IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.27161/2019 (T – RES) BETWEEN:
Mr. AZEEZ MOHAMMED PARTNER M/s OKAY ENTERPRISES NO.84, I FLOOR, II MAIN NEW THARAGPET, BANGALORE-560 002 TIN: 29671201328/LVO-110 ... PETITIONER [BY SRI A.SATYANARAYAN, ADV.] AND:
1. THE COMMISSIONER OF COMMERCIAL TAXES (KARNATAKA) VTK-1, 1ST FLOOR, GANDHI NAGAR BANGALORE-560 009 2. THE ASST. COMMISSIONER COMMERCIAL TAXES, AUDIT-3.7, DGSTO-3, 2ND FLOOR, ROOM NO.202, BMTC, SHANTHINAGAR BANGALORE-560 027 …RESPONDENTS [BY SRI T.K.VEDAMURTHY, AGA.] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED RE-ASSESSMENT ORDER UNDER SECTION 39(1) RWR 46, 36(1), 72(2) DATED 29.04.2019 MARKED AS ANNEXURE-A WITH LIBERTY TO RE DO RE-ASSESSMENT IN ACCORDANCE WITH LAW ENSURING APPROPRIATE RELIEF TO TREAT SECTION 11(d) PROSPECTIVELY W.E.F. 01.04.2015. SINCE IT AS TREATED AS RESPECTIVELY FOR THE YEAR 2014- 2015 IN ACCORDANCE WITH LAW AND TO GRANT THE REFUND OF TAXES OF INTEREST OF PENALTY RECOVERED ILLEGALLY ADDITIONAL LEVY BOTH UNDER KST & CST ACT.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the re-assessment order passed by respondent No.2 under Section 39(1) read with Sections 72(2) and 36(1) of the Karnataka Value Added Tax Act, 2003 (‘KVAT Act’ for short) relating to the tax periods 2014-15.
2. The petitioner was a registered dealer under the provisions of the KVAT Act relating to the tax periods in question. Re-assessment proceedings were concluded and being aggrieved by the said re- assessment order, the petitioner is before this Court. Primary ground of challenge is inasmuch as the jurisdiction of the Officer to pass the re-assessment order under Section 39(1) of the KVAT Act.
3. Learned counsel for the petitioner placing reliance on the Division Bench judgment of this Court in the case of M/s. Vaishnavi Coco Products vs. Addl. Commissioner of Commercial Taxes in STA Nos.152/2016 & 12-18/2017 (D.D. 08.11.2017) submitted that the Commissioner has not issued any express authorization to the Officer – Asst. Commissioner of Commercial Taxes, Audit 3.7, Bengaluru – 27 to make the re-assessment in the petitioner’s case relating to the tax periods in question. Reliance is placed on Section 2(24) of the KVAT Act.
4. Learned Additional Government Advocate appearing for the revenue has filed a memo along with the Assignment Order of the Commissioner dated 20.09.2018, whereby the Commissioner has assigned the re-assessment work to the Asst. Commissioner of Commercial Taxes, Audit 3.7, Bengaluru – 27.
5. Having heard the learned counsel appearing for the parties and perusing the material on record, it is evident from the order of the Commissioner dated 20.09.2018 that the Commissioner has assigned the assessment and reassessment as well as the related statutory work to the Asst. Commissioner of Commercial Taxes, Audit 3.7, Bengaluru – 27. The said assignment order is in conformity with Section 2(24) of the KVAT Act, wherein the prescribed authority who is competent officer under Section 39 of the KVAT Act is described. It is beneficial to quote the said provision which reads as under:-
“2(24) ‘Prescribed authority’ means an officer of the Commercial Taxes Department, authorised by the Government or the Commissioner to perform such functions as may be assigned to him.”
6. As aforesaid, the Commissioner of Commercial Taxes has assigned the functions to be performed by the Asst. Commissioner of Commercial Taxes, Audit 3.7, to reassess the assessee under Section 39 of the KVAT Act as Prescribed Authority. The said position being clear, the petitioner is at liberty to file an appeal against the re-assessment order on any other grounds aggrieved.
7. Accordingly, the writ petition stands disposed of, with liberty to the petitioner to file an appeal before the statutory Appellate Authority within a period of two weeks from the date of receipt of certified copy of the order. If such an appeal is filed, the Appellate Authority shall consider the appeal on merits in accordance with law without objecting to the period of limitation.
All the rights and contentions of the parties are left open.
PMR Sd/- JUDGE