DRAFT

IN THE HON’BLE HIGH COURT OF KARNATAKA AT BANGALORE

ORIGINAL JURISDICTION

WRIT PETITION No.___________/2024 (T-RES)

BETWEEN:

IPSUM PROADVISORS PRIVATE LIMITED,

A PRIVATE COMPANY INCORPORATED
UNDER COMPANIES ACT, 1956
REPRESENTED BY ITS DIRECTOR
SRI _________
S/O ___________
AGED ABOUT ____ YEARS
NO.4/1, 1ST FLOOR, 2ND BLOCK,
RESERVOIR STREET,
KUMARAPARK WEST,
BENGALURU – 560020 PETTIONER

AND

1. UNION OF INDIA,
MINISTRY OF FINANCE,
REPRESENTED BY ITS SECRETARY,
NORTH BLOCK,
NEW DELHI- 110 001 RESPONDENT NO.1

2. CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS,

REPRESENTED BY ITS CHAIRPERSON,
NORTH BLOCK,
NEW DELHI-110 001 RESPONDENT NO.2

3. STATE OF KARNATAKA,
REPRESENTED BY SECRETARY
FINANCE DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE 560 001. RESPONDENT NO.3

4. THE COMMISSIONER OF COMMERCIAL TAXES,

VTK-2, KALIDASA ROAD, GANDHINAGAR,
BENGALURU-560009. RESPONDENT NO.4

5. THE ASSISTANT COMMISSIONER OF

COMMERCIAL TAXES (AUDIT)-1.6,
TTMC BLDG, 3RD FLOOR, YESHWANTHPUR,
BANGALORE-560022 RESPONDENT NO.5
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MEMORANDUM OF WRIT PETITION UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA

The petitioner above named respectfully submits as under:

I. The address of the Petitioner for service of summons, notices etc.,

from this Hon’ble Court is as stated in the cause title and also that of

his Advocate Shri. G. Venkatesh, No.6, 1 st Floor, 1st Main, Club Road,

Above Dreamz Baby Shop, Opp. Bansuri Sweets, Vijayanagar,

Bangalore- 560 104.

II. The address of the Respondents for service of summons, notices

etc., from this Hon’ble Court is as stated in the cause title.

III. The Petitioner is filing this writ petition

i) Invoking the extra-ordinary jurisdiction of this Hon’ble High

Court challenging the rectification order dated 15.11.2023

passed under section 161 of the Karnataka Goods and Service

Tax Act, 2017 / Central Goods and Service tax Act, 2017 (for

short ‘the KGST/CGST Act, 2017’) read with section 73(9) of

the KGST/CGST Act, 2017 by the Respondent No.5 for the tax

period 2018-19. Original rectification order dated 15.11.2023

passed u/s 161 of the KGST/CGST Act, 2017 r/w section

73(9) of the KGST/CGST Act, 2017 by the Respondent No.5

for the tax period 2018-19 bearing T. No. ACCT

(Audit)-1.6/DGSTO-1/23-24 and 695/2023-24 is enclosed

herewith and marked as Annexure–A1.

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ii) Invoking the extra-ordinary jurisdiction of this Hon’ble High

Court challenging the rectification order and summary of

Rectification / Withdrawal Order in Form GST DRC-08 dated

15.11.2023 issued online by the Respondent No.5 for the tax

period 2018-19. Copy of the rectification order and summary

of Rectification / Withdrawal Order in Form GST DRC-08

dated 15.11.2023 issued by the Respondent No.5 for the tax

period 2018-19 bearing reference no. ZD2911230188010 and

downloaded from the GST Common Portal is enclosed

herewith and marked as Annexure–A2.

iii) Invoking the extra-ordinary jurisdiction of this Hon’ble High

Court challenging the notice dated 12.10.2023 issued under

section 161 of the KGST / CGST Act, 2017 by the Respondent

No.5 for the tax period 2018-19. Original notice dated

12.10.2023 issued under section 161 of the KGST / CGST Act,

2017 by the Respondent No.5 for the tax period 2018-19

bearing T.No.668/23-24is enclosed herewith and marked as

Annexure–B.

iv) Invoking the extra-ordinary jurisdiction of this Hon’ble High

Court challenging the order of adjudication dated 30.09.2023

passed under section 73(9) the KGST/CGST Act, 2017 by the

Respondent No.5 for the tax period 2018-19. Original order of

adjudication dated 30.09.2023 passed under section 73(9)

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the KGST/CGST Act, 2017 by the Respondent No.5 for the tax

period 2018-19 bearing T. No. ACCT (Audit)-1.6 / DGSTO-

1/23-24 and T. No. 650/23-24 is enclosed herewith and

marked as Annexure–C1.

v) Invoking the extra-ordinary jurisdiction of this Hon’ble High

Court challenging the order under section 73 and summary of

the Order in Form GST DRC-07 dated 30.09.2023 issued

online by the Respondent No.5 for the tax period 2018-19.

Copy of the order under section 73 and summary of the Order

in Form GST DRC-07 dated 30.09.2023 issued online by the

Respondent No.5 for the tax period 2018-19 bearing

reference no. ZD290923057110H and downloaded from the

GST Common Portal is enclosed herewith and marked as

Annexure–C2.

vi) Invoking the extra-ordinary jurisdiction of this Hon’ble High

Court challenging the provisions of section 16(4) of the

Central Goods and Services Tax Act, 2017 and section 16(4)

of Karnataka Goods and Services Tax Act, 2017 (hereinafter

referred to as “CGST Act” and “KGST Act” respectively) which

are manifestly arbitrary and discriminatory and thus violative

of Article 14, 19(1)(g), 21 and 300A of the Constitution of

India. The provisions of section 16(4) of the CGST Act, 2017

and KGST Act, 2017 are enclosed and marked as Annexure-

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D1 and Annexure-D2 respectively. The provisions of section

16(4) which read identically under CGST Act and KGST Act

are extracted as follows:

“(4) A registered person shall not be entitled to take

input tax credit in respect of any invoice or debit note for

supply of goods or services or both after the due date of

furnishing of the return under section 39 for the month

of September following the end of financial year to which

such invoice or invoice relating to such debit note

pertains or furnishing of the relevant annual return,

whichever is earlier”.

IV. BRIEF FACTS OF THE CASE:

1. The Petitioner is a Private Company engaged in the business of

providing Management Consultancy, Liaisoning and Advisory

Services, etc., to its clients. The Petitioner is duly registered under

the GST laws with GSTIN – 29AADCI7083F1ZC (borne on the files

of LGSTO-131).

2. The Respondent No.5, the Assistant Commissioner of Commercial

Taxes, (Audit) 1.6, DGSTO-1, Bengaluru issued notice on

20.09.2022 in Form ADT-01 calling for producing and verification of

the books of accounts and other records of the Petitioner in terms

of the provisions of Section 65 of the CGST/KGST Act, 2017. The

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Petitioner produced the books of account and furnished all the

documents called for from time to time.

3. The Respondent No. 5, thereafter, issued Audit Observation Notice

on 06.01.2023 and Addendum to the Notice on 08.02.2023

containing 7 observations in total. For which, the Petitioner has filed

detailed response on 13.03.2023 for all the audit observations.

4. The Respondent No.5, subsequently, issued Audit Report in Form

GST ADT-02 on 31.03.2023 in which out of the total of 7 audit

observations initially raised, 2 audit observations were dropped and

5 audit observations were retained. Copy of the audit report dated

31.03.2023 in Form GST ADT-02 is enclosed herewith and marked

as Annexure-E.

5. On the basis of the above audit report, the proper officer issued

Show Cause Notice u/s 73 on 10.08.2023 proposing to demand and

recover GST on account of various disallowances of input tax credit

along with interest and penalty. Copy of the show-cause notice

dated 10.08.2023 is enclosed herewith and marked as Annexure-

F.

6. The Petitioner furnished the response against the above-mentioned

Show Cause Notice on 16.09.2023 rebutting all the proposals made

therein. The Petitioner has specifically requested for personal

hearing to be granted to the Petitioner before the passing of the

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order. Copy of the reply filed to the show-cause notice vide letter

dated 16.09.2023 is enclosed and marked as Annexure-G.

7. However, the Respondent No.5, without affording any such

opportunity of personal hearing and without appreciating any of the

submissions of the Petitioner has passed the impugned order of

adjudication dated 30.09.2023 by which GST, interest and penalty

of Rs. 93,33,469/- has been demanded, the details of which are as

under:

Particulars IGST CGST SGST Total

(1) Disallowance of
ITC to the extent of
claim in GSTR-3B - 12,15,000 12,15,000 24,30,000
which are not
reflected in GSTR-2A.

(2) Disallowance of
ITC u/s 16(4) for the
reason that supplier
- 4,50,000 4,50,000 9,00,000
has not furnished the
GSTR-1 within
stipulated time.

(3) Disallowance of
ITC for the reason the
payment to sundry - 93,051 93,051 1,86,102
creditor is beyond the
stipulated period.

Total Tax (1+2+3) - 17,58,051 17,58,051 35,16,102

Interest 7,79,873 23,42,942 23,42,942 54,65,757

Penalty - 1,75,805 1,75,805 3,51,610

Total 7,79,873 42,76,798 42,76,798 93,33,469

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Copy of the impugned order of adjudication dated 30.09.2023 is

already enclosed and referred to as Annexure-C1.

8. Shortly thereafter, on 12.10.2023, the Respondent No.5 issued

notice u/s 161 of the KGST / CGST Act, 2017 seeking to rectify the

above order of adjudication dated 30.09.2023 based on issue raised

by service analysis wing of the office of the Commissioner of

Commercial Taxes, the Respondent No. 4.

9. The Petitioner was constrained to seek time for responding to the

same in view of the fact that the chartered accountant representing

the Petitioner was occupied with the annual filings under the

Income Tax Act and the Companies Act during the period of October

and November. The Respondent No.5 without affording a fair

opportunity to the Petitioner to file its responses proceeded to pass

the rectification order.

10. This is how the impugned rectification order u/s 161 of KGST /

CGST Act, 2017 dated 15.11.2023 came to be passed by the

Respondent No.5 wherein the above proposal came to be confirmed

in gross violation of principles of natural justice by which GST,

interest and penalty of Rs. 93,33,469/- has been demanded, the

details of which are as under

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Particulars IGST CGST SGST Total

Tax -
Disallowance of
ITC u/s 16(4) for
the reason that - 38,38,832 38,38,832 76,77,664
supplier has not
furnished the
GSTR-1 within
stipulated time)
Interest 7,79,873 29,48,196 29,48,196 66,76,265

Penalty - 3,83,883 3,83,883 7,67,766

Total 7,79,873 71,70,911 71,70,911 151,21,695

11. In the above rectification order u/s 161 of KGST / CGST Act, the

disallowance of Input Tax Credit under CGST of Rs. 38,38,832/- and

under SGST of Rs. 38,38,832/- has been made by invoking

provisions under section 16(4) of KGST / CGST Act, 2017 for the

period October 2018 to March 2019 was sought to be made

resulting in additional tax, interest and penalty proposed to be

demanded and recovered. In place of the earlier demand as per the

order of adjudication dated 30.09.2023 of Rs.93,33,469/-, the

demand as per the rectification u/s 161 dated 15.11.2023 is Rs.

1,51,21,695/-.

12. According to this notice, the input tax credit could have been

availed by the Petitioner for these relevant months only if the

returns in Form GSTR-3B had been filed by 20.10.2019 which is the

due date for filing the return for the month of September 2019. The

Petitioner having filed the returns for the relevant months on

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22.07.2020, the availment of input tax credit is barred by the

provisions of section 16(4) of KGST / CGST Act, 2017.

13. The delay in filing the monthly returns in GSTR-3B in the above

notice is in respect of the three months of January 2019 to March

2019. All these three GSTR-3B’s have been filed on 07.02.2020. In

the view of the Respondent No.5, the Petitioner ought to have filed

the GSTR-3Bs latest by 20.10.2019 to claim the ITC. Thus,

according to the interpretation of section 16(4) of CGST / KGST Act,

2017 adopted by Respondent No.5, the GSTR-3B’s being filed

beyond 20.10.2019, the claim of ITC stands barred by limitation.

This has been tabulated on page 22 of the said notice for

rectification dated 12.10.2023.

14. The Petitioner submits that it is aggrieved by the above the

impugned rectification order dated 15.11.2023 passed by the

Respondent No.5 in as much as the same I passed entirely without

jurisdiction per se. In fact, the very issuance of notice u/s 161 of

KGST / CGST Act, 2017 in the present case is without jurisdiction

per se. The detailed grounds in respect of this are set out

separately herein.

15. The only ground on which tax has been demanded in the impugned

rectification order dated 15.11.2023 is the disallowance of input tax

credit (ITC) by invoking the provisions of section 16(4) of KGST /

CGST Act, 2017.

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16. The Petitioner submits that the interpretation placed on the

provisions of section 16(4) by the Respondent No.5 in the present

case is entirely erroneous and unreasonable. Furthermore, the

onerous provisions of section 16(4) are manifestly arbitrary and

discriminatory and thus violative of Article 14, 19(1)(g), 21 and

300A of the Constitution of India and require to be quashed.

17. The Petitioner craves leave of this Hon’ble Court to produce further

information and other documents other than enclosed as annexures

to this petition, if necessary, at the time of hearing of this petition.

18. The Petitioner, being aggrieved by the above impugned rectification

order dated 15.11.2023 passed u/s 161 of KGST / CGST Act, 2017

which is passed without jurisdiction per se and also in gross

violation of principles of natural justice, has no other efficacious

alternative remedy whatever to secure relief but to approach this

Hon’ble Court by way of the present writ petition. Similarly, the

order of adjudication dated 30.09.2023 passed u/s 73 of KGST /

CGST Act, 2017 is also passed in gross violation of principles of

natural justice. Furthermore, the petitioner has also challenged the

constitutional validity of the provisions of section 16(4) of KGST /

CGST Act.

19. Without prejudice, the Petitioner places reliance on the decision of

the Hon’ble Supreme Court:

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a) L.K.Verma Vs. HMT and another (2006) 2 SCC 269 (SC):

b) Harbanslal Sahnia Vs. Indian Oil Corporation Limited (2003) 2

SCC 107

c) Calcutta Discount Co., Vs. ITO (1961) 41 ITR 191 (SC)

d) Whirlpool Corporation Vs. Registrar of Trademarks, Mumbai

and Others (1998) 8 SCC 1(SC).

e) Popcorn Entertainment and Another Vs. City Industrial

Development Corporation and Another.(2007) 9 SCC 593

(SC).

f) Beharilal Shyamsunder Vs. STO (1966) Vol LX Page No.260.

g) Jeans Knit Private Limited Vs. CIT (2017) 390 ITR 10 (SC).

20. The Petitioner has not filed any appeal before any court or

before any other appellate authority in respect of the impugned

orders and show-cause notice, except by the way of filing this writ

petition before this Hon’ble Court.

GROUNDS OF PETITION

21. The impugned rectification order passed by the Respondent No. 5

u/s 161 of the KGST / CGST Act, 2017 dated in Annexure-A1 & A2,

the notice for rectification u/s 161 of the KGST / CGST Act, 2017

dated 12.10.2023 in Annexure-B, order of adjudication u/s 73 of

the KGST / CGST Act, 2017 in Annexures-C1 & C2, in so far as it is

against the petitioner are opposed to law, weight of evidence,

probabilities, facts and circumstances of the petitioner’s case.

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22. The Petitioner is filing the present Writ Petition on the following,

amongst other grounds, which are taken without prejudice to one

another and such other grounds that may be urged at the time of

hearing the Petition.

23. The various grounds in the present writ petition may be succinctly

summarized and concised as follows:

i) Grounds on rectification proceedings are without jurisdiction

per se.

ii) Grounds on impugned rectification order and the order of

adjudication are passed in gross violation of principles of

natural justice.

iii) Grounds on interpretation and constitutional validity of

section 16(4) of CGST / KGST Act, 2017.

iv) Grounds on interest and penalty.

24. Grounds on rectification proceedings are without jurisdiction

per se:

24.1. The Petitioner submits that the impugned rectification order

dated 15.11.2023 passed u/s 161 of KGST / CGST Act, 2017

is entirely without jurisdiction per se. Consequently, the said

order is not sustainable in law and is liable to be quashed on

the facts and circumstances of the case.

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24.2. The rectification order is said to be passed u/s 161 of KGST /

CGST Act, 2017 which concerns only errors apparent on the

face of the record. The provisions of section 161 of KGST /

CGST Act, 2017 are extracted herein below for facility of

ready reference:

Rectification of errors apparent on the face of

record.
Section 161. Without prejudice to the provisions of
section 160, and notwithstanding anything contained
in any other provisions of this Act, any authority,
who has passed or issued any decision or order or
notice or certificate or any other document, may
rectify any error which is apparent on the face
of record in such decision or order or notice or
certificate or any other document, either on its own
motion or where such error is brought to its notice by
any officer appointed under this Act or an officer
appointed under the State Goods and Services Tax
Act or an officer appointed under the Union Territory
Goods and Services Tax Act or by the affected person
within a period of three months from the date of
issue of such decision or order or notice or certificate
or any other document, as the case may be:
Provided that no such rectification shall be done after
a period of six months from the date of issue of such
decision or order or notice or certificate or any other
document:
Provided further that the said period of six months
shall not apply in such cases where the rectification is
purely in the nature of correction of a clerical or
arithmetical error, arising from any accidental slip or
omission:
Provided also that where such rectification adversely
affects any person, the principles of natural justice
shall be followed by the authority carrying out such
rectification.

24.3. In the first instance, the error supposedly pointed out in the

rectification notice dated 12.10.2023 is not an error

apparent on the face of the record. On the contrary, it is a

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new proposal to demand additional tax on new ground which

was never in contemplation in the earlier proceedings.

24.4. Admittedly, the genesis of this new proposal is traceable not

to the records of the earlier proceedings but certain new

material. Kind attention of this Hon’ble Court is drawn to

para 8 of the Preamble in the rectification order dated

15.11.2023 (Annexure-A1) which is as follows:

“8. Subsequently, the Service Analysis Wing of the

office of the Commissioner of Commercial Taxes
have raised the issue relating to U/s 16(4) of the
KGST/CGST Act, 2017 for the belated returns filed by
the taxable person in the present case and the
proposed total ITC shall be restricted in the present
case is at SGST and CGST of Rs.38,38,832.00 each.”

24.5. The Petitioner respectfully submits that the above in

unmistakable terms states that the issue raised now is

something new. It did not exist earlier. Nor did it find any

expression, intention or proposal in the earlier audit or

adjudication proceedings. Since the time the audit

proceedings began, there was no whisper of this issue ever.

24.6. The Petitioner submits that the above issue was never

included in any of the audit observations dated 06.01.2023

or in the addendum dated 08.02.2023. It was not in the

audit report dated 31.03.2023 or in the intimation u/s 73(5)

in Form GST DRC-01A. It was also not in the show-cause

notice in Form GST DRC-01 dated 16.09.2023. It was not in

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the order of adjudication dated 30.09.2023. Thus, what is

now being made out in the rectification proceeding is clearly

a new and fresh case for disallowance u/s 16(4) on the

grounds of belated filing of the returns by the Petitioner.

24.7. In the rectification order u/s 161 dated 15.11.2023, for the

first time the disallowance of input tax credit u/s 16(4) of the

KGST / CGST Act, 2017 has been made citing the reason

that the Petitioner has filed its monthly returns in Form

GSTR-3B for the period October 2018 to March 2019.

24.8. At this juncture, it is submitted that though one of the

disallowances in the earlier order of adjudication dated

30.09.2017 also invoked the disallowance u/s 16(4) of the

KGST / CGST Act, 2017, it was on the reasoning that the

supplier of the Petitioner had not filed his GSTR-1 well within

the stipulated period. Thus, the ground for invoking the very

provision of section 16(4) of the KGST / CGST Act, 2017 in

the order of adjudication dated 30.09.2023 and the

rectification order dated 15.11.2023 are entirely different.

24.9. In place of the earlier demand as per the order of

adjudication dated 30.09.2023 of Rs.93,33,469/-, the

demand as per the rectification u/s 161 dated 15.11.2023 is

Rs. 1,51,21,695/-.
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24.10. Consequently, the order of rectification is quantitatively and

qualitatively different from the original order or adjudication

passed. Also, the rectification order, even on a cursory

glance, is entirely different in its contours and complexion

from the order of adjudication which it sought to rectify

seemingly on the error apparent on record. Admittedly,

these could not have been undertaken in exercise of powers

conferred u/s 161 of KGST / CGST Act, 2017.

24.11. In short, the supposed error in the order of adjudication

dated 30.09.2023 is neither an ‘error’ nor does it emanate

from the ‘record’ of the adjudication proceedings.

Furthermore, nor is it ‘apparent on the face of the record’.

Accordingly, the supposed error is not amenable to

rectification u/s 161 of the KGST / CGST Act, 2017 on the

facts and circumstances of the case.

24.12. The Petitioner respectfully reiterates that the powers of

rectification conferred u/s 161 of KGST / CGST Act, 2017 are

limited to rectifications of errors apparent on the face of the

record. The powers u/s 161 of KGST / CGST Act, 2017 are

akin to power of review of civil court under Order 41 Rule 1.

It is available only if the error is self-evident from the

records without having to depend on external material. The

error has to be a patent one. In the guise of rectification,

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rewriting the entire order is not permissible. Reliance in

this regard is placed on the judgement of the Hon’ble

Calcutta High Court in Sajal Kumar Das v. State of West

Bengal [2024] 158 taxmann.com 690, copy of which is

enclosed herewith and marked as Annexure-H1.

24.13. When the ground on which the disallowance is sought to be

made in itself has undergone sea change between the order

of adjudication and the rectification order, it cannot by any

stretch of imagination said to be in the nature of rectification

of errors apparent on the face of the record.

24.14. The submissions of the Petitioner are also fortified by the

provisions of section 75(7) of KGST / CGST Act, 2017. The

said sub-section is extracted hereunder for the facility of

ready reference:

Section 75. General provisions relating to

determination of tax
(7) The amount of tax, interest and penalty
demanded in the order shall not be in excess of the
amount specified in the notice and no demand shall
be confirmed on the grounds other than the grounds
specified in the notice.

24.15. The Petitioner submits that the above provisions of section

75 are to be applied in determining the tax u/s 73. There can

be no dispute in so far as that is concerned. The ‘notice’

referred to in section 75(7) is the notice issued u/s 73(1)

and commonly referred to as the show-cause notice.

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24.16. The provisions of section 75(7) have only codified or

embodied the salutary principles of common law evolved by

the courts under the erstwhile regimes that the order of

adjudication cannot travel beyond the scope of the show-

cause notice.

24.17. The Petitioner submits that once the show-cause notice

never contained the proposal to demand certain amount of

tax and also never made out a case on a particular ground,

in the order of adjudication such additional tax on such new

ground is not permissible. This is the effect of the operation

of the provisions of section 75(7).

24.18. Therefore, when such an additional demand and more so on

a new ground could not have been made in the order of

adjudication itself, it is, thereafter, a far-fetched overreach

on part of the adjudicating authority to characterize it as an

error on the face of the record.

24.19. In other words, what could not have been done in the

original order cannot also be done by exercising the powers

of rectification for there is no error in the first place, much

less an error apparent on record. It is also a well settled

position of law that what cannot be done directly cannot be

done indirectly.
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24.20. The Petitioner submits that if the revenue has any grievance

on the new ground that emerged after the conclusion of the

adjudication proceedings, the approach ought to be to

initiate another fresh adjudication proceeding u/s 73 of

KGST/CGST Act, 2023 by issuance of appropriate notices at

appropriate stages. There can be no determination of tax by

by-passing the various stages of adjudication proceedings.

24.21. It is pertinent to take note at this stage that the registered

person has several rights that accrue in any adjudication

proceeding. Wherever a discrepancy is pointed out in

scrutiny of the returns u/s 61 or an audit u/s 65 of KGST /

CGST Act, 2017, the registered person can discharge the

same along with interest. Thereafter, there is no penal

consequence and in fact adjudication proceedings

themselves cannot be initiated. Even where the adjudication

proceedings are initiated an intimation of quantification of

the tax is to be issued u/s 73(5) / 74(5) of KGST / CGST Act,

2017, whereupon the registered person is entitled to

discharge the same with interest and concessional penalty

(15%) and thereafter the adjudication cannot be proceeded

with. Even where a show-cause notice is issued u/s 73(1) /

74(1) of KGST / CGST Act, 2017, the registered person is

entitled to pay the tax along with interest and concessional

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penalty (25%) and the adjudication cannot be proceeded

with.

24.22. In light of the above, it would be possible to appreciate that

when a new ground and additional tax is brought to tax in

the garb of rectification proceedings u/s 161 of KGST / CGST

Act, 2017, it is not just a technical irregularity but grave

prejudice caused to the registered person who is deprived of

the various precious rights that accrue to him otherwise if

proper fresh proceedings were to be initiated. Therefore, it is

definitely impermissible to allow the revenue to bypass the

regular adjudication proceedings in respect of new grounds

and additional tax proposal in rectification proceedings. The

provisions of section 75(7) of CGST / KGST Act, 2017 is

therefore an inbuilt procedural safeguard which needs to be

mandatorily implemented and it is therefore prayed before

this Hon’ble Court accordingly.

24.23. In view of the above, it is humbly submitted that the action

of the Respondent No.5 in initiating the rectification

proceedings u/s 161 of KGST / CGST Act, 2017 to bring to

tax additional amounts on new ground is not just a

procedural irregularity but a jurisdictional error.

24.24. It is the submission of the Petitioner that Respondent No.5

has no jurisdiction per se to proceed u/s 161 of KGST / CGST

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Act, 2017 in as much as there is no error apparent on the

face of the record. And therefore, the impugned rectification

order dated 15.11.2023 and even the very notice u/s 161 of

KGST /CGST Act, 2017 deserve to be quashed on the facts

and circumstances of the case.

25. Ground on interpretation and constitutional validity of

section 16(4) of CGST / KGST Act, 2017:

25.1. In passing the rectification order u/s 161 of KGST / CGST

Act, 2017, the Respondent No.5 was of the view that since

the returns in Form GSTR-3B were filed after the time

permitted in section 16(4) of the CGST / KGST Act, 2017 the

input tax claimed in these returns are inadmissible.

25.2. It is submitted that the above reasoning is completely

contrary to the express provisions contained in section 16(4)

of the CGST / KGST Act in as much as the provisions of

section 16(4) do not state that where the return is filed

beyond the time mentioned therein, the input tax credit is

inadmissible.

25.3. It is most respectfully submitted that the present is only a

case of the Petitioner filing belated returns for the months

under appeal and intimating the department of the input tax

credit taken in the respective months. It is not a case of

taking credit in any subsequent period. In other words, the

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input tax credit is taken in the month to which they pertain

to and not in any subsequent month or period. When the tax

credit is taken in the respective month and that fact is

intimated subsequently by filing a belated return, the factum

of the actual availment of the credits in the respective

months does not stand altered. Therefore, it is important to

distinguish the act of taking the credit from the act of

intimating the taking of the credit.

25.4. In this context, kind attention is drawn to section 16(1)

which clearly demarcates two distinct aspects in relation to

input tax credit. The phrase used in Section 16(4) are

'entitled to take' the credit. The words ‘entitled to take

credit’ signify the eligibility of the claiming credit and

claiming the same in the books of accounts. As per the

provisions of Section16(1), there are two limbs, (i)

entitlement to take credit of input tax and (ii) credit to the

electronic credit ledger of such person.

25.5. The time limit specified in section 16(4) of the Act is only on

‘entitlement to take credit’ and not for ‘credit to the

electronic credit ledger’.

25.6. The act of taking credit in fact does not take place in the

return filed in GSTR-3B. The function of the return in GSTR-

3B is only that of an intimation of taking the credit.

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Consequent upon filing of the return in GSTR-3B, credit to

the electronic credit ledger takes place. In the books of

account, these are duly reflected already in the respective

months.

25.7. Thus, it is most respectfully submitted that the input tax

credit has been taken by the Petitioner in the respective

months of October 2018 to March 2019 itself. The return

filed for these months belatedly only depicts the input tax

credit taken by the Petitioner in the these respective months.

25.8. When the Petitioner filed the return in GSTR-3B for these

months subsequently, the fact of taking such credit is

intimated to the GST department. Therefore, when the

returns in GSTR-3B for these months came to be filed

subsequently, it is not and cannot be construed as a case of

taking the input tax credit at the time of filing the returns in

GSTR-3B.

25.9. The form of the return in GSTR-3B may be perused in this

connection. The relevant columns for the input tax credit can

be found in Column No.4. The Column 4(A) reads as “ITC

Available”. From a reading of this column header and also

other headers, it becomes clear that the return in Form

GSTR-3B is only an intimation of the ITC Available to the

taxpayer. It cannot be construed, therefore, that the filing of

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the return in GSTR-3B is the act of taking input tax credit.

Just to reiterate, it only means and can mean that it is an act

of intimating the input tax credit available to the taxpayer.

By corollary, the act of taking credit does not happen in the

monthly return in GSTR-3B.

25.10. Having addressed the position in law that the taking of credit

does not happen in the return filed by the taxpayer, the

Petitioner wishes to most humbly submit that the only

possible manner in which the law could have envisaged the

taking of the input tax credit is in the books of the taxpayer.

25.11. In support of the above proposition of law, the Petitioner

places reliance on the judgement of the Hon’ble Supreme

Court in the case of Union of India v. Bharti Airtel Ltd

[2021] 131 taxmann.com 319 (SC).

25.12. In the above judgement, more particularly at para 35 the

Hon’ble Supreme Court has expounded the manner in which

the self -assessment has to be done for the purposes of

section 59 of the Act. The relevant portion of para 35 is

extracted below:

“To put it differently, for submitting return under

section 59, it is the registered person who has to
undertake necessary measures including of
maintaining books of accounts for the relevant
period either manually or electronically. On the
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basis of such primary material, self-assessment
can be and ought to be done by the assessee about
the eligibility and availing of ITC and of OTL,
which is reflected in the periodical return to be filed
under section 59 of the Act.”
[Emphasis supplied]

25.13. In essence, what the Hon’ble Supreme Court has explained

is that under the GST regime also, the primacy is given to

books of account of the taxpayer. The taxpayer is required to

reflect in the periodical returns to be filed, the position as

obtained in the books of account. Further, para 34 of the

judgement specifically states that “The input tax credit is

additionally recorded in the electronic credit ledger of such

person under the Act”. Therefore, the electronic credit ledger

and the entry made therein is only additional and is not the

primary source of the input tax credit.

25.14. The kind attention of this Hon’ble Court is also drawn to para

33 of the above judgement. The relevant portion is extracted

below:

“The primary source is in the form of agreements,

invoices/challans, receipts of the goods and services
and books of accounts which are maintained by the
assessee manually/electronically. These are not
within the control of the tax authorities. This was the
arrangement even in the pre-GST regime whilst
discharging the obligation under the concerned
legislation(s). The position is no different in the post-
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GST regime, both in the matter of doing self-
assessment and regarding dealing with eligibility to
ITC and OTL.”

25.15. The Petitioner has herein earlier submitted that the input tax

credit has already been taken by the Petitioner in his books

of account in the respective months. This fact was intimated

by filing the respective returns for these months

subsequently. It is only that such return was belated filed.

The time limit u/s 16(4) of the Act is only for taking the

input tax credit and not for intimating the fact of such taking

of the input tax credit. Accordingly, it is the most respectful

submission of the Petitioner that there is no irregularity

whatsoever in the taking of the credit and intimating of such

credit on the facts and circumstances of the case.

Consequently, the demand raised for refund of such input

tax credit in the present case is not in accordance with law

and is liable to be deleted, cancelled and set aside.

25.16. It is further submitted that the self-assessment tax on the

returns were duly discharged, if any. Thereby in terms of

section 2(117) of the Act, the return in question is a valid

return. The above return having been filed along with late

fees is a valid and regular return in terms of the Act. It may

be taken note that there is no time limit within which a

belated return may be filed. Therefore, as long as the return

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is filed along with late fees, the return would be a valid

return. Furthermore, these returns have not been rejected or

invalidated by the department.

25.17. It is submitted that a belated return whenever filed and

accepted in law as a valid return would be effective from the

time it ought to have been filed, based on the ‘doctrine of

relation back’. It is for this precise reason that the interest, if

any, on the tax payable is also levied from such time.

Therefore, when the Petitioner has already suffered the

consequences of interest and late fee, it cannot again be

visited with unintended consequence of losing the input tax

credit which has already vested in it by due operation of law.

On taking the credit in the books of account in the respective

months, the input tax credit has already vested in it. Such a

right to input tax credit is indefeasible in law. Reliance is

placed on the judgement of the Hon’ble Supreme Court in

Collector of Central Excise v. Dai Ichi Karkaria Ltd 1999

(112) ELT 353.

25.18. Therefore, there can be no question of forfeiture of right to

such tax already paid by the Petitioner in the form of input

taxes. Any demand to refund the same would be without the

authority of any law in terms of Article 265 of the

Constitution and would be wholly impermissible. It would

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also be completely contrary to the philosophy of seamless

flow of credits espoused by the GST regime. Further reliance

is placed on the judgement of the Hon’ble High Court of

Karnataka in Kirloskar Electric Co. Ltd v. State of

Karnataka [2018] 50 GSTR 385 (Karnataka).

25.19. Therefore, it is the most respectful submission of the

Petitioner that the fact that the return was filed belatedly

cannot negate the entitlement of the Petitioner to the input

tax credit. The machinery provision cannot control the

substantive right of the taxpayer more so when it has duly

vested in the taxpayer by operation of law.

25.20. Furthermore, it is submitted that the return in GSTR-3B

though belated, on payment of late fees would relate back to

the respective month for which it is filed by the operation of

the doctrine of relation back which is well recognized in law.

In Bharat Bhushan Jindal v. Pr. CIT (2021), the Hon’ble

Delhi High Court applied the doctrine of relation back to

decide whether the revenue's appeal would be considered

pending on the specified date, 31-1-2020, which was

important in determining whether the assessee could benefit

from the Direct Tax Vivad se Vishwas Act, 2020. The

Income-tax Appellate Tribunal, by judgment dated 11-5-

2020, while recalling its judgment dated 22-6-2018, restored

 DRAFT
the revenue's appeal and rescheduled it for a new hearing

under section 254(2) of the Income-tax Act, 1961. The Court

stated that the order dated 11-5-2020, recalling the

dismissal order, "would have to be construed,

metaphorically, as one breathing life into a dead appeal, in

light of the doctrine of relation back," and that, given the

logical implication of the doctrine of relation back, the

revenue appeal would be said to be pending as of 31-1-

2020. The Petitioner is well aware that the case relied upon

is in the context of income-tax law. Nevertheless, the

principle enunciated therein is equally applicable in any

matter including any tax matter. Also, it is not unknown in

tax jurisprudence to rely upon principles laid down in direct

taxes and indirect taxes interchangeably.

25.21. The manner in which the Respondent No.5 has interpreted

the provisions of section 16(4) of CGST / KGST Act leads to

the vested right of the Petitioner being taken away which is

arbitrary and hence violative of Article 14 and also violative

of Articles 19(1)(g), 21 and 300A of the Constitution. The

constitutional validity of the provisions of section 16(4) of

CGST / KGST Act, 2017 is pending before this Hon’ble Court

in several matter including Bagmane Developers Private

Limited v. Union of India in WP No.9430/2020 (T-

Res). Copy of the case status along with the orders passed
 DRAFT
in Bagmane Developers Private Limited v. Union of

India in WP No.9430/2020 (T-Res) by this Hon’ble Court

is enclosed herewith and marked as Annexure-H2.

25.22. The Petitioner further relies on the various other interim

orders passed by this Hon’ble Court in this regard as follows:

(i) Suvastu Projects Private Limited v. The Commercial

Tax Officer in WP No. 21615/2023 dated 21.09.2023;

enclosed herewith as Annexure-H3.

(ii) M/s. Thacher Parambath Abdul Rawoof v. Commercial

Tax Officer in WP No.21211/2023 dated 19.09.2023;

enclosed herewith as Annexure-H4.

(iii) M/s. Durga Construction Co. v. The Commercial Tax

Department in WP No.23076/2023 dated 12.10.2023;

enclosed herewith as Annexure-H5.

25.23. The Petitioner further submits that similar challenges to the

vires of the provisions of section 16(4) are pending before

the Hon’ble High Court of Gujarat. Copy of the order dated

27.01.2021 passed by the High Court of Gujarat in Surat

Mercantile Association v. Union of India [2021] 85 GST

184 (Gujarat) is enclosed herewith and marked as

Annexure-H6.
 DRAFT
25.24. The Petitioner also relies on the recent judgement of the

Madurai Bench of the Hon’ble Madras High Court in Tvl.

Kavin HP Gas Gramin Vitrak W.P.(MD).Nos.7173 and

7174 of 2023 dated 24.11.2023 wherein the Hon’ble

Court held that when the Rules specifically prescribes GSTR-

2 to specify the inward supplies for claiming ITC, when the

said form is not notified, the petitioner cannot be expected

to file the same to claim ITC. Copy of the judgement in Tvl.

Kavin HP Gas Gramin Vitrak W.P.(MD).Nos.7173 and 7174 of

2023 dated 24.11.2023 is enclosed herewith and marked as

Annexure-J.

25.25. The Respondent failed to appreciate that the provision 16(4)

is violative of Articles 13 and 14 of the Constitution of India

and it imposes unreasonable restriction on holding of

property. The petitioner places reliance on the parity of

reasoning of the decision of the Hon’ble Supreme Court's

decision in the case of K.T. Moopil Nair v. State of Kerala

AIR 1961 SC 552.

25.26. It is a well-settled rule of construction that the provisions of

a statute should be so read as to harmonize the same with

one another and the provisions of one section cannot be

used to defeat those of another unless it is impossible to

effect the reconciliation between them. It is well –

 DRAFT
established rule that statute has to be read so as to make it

valid.

25.27. It is a sound rule of interpretation that a statute should be

so construed so as to prevent the mischief and to advance

the remedy according to the true intention of the makers of

the statute. Further, procedural enactments should be

construed liberally and in such manner as to render the

enforcement of substantive rights.

25.28. It is well-known principle of interpretation that when

construing a fiscal statute, the court has to lean its

interpretation in favour of the subject rather than in favour

of the State.

25.29. A provision in a fiscal statute which is intended for the

benefit of the taxpayer must be construed liberally in favour

of the tax payer with a view to ensuring the benefit to him

and not in a narrow and pedantic manner with an eye to

deprive him of the benefit. When a taxing statute admits of

two reasonable constructions, the constructions most

favourable to the taxpayer should be adopted.

25.30. The petitioner submits that the impugned rectification order

passed under section 161 of the CGST/KGST Act by the

Respondent No.5 is contrary to the provisions of section 16

 DRAFT
of the CGST/KGST Act as the Respondent No.5 has not taken

into consideration several contentions raised herein by the

petitioner and consequently the order passed by the

Respondent No.5 are contrary to the provisions of the

CGST / KGST Act.

26. Grounds on impugned rectification order and the order of

adjudication are passed in gross violation of principles of

natural justice.:

26.1. The Petitioner submits that the impugned rectification order

dated 15.11.2023 passed u/s 161 of KGST / CGST Act, 2017

is also in gross violation of principles of natural justice.

Consequently, the same is liable to be quashed on the facts

and circumstances of the case.

26.2. The Petitioner also submits that the impugned order of

adjudication dated 30.09.2023 passed u/s 73(9) of KGST /

CGST Act, 2017 is also in gross violation of principles of

natural justice. Consequently, the same is liable to be

quashed on the facts and circumstances of the case.

26.3. In so far as the rectification order dated 15.11.2023 it is

submitted that the Respondent No.5 has shown undue haste

in passing the same without affording the Petitioner

adequate and fair opportunity of being heard. The Petitioner

was constrained to seek time for placing its replies and

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objections to the notice of rectification dated 12.10.2023.

This was in the backdrop of the chartered accountant of the

Petitioner being preoccupied with other professional

commitments of annual filings under the Income Tax Act and

the Companies Act in the late October and early November

2023.

26.4. The Respondent No.5, no doubt has allowed three

adjournments and adhered to the letter of law in section

75(4) of KGST / CGST Act, 2017 and for this purpose only

allowed short duration of 3 days even without considering

the practical difficulties faced by the Petitioner and more so

when huge tax consequences were involved. The undue

haste of the Respondent No.5 can only be explained by the

pre-conceived and pre-determined conclusion and intention

to foist huge liability on the Petitioner.

26.5. In view of the inadequate opportunities, the Petitioner could

not make proper representation before Respondent No.5

which has resulted in miscarriage of justice in the present

case and resulted in huge demand of tax, interest and

penalty.

26.6. In so far as the order of adjudication dated 30.09.2023 is

concerned, the Petitioner submits that the same was passed

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without even affording the opportunity of personal hearing

despite the same being sought by the Petitioner.

26.7. The Petitioner has very clearly sought for personal hearing in

its letter dated 16.09.2023 for physical hearing before the

conclusion and passing of the order, which has been denied

to the Petitioner and gravely prejudicing the Petitioner.

26.8. The Petitioner submits that affording proper, adequate and

fair opportunity of being heard including a personal hearing

is part of the principles of natural justice. It is submitted that

the law recognizes that even without any request for

personal hearing made by party concerned, opportunity of

personal hearing was to be provided when any adverse

decision was contemplated against person chargeable with

tax or penalty. Reliance in this regard is placed on Granzio

Transmission India (P) Ltd v. State of Gujarat [2022]

143 taxmann.com 381 (Gujarat).

26.9. It is most respectfully submitted that the principles of

natural justice embodied in the Latin dictum “audi alteram

partem” means that a person has right to be heard by way

of opportunity, which should be adequate and reasonable, so

as to enable the person affected to meet the case against

him. No man may be condemned without hearing him out. In

order that he is so enabled, he should know the case against

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him. It is this principle which was enforced by a Bench of

three judges in Rakesh C. Rastogi Vs. Appropriate Authority

(2002) 253 ITR 94 (SC) setting aside the order of the

Appropriate Authority, where the comparative instances

relied upon by the applicant were not considered before an

order was passed and the reasons, which prompted the

Authority to reject the comparability of the cases relied upon

were not disclosed. In all such cases, it is clear that a fair

opportunity means not only hearing the assessee on the

interference drawn, but also giving a further opportunity,

when the explanation given is not satisfactory. It is only such

an opportunity, which meets the basic requirements of basic

principles of natural justice.

26.10. The Petitioner further places reliance on the following

decisions:

(i) Prakash Chand Nahta Vs. CIT (2008) 301 ITR 134

(MP).

(ii) CIT Vs. Ashwani Gupta (2010) 322 ITR 396 (Delhi).

(iii) Syed Yakoob Vs. K.S.Radhakrishnan and Others AIR

1964 SC 477.

(iv) Sahara India (firm) Vs. CIT (2008) 300 ITR 403 (SC).

(v) Rajesh Kumar Vs. DCIT (2006) 287 ITR 91 (SC).

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(vi) Shri Mariammal Fire Works Vs. Commissioner of

Commercial taxes, Chepauk, Chennai and Another

(2011) 38 VST 345 (Mad).

(vii) Whirlpool Corporation Vs. Registrar of Trade Marks

(1998) 8 SCC (1).

(viii) SRC Projects Private Limited Vs. Commissioner of

Commercial taxes, Chennai and Another (2010) 33

VST 333 (Mad).

(ix) Universal Music India P.Ltd Vs. CTO (2011) 39 VST

36 (Mad).

(x) S.Kathiresan Vs. DCTO (2011) 40 VST 399 (Mad).

(xi) In Assotech Reality Pvt Ltd Vs State of UP (2007) 11

STJ 209.

27. Grounds on interest and penalty:

27.1. It is submitted that the demand of interest is not in accordance

with the law on the facts and circumstances of the case.

27.2. It is submitted that on account of the various grounds

elaborated already, there is no liability to tax or reverse the

input tax credit and accordingly, there can be no liability to

interest totaling to Rs.45,92,716/- under section 50(3) of

CGST/ KGST Act, 2017 on the facts and circumstances of the

case.
 DRAFT
27.3. The Petitioner also submits that the levy and demand of

interest to the extent of Rs.20,83,549/- purportedly for filing of

belated returns by the Petitioner are also not in accordance

with law. The Respondent No.5 has failed to take into account

the ground realities in the present case that the same occurred

on account of things beyond the control of the Petitioner for

which the Petitioner cannot be held liable. The fact is that the

bank account of the Petitioner was put under lien by the GST

department disabling the bank account operation and it is in

this background that the Petitioner was constrained to file

belated returns with belated payment of tax.

27.4. It is further submitted that the imposition of penalty is also not

in accordance with law. It is submitted that on account of the

various grounds elaborated already, there is no liability to tax

or reverse the input tax credit and accordingly, there can be no

liability to penalty on the facts and circumstances of the case.

27.5. Accordingly, it is prayed that this Hon’ble Court may be pleased

to delete the levy of interest and also penalty under CGST /

KGST Act, 2017.

28. The Petitioner submits that the various grounds on which the

disallowances were made in the original order of adjudication dated

30.09.2023 have been eclipsed and overshadowed by the ground of

disallowance u/s 16(4) on the alleged belated filing of the returns by

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the Petitioner. In view of this, the Petitioner has not set out grounds

on merits of the issues which formed the grounds in the order of

adjudication which are not really germane to the challenge in this writ

petition. The Petitioner craves leave of this Hon’ble Court to raise the

same, if necessary, in the course of hearing of this writ petition. The

aspect of disallowance u/s 16(4) of KGST / CGST Act, 2017 has been

elaborately dealt with in view of the challenge to the constitutional

vires as well as interpretation of the same.

29. For the above grounds and other grounds that may be urged at the

time of hearing of the petition, the petition may be allowed, and

justice rendered.

30. GROUNDS FOR INTERIM RELIEF

30.1. The Petitioner submits that the Petitioner adopts, reiterates

and maintains the grounds made herein in support for the

interim relief.

30.2. The Petitioner submits that the impugned rectification order

dated 15.11.2023 is not in accordance with law and in fact

without jurisdiction per se. Further, the interpretation of

provisions of section 16(4) of the CGST / KGST Act, 2017

adopted by the Respondent No.5 is not sustainable in law and

also violative of various Articles of the Constitution.

 DRAFT
30.3. The Petitioner also submits that the impugned order of

adjudication dated 30.09.2023 is not in accordance with law in

as much as the same is passed in gross violation of principles

of natural justice.

30.4. Consequently, the demand raised thereunder is also not in

accordance with the law. The impugned orders have caused

serious prejudice to the petitioner. Therefore, the operation of

the orders is liable to be stayed by the Hon’ble Court during

the pendency of this writ petition in the interest of justice.

30.5. The Petitioner submits that it has a good case on law and grave

injustice would be caused to the Petitioner if the impugned

orders are not stayed by this Hon’ble Court. On the contrary no

hardship would be caused to the Respondents if the prayer for

interim relief is allowed. The balance of convenience lies in

favour of the Petitioner.

30.6. Therefore, the Petitioner humbly submits that the impugned

rectification order u/s 161 of KGST / CGST Act dated

15.11.2023 in Annexure-A1 and the consequential order and

summary of the order issued online dated 15.11.2023 in

Annexure-A2 are liable to be stayed by this Hon’ble Court

during the pendency of this writ petition in the interest of

justice.
 DRAFT
30.7. Similarly, the Petitioner humbly submits that the impugned

order of adjudication u/s 73(9) of KGST / CGST Act in

Annexure-C1 and the consequential order and summary of the

order issued online in Annexure-C2 are liable to be stayed by

this Hon’ble Court during the pendency of this writ petition in

the interest of justice.

30.8. The petitioner submits that if the balance of the disputed tax,

interest and penalty are not stayed, the Respondent No.5 will

proceed to take coercive measures to recover the same without

further notice.

30.9. The Petitioner submits that it has paid the amount of Rs.

7,67,768/- being 10% of the disputed tax by way of pre-

deposit voluntarily. Copy of the Form GST DRC-03 bearing ARN

AD290224018117B dated 14.02.2024 is enclosed herewith and

marked as Annexure-K. Accordingly, the recovery of the

balance of the disputed tax, interest and penalty of Rs.

1,43,53,927/- is liable to be stayed during the pendency of this

writ petition.

31. PRAYER

Wherefore, it is prayed that this Hon’ble Court be pleased to:

i) Issue a writ of Certiorari or direction in the nature of a writ or

certiorari quashing the rectification order dated 15.11.2023

passed under section 161 of the KGST/CGST Act, 2017’ read

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with section 73(9) of the KGST/CGST Act, 2017 by the

Respondent No.5 for the tax period 2018-19 bearing T. No.

ACCT (Audit)-1.6/DGSTO-1/23-24 and 695/2023-24, herein

enclosed and marked as Annexure-A1.

ii) Issue a writ of Certiorari or direction in the nature of a writ or

certiorari quashing the rectification order and summary of

Rectification / Withdrawal Order in Form GST DRC-08 dated

15.11.2023 issued online by the Respondent No.5 bearing

reference no. ZD2911230188010, herein enclosed and

marked as Annexure-A2.
 DRAFT
iii) Issue a writ of Certiorari or direction in the nature of a writ or

certiorari quashing the notice dated 12.10.2023 issued under

section 161 of the KGST / CGST Act, 2017 by the Respondent

No.5 for the tax period 2018-19 bearing T.No.668/23-24,

herein enclosed and marked as Annexure-B.

iv) Issue a writ of Certiorari or direction in the nature of a writ or

certiorari quashing the order of adjudication dated

30.09.2023 passed under section 73(9) the KGST/CGST Act,

2017 by the Respondent No.5 for the tax period 2018-19

bearing T. No. ACCT (Audit)-1.6 / DGSTO-1/23-24 and T. No.

650/23-24, herein enclosed and marked as Annexure-C1.

v) Issue a writ of Certiorari or direction in the nature of a writ or

certiorari quashing the order under section 73 and summary

of the Order in Form GST DRC-07 dated 30.09.2023 issued

online by the Respondent No.5 for the tax period 2018-19

bearing reference no. ZD290923057110H, herein enclosed

and marked as Annexure-C2.

vi) Declare that the impugned provisions of section 16(4) of the

Central Goods and Services tax Act, 2017 is illegal, arbitrary,

unreasonable, unfair, discriminative and violative of various

Articles of Constitution particularly Articles 14, 19(1)(g), 21,

300A and issue a Writ of Certiorari or any other appropriate

writ or order or direction and quash the impugned provisions

 DRAFT
of section 16(4) of the Central Goods and Services tax Act,

2017 referred as Annexure-D1.

vii) Declare that the impugned provisions of section 16(4) of the

Karnataka Goods and Services tax Act, 2017 is illegal,

arbitrary, unreasonable, unfair, discriminative and violative of

various Articles of Constitution particularly Articles 14, 19(1)

(g), 21, 300A and issue a Writ of Certiorari or any other

appropriate writ or order or direction and quash the impugned

provisions of section 16(4) of the Karnataka Goods and

Services tax Act, 2017 referred as Annexure-D2.

viii) And pass such other orders as this Hon’ble Court deems fit

and proper in the interest of justice and equity.

32. PRAYER FOR INTERIM RELIEF

The Petitioner most respectfully submits that, this Hon'ble Court may

be pleased to issue an ad-interim order:

a) Stay the operation of the rectification order dated 15.11.2023

passed under section 161 of the KGST/CGST Act, 2017’ read with

section 73(9) of the KGST/CGST Act, 2017 by the Respondent

No.5 for the tax period 2018-19 bearing T. No. ACCT (Audit)-

1.6/DGSTO-1/23-24 and 695/2023-24, herein enclosed and

marked as Annexure-A1.
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b) Stay the operation of the rectification order and summary of

Rectification / Withdrawal Order in Form GST DRC-08 dated

15.11.2023 issued online by the Respondent No.5 bearing

reference no. ZD2911230188010, herein enclosed and marked as

Annexure-A2.

c) Stay the operation of the order of adjudication dated 30.09.2023

passed under section 73(9) the KGST/CGST Act, 2017 by the

Respondent No.5 for the tax period 2018-19 bearing T. No. ACCT

(Audit)-1.6 / DGSTO-1/23-24 and T. No. 650/23-24, herein

enclosed and marked as Annexure-C1.

d) Stay the operation of the order under section 73 and summary of

the Order in Form GST DRC-07 dated 30.09.2023 issued online

by the Respondent No.5 for the tax period 2018-19 bearing

reference no. ZD290923057110H, herein enclosed and marked as

Annexure-C2.

e) Stay the recovery of the balance disputed demand of tax, interest

and penalty of Rs. 1,43,53,927/- arising out of the rectification

order dated 15.11.2023 passed under section 161 of the

KGST/CGST Act, 2017’ read with section 73(9) of the KGST/CGST

Act, 2017 by the Respondent No.5 for the tax period 2018-19

bearing T. No. ACCT (Audit)-1.6/DGSTO-1/23-24 and 695/2023-

24, herein enclosed and marked as Annexure-A1 and the

 DRAFT
rectification order and summary of Rectification / Withdrawal

Order in Form GST DRC-08 dated 15.11.2023 issued online by

the Respondent No.5 bearing reference no. ZD2911230188010,

herein enclosed and marked as Annexure-A2.

f) Grant such other reliefs as this Honorable High Court may think

fit including the cost of this writ petition.

Place: Bangalore
Date: 16.02.2024 Advocate for the Petitioner
Address for Service
G. Venkatesh, Advocate
No.6, 1st Floor,
1st Main, Club Road,
Above Dreamzz Baby Shop,
Opp. Bansuri Sweets,
Vijayanagar, Bangalore - 560 104
venkatesh.blore@gmail.com
+91 9980564337