1/5 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON'BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.14216/2017 (T - KST) AND WRIT PETITION No.32360/2017 (T - KST) BETWEEN:
M/S. EVEREST MARKETING NO.1075, 27TH MAIN 9TH BLOCK, JAYANAGAR BENGALURU – 560 069 REPRESENTED BY MR.SHIVANANDA B.R., BRANCH MANAGER …PETITIONER (BY SRI.K.J.KAMATHA, ADV.) AND:
1. THE COMMERCIAL TAX OFFICER, AUDIT 3.1 B.M.T.C.BUILDING SHANTHINAGAR BENGALURU – 560027 2. THE JOINT COMMISSIONER (ADMINISTRATION) -3 B.M.T.C BUILDING SHANTINAGAR BENGALURU – 560 027 …RESPONDENTS (BY SRI. T.K. VEDAMURTHY, AGA) THESE W.Ps. ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1 TO ISSUE REVISED DEMAND NOTICE AS PER THE ORDERS OF R-2 DATED 15.06.2016, FOR ASSESSMENT YEARS 2003-04 AND FOR THE ASSESSMENT YEARS 2004-05 VIDE ANNEXURE – A AND ANNEXURE – B RESPECTIVELY AND AS PER THE REPRESENTATION MADE TO THE R-1 ON 22.02.2017 VIDE ANNEXURE – C AND TO CAUSE REFUND OF EXCESS TAX PAID BY THE PETITIONER, ALONG WITH INTEREST, BY ISSUING A WRIT OF MANDAMUS AND ETC., THESE W.Ps. COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.K.J. Kamath, Adv. for Petitioner Mr. T.K. Vedamurthy, AGA for Respondents 1. These writ petitions are filed with the following prayers:-
“(i)Direct the respondent No.1 to issue revised demand notice as per the orders of Respondent No.2 dated 15.6.2016, in KST AP.No.38/09-10(A.Y.2003-04) for the assessment years 2003-04 & in KST AP.No.39/09-10(A.Y.2004-05) for the assessment years 2004-05 Vide Annexure- A & Annexure-B respectively and as per the representation made to the respondent No.1 on 22.2.2017 vide Annexure-C and to cause refund of excess tax paid by the petitioner, along with interest, by issuing a writ of Mandamus or any other writ.
(ii)Grant any other relief that this Hon’ble Court deems fit and proper in the facts and circumstances of the case.”
2. The grievance raised in the present petitions is that in pursuance of the order passed by the Joint Commissioner of Commercial Taxes(Appeals)-3, Bengaluru, Annexure-“A” dated 15.06.2016 allowing the appeal of the petitioner setting aside the assessment order dated 15.7.2009 for the assessment year 2003-04, the Assessing Authority has not passed the appeal effect order and has not made consequential refunds to the petitioner. The operative portion of the order of the appellate authority is quoted below for ready reference:-
“The appeals are allowed. The impugned order passed under Section 12-A and 12-A(1-A) of the KST Act, 1957 on dated:15-07-2009 for the assessment years 2003-04 stands set aside herewith. The respondent shall issue the revised demand notice accordingly.
Dictated to the Stenographer, edited and then pronounced on 15th day of June 2016.
(K. PRABHAKARA RAO) Joint Commissioner of Commercial Taxes (Appeals)-3, Bangalore-560 027.”
3. Upon issuance of notice, the learned counsel for the respondents-Mr.T.K. Vedamurthy, AGA, has submitted before the Court that the concerned Commercial Tax Officer, (Audit)-3.1, DVO-3, TTMC Building, Bengaluru, has passed the appeal effect order on 3.4.2017 and two advices of refund of sales-tax vouchers bearing Nos.13274 and 13275, both dated 3.4.2017 for Rs.6,09,896/- and Rs.8,88,686/- have been issued to the petitioner. The relevant portion of the order passed is quoted below for ready reference:-
4 4 to 7 Proceedings dated 03.04.2017 has been drawn from this office and issued Form-7 dated 03.04.2017 for the years 2003-04 and 2004-05 for Rs.6,09,896-00 and Rs.8,88,686-00 respectively. Refund voucher has been issued to the assessee vide voucher No.13274 and 13275 dated 03.04.2017 for Rs.6,09,896-00 and Rs.8,88,686-
00 accordingly. Refund Advice bearing No.011743 and 011744 has been issued to the assessee and also sent the same to the State Bank of India, Treasury Branch, Bangalore. Xerox copies of proceedings, Form-7, Refund Voucher and Refund advice was submitted to the Government Advocate on 04.04.2017.
He submits that the petitioners have accordingly become infructuous.
4. On the other hand, the learned counsel for the petitioner submits that the said refund amounts did not include the interest due to the petitioner to be paid as per Section 13A of the Karnataka Sales Tax Act.
5. In view of the aforesaid submissions, the petitions are disposed of as having become infructuous.
6. If the petitioner-assessee is aggrieved by non-payment of interest, he is free to approach the said Authority by way of fresh representation and if he is not satisfied, then the petitioner can file appropriate representation to the highest authority, namely the Commissioner of Commercial Taxes, who will pass appropriate orders in the matter.
Sd/- JUDGE *alb/-.