- 1 - HC-KAR NC: 2025:KHC-D:7271 WP No. 103311 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3RD DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR WRIT PETITION NO. 103311 OF 2025 (T-RES) BETWEEN: R.S. ENTERPRISES, DOOR NO.172, 10TH WARD, MEERALAM TALKIES ROAD, HOSPET-583 201, REPRESENTED BY ITS PROPRIETOR, RIKABCHAND HIMATMAL KOTHARI, AGE: 53 YEARS, OCC: BUSINESS, GST NO: 29ABAPN8621P1Z2. …PETITIONER (BY SRI. H.R. KAMBIYAVAR, ADVOCATE) AND: 1. THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT-1) II CROSS, NEHARU COLONY, HOSPET-583 203. 2. THE COMMISSIONER OF COMMERCIAL TAXES IN KARNATAKA, VANIJYA THERIGE KARYALAYA, IST MAIN, GANDHINAGAR, BENGALURU-560 009. 3. THE STATE OF KARNATAKA, REPRESENTED BY ITS FINANCE SECRETARY, VIDHANA SOUDHA, BENGALURU-560 001. 4. THE UNION OF INDIA, REPRESENTED BY ITS FINANCE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, VIJAYALAKSHMI M KANKUPPI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:7271 WP No. 103311 of 2025 NEW DELHI-110 001. 5. THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF EXCISE AND CUSTOMS, GST POLICY WING, NEW DELHI-110 001. …RESPONDENTS (BY SRI. SHARAD V. MAGADUM, AGA FOR R1-R3; SRI. VENKATESH KHARVI, ADVOCATE FOR R4; SRI. GIRISH HULMANI, ADVOCATE FOR R5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING I. TO DECLARE AND STRIKE DOWN SECTION 16 (2) OF THE CGST/SGST ACTS AS BEING UNCONSTITUTIONAL, THE SAME BEING VIOLATIVE OF ARTICLES 14 AND 19(1)(G) OF THE CONSTITUTION OF INDIA. II. IN THE ALTERNATIVE, THE PETITIONER MOST RESPECTFULLY PRAYS THAT THIS HON’BLE HIGH COURT MAY BE PLEASED TO READ DOWN THE PHRASEOLOGY “HAS BEEN ACTUALLY PAID” OCCURRING IN SECTION 16 (2) OF THE CGST/SGST ACTS TO MEAN “OUGHT TO HAVE BEEN PAID”. III. THE PETITIONER MOST RESPECTFULLY PRAYS THAT THIS HON’BLE HIGH COURT MAY BE PLEASED TO ISSUE A WRIT OF CERTIORARI OR A DIRECTION IN THE NATURE OF A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 19.12.2023 PASSED BY RESPONDENT NO.1 BEARING NO. ACCT (AUDIT)-1/HPT/GST- ADJN/ORDER/2023-24/T-389 ANNEXURE- H, F. Y. 2017-18, TO THIS WRIT PETITION. IV. THE PETITIONER MOST RESPECTFULLY PRAYS THAT THIS HON’BLE HIGH COURT MAY BE PLEASED TO ISSUE A WRIT OF CERTIORARI OR A DIRECTION IN THE NATURE OF A WRIT OF CERTIORARI QUASHING THE IMPUGNED FORM GST DRC-13 DATED 06.04.2025, BEARING NO. ACCT(AUDIT-1)/HPT/2025-26/T.NO ANNEXURE - L, - 3 - HC-KAR NC: 2025:KHC-D:7271 WP No. 103311 of 2025 PASSED BY RESPONDENT NO.1, F. Y. 2017-18, TO THIS WRIT PETITION. V. THIS HON’BLE HIGH COURT MAY BE PLEASED TO ISSUE SUCH OTHER WRIT OR WRITS OR DIRECTIONS IN THE NATURE OF A WRIT AS THIS HON’BLE HIGH COURT MAY DEEM IT FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE PETITIONERS CASE. THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR) 1. Learned counsel for the petitioner Sri.H.R.Kambiyavar is present physically along with the learned AGA for respondent Nos.1 to 3 and the learned counsel Sri.Girish Hulmani for respondent No.5. 2. This petition is filed to strike down Section 16(2) of the CGST/SGST Act, 2017 as unconstitutional and violative of Article 14(19)(i) of the Constitution of India and to read down the phraseology “has been actually paid” occurring in Section 16(2) of the CGST/SGST Act to “ought to have been paid”. 3. The petitioner has also questioned the impugned order dated 19.12.2023 passed by the - 4 - HC-KAR NC: 2025:KHC-D:7271 WP No. 103311 of 2025 respondent No.1-Assistant Commissioner of Commercial Taxes (Audit-1) and for consequential relief of certiorari. During the course of arguments learned counsel does not press for the prayers made in I and II. 4. Learned counsel for the petitioner submits that the impugned order passed by respondent No.1 is illegal, violative of the principles of natural justice, barred by the law of limitation and cannot be sustained in view of the provisions of the CGST/SGST Act. Therefore he is before this Court. 5. Learned AGA submits that the petition itself is not maintainable on the ground that there is alternative efficacious remedy available under the Statute namely the Karnataka Goods and Services Tax Act, 2017 more specifically Section 107. He relies upon the judgment of this Court in Writ Petition No.102932/2024 wherein in similar circumstances this Court dismissed the writ petition reserving liberty to the petitioner to approach the - 5 - HC-KAR NC: 2025:KHC-D:7271 WP No. 103311 of 2025 appropriate authority for filing the appeal as prescribed under Section 107 of the KGST Act, 2017. 6. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. 7. The facts are almost similar to the one relied upon by the learned AGA in the above mentioned writ petition. Though learned counsel for the petitioner submits that he is questioning the orders passed under the provisions of Section 73(9) and he would fall within the category of Section 73(10) whereby the time period prescribed is 3 years from the date of furnishing the annual returns for financial year to which the tax is not paid or short paid or input tax credit is wrongly availed. Therefore since within 3 years no proceedings are initiated against him, the proceedings and orders passed by the 1st respondent is bad in law, illegal and the same requires to be set aside. However on careful perusal of the provisions of Section 107 of the KGST Act which prescribes that on any decision or order passed and a person aggrieved by - 6 - HC-KAR NC: 2025:KHC-D:7271 WP No. 103311 of 2025 it under the Karnataka Goods and Services Tax Act by any adjudicating authority may appeal to such appellate authority as may be prescribed within 3 months on the date on which such decision or order is communicated to such person. Therefore on a bare perusal and reading of Section 107 of Clause I, there is no ambiguity that on any order passed by the adjudicating authority an appeal remedy is provided before the appellate authority and the same is already held and decided by this Court in the above mentioned Writ Petition No.102932/2024. Under the circumstances, since the matter is already covered by a Coordinate Bench of this Court, I do not find any good reason to go into the merits of the matter. Accordingly I pass the following: ORDER i. This petition is dismissed. - 7 - HC-KAR NC: 2025:KHC-D:7271 WP No. 103311 of 2025 ii. Liberty is reserved to the petitioner to approach the appropriate appellate authority if so advised. iii. The time spent before this Court shall be condoned on petitioner approaching the appellate authority. Sd/- (PRADEEP SINGH YERUR) JUDGE KGK CT-MCK List No.: 1 Sl No.: 19