- 1 - NC: 2025:KHC:14538 WP No. 9267 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 9267 OF 2025 (T-RES) BETWEEN: M/S SHIVAPRIYA ENTERPRISES NO.1, GROUND FLOOR, ERLAPPASWAMY NILAYA, KANNAMANGALA POST, KADUGODI, BENGALURU, BANGALORE URBAN, BANGALORE -560 067. (REPRESENTED BY ITS PARTNER MR.KUNWARJI KANJI PATEL) …PETITIONER (BY SRI. SANMATHI E I.,ADVOCATE) AND: 1. THE ASSISTANT COMMISSIONER COMMERCIAL (AUDIT)5.5, DGTO-5, VTK-2, B-BLOCK, 5TH FLOOR, ROOM NO.508, NEAR NATIONAL GAMES VILLAGE, KORMANGALA, BENGALURU-560 098. 2. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT)-5.9, DGSTO-05, ROOM NO.606, 6TH FLOOR, VTK-02, BUILDING, RAJENDRANAGARA, NEAR NATIONAL GAMES VILLAGE, KORMANGALA, BANGALROE-560 047. Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14538 WP No. 9267 of 2025 3. THE COMMISSIONER OF COMMERCIAL TAXES GANDINAGAR, VANIJYA THERIGE BHAVANA BANGALORE -560 001. …RESPONDENTS (BY SRI. HEMAKUMAR., AGA) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE FOLLOWING FORM GST DRC-07 DATED 9/8/2024 BEARING NO.ACCT(A)-5.5/DGSTO-05/ADJ/DRC7/FILE 50/2024-25, ARN/CASE ID AD2905240631785 FOR PERIOD APR 2019-20 MAR 2020 PASSED BY ASSISTANT COMMISSIONER OF COMMERCIAL TAXES 9AUDIT)5.5, DGSTO-5 VTK-2, BANGALORE -ANNEXURE-B AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, petitioner seeks the following reliefs: " Wherefore, under the above facts and circumstances of the case the Petitioner prays that this Hon'ble High Court be pleased to: Issue Writ of Certiorari or writ in the nature of Certiorari quashing the, following :- A. Form GST DRC-07 dated 9/8/2024 bearing No.ACCT(A)-5.5/DGSTO-05/ADJ/DRC7/file: 50/2024-25, ARN/Case Id: AD290524063178S for period Apr 2019-20 Mar 2020 passed by Assistant Commissioner of Commercial Taxes 9Audit)5.5, DGSTO-5 VTK-2, Bangalore -Annexure-B. - 3 - NC: 2025:KHC:14538 WP No. 9267 of 2025 B. Order passed under Section 73 bearing Ref No.ZD2908240380649 dated 9/8/2024 for period Apr 2019- 20Mar 2020 passed by the Assistant Commissioner of, Jurisdiction DGSTO-5, Bangalore, Karnataka, Annexure-C. C. Form GST DRC-07 Summary of order dated 9/8/2024 bearing Ref No.ZD2909240380649 passed by the Assistant Commissioner Jurisdiction, DGSTO-5, Bangalore, Karnatka for period Apr 2019 to Mar 2020-Annexure-D. D. Order under section 74 passed by the Assistant Commissioner, Jurisdiciton, Bengaluru, GSTO-5, Karnataka bearing Ref No.ZD291024080186E for period Apr 2019 to march 2020 dated 29/10/2024- Annexure-E. E. Form GST DRC-07, summary of order dated 29/10/2024 bearing Ref: ZD291024080186E passed by the Assistant Commissioner of, Jurisdiction, DGSTO-5, Bangalore, Karnataka, for period April 2019 to Mar 2020 - Annexure-F. F. Order of adjudication dated 29/10/2024 bearing File No.ACCT(A)-5.9/DGSTO 05/Adj-136/T.No.2024925 passed by the Assistant commissioner of Commercial Taxes, Audit- 5.9, DGSTO-05, Bangalore, Karnataka under section 74 (9) of the Karnataka Goods and Service Tax Act, 2017 and Central Goods and Service Tax Act, 2017 for period Apr 2019 to Mar 2020 - Annexure-G. G. Form GST DRC-07 (Summary of order under section 74(9) dated 29/10/2024 bearing ref No.ACCT(A)- 5.9/DGSTO-05/ADJ-136/T.No.2024-25 by the Assistant Commissioner of Commercial Taxes 1 Audit-5.5 DGSTO-05, Bangalore, Karnataka for period Apr 2019 to Mar 2020 - Annexure-H," 2. Heard learned counsel for the petitioner and learned Addl.Government Advocate for the respondents and perused the material on record. - 4 - NC: 2025:KHC:14538 WP No. 9267 of 2025 3. A perusal of the material on record will indicate that respondent No.1 has initiated proceedings under Section 73 of the Central Goods and Services Tax/State Goods and Services Tax, 2017 (for short, "CGST/SGST Act"), which culminated in an order passed under Section 73(9) of the CGST/SGST Act, dated 09.08.2024, followed by notices issued in this regard to the petitioner. Subsequently, the respondents have once again initiated proceedings under Section 74 of the CGST/SGST Act, against the petitioner, which also culminated in the impugned order dated 29.10.2024, passed by respondent No.2. It is submitted that show cause notices issued by the respondents prior to passing of both the aforesaid orders were not received by the petitioner and it would not reply to the same and as such, the petitioner is before this Court inter alia contending that, if the impugned orders were set aside and the matter is remitted back for reconsideration afresh by directing the respondents to continue the proceedings under Section 73 of the CGST/SGST Act i.e., at the stage of submitting reply by the petitioner to the show cause notice dated 30.05.2024, the petitioner will submit its reply to the same. It is also submitted that the respondents may be directed to proceed further in accordance with law. - 5 - NC: 2025:KHC:14538 WP No. 9267 of 2025 4. Per contra, learned Addl.Government Advocate appearing for the respondents submits that there is no merit in the petition and the same is liable to be dismissed. 5. A perusal of the material on record will indicate that, at the first instance, the respondents have issued show cause notice dated 30.05.2024 invoking Section 73(1) of the CGST/SGST Act, which culminated in the impugned order dated 09.08.2024. However, subsequently, the respondents have also initiated proceedings under Section 74 of the CGST/SGST Act, by issuing show cause notice dated 03.09.2024, which culminated in the impugned order dated 29.10.2024, which is impermissible in law since the respondents are not entitled to parallelly initiate proceedings both under Section 73, as well as, Section 74 of the CGST/SGST Act. It is also relevant to state that both the impugned orders are ex parte orders, inasmuch as, the petitioner has not submitted its reply or contested the proceedings. 6. In so far as the impugned order dated 29.10.2024 vide Annexure-E, passed under Section 74(9) of the KGST Act, by respondent No.1 is concerned, it is an undisputed fact that the said order was passed after and subsequent to respondent No.1 - 6 - NC: 2025:KHC:14538 WP No. 9267 of 2025 already passing an order dated 09.08.2024 under Section 73(9) of the KGST Act, in relation to the very same tax period and in respect of the very same assessee and on the very same subject matter. 7. Under these circumstances, having already passed an order under Section 73(9) of the CGST/SGST Act, dated 09.08.2024, it is impermissible in law for the 1st respondent to pass one more order in respect of the very same subject matter subsequently by invoking Section 74(9) of the CGST/SGST Act and the same deserves to be quashed. Therefore, by adopting justice oriented approach and in order to provide one more opportunity to the petitioner to submit its reply and contest the proceedings, I deem it just and appropriate to set aside the impugned orders and remit the matter back to respondent No.1 for reconsideration afresh in accordance with law. 8. In the result, pass the following: ORDER (i) The Petition is hereby allowed. (ii) Impugned order at Annexure-B, dated 09.08.2024, is hereby quashed. - 7 - NC: 2025:KHC:14538 WP No. 9267 of 2025 (iii) Impugned order at Annexure-G, dated 29.10.2024, is also hereby quashed. (iv) Matter is remitted back to respondent No.1 for reconsideration of the proceedings under Section 73(9) of the CGST/SGST Act, from the stage of the petitioner submitting reply to the show cause notice dated 30.05.2024 and to proceed further in accordance with law. (v) Liberty is reserved in favour of the petitioner to submit additional pleadings, documents, etc., to the respondent, who shall consider the same by providing proper and reasonable opportunity to the petitioner and proceed further in accordance with law. (vi) The petitioner is directed to appear before respondent No.1 on 28.04.2025 without waiting for the further notice from respondent No.1. (vii) It is made clear that in the event the petitioner does not appear before respondent No.1 on 28.04.2025, the present order shall stand automatically recalled and the - 8 - NC: 2025:KHC:14538 WP No. 9267 of 2025 present petition shall stand revived without further orders or reference to the Bench. Sd/- (S.R.KRISHNA KUMAR) JUDGE BK List No.: 1 Sl No.: 30