M/S SHARANA BASAVESWARA MINING COMPANY vs THE COMMISSIONER OF COMMERCIAL TAXES
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC-D:17389
WP No. 108567 of 2026
CNR: KAHC020187812026
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 16 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE T.M.NADAF
WRIT PETITION NO.108567 OF 2026 (T-RES)
BETWEEN:
M/S. SHARANA BASAVESWARA MINING COMPANY,
TH ND
1/A, 29 WARD, 2 CROSS,
M J NAGAR, NEAR CITI HOSPITAL,
HOSPET, KARNATAKA-583201,
REPRESENTED BY ITS PARTNER
REP. BY SOURABH JAIN.
…PETITIONER
(BY SRI. RAJASHEKAR GUNJALLI, ADVOCATE)
AND:
1. THE COMMISSIONER OF COMMERCIAL TAXES
VANIJYA THERIGE BHAVAN,
GANDHI NAGAR, BENGALURU-560009.
2. THE ASSISTANT COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT),
RANA PRATAP SINGH CIRLCE, JULIE NAGAR,
GANGAVATHI-583227.
3. THE HON'BLE JCCT (A)
DAVANAGERE DIVISION, DAVANGERE,
VANIJYA THERIGE BHAVANA,
DEVARAJ URS LAYOUT, A” BLOCK,
DAVANAGERE-577006.
…RESPONDENTS
(BY SRI. SHARAD V.MAGADUM, AGA FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
Digitally signed by
THEJAS KUMAR N
Location: High
Court of Karnataka,
Dharwad Bench
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO (I)
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HC-KAR
NC: 2026:KHC-D:17389
WP No. 108567 of 2026
CNR: KAHC020187812026
ISSUE WRIT OF CERTIORARI OR IN THE LIKE NATURE OF
CERTIORARI QUASHING THE ADJUDICATION ORDER DATED
06.12.2023 VIDE NO.ACCT/ENF/GVT/ORDER/2023-24/605,
BEARING REF NO. ZD290923001184L, FOR THE ASSESSMENT
ND
YEAR 2017-18 PASSED BY 2 RESPONDENT IS HEREWITH
ENCLOSED AS ANNEXURE-C; AND THE ORDER PASSED BY THE
HON’BLE JCCT(A) DATED 11.06.2026 FOR THE PERIOD 2017-
18 VIDE APPEAL NO.KGST/AP-16/2024-25 IS HEREWITH
RD
ENCLOSE AS ANNEXURE-E PASSED BY 3 RESPONDENT. (II)
ISSUE WRIT OF PROHIBITION, NOT TO PROCEED FURTHER
STEPS OR MEASURES OR ANY SUCH KIND OF INITIATIVES
PERTAINING TO RECOVERY(S) OVER THE IMPUGNED THE
ADJUDICATION ORDER DATED 06.12.2023 VIDE
NO.ACCT/ENF/GVT/ORDER/2023-24/605, BEARING REF NO.
ZD290923001184L, FOR THE ASSESSMENT YEAR 2017-18
ND
PASSED BY 2 RESPONDENT IS HEREWITH ENCLOSED AS
ANNEXURE-C; AND THE ORDER PASSED BY THE HON’BLE
JCCT(A) DATED 11.06.2026 FOR THE PERIOD 2017-18 VIDE
APPEAL NO.KGST/AP-16/2024-25 IS HEREWITH ENCLOSE AS
RD
ANNEXURE-E PASSED BY 3 RESPONDENT. (III) PASS SUCH
OTHER OR FURTHER ORDERS AS THIS HON’BLE COURT MAY
DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THIS CASE,
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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HC-KAR
NC: 2026:KHC-D:17389
WP No. 108567 of 2026
CNR: KAHC020187812026
CORAM: HON'BLE MR. JUSTICE T.M.NADAF
ORAL ORDER
This petition is filed by the petitioner seeking
following reliefs:
“(i) Issue Writ of Certiorari or in the like nature of
Certiorari quashing the Adjudication order dated
06.12.2023 vide no.ACCT/ENF/GVT/Order/2023-
24/605, bearing ref no. ZD290923001184l, for the
nd
assessment year 2017-18 passed by 2
respondent is herewith enclosed as ANNEXURE-C ;
and the order passed by the Hon’ble JCCT(A) dated
11.06.2026 for the period 2017-18 vide Appeal
No.KGST/AP-16/2024-25 is herewith enclose as
rd
ANNEXURE-E passed by 3 respondent.
(ii) Issue Writ of Prohibition, not to proceed further
steps or measures or any such kind of initiatives
pertaining to recovery(s) over the impugned the
Adjudication order dated 06.12.2023 vide
no.ACCT/ENF/GVT/Order/2023-24/605, bearing ref
no. ZD290923001184l, for the assessment year
nd
2017-18 passed by 2 respondent is herewith
enclosed as ANNEXURE-C ; and the order passed
by the Hon’ble JCCT(A) dated 11.06.2026 for the
period 2017-18 vide Appeal no.KGST/AP-16/2024-
25 is herewith enclose as ANNEXURE-E passed by
rd
3 respondent.
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WP No. 108567 of 2026
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(iii) Pass such other or further orders as this Hon’ble
Court may deem fit in the facts and circumstances
of this case, in the interest of justice and equity.”
2. Heard, Sri. Rajashekar Gunjalli, learned counsel
appearing for the petitioner and Sri.Sharad V. Magadum,
learned AGA appearing for respondents- State.
3. The facts germane to file the present petition
are as under.
4. The petitioner is a registered dealer under the
KGST and CGST Acts carrying on mining business. The
petitioner has filed returns for the Financial Year 2017-18
and discharged the tax debt declared therein.
5. As the matter stood thus, on 01.09.2023,
respondent No.2 issued Form GST DRC-01A, proposing
liability towards alleged excess availment of ITC and tax
payable under the RCM on royalty paid to the Department
of Mines and Geology. However, the said intimation was
not duly served upon the petitioner.
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HC-KAR
NC: 2026:KHC-D:17389
WP No. 108567 of 2026
CNR: KAHC020187812026
6. Subsequently, on 25.09.2023, respondent No.2
issued a show cause notice under Section 73 of
KGST/CGST Act, alleging excess ITC claimed in GSTR-3B,
as compared with GSTR-2A and non-payment of tax under
RCM on royalty, proposing tax interest and penalty.
7. The said notice was also according to the
petitioner, not served on it. Thereafter, on 06.12.2023,
without affording any opportunity of hearing and without
granting petitioner an effective opportunity to place its
books of accounts, purchasing invoices and other
supporting documents, respondent No.2 passed the
adjudication order under Section 73(9) read with Section
50 of KGST/ CGST Act and issued DRC-07, confirming the
proposed liability.
8. The petitioner immediately after noticing the
order impugned under DRC-07, preferred an appeal as
provided under the Act before the Joint Commissioner
Commercial Tax (Appeals) challenging the order dated
06.12.2023. Since, the appeal was filed beyond the
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HC-KAR
NC: 2026:KHC-D:17389
WP No. 108567 of 2026
CNR: KAHC020187812026
permissible time limit before the concerned authority
under the statutory provisions, the appeal was dismissed
on the ground of delay stating that the grounds urged in
the appeal were not urged before respondent No.2 and
also on merits. Aggrieved by the same, the petitioner is
before this Court.
9. Learned counsel for the petitioner submits that
once there is a delay in filing the appeal, it goes to the
root of jurisdiction to entertain the appeal. Without
condoning the delay, the authority ought not to have
decided the case on merits, as the same is not enjoined
under Section 107 of GST Act, 2017.
10. Per contra, Sri.Sharad V. Magadum, learned
AGA submits that the power under Section 107 can be
exercised even on merits of the case. In terms of Section
107(12), the authority is bound under law to frame points
for consideration and answer each point for consideration,
even on the merits. In that view of the matter, the order
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HC-KAR
NC: 2026:KHC-D:17389
WP No. 108567 of 2026
CNR: KAHC020187812026
does not suffer from any infirmity and sought to dismiss
the petition.
11. Learned counsel Sri. Rajashekar Gunjalli, relied
on the judgment of Coordinate Bench of this Court in the
case of M/S.TRUPTI AGRO NEEDS VS. THE
ASSISTANT COMMISSIONER OF COMMERCIAL TAXES
1
AND OTHERS , wherein the Coordinate Bench of this
Court, exercising power under Article 226 of Constitution
of India, condoned the delay. The relevant portion of the
order passed in TRUPTI AGRO NEEDS supra, read as
under:
“2. The facts, in a nutshell, are that the petitioner,
a partnership firm, registered under the provisions of the
1
Goods and Services Tax Act, 2017 , was issued a
showcause under Section 73(1) of the Act. Consequent
thereto, an adjudication order dated 26.09.2023
(Annexure-A to the writ petition) was passed by
respondent No.1 – Assistant Commissioner. The said
order was assailed by the petitioner in an appeal filed
under Section 107 of the Act before respondent No.2 –
Joint Commissioner. Respondent No.2, by the impugned
order dated 03.03.2026 (Annexure-B to the writ petition),
dismissed the appeal on the ground that there was a
delay exceeding 226 days in filing the said appeal.
3. Being aggrieved, the present petition is filed.
1
W.P.NO.102348/2026, disposed of on 19.06.2026
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NC: 2026:KHC-D:17389
WP No. 108567 of 2026
CNR: KAHC020187812026
4. Learned counsel for the petitioner submits that,
in similar facts and circumstances, a Division Bench of
this Court in the case of Yallappa Patil vs. Assistant
2
Commissioner and Others , permitted an appeal to be
filed within four weeks and ordered that the same shall be
adjudicated without raising any objection on limitation. A
Co-ordinate Bench of this Court, in various cases, i.e., in
the case of Jai Hind Enterprises vs. Assistant
3
Commissioner of Commercial Taxes and Others as
well as in the case of Bandigisab Maheboobsab
4
Bijapur vs. Assistant Commissioner and Others , in a
similar factual matrix, granted relief and ordered as
under:
“ ORDER
a. The petition is allowed in-part.
b. The petitioner is permitted to file an
appeal against the cancellation of registration
before the Appellate Authority within four weeks
from the date of the receipt of a copy of this order.
c. In the event, the appeal is preferred
within four weeks as aforesaid, it shall be
considered on its merit and not reject the appeal
on the ground of limitation.
d. In the event, the petitioner would not
prefer an appeal within four weeks as permitted
above, the benefit of the order rendered in the
subject petition would not be available to the
petitioner.”
5. Although the learned AGA vehemently contends
that there is no provision to condone the delay, having
regard to the judgments of the Division Bench and the
Coordinate Benches, as noticed above, the writ petition
merits consideration.
6. Hence, the following:
ORDER
a) The writ petition is allowed in part ;
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NC: 2026:KHC-D:17389
WP No. 108567 of 2026
CNR: KAHC020187812026
b) The order dated 03.03.2026 passed in Appeal
No.GST-416/2023-24/13-1670 passed by
respondent No.2 – Joint Commissioner is set aside;
c) The Appeal No.GST-416/2023-24/13-1670
passed by respondent No.2 – Joint Commissioner is
restored to file. The delay in filing the said appeal
is condoned;
d) The respondent No.2 shall adjudicate the said
appeal on merits in accordance with law;
e) All contentions of the parties, on merits of the
matter, are kept open.”
12. Though, condoning delay beyond 120 days is
not amenable to the statutory authorities under the
statute. The delay stated in this petition is 24 days i.e.,
beyond 120 days. Considering the fact that the petitioner
was not notified in respect of the notice earlier issued and
demand made, denial of any opportunity on technicality of
short delay in the case on hand amounts to denial of
substantive right. In that view of the matter, considering
the judgment stated supra, this Court proceeds to pass
the following:
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HC-KAR
NC: 2026:KHC-D:17389
WP No. 108567 of 2026
CNR: KAHC020187812026
ORDER
i. The Writ Petition is allowed .
ii. The order dated 11.06.2026 passed in Appeal
No.KGST/AP-16/2024-25 by respondent No.3 is
set aside.
iii. The Appeal No.ACCT/ENF/GVT/Order/2023-
24/605 passed by respondent No.2 is restored
to file. The delay in filing the said appeal is
condoned.
iv. The matter stands remanded to respondent No.3
to adjudicate the said appeal on merits strictly
adhering to Rule 11 and 12 of 107, after
affording appropriate opportunity to the
petitioner.
v. All contentions of the parties, are left open.
Sd/-
(T.M.NADAF)
JUDGE
RKM
CT: UMD
List No.: 1 Sl No.: 43