2025(06)LCX0457
Apkon Ventures Private Limited
Versus
The Commissioner Of Central Tax
WRIT PETITION NO. 17719 OF 2025 decided on 25-06-2025
NC: 2025:KHC:22404
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 17719 OF 2025 (T-RES)
BETWEEN:
M/S. APKON VENTURES PRIVATE
LIMITED,
A COMPANY INCORPORATED UNDER
THE PROVISIONS OF THE COMPANIES ACT 1956,
HAVING ITS OFFICE AT GARDEN HOUSE,
GARDEN ROAD, TUMKUR-572 101,
(REP BY ITS DIRECTOR
SMT. ASHA PRASANNA KUMAR)
…PETITIONER
(BY SRI. AVEEN G.S & MAHESH CHANDRA B.N, ADVOCATES)
AND:
1. THE COMMISSIONER OF
CENTRAL TAX (APPEALS-II),
OFFICE OF THE COMMISSIONER
OF CENTRAL TAX (APPEALS II),
4TH FLOOR, ABOVE BMTC BUS STAND,
DOMLUR, OLD AIRPORT ROAD,
BENGALURU-560 071.
2. THE ADDITIONAL COMMISSIONER OF
CENTRLTAX,
BENGALURU NORTH-WEST COMMISSIONERATE,
2ND FLOOR, SOUTH WING,
BMTC BUS STAND COMPLEX,
SHIVAJINAGAR,
BENGALURU-560 051.
3. THE ASSISTANT COMMISSIONER
OF COMMERCIAL TAXES(AUDIT)-6.3,
DGSTO, III FLOOR, KIADB BUILDING,
14TH CROSS, II STAGE, PEENYA,
INDUSTRIAL AREA,
BENGALURU-560 058.
…RESPONDENTS
(V/O DTD:19.06.2025 SRI. ARAVIND CHAWAN FOR R1 & R2, SRI. BOPANNA .B, AGA FOR R3(MA NOT FILED))
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSITUTUTION OF INDIA, PRAYING TO ISSUE A WRIT OR SUCH OTHER ORDER IN THE NATURE OF CERTIORARI TO QUASH / SET ASIDE THE ORDER DATED 29.04.2025, IN APPEAL NO. 04/2025-26 GST (COMMR.) A-II, PASSED BY THE 1ST RESPONDENT AND PRODUCED AS ANNEXURE-M.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
ORAL ORDER
This caption petition is filed seeking for the following reliefs:
(1) Issue a writ or such other order in the nature of Certiorari to quash / set aside the order dated 29.04.2025, in Appeal No. 04/2025-26 GST (Commr.) A-II, passed by the 1st Respondent and produced as Annexure-M.
(ii) Issue a writ or such other order in the nature of Certiorari to quash/set aside the Order passed by the 2nd Respondent dated 19.07.2024 bearing No.GEXCOM/ADJN/GST/ADC/119/2023 produced at Annexure-E; and
(iii) Issue a writ or such other order in the nature of Certiorari to quash/set aside the Order passed by the 3rd Respondent dated 30.08.2024 in File No.118/DGSTO06/ACCT(A)6.3/ADJ/Section-73/2024 produced at Annexure-F; and
(iv) Issue a writ or such other order in the nature of Certiorari to quash/set aside the notice dated 30.05.2025, bearing No. JCCT/DGSTO-6/ACCT-(A)-6.3/ADJ/S.73/25- 26, in Form GST DRC-13, and produced as Annexure-G; and
(v) Pass such other orders as this Hon'ble Court deems fit to grant in the interest of justice and equity.
2. Heard the learned counsel for the petitioner. and learned counsel appearing for respondent Nos.1 and 2 and learned AGA appearing for respondent No.3.
3. The petitioner, who is engaged in the business of construction of government roads and other allied activities, is before this Court challenging the order passed by respondent No.1 under Section 107(1) of the Central Goods and Services Tax Act, 2017 (for short, 'CGST Act'), whereby the appeal filed by the petitioner has been dismissed on the ground of delay. The petitioner is also assailing the order passed by respondent No.3, which is impugned at Annexure-"F".
4. Upon a perusal of the material on record: The principal question that arises for consideration in the present writ petition is whether the order impugned passed by respondent No.1 dismissing the petitioner’s appeal under Section 107(1) of the Central Goods and Services Tax Act, 2017, solely on the ground of delay, is sustainable in law. Additionally, this Court is called upon to examine the legality and propriety of the adjudication order passed by respondent No.3, impugned at Annexure- “F”.
5. It is the specific case of the petitioner that the order impugned at Annexure-“F” came to be passed by respondent No.3 without affording a reasonable opportunity of hearing, and that the same was not communicated to the petitioner in the manner known to law. It is contended that the petitioner was unaware of the passing of the said order and came to know of it only belatedly. Immediately upon obtaining knowledge of the order, the petitioner took steps to prefer an appeal under Section 107 of the CGST Act. However, respondent No.1 rejected the appeal on the ground that the same was barred by limitation, holding that the statutory period prescribed for preferring an appeal had lapsed.
6. It is further submitted that the delay in filing the appeal was neither willful nor deliberate but was occasioned on account of the non-service or defective service of the adjudication order by the proper officer. The petitioner contends that in the absence of due service, the period of limitation did not commence and, therefore, the rejection of the appeal on the ground of delay is wholly untenable and contrary to the settled principles of natural justice and statutory interpretation.
7. Learned counsel for the petitioner would draw the attention of this Court to the relevant provisions of the CGST Act, more particularly, the proviso to Section 169, which outlines the modes of service of decision, order, summons, or notice under the Act. It is argued that in the absence of proper service in accordance with the statutory requirements, the date of knowledge assumes significance, and the computation of limitation must be reckoned from such date. It is further contended that the appellate authority failed to consider this crucial aspect while rejecting the appeal.
8. Reliance is placed on various judicial pronouncements to substantiate the proposition that where an adjudication order is not duly served upon the affected party, the right to prefer an appeal cannot be defeated merely on the ground of delay. The petitioner asserts that the impugned order at Annexure-“F” suffers from grave procedural infirmities, and the rejection of the appeal without examining the issue of service and without condoning the delay, even when the cause shown was bona fide and supported by material, amounts to a denial of the petitioner’s right to avail an appellate remedy. The Appellate Authority has dismissed the appeal solely on the ground of delay, without adverting to or giving due consideration to the liberty expressly granted by the Coordinate Bench of this Court in the earlier round of litigation.
9. In order to appreciate the nature and scope of such liberty, it would be apposite to extract paragraph No.2 of the said order, which reads as under:
“2. The petitioner contends that it is registered as a dealer under the Karnataka Goods and Services Tax Act, 2017 (for short, 'the KGST Act, 2017'). The Assessing Officer passed an order of assessment for the tax period from 01.04.2019 to 31.03.2020 under Section 73(9) of the KGST Act, 2017 on 23.07.2024. The petitioner contends that the Assessing Officer did not consider the exemption turnover, which was more than 90% of the total turnover. The petitioner also contends that the Assessing Officer had calculated tax on the total turnover at 12%. The secretary of the petitioner allegedly suffered an accident and was bedridden for 25 days and was discharged on 12.07.2024. Therefore, he could not collect the books of accounts and file an appeal challenging the order passed by the Assessing Officer. The petitioner contends that belated appeal was thereafter filed along with an application for condonation of delay. However, the Appellate Authority namely, responded No.1 herein rejected the appeal on the ground that the appeal was not filed within three months as prescribed under Section 107 (1) of the KGST (CGST) Act, 2017. Being aggrieved by the said order, the petitioner is before this Court.”
10. This Court finds considerable force in the contention advanced by the petitioner. The records disclose that this Court, in an earlier round of proceedings, had specifically granted liberty to the petitioner to avail the appellate remedy and had also directed the Appellate Authority to consider the benefit of Section 14 of the Limitation Act, 1963, in computing the period of limitation. Despite such liberty and express observations made by this Court, as reflected in paragraph No.2 of the earlier order, the respondent No.1/Appellate Authority has failed to advert to or give effect to the same while adjudicating the appeal.
11. It is evident from the impugned order dated 29.04.2025 that the appellate authority has dismissed the appeal solely on the ground of delay, without considering the period spent by the petitioner in bona fide prosecution of proceedings before this Court, which ought to have been excluded under Section 14 of the Limitation Act. The failure to give effect to the exclusion of time as mandated under Section 14, despite a clear direction from this Court, amounts to not only an erroneous exercise of jurisdiction but also a contravention of the judicial discipline expected of statutory authorities.
12. Therefore, the order of respondent No.1 is rendered unsustainable in law. On this short but significant ground alone, the impugned appellate order is liable to be quashed and the matter requires to be remanded for reconsideration in accordance with law, keeping in view the benefit under Section 14 of the Limitation Act and the liberty granted by this Court. It is pertinent to note that the matter was seized by the Commissioner of Central Tax (Appeals-II), the statutory Appellate Authority under Section 107 of the Central Goods and Services Tax Act, 2017. The petitioner had preferred an appeal before respondent No.1 challenging the assessment order, and the said appeal was filed pursuant to the liberty granted by this Hon’ble Court, as evidenced in Annexure–H.
13. In this backdrop, the critical question that arises is whether the Assistant Commissioner of Commercial Taxes (Audit)-6.3, DGSTO-respondent No.3, could have simultaneously exercised jurisdiction and proceeded to pass a separate order vide Annexure F pertaining to the same subject matter, despite the pendency of appeal proceedings before respondent No.1.
14. The petitioner submits that once the appellate forum is seized of the matter, any parallel proceedings initiated or concluded by respondent No.3, which touches upon or affects the subject matter under appeal, are not only premature but also jurisdictionally improper. Such action results in multiplicity of proceedings, creates jurisdictional overlap, and amounts to interference with the appellate process, which undermines the scheme and spirit of the CGST Act.
15. The Hon’ble Supreme Court and various High Courts have time and again held that once an appeal is entertained, any collateral or parallel adjudication on the same cause of action by another authority must be avoided, as it defeats the purpose of the statutory remedy and offends principles of natural justice, judicial discipline, and fair procedure. In the present case, the order passed by respondent No.3, despite full knowledge of the pending appeal and judicial directions, is arbitrary and legally unsustainable, and is therefore liable to be quashed.
In view of the foregoing, this Court proceeds to pass the following:
ORDER
i. The writ petition is allowed.
ii. The impugned order dated 29.04.2025 passed by the respondent No.1 in Appeal No.04/2025-26 GST (Commr.) AII, produced at Annexure ‘M’, is hereby quashed and set aside.
iii. The matter stands remitted to respondent No.1/Appellate Authority for fresh consideration. While doing so, respondent No.1 shall take into account the liberty granted by this Court and the benefit available under Section 14 of the Limitation Act, 1963, and shall exclude the period during which the petitioner was bona fide prosecuting the proceedings before this Court. Thereafter, the Appellate Authority shall proceed to consider the appeal on merits and dispose of the same in accordance with law.
iv. Consequently, the order dated 30.05.2025 bearing No. JCCT/DGSTO-6/ACCT-(A)-6.3/ ADJ/S.73/ 25-26, passed by respondent No.3 and produced at Annexure ‘G’, is also hereby set aside.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE