IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.48604/2019 (T – RES) BETWEEN:
M/S. DC EXPORTS No.368, FLAT No.6, NAINA APARTMENT HAL 2ND STAGE, INDIRANAGARA BANGALORE – 560 038 REPRESENTED BY ITS PROPRIETOR ... PETITIONER [BY SRI E.I. SANMATHI, ADV.] AND:
1. COMMERCIAL TAX OFFICER (AUDIT) – 5.4 VAT DN-5, KORAMANGALA BENGALURU – 560 047 2. DEPUTY COMMISSIONER OF COMMERCIAL TAXES COMMERCIAL TAX BUILDING GANDHINAGARA BANGALORE – 560 009.
…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 FOLLOWING ORDERS OF ASSESSMENT PASSED BY THE R-1 U/S 39(1) R/W SECTION 36(1) AND 37 AND 72(2) OF THE KVAT ACT, 2003 DATED 31.3.2017 (ANNX-D) AND THE CONSEQUENTIAL NOTICE OF DEMAND BOTH DATED 31.3.2017 FOR THE PERIOD APRIL 2010 TO MARCH 2011 (ANNEX-E).
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Learned Additional Government Advocate accepts notice for the respondents.
The petitioner has assailed the orders of assessment passed by respondent No.1 under Section 39(1) read with Sections 36(1), 37 and 72(2) of the Karnataka Value Added Tax Act, 2003 and the consequential notice of demand relating to the tax periods April 2010 to March 2011.
2. The petitioner is a registered dealer under the provisions of the Karnataka Value Added Tax Act, 2003 (‘Act’ for short). The petitioner has filed Form No.100 relating to the tax periods in question. The Assessing Officer – respondent No.1 has passed the ex- parte assessment order under Section 39(1) of the Act against which the petitioner has sought for rectification under Section 69(1) of the Act, which has been partly rejected. Hence, this writ petition.
3. Learned counsel for the petitioner submits that no satisfactory reasons are assigned by the Assessing Officer for subjecting the petitioner to the additional tax liability. Indeed, no proposition notice was duly served on the petitioner. In the absence of the proper service of notice on the petitioner, the ex-parte assessment can not be sustainable and accordingly seeks for remand to the Assessing Officer to reconsider the matter providing an opportunity to the petitioner to putforth its contentions in response to the proposition notice.
4. Learned Additional Government Advocate for the revenue has supported the orders impugned herein.
5. It is apparent that the petitioner was not provided with reasonable opportunity to putforth its contentions in response to the proposition notice issued to conclude the reassessment. It is the contention of the petitioner that the statutory forms filed under Central Sales Tax Act, 1956 pursuant to the assessment concluded has been accepted rejecting the claim made under the provisions of the KVAT Act.
6. In the absence of material placed by the petitioner, having no other option ex-parte assessment has been concluded. However, having regard to the facts and circumstances of the case, this Court deems it appropriate to direct respondent No.1 – Assessing Officer to re-consider the matter providing an opportunity of hearing to the petitioner.
7. Hence, the order and demand notice impugned both dated 31.03.2017 at Annexures – D and E are set aside. The proceedings are restored to the file of respondent No.1. The petitioner shall appear before respondent No.1 on 18.11.2019 without expecting any notice and shall collect the proposition notice and file objections/reply to the proposition notice within a period of two weeks from the date of receipt of proposition notice. Respondent No.1 – Assessing Officer shall consider the objections and after providing an opportunity of hearing to the petitioner, conclude the re- assessment proceedings in accordance with law in an expedite manner.
The writ petition stands disposed of in terms of the above.
Sd/- JUDGE PMR