M/S M J Infrastructure Vs the Joint Commissioner (Appeal)

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1 - NC: 2025:KHC:8318 WP No. 4076 of 2025

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF FEBRUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE S.G.PANDIT

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WRIT PETITION NO. 4076 OF 2025 (T-RES)

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BETWEEN:

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M/S. M J INFRASTRUCTURE REP. HEREIN BY ITS SOLE PROPRIETOR MR. ANILKUMAR PRABHAKARAN NAIR, AGED 50 YEARS S/O S. PRABHAKARAN NAIR OFFICE AT NO.27, M.J. HOUSE, MANIPAL COUNTY CLUB ROAD, SINGASANDRA, BANGALORE URBAN, KARNATAKA - 560 068.

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…PETITIONER

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(BY SRI. PRAJWALA SATHYAPRAKASH., ADV.)

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AND:

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Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA

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THE JOINT COMMISSIONER (APPEAL) DGSTO-04, NO. 221, 2^ND FLOOR, BMTC, TTMC ‘B’ BLOCK, SHANTINAGAR, BENGALURU - 560 027.

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THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT) 4.8, DGSTO - 4, 5^TH FLOOR, BMTC BUILDING 80 FEET ROAD, 6^TH BLOCK, KORAMANGALA, DEPARTMENT OF COMMERCIAL TAXES, GOVERNMENT OF KARNATAKA, BENGALURU - 560 095.

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THE COMMISSIONER OF COMMERCIAL TAXES DEPARTMENT OF COMMERCIAL TAXES, GOVERNMENT OF KARNATAKA, VANIJAYA TEREGE KARYALAYA,

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2 - NC: 2025:KHC:8318 WP No. 4076 of 2025

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KALIDASA ROAD, GANDHINAGAR, BENGALURU-560 009.

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…RESPONDENTS

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(BY SRI. K HEMA KUMAR, AGA FOR R1 TO R3)

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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 30.08.2024 BEARING NO.GST.AP.587/2024-25 PASSED UNDER SECTION 107(11) OF THE GST ACTS REJECTING THE PETITIONERS APPLICATION FOR CONDONATION OF DELAY (ANNX-A) AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.G.PANDIT

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ORAL ORDER

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Though the matter is listed for ‘Preliminary Hearing’,

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with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.

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Heard learned counsel Ms.Prajwala

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Sathyaprakash, for petitioner and learned Additional Government Advocate Sri.K.Hemakumar for respondent Nos.1 to 3. Perused the writ petition papers.

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Learned counsel for the petitioner would submit

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that the petitioner, a proprietary concern registered under the Karnataka Goods and Services Tax Act, 2017 (for

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NC: 2025:KHC:8318 WP No. 4076 of 2025

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short, ‘2017 Act’) is before this Court questioning the exparte order dated 30/31.03.2024 bearing

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No.ACCT(Audit)-4.8/DGSTO-4/73-24/23-24 (Annexure-F) passed under Section 73 of 2017 Act as well as appellate order bearing No.GST.AP.587/2024-25 dated 30.08.2024 under Section 107(11) of 2017 Act, rejecting the petitioner’s appeal only on the ground of delay.

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It is submitted that the petitioner was suffering from heart ailment and it is submitted that from 2021 the petitioner was taking treatment for his heart ailment. In that regard, learned counsel would refer to the medical records at pages 51 and 52 of the writ petition and submits that the petitioner’s heart was functioning at 40%, which is recorded on 27.09.2021 and subsequently petitioner had to undergo surgery on 09.12.2024. In that regard, learned counsel would invite attention of this Court to the medical records placed on record dated 29.11.2024 onwards. It is submitted that when the petitioner was undergoing treatment, show cause notice under Section 73

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4 - NC: 2025:KHC:8318 WP No. 4076 of 2025

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of 2017 Act was issued and subsequently impugned order at Annexure-F dated 30/31.03.2024 was passed. It is submitted that due to ill-health of the petitioner, he could not participate in the proceedings initiated under Section 73 of 2017 Act. Further, learned counsel would submit that appeal filed against the impugned order under Section 107 of 2017 Act also came to be rejected on the ground that the appeal is filed beyond the period prescribed under Section 107 of 2017 Act. Learned counsel would submit that due to the health reasons, petitioner also could not file appeal within time. Hence, learned counsel would pray for an opportunity to the petitioner to file objections and participate in the proceedings initiated by the respondents under Section 73 of 2017 Act.

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Per contra, learned Additional Government Advocate Sri.K.Hemakumar appearing for the respondents would submit that it is not the case of the petitioner that show cause notice was not served on the petitioner, but it is failure on the part of the petitioner to participate in the

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proceedings for whatsoever reasons. However, he admits that impugned order is exparte order.

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Having heard the learned counsel appearing for

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the parties and on perusal of the writ petition papers, I am

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of the view that petitioner ought to be given an opportunity to participate in the proceedings initiated under Section 73 of 2017 Act, as he could not participate in the proceedings pursuant to show cause notice dated 31.12.2023 issued under Section (1)73 of 2017 Act, due to ill-health suffered by him which is established by placing medical records on record.

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A co-ordinate Bench of this Court in W.P.No.3688/2024 dated 12.03.2024 has observed that merely because appeal preferred by the petitioner was dismissed by the Appellate Authority, 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,

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validity and correctness of the order passed by the original authority.

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In the instant case also, though the appeal filed by the petitioner is rejected solely on the ground of delay, this Court is denuded of its power to examine the original order dated 30/31.03.2024 (Annexure-f) passed under Section 73 of 2017 Act. On examination of the original order passed under Section 73 of 2017 Act, it is forthcoming that the said order is exparte order and without participation of the petitioner. The petitioner was not in a position to participate in the proceedings under Section 73 of 2017 Act due to his ill-health. The medical records placed on record would indicate that (Page 53 of writ petition) petitioner was suffering from heart ailment since 2011 and since his heart was functioning 40%, subsequently on 09.12.2024 the petitioner has undergone heart surgery. The above circumstances would justify the petitioner’s request for an opportunity to participate in the proceedings by filing objections.

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NC: 2025:KHC:8318 WP No. 4076 of 2025

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In the above circumstances, I deem it

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appropriate to pass the following:

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ORDER

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a) Annexure-F order bearing No.ACCT(Audit)-4.8/DGSTO-4/73-24/23-

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24 dated 30/31.03.2024 passed under Section 73 of 2017 is quashed.

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b) The matter is remitted back to the stage of filing objections to show cause notice dated 30.12.2023 issued under Section 73 of 2017 Act.

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c) The petitioner is granted four weeks time to file objections and the petitioner shall appear before the second respondent on

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26.03.2025.

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d) The remand cannot be without any condition since the tax liability amount

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determined under impugned order at

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Annexure-F is Rs.2,09,32,473/-, the petitioner shall deposit 20% of the above stated amount within four weeks from today before participating in the proceedings.

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e) If the petitioner fails to deposit the above stated amount, this order would not enure to the benefit of the petitioner.

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Sd/(S.G.PANDIT) JUDGE

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NC CT:bms List No.: 1 Sl No.: 23

M/S M J Infrastructure v. the Joint Commissioner (Appeal)

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M/S M J Infrastructure v. the Joint Commissioner (Appeal)

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