1/5 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16th DAY OF OCTOBER, 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.33846 OF 2017 (T-RES) Between:
M/s. Bangalore Airport Hotel Limited , Alpha-2, Administrative Block Kempegowda International Airport Bengaluru-560300.
(Represented by its Chief Financial Officer Shri. Chandrasekar S) (By Mr. Shivadass G., Advocate) And:
…Petitioner 1. State of Karnataka, Through its Principal Secretary, Finance Department, Vidhana Soudha, Bangalore-560001.
2. The Commissioner of Commercial Taxes, “Vanijya Therige Karyalaya”, Gandhinagar, Bangalore-560009.
3. Assistant Commissioner of Commercial Taxes, Audi-5.10, DVO-5, Bangalore-560047.
… Respondents (By Mr. T.K.Vedamurthy, AGA) This Writ Petition is filed under Article 226 of the Constitution of India, praying to quash the impugned order along with demand notice dated 22.06.2017 at Annex-A, etc.
This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:-
ORDER Mr. Shivadass G, Adv. for Petitioner Mr. T.K.Vedamurthy, AGA for Respondents.
The petition is directed against the assessment order/re-assessment order passed under Section 39(1) of the Karnataka Value Added Tax Act, 2003 (‘KVAT Act, 2003’ for short) raising a demand of Rs.1,08,73,205/- against the petitioner assessee.
2. The learned counsel for the petitioner has submitted that notwithstanding the alternative remedy by way of an Appeal under Section 62 of the KVAT Act, 2003, the case raises an important question about the taxability of Works Contract in the hands of the petitioner assessee and therefore the issue deserves to be decided by this Court.
3. On the other hand, the learned counsel for the Revenue, Mr. T.K. Vedamurthy vehemently submitted that several mixed questions of facts and law are involved in the present case and the petitioner deserves to be relegated to the alternative remedy by way of an Appeal before the Joint Commissioner of Appeals under Section 62 of the KVAT Act, 2003.
4. Having considered the submissions made at the Bar for some time, this Court is of the opinion that several mixed questions of facts and law are involved in the case and therefore unless the facts are crystallized and established with the help of relevant evidence and the taxability under the provisions of the KVAT Act are appropriately adjudicated by the Authorities of the Department upto the Karnataka Appellate Tribunal, it would be premature for this Court to entertain the writ petition under Article 226 of the Constitution of India and decide all the questions here.
5. Under these circumstances, the petition is disposed of on the ground of availability of effective, alternative remedy to the petitioner under Section 62 of the KVAT Act, 2003.
6. The learned counsel for the petitioner at this stage submitted that the limitation of 30 days for filing the Appeal under Section 62 of the KVAT Act, 2003 has expired and that may be condoned here.
7. In the facts and circumstances of the case, it is appropriate to direct that if the Appeal is filed within a period of 15 days from today, the same shall be entertained by the Respondent – Joint Commissioner of Appeals under Section 62 of the KVAT Act, 2003, without raising an objection on the limitation under the provisions of Section 62 of the KVAT Act, 2003. However, the petitioner assessee shall comply with the other conditions for maintaining the said Appeal.
8. The learned counsel for petitioner also pressed for interim protection till the appeal is filed.
9. For a period of 15 days from today only, it is directed that the Respondent Department may not take coercive process for recovery of the disputed demand. However, after the period of 15 days from today, it will abide by the relevant provisions of the KVAT Act, 2003 and the orders passed by the Department Authorities concerned in the matter.
10. With these observations, the writ petition stands disposed of. No costs.
Sd/- JUDGE BMV*