appeal preferred before the respondent No.2 was before
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the wrong forum and consequently the petitioner preferred one
more appeal on 27.06.2023 before the fourth respondent and
sought for extension of time under Section 14 of the Limitation Act.
In addition thereto, the petitioner places reliance upon the
notification issued by the Government of India by the Central Board
of Indirect Taxes (CBIT) and Customs dated 02.11.2023 which
extends the time for preferred appeals up to 31.01.2024. Under
these circumstances, it is contended that the respondent
committed an error in issuing impugned endorsement summarily
dismissing the appeal as barred by limitation and the same
deserves to be set aside.
4. Per contra, learned HCGP submits that in the light of the
undisputed fact that the petitioner had preferred the instant appeal
before the fourth respondent only on 27.06.2023 beyond the
prescribed period of 120 days (90 + 30) the respondent was
justified in dismissing the appeal as barred by limitation by passing
the impugned orders which does not warrant interference in the
present petition.
5. A perusal of the impugned endorsement issued by the
respondent will indicate that the sole ground on which the appeal
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was dismissed was as being barred by limitation in the light of the
prescribed period contained in Section 107 of the KGST Act, 2017.
While it is true that Section 29(2) of the Limitation 1963 excludes
the applicability of Section 5 of the Limitation Act for the purpose of
condonation of delay is concerned, Section 14 of the Limitation Act
which excludes time spent before a wrong / incorrect forum for the
purpose of concluding the prescribed period is applicable to an
appeal preferred under Section 107 of the KGST Act in the light of
the judgment of the Hon'ble Division Bench in the case of DEPUTY
COMMISSIONER AND SPECIAL ACQUISITION OFFICER,
BANGALORE v/s M/s. S.V GLOBAL MILL LIMITED.
6. It is also necessary to point out that as per circular issued
by the CBIT, the period prescribed for preferring the appeal has
been extended up to 31.01.2024 and on this ground also,
respondent committed an error in issuing the impugned
endorsement which deserves to be set aside, quashed and
necessary directions are to be issued to the respondent to consider
the appeal on merits without reference to the issue/question of
limitation which stands concluded in favour of the petitioner.
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7. In the result, I pass the following
ORDER
(i) The petition is hereby allowed
(ii) Impugned endorsement dated 19.08.2023, is
hereby set aside
(iii) The respondent No.4 - Appellate Authority is
directed to consider the appeal filed by the petitioner on
merits and pass appropriate orders in accordance with law
without reference to the issue/question of limitation which
stands concluded in favour of the petitioner under this order.
Sd/-
JUDGE
DHA
