M/S. Sri Ganesh Trading Co. Vs the Joint Commissioner of

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1 - NC: 2025:KHC:15706 WP No. 25108 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF APRIL, 2025

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 25108 OF 2024 (T-RES)

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BETWEEN:

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M/S. SRI GANESH TRADING CO HOUSE NO.176/3, BAPOOJIEXTN KUSHALNAGARA, KODAGU KARNATAKA - 571 234 REP BY ITS SOLE PROPRIETOR, HURKADLILOKESHAPPASATHISHBABU

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…PETITIONER

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(BY SMT. POORNIMA H.S., ADVOCATE)

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AND:

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Digitally signed by NANDINI B G Location: High Court of Karnataka

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THE JOINT COMMISSIONER OF COMMERCIAL TAXES (APPEALS) MYSORE DIVISION, MYSORE SHESHADRI BHAVAN, DEWAN'S ROAD, MYSURU - 570 001

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ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT) KSFC BUILDING, INDUSTRIAL AREA MADIKERI - 571 201

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…RESPONDENTS

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(BY SMT. JYOTI .M. MARADI, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER BEARING NO. ZD291123045437E DTD. 23.11.2023 PASSED BY THE R-1 CONSEQUENTLY REOPEN THE APPEAL NO. GST/AP/131/23-24 FOR RECONSIDERATION ON MERITS, BY CONDONING THE DELAY OF 68 DAYS SAYING IN FILING THE SAID APPEAL VIDE ANNX-A AND ETC.,

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THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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2 - NC: 2025:KHC:15706 WP No. 25108 of 2024

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ORAL ORDER

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In this petition, petitioner seeks the following reliefs:

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"Wherefore, it is most humbly prayed that this Hon'ble Court be pleased to:-

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a. Issue a Writ mandamus by setting aside the impugned order bearing No. ZD291123045437E dated 23.11.2023 passed by the Respondent No.1. Consequently reopen the Appeal No. GST/AP/131/23-24 for reconsideration on merits, by condoning the delay of 68 days saying in filing the said appeal vide ANNEXURE-A

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b. Quash the writ certiorari order issued in form GST APL 04 dated 29.11.2023 bearing Order No. ZD291123045437E by the Respondent no.1 at ANNEXURE K,

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c. Quash the writ certiorari attachment notice bearing no. ACCT/Audit/M/T/1234/2023-2024 issued by the Respondent No. 2 vide ANNEXURE-L dated 20/10/2023.

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d. Grant such other and further reliefs as this Hon'ble Court deems fit in the interest of justice and equity."

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Heard learned counsel for the petitioner, learned High Court Government Pleader for the respondent and perused the material on record.

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In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on

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3 - NC: 2025:KHC:15706 WP No. 25108 of 2024

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record, learned counsel for the petitioner submitted that the impugned order at Annexure-D dated 30.05.2023 passed under Section 73(9) of the KGST Act has passed the exparte assessment order without providing sufficient and reasonable opportunity to the petitioner, who could not submit its reply to the show cause notice and contest the proceedings due to bonafide reasons, unavoidable circumstances and sufficient cause.

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It is also pointed out that immediately upon becoming aware of the impugned order at Annexure-D dated 30.05.2023, the petitioner filed an appeal before the Appellate Authority, which came to be dismissed on the ground that the same was beyond the maximum period of 120 days as contemplated under Section 107(4) of the KGST Act. It is in this regard, it is submitted that since the Appellate Authority summarily dismissed the appeal as barred by limitation, without adverting to the merits of the claim of the petitioner, the order of the Appellate Authority would not constitute merger so as to come in the way of this Court in exercising its jurisdiction under Article 226 of the Constitution of India and setting aside the impugned exparte order at Annexure-D and remitting the matter back to respondent No.2 for reconsideration afresh in accordance with law.

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4 - NC: 2025:KHC:15706 WP No. 25108 of 2024

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In support of her submission, she places reliance upon the following judgments:

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(i) M/s Chamarajnagar Taluk MSPC Vs Office of the Commissioner of Central Tax & Ors (WP No.3688 of 2024);

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(ii) M/s Sri Shanmuga Motors Vs The State Tax Officer & Anr (WP No.11737 of 2024); and

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(iii) Shruti Iron Private Limited Vs Assistant Commissioner, State Tax, Bally &Salkia Charge & Ors (WP No.26637/2024).

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Per contra, learned High Court Government Pleader

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submits that there is no merit in the petition and the same is liable to be dismissed.

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A perusal of the material on record would indicate that the petitioner did not submit its reply to the show cause notice, as a result of which, respondent No.2 proceeded to pass the impugned exparte adjudication order at Annexure-D dated 30.05.2023. Subsequently, the petitioner having filed an appeal under Section 107 before respondent No.1 - Appellate Authority, the same came to be dismissed vide Annexure-A dated 23.11.2023 on the sole ground of limitation without adverting to the merits of the claim of the petitioner.

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Under identical circumstances, this Court in the case of

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M/s Chamarajnagar Taluk MSPC Vs Office of the Commissioner of Central Tax & Ors passed in Writ Petition No.3688 of 2024 disposed off on 12.03.2024 held as under:

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"In this petition, petitioner seeks the following reliefs:

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“i) Issue a Writ of Certiorari or in the like nature of Certiorari impugned order-in-original bearing reference No.AA290522008223M dated 13.12.2022, passed by respondent No.2 vide-Annexure-D;

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ii) Issue Writ of Certiorari or in the like nature of Certiorari setting aside the order-in-appeal bearing ref. No.MYS-ADC/JC(A)-84-85/2023-24-GST dated 27.12.2023 / 28.12.2023 passed by respondent No.3 videAnnexure-F;

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iii) Issue a writ of Mandamus or in the nature of Mandamus, directing the Respondent No.2 and / Respondent No.3 to permit the Petitioner to file their pending GST returns for the period in dispute and to permit the Petitioner to remit the applicable taxes, while also permitting the Petitioner to claim the benefit of Input Tax Credit (ITC) for the period that their registration stood revoked.

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iv) Pass such other or further order as this Hon’ble Court may deem fit in the facts and circumstances of this Case, in the interest of justice and equity.”

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2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.

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3. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, learned counsel for the petitioner submits that due to bonafide reasons, unavoidable circumstances and sufficient cause and on account of e-mail ID of the petitioner being inoperative and non-functional, the petitioner could not submit the GST returns for a continuous period of six months, as a result of which, the respondents issued a Show Cause Notice dated 04.05.2022, which culminated in the impugned order at Annexure – D dated 13.12.2022 thereby canceling GST registration of the petitioner. Aggrieved by the said order of cancellation of GST registration, petitioner filed a statutory appeal under Section 107 of the CGST Act, 2017 before the Appellate Authority, which was dismissed as barred by limitation since the same was filed beyond the prescribed period of four months. In this context, learned counsel for the petitioner submits that the petitioner is ready to deposit pending tax amount along with interest subject to availment of Input Tax Credit and since the petitioner is a Society registered under the Karnataka Societies Registration Act and involved in supply of food supplements to

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Anganwadi Centres and schools, it is necessary that the impugned order passed by the original authority canceling registration of GST be set aside and matter remitted back to respondent No.2 for consideration of the request for revocation of GST cancellation of the petitioner by providing an opportunity in favour of the petitioner.

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4. Per contra, learned counsel for the respondents would support the impugned order and submits that there is no merit in the petition and that the same is liable to be dismissed.

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5. A perusal of the material on record will indicate that it is no doubt true that the appeal preferred by the petitioner before the Appellate Authority was dismissed as barred by limitation, in this context a perusal of the order of the Appellate Authority at Annexure – F dated 27.12.2023 will indicate that the merits of the claim of the petitioner for revocation of the GST cancellation has not been examined by the Appellate Authority, which has proceeded to summarily dismiss the appeal as barred by limitation. It is needless to state that if an appeal is dismissed as barred by limitation, it is no appeal in the eye of law and dismissal of the appeal as barred by limitation would not result in merger of the order of the original authority into the order of the Appellate

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Authority. In other words, if an appeal is dismissed as barred by limitation, the order of the original authority would still remain and would not merge with the orderin-appeal and order of the original authority would be capable of being challenged under Article 226 of the Constitution of India subject to all exceptions known in law.

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6. Under these circumstances, merely because appeal preferred by the petitioner was dismissed by the Appellate Authority vide impugned order at Annexure – F dated 27.12.2023, it cannot be said that this Court is denuded of its power and jurisdiction to examine the claim of the petitioner under Article 226 of the Constitution of India or to examine the legality, validity and correctness of the order of the original authority under Article 226 of the Constitution of India.

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7. The next point for consideration is whether any indulgence is to be shown to the petitioner in the facts and circumstances of the instant case so as to enable the petitioner to seek revocation of the GST cancellation in its favour. In this context, it is relevant to state that the petitioner is supplying food supplements to Anganwadi Centres and schools and is a society registered under the Karnataka Societies Registration Act. It is also pertinent to note that the

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9 - NC: 2025:KHC:15706 WP No. 25108 of 2024

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petitioner has specifically contended that its inability and omission to file its returns within the prescribed / stipulated period was due to bonafide reasons, unavoidable circumstances and sufficient cause. Under these circumstances, in the light of the specific assertion on the part of the petitioner that petitioner would pay the entire outstanding tax dues together with interest subject to availment of Input Tax Credit and in the peculiar / special facts and circumstances of the instant case, I deem it just and appropriate to exercise my jurisdiction under Article 226 of the Constitution of India and set aside the impugned Order-in-original at Annexure – D dated 13.12.2022 and remit the matter back to respondent No.2 for consideration of the claim of the petitioner for revocation of GST cancellation after providing sufficient and reasonable opportunity to the petitioner.

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8. In the result, I pass the following:

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ORDER

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(i) The petition is hereby allowed .

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(ii) The impugned order at Annexure – D dated 13.12.2022 passed by respondent No.2 is hereby set aside.

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(iii) Matter is remitted back to respondent No.2 for consideration of the claim of the petitioner for

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revocation of GST cancellation of the petitioner – Society.

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(iv) Liberty is reserved in favour of the petitioner to file pleadings, documents, etc., to respondent No.2, who shall provide sufficient and reasonable opportunity to the petitioner and proceed further in accordance with law.

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(v) Petitioner undertakes to appear before respondent No.2 on 01.04.2024.

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(vi) Immediately upon petitioner appears before respondent No.2 and filing pleadings, documents, etc., the respondent No.2, shall hear and pass appropriate orders on the claim of the petitioner within a period of three months from 01.04.2024."

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In the case on hand, the material on record discloses that the petitioner did not submit a reply to the aforesaid show cause notice, which culminated in the impugned exparte assessment adjudication order. Under these circumstances, by adopting justice oriented approach and in order to provide one more opportunity to the petitioner to submit a reply to the show cause notice and contest the proceedings, I deem it just and appropriate to set aside Annexures-A, D, K and L and remit the

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matter back to respondent No.2 for re-consideration afresh in accordance with law.

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In the result, pass the following:

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ORDER

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(i) The petition is hereby allowed.

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(ii) The impugned orders at Annexures-A, D, K and L are hereby set aside.

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(iii) The matter is remitted back to respondent No.2 to the stage of the petitioner submitting reply to the show cause notice for re-consideration afresh in accordance with law.

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(iv) The petitioner is directed to appear before the respondent No.2 on 12.05.2025 without awaiting further notice from respondent No.2.

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(v) It is made clear that in the event, the petitioner does not appear before respondent No.2 on 12.05.2025, the present order shall stand automatically revoked and the present petition shall stand revived without further reference to the Bench.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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*bgn/CT:VS List No.: 1 Sl No.: 39

M/S. Sri Ganesh Trading Co. v. the Joint Commissioner of

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M/S. Sri Ganesh Trading Co. v. the Joint Commissioner of

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