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M/S. Epragathi Recycling, Represented by its Proprietor K.H. Bylappa, Bengaluru v/s The State of Karnataka, Rep. by The Principal Secretary Finance Department Government of Karnataka, Bengaluru & Others

    Writ Petition No. 17034 of 2022 [T-RES]
    Decided On, 09 September 2022
    At, High Court of Karnataka
    By, THE HONOURABLE MR. JUSTICE S.R. KRISHNA KUMAR
    For the Petitioner: Atul.K. Alur, Advocate. For the Respondents: Hemakumar, AGA.


Judgment Text
(Prayer: This W.P. is filed under Articles 226 and 227 of The Constitution of India Praying to quash the Appeal Order passed by the Respondent No.3 for the Assessment Period 2017-18 Bearing No.Gst Ap.48/2021-22 in Form No.Gst Apl-04 Bearing Gstin No.29bufpb6342g1zq, dated 14.07.2022 at Annexure-D insofar as the Peittioner is Concerned; and etc.,)

1. In this petition, the petitioner has sought for the following reliefs:

“a. Issue writ of certiorari or writ in the nature of certiorari quashing the appeal order passed by the respondent NO.3 for the assessment period 2017-18 bearing No.GST.AP:48/2021-22, in Form NO.GST APL-04, bearing GSTIN No.29BUFPB6342G1ZQ, dated 14.07.2022 at Annexure-D, insofar as the petitioner is concerned.

b. Issue writ of certiorari or writ in the nature of certiorari quashing the Audit report/observation passed under Section 65(b) by the respondent No.4 for the assessment period 2017-18, dated 31.01.2022, bearing DCCT (Audit)6.3/T/2021-22 at Annexure-B, insofar as the petitioner is concerned.

c. Issue writ of certiorari or writ in the nature of certiorari quashing the ADT- 02, issued by the respondent No.4 for the assessment period 2017-18 dated 31.01.2022, in KGAIN No.190008811 at Annexure-C, insofar as the petitioner is concerned.

d. Issue writ of certiorari or writ in the nature of certiorari quashing the notice issued under Section 73(1) of the KGST Act/CGST Act for the assessment period 2017-18 by the respondent NO.4 bearing No.DCCT(Audit)6.3/T/22-23, dated 22.07.2022, at Annexure-E, insofar as the petitioner is concerned.

e. Issue writ of mandamus or writ in the nature of mandamus directing the respondent No.3 to grant an opportunity to the petitioner and decided the case on merits.

f. Issue writ of mandamus or writ in the nature of mandamus directing the respondent No.3 to consider the appeal in view of the law declared by this Hon’ble Court.

g. Issue any other writ or directions deemed fit in the facts and circumstances of the case including the cost of the writ petition, in the interest of justice and equity.”

2. Heard the learned counsel for the petitioner and the learned Additional Government Advocate for the respondents. Perused the material on record.

3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that under identical circumstances, this Court in the case of M/S. SHRI MAHILA GRIHA UDYOG LIJJAT PAPAD V/S. THE JOINT COMMISSIONER OF COMMERCIAL TAXES [APPEALS]-2 AND ANOTHER, (W.P.No.15547/2022, D.D. ON 12.08.2022), has set aside the impugned endorsement and remitted back the matter to respondent No.1 – Appellate Authority for re-consideration in accordance with law. It is submitted that the facts obtaining in the said case are exactly identical and similar in the facts involved in the present petition also and consequently, the impugned order dated 14.07.2022 passed by the respondent No.3 also deserves to be set aside and the matter remitted back to the respondent No.3 for re-consideration afresh in accordance with law.

4. Per contra, learned Additional Government Advocate submits that there is no merit in the petition and the same is liable to be dismissed.

5. Though several contentions have been urged by both sides in respect of their respective claims, in the aforesaid decision in M/S. SHRI MAHILA GRIHA UDYOG LIJJAT PAPAD supra, this Court has held as under:

“ORDER

In this petition, the petitioner has sought for the following reliefs:

“I. To quash/set aside the impugned endorsement dated 20.07.2022 issued by the Respondent No.1 bearing No.J.C.C.T(A)-2/T/ /2022-23 as per Annexure-A by issuing a Writ of Certiorari or any other order or writ in the nature of a Writ of Certiorari.

II. To direct the Respondent No.1 to provide a fair and sufficient opportunity of hearing to the Petitioner in respect of the Petitioner’s Appeal to the Appellate Authority filed vide FORM GST APL- 01 dated 11.07.2022 as per Annexure-D and thereafter adjudicate the matter in accordance with law and not to pursue coercive steps until the said order is passed by issuing a Writ of Mandamus or any other or writ in the nature Writ of Mandamus and/or III. To grant any other relief that this Hon’ble Court may deem fit in favour of the Petitioner in the interest of equity and justice.”

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

3. In addition to reiterating the various contentions urged in the Memorandum of Petition and referring to the documents produced by the petitioner, learned counsel for the petitioner invites my attention to the impugned endorsement at Annexure-A dated 20.07.2022 in order to point out that the said endorsement is an unreasoned, non-speaking, arbitrary, cryptic and laconic endorsement without application of mind, in as much as except for stating that no appeal would lie against the audit observation/report dated 11.04.2022, no other reasons have been assigned by respondent No.1 to dismiss the appeal filed by the petitioner. In this context, my attention is invited to Section 107 of the Central Goods and Services Tax Act, 2017 (for short “the said Act of 2017”) in order to contend that while Section 107 enables a person to prefer an appeal against any decision or order which are actually exclusive and independent of each other, a perusal of Section 121 of the said Act of 2017 will clearly indicate that except for the non-appealable decision and orders which are expressly described and enumerated in Section 121 of said Act of 2017, all other orders and/or decisions passed by the authorities would be appealable under Section 107 of the said Act of 2017 and respondent No.1 having failed to consider this aspect of the matter, the impugned order deserves to be quashed. It is also submitted that no opportunity was granted in favour of the petitioner to urge all contentions including the contentions with regard to maintainability of the appeal qua Sections 107 and 121 of the said Act of 2017 and on this ground also, the impugned orderat Annexure-A deserves to be quashed.

4. Per contra, learned AGA for the respondents submits that there is no merit in the petition and the same is liable to be dismissed.

5. Though several contentions have been urged by both sides in support of their respective claims, a perusal of the impugned endorsement will indicate that respondent No.1 has not considered or appreciated the scope and ambit of Section 107 R/w. Section 121 of the said Act of 2017 and consequently, the impugned endorsement being unreasoned, non- speaking, arbitrary, cryptic and laconic, the same deserves to be quashed. So also, in view of the specific assertion on the part of the petitioner that no opportunity was granted to the petitioner to urge all their contentions before respondent No.1, by adopting a justice oriented approach and in order to provide one more opportunity to the petitioner to put forth all contentions in support of its claim, I deem it just and appropriate to set aside the impugned endorsement and remit the matter back to respondent No.1, the appellate authority for reconsideration afresh in accordance with law.

6. In the result, I pass the following:

ORDER

(i) The petition is hereby allowed.

(ii) The impugned endorsement dated 20.07.2022 issued by respondent No.1 is hereby quashed.

(iii) The matter is remitted back to respondent No.1-Appellate Authority for reconsideration afresh in accordance with law bearing in mind the observations made in this order, as expeditiously as possible.

(iv) All rival contentions between the parties are kept open and no opinion is expressed on the same.”

6. As rightly contended by the learned counsel for the petitioner, in the said order, this Court set aside the order passed by the Appellate Authority and remitted the matter back for re- consideration afresh in accordance with law and since the issue in controversy involved in both the petitions are identical, I deem it just and appropriate to set

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aside the impugned order at Annexure-D dated 14.07.2022 passed by the respondent No.3 – Appellate Authority and remit the matter back to the respondent No.3 for re- consideration afresh in accordance with law. 7. In the result, I pass the following: ORDER i) The petition is hereby allowed. ii) The impugned order dated 14.07.2022 passed by the respondent No.3 is hereby quashed. iii) The matter is remitted back to respondent No.3 – Appellate Authority for reconsideration afresh in accordance with law bearing in mind the observations made in this order, as expeditiously as possible. iv) All rival contentions between the parties are kept open and no opinion is expressed on the same. v) It is made clear that till the disposal of the appeal by the respondent No.3 – Appellate Authority, show cause notice dated 22.07.2022 shall be kept in abeyance.
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