IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI W.P. Nos.20614/2017 & 20705-708/2017 (T – RES) BETWEEN:
Bengaluru Water Supply and Sewage Board, 1st Floor Cauvery Bhavan, K G Road Bangalore 560 009 Represented by its Financial Advisor & Chief Accounts Officer Sri R Ramanna. … Petitioner (By Sri V S Arbatti, Advocate) AND:
1. The State of Karnataka Represented by its Joint Commissioner of Commercial Taxes (Enforcement) South Zone, Bangalore-560 034.
2. The Deputy Commissioner of Commercial Taxes (Audit)-1.6 DVO-1, T.T.M.C Building 3rd Floor, Yeshwanthpura Bangalore-560 022. ... Respondents (By Sri T K Vedamurthy, AGA) These writ petitions are filed under Articles 226 and 227 of Constitution of India, praying to quash the order dated 18.4.2017 at Annexure-D and demand notice dated 18.4.2017 at Annexure-E passed and issued by R2 and direct R2 to consider the requests of the petitioner at Annexure-B and grant an opportunity of hearing before proceeding with further action in the matter.
These petitions coming on for preliminary hearing `B’ group , this day, the Court made the following:-
ORDER In the instant writ petitions, the petitioner has sought for the following reliefs:
a) Issue a writ of certiorari, or any other appropriate writ, or order or direction in the nature of a writ, thereby quashing the order in T.No.7/17-18 dated 18.04.2017 (Annexure-D) and Demand Notice No.DCCT (Audit)- 1.6/DVO-1/2017-18 dated 18.04.2017 (Annexure-E) passed and issued by respondent No.2;
b) Issue a writ of mandamus, or any other appropriate writ, or order or direction in the nature of a writ, thereby directing Respondent No.2 to consider the requests of the petitioner as per `Annexure-B’ and grant an opportunity of hearing before proceeding with further action in the matter;
c) Award the costs of this petition; and d) Grant any other appropriate relief as are deemed necessary in the circumstances of the case in the interest of justice and equity.
2. Learned counsel for the respondents raised preliminary objection that writ petitions are not maintainable in view of the statutory remedy available to the petitioner against the impugned order under Section 13 of the Karnataka Tax on Entry of Goods Act, 1979. At this juncture, learned counsel for the petitioner submitted that the issue is relating to levy of interest on the belated payment of entry tax during the period from 2000-01 to 2004-05.
3. Undisputedly, petitioner had not remitted any entry tax timely. He had remitted the tax liability of Rs.1,58,04,036/- on 4.11.2009, for which, the concerned Authority has proceeded to issue notice on 28.3.2017 and further the order has been passed on 18.4.2017.
4. Learned counsel for the petitioner submitted that Section 5(B) of the Entry Tax Act, 1979 has been introduced w.e.f. 1.4.2014 and issuing notice under Section 5(B) of the Act is not applicable for the issue relating to the assessment for the year 2000-01 to 2004-
05. Therefore, writ petitions could be entertained.
5. Heard the learned counsel for the parties.
6. No doubt, the concerned Authority passed the order on 18.4.2017 under Section 5(B) of the Entry Tax Act, 1979. Even though, as on the date of order dated 18.4.2017, levying of interest on entry tax is Section 5(B) of the Act. At the same time, interest for the period from 2000-01 to 2004-05 was remitted in the year 2009, which is required to be examined under the provisions of the Entry Tax Act and not under Section 5(B) of the Act. Merely quoting wrong provision does not vitiate the order when the source of power is available. The Apex Court in the case of N Mani –vs- Sangeetha Theatre and others reported in (2004) 12 SCC 278 examined in respect of quoting a wrong provision and held that such decision is not vitiated. Therefore, petitioner has remedy under Section 13 of the Act in making an appeal against the impugned order. Accordingly, writ petitions are premature and the same stand disposed of reserving liberty to the petitioner to make necessary appeal under Section 13 of the Act, 1979 within four weeks from the date of receipt of this order. Time spent by the petitioner before this Court in prosecuting the instant petitions be examined and the Appellate Authority is hereby requested to condone the delay on a necessary application.
Sd/- JUDGE Bkm