IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.8163/2019 (T – RES) BETWEEN :
M/s ABB INDIA LTD., PLOT 4, 5 & 6, 2ND PHASE, PEENYA INDUSTRIAL AREA, BENGALURU-560 058 (REP. BY ITS AVP-FINANCE & TAXATION, Mr. SANTOSH KUMAR HEGDE, AGED 56 YEARS) ...PETITIONER (BY SRI G.SHIVADASS, SENIOR ADV. FOR SMT.PREETHA MAHADEVAN, ADV.) AND :
1. STATE OF KARNATAKA THROUGH ITS PRINCIPAL SECRETARY, FINANCE DEPARTMENT, VIDHANA SOUDHA, BANGALORE-560 001.
2. THE COMMISSIONER OF COMMERCIAL TAXES IN KARNATAKA, "VANIJYA THERIGE KARYALAYA", GANDHINAGAR, BANGALORE-560 009.
3. DEPUTY COMMISSIONER OF COMMERCIAL TAXES (AUDIT)-6.1, DGSTO-6, 3RD FLOOR, KIADB BUILDING BANGALORE-560 058. …RESPONDENTS (BY SRI T.K.VEDAMURTHY, AGA.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH TEH IMPUGNED ORDER AND DEMAND NOTICE DATED 23.01.2019 AT ANNEXURE-A TO THE WRIT PETITION, PASSED BY THE R-3.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Learned AGA is permitted to accept notice for the respondents.
2. The petitioner has challenged the order and demand notice dated 23.01.2019 issued by the respondent No.3 relating to the tax periods April 2016 to March 2017.
3. The petitioner is engaged in the business of manufacture and sale of electrical/electronic products and execution of work contracts for transmission and distribution of electricity. The petitioner is a registered dealer under the provisions of the Karnataka Value Added Tax Act, 2003 (‘KVAT Act’ for short) and under the Central Sales Tax Act, 1956 (‘CST Act’ for short).
4. The petitioner has claimed the concessional rate of tax on the inter-state sales made to dealers against ‘C’ Forms. The respondent No.3 issued notice dated 11.12.2018 under Section 9(2) of the CST Act, 1956 r/w Sections 36(1) and 38 of the KVAT Act, 2003, proposing to conclude re-assessment of the petitioner for the tax period from April 2016 to March 2017 and demanding the differential tax for the value of the turnover for which the statutory forms were not filed.
5. The petitioner has filed the reply and requested for time to furnish the statutory forms as the same had to be collated from their customers situated in other States.
6. It is the grievance of the petitioner that on 22.1.2019 a letter was filed providing details of additional statutory forms that were submitted and sought further time for furnishing required statutory forms. However, the respondent No.3 has concluded the assessment on 23.1.2019 without providing sufficient opportunity to the petitioner to furnish the statutory forms.
7. Learned senior counsel Sri.G.Shivadass appearing for the petitioner, in support of his contention, placed reliance on the judgment of this Court in the very same assessee’s case in W.A.Nos.1098-1109/2015 (D.D.20.3.2015).
8. Learned AGA supporting the impugned order would submit that adequate opportunity was provided to the assessee/petitioner to furnish the statutory forms. Despite the same, required statutory forms were not furnished. Hence, there is no fault on the part of the respondent No.3 in concluding with the assessment.
9. Having heard the learned counsel for the parties and considering the totality of the circumstances of the case, this Court is of the considered opinion that fair and reasonable opportunity requires to be given to the petitioner to furnish valid statutory forms as time frame was denied by the respondent No.3. In such circumstances, the Division Bench of this Court considering Rule 12(7) of the Central Sales Tax (R & T) Rules, 1957, held that the declaration Form-‘C’ is to be furnished within three months after the end of the period to which the declaration relates. However, proviso to the said Rule provides that if the Prescribed Authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration within the said time, the Prescribed Authority may allow further time for furnishing such declaration. The same would mean that the discretion lies with the Assessing Authority for extending the time and once the discretion is vested in an Authority, it has to be exercised in a judicious and fair manner. Having considered the said aspects, further time was granted to the petitioner to furnish the statutory forms.
10. In the light of the said judgment, this Court is of the considered view that justice would be sub-served in setting aside the assessment order impugned herein and direct the petitioner to furnish statutory forms ‘C’, ‘F’ and ‘H’ with the Assessing Authority/respondent No.3 within two months i.e. on or before 25.04.2019 and avail the benefit of concessional rate of tax. The respondent No.3 shall proceed to pass fresh orders in accordance with law after 25.04.2019 irrespective of whether the petitioner submits the required statutory forms or not, on the basis of the available material on record. Ordered accordingly.
With the aforesaid observations and directions, writ petition stands disposed of.
Sd/- JUDGE Dvr: