IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT APPEAL NO.3974 OF 2019 (T-RES) BETWEEN:
M/S. KESAR FARM A PROPRIETORSHIP FIRM HAVING ITS ADDRESS AT KHEDULYABERA VILLAGE PADAMPURA OFF PUSHKAR BYEPASS AJMER – 305 004, RAJASTHAN REP. BY ITS PROPRIETOR SHRI SHIVLEHRI SHARMA S/O. KEDARLAL SHARMA AGED ABOUT 34 YEARS (BY SRI SANTOSH B.Y, ADVOCATE) …APPELLANT AND:
1. THE ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES (ENFORCEMENT) SOUTH ZONE VANIJYA THERIGE KARYALAYA-2 KORAMANGALA, RAJENDRANAGAR BENGALURU – 560 047 2. THE COMMERCIAL TAX OFFICER (ENF) – 04, SOUTH ZONE-4 VANIJYA THERIGE KARYALAYA-2 KORAMANGALA, RAJENDRANAGAR BENGALURU-560 047 ...RESPONDENTS (BY SRI VIKRAM HUILGOL, HCGP FOR R-1 AND R-2) *** THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 24.10.2019 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.No.50086/2019 AND CONSEQUENTLY ALLOW THE WRIT APPEAL AS WELL AS THE WRIT PETITION.
THIS APPEAL COMING ON FOR PRILIMINARY HEARING THIS DAY, CHIEF JUSTICE, DELIVERED THE FOLLO WING:
JUDGMENT
Heard the learned counsel for appellant.
2. The appellant is the writ petitioner, who challenged the notice of tax and penalty under sub-Section (1)(b) of Section 129 of the Karnataka Goods and Services Act, 2017 and the Central Goods and Services Act, 2017 as well as Section 20 of the Integrated Goods and Service Tax Act, 2017. On the basis of the said notice, an order of demand has been issued on 15th October 2019. The learned Single Judge has declined to entertain the petition on the ground that an efficacious remedy of an appeal under Section 107 of the Central Goods and Services Act of 2017 (for short ‘the Central Act of 2017’) is available.
3. The submission of the learned counsel for appellant is that Sections 129 and 130 of the Central Act of 2017 start with a non obstante clause. Inviting our attention to sub-Section (6) of Section 107 of the Central Act of 2017, he submitted that obviously the remedy under Section 107 of the Central Act of 2017 will not be available. He pointed out various sub-Sections forming a part of Sections 129 and 130 of the Central Act of 2017.
4. Sub-Section (1) of Section 107 of the Central Act of 2017 provides that any person aggrieved by any decision or order passed under the Act or the State Goods and Services Act or the Union Territory Goods and Services Tax Act by an Adjudicating Authority may appeal to the Appellate Authority within the time specified therein. We fail to understand how the non obstante Clauses in both Sections 129 and 130 of the Central Act of 2017, will affect the remedy of an appeal under Section 107 of the Central Act of 2017, in any manner, in as much as, Section 107 of the Central Act of 2017, provides for an appeal against any decision or order. Section 121 of the Central Act of 2017, which starts with a non obstante clause provides that in certain category of cases, no appeal shall lie. The order subject matter of challenge before the learned Single Judge is not covered by Section 121. The submission of the learned counsel for appellant was that in Section 121 of the Central Act of 2017, there is a mistake and it should be read as if the provision is applicable only to a particular Chapter, in which the said provision is there.
5. However, it is not permissible for us to read something in Section 121 of the Central Act of 2017, which is not expressly provided by the Legislature.
6. We, therefore, concur with the view taken by the learned Single Judge that a remedy of an appeal under Section 107 of the Central Act of 2017 was available to the appellant. Hence, we find no merit in the appeal and the same is accordingly dismissed. Time granted by the learned Single Judge to prefer the appeal is extended by another four weeks from today. All contentions urged on merits of the appeal are not considered.
Sd/- CHIEF JUSTICE Sd/- JUDGE VK