IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.31830/2017 (EXCISE) BETWEEN:
THE BANGALORE WELFARE AND CULTURAL SOCIETY A SOCIETY REGISTERED UNDER THE PROVISONS OF KARNATAKA SOCIETIES REGISTRATION ACT, HAVING ITS OFFICE AT NO.45, 7TH MAIN, MYSORE ROAD, BENGALURU-560039.
NAMED AS "THE CLUB", REP BY ITS SECRETARY, Mr. Z.H.NASSUR, S/O H.NASSUR AGED ABOUT 67 YEARS. ... PETITIONER [BY SRI MOHAN BHAT, ADV.] AND:
1 . THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT, BENGALURU-560001.
2 . THE DEPUTY COMMISSIONER OF EXCISE BENGALURU URBAN DISTRICT (WEST) POORNIMA BUILDING, J.C.ROAD, BENGALURU-560004.
3 . THE PRINCIPAL ACCOUNT GENERAL (ESRA) KARNATAKA, 1ST FLOOR, "A" BLOCK, RSA WING, NEAR M.S.BUILDING, AUDIT BHAVAN, PARK HOUSE ROAD, BENGALURU-560001. …RESPONDENTS [BY SRI NILOUFER AKBAR, AGA.] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED DEMAND NOTICE DATED 15.09.2016 AT ANNEXURE-D PASSED BY R-2.
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 assailed the demand notice dated 15.09.2016 issued by respondent No.2 whereby the petitioner has been intimated to pay a sum of Rs.27,39,750/- (Rupees Twenty Seven Lakhs Thirty Nine Thousand Seven Hundred and Fifty only) to the Government within fifteen days from the date of receipt of the demand notice.
2. The petitioner is claming to be a Society registered before the Registrar of Societies, Bangalore Urban District, Bangalore, under the provisions of the Karnataka Societies Registration Act, 1960. The petitioner was granted CL-4 licence for the excise year 1993-94 and the same has been renewed till excise year 2016-17. Respondent No.2 herein has issued the demand directing the petitioner to pay the difference of licence fee between the CL-4 and CL-7 licences on the ground that the petitioner was eligible for grant of CL-7 licence. Being aggrieved, the petitioner is before this Court.
3. This Court vide order dated 18.07.2017, permitted respondent No.2 - Deputy Commissioner of Excise to pass fresh orders in accordance with law and to produce before the Court along with the Statement of Objections, directing the petitioner - club to produce relevant evidence and documents before respondent No.2 - Deputy Commissioner of Excise, Bengaluru Urban District (West), Bengaluru, within a period of two weeks. Pursuant to the said directions, respondent No.2 - Deputy Commissioner has passed the order dated 22.08.2017 holding that the petitioner - club has misused the privilege of CL-4 licence by conducting business as CL-7 licence. Hence, the demand raised by the Department for payment of Rs.27,39,750/- towards the difference of CL-7 licence fee is held to be in accordance with law and the petitioner - club is directed to pay the said dues to the Government.
4. The demand notice at Annexure – D impugned herein has been raised on the Audit Enquiry Report dated 09.11.2018. In the said report, reference has been made to the order of this Court dated 06.07.2007 in W.P.No.10530/2007. As could be seen from the order of W.P.No.10530/2007 dated 06.07.2007, this Court has observed thus:-
“2. Having regard to the totality of the facts and circumstances and having regard to the firm denial by the petitioner that it is not classified as a star hotel, in my considered opinion, interest of justice will be met, if the endorsement Annexure – F is treated as a demand notice issued by the Deputy Commissioner of Excise, Bangalore. The petitioner shall file his statement of objections within one week to the said demand notice. Thereafter the Deputy Commissioner of Excise, Bangalore may pass appropriate orders in accordance with law.
In the mean-while, the Deputy Commissioner, Bangalore shall not insist the petitioner to pay the differential license fee till the disposal of the matter by him.
The Deputy Commissioner of Excise, Bangalore shall dispose of the matter within four weeks from the date of receipt of this order.
It is made clear that if the petitioner ultimately fails before the respondent, he shall pay the differential license fee. If the petitioner fulfils other conditions for grant of license, petitioner’s application may be considered in accordance with law, in the mean-while.
3. Accordingly, writ petition is allowed.”
5. In the light of the said decision, it is clear that if the petitioner ultimately fails before the respondent, he is liable to pay the differential licence fee. In view of the decision now taken by respondent No.2 - Deputy Commissioner vide order dated 22.08.2017, the petitioner is liable to pay differential lience fee.
6. However at this juncture, learned counsel for the petitioner makes a request that the petitioner may be provided with an opportunity to challenge the said order before the appropriate forum and till then, the interim protection granted by this Court may be extended.
7. Having regard to the facts and circumstances of the case as aforesaid, the petitioner is permitted to challenge the order dated 22.08.2017 passed by respondent No.2 before the appropriate forum within a period of two weeks from the date of receipt of certified copy of the order. If such proceedings are initiated, the Appellate Authority shall consider the same on merits without objecting to the period of limitation and a decision shall be taken on merits in accordance with law in an expedite manner, in any event, within a period of six weeks from the date of filing of the appeal.
The interim order granted by this Court shall continue to operate for a period of four weeks from today.
With the aforesaid observations and directions, the writ petition stands disposed of.
Sd/- JUDGE PMR