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.50621/2019 (T – RES) BETWEEN:
M/s KARNATAKA TEMPO HOUSE HAVING ITS REGISTERED OFFICE AT No.99/8, III MAIN ROAD INDUSTRIAL TOWN, MAGADI ROAD BENGALURU-560 044 REP BY ITS PARTNER Mr. AKSHAYA P. ... PETITIONER [BY Ms. VEENA J. KAMATH, ADV. FOR M/s KAMATH & KAMATH, ADVS.] AND:
ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT-2.5) DVO-2, NO.642, PIONEER PLAZA RAJA RAJESHWARI NAGARA BANGALORE-560098 …RESPONDENT [BY SRI T.K.VEDAMURTHY, AGA.] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH/SET ASIDE THE IMPUGNED ORDER DATED 11.03.2019 ATTACHED HEREIN AS ANNEXURE-A PASSED BY THE RESPONDENT UNDER SECTION 39(1) R/W SECTION 36 AND 72 OF THE KARNATAKA VALUE ADDED TAX ACT, 2003 FOR THE TAX PERIOD 2013-2014 AGAINST THE PETITIONER AND TO DECLARE THE PETITIONER IS ENTITLED TO THE CLAIM OF DEDUCTION/INPUT TAX CREDIT.
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 respondent.
The petitioner has challenged the order dated 11.03.2019 passed by the respondent under Section 39(1) read with Sections 36 and 72 of the Karnataka Value Added Tax Act, 2003 (‘Act’ for short) relating to the tax periods April 2013 to March 2014.
2. The petitioner is a registered dealer under the provisions of the Act, engaged in trading of automobile parts, lubricants, belts, bearings etc.,. It is the contention of the petitioner that despite duly discharging the tax obligation for the aforesaid tax periods, the respondent initiated audit proceedings and issued notice to the petitioner calling upon them to produce books of accounts and thereafter initiated re- assessment proceedings. The basis for the issue of proposition notice is mainly the report dated 25.06.2016 framed by the Commercial Tax Officer, Enforcement – 42, SZ Bangalore, wherein it was alleged that the petitioner did not reflect the tax amount in the tax invoices separately, it is presumed that the petitioner has not collected the tax.
3. It is the grievance of the petitioner that no opportunity of personal hearing was given to demonstrate that the decision in the case of Additional Commissioner Taxes vs. Mahadevi Stores (STA Nos.506/2011 & 50/2011) relied upon by the respondent could not be applicable to the case of the petitioner on hand. Thus, it is submitted that the alternative remedy of statutory appeal would be of little consequence to the petitioner since in the very assessee’s case, relating to the tax periods 2011-12, on the appeal filed by the petitioner against the re- assessment order, the same was allowed and the SMR proceedings were initiated by the Additional Commissioner of Commercial Taxes which is the subject matter of STA No.2/2019 pending before this Hon’ble Court.
4. Learned Additional Government Advocate for the revenue submitted that the petitioner circumventing the statutory remedy of appeal has rushed to this Court. Since subject issue involves the mixed question of fact and law, no writ petition under Article 226 of the Constitution of India can be entertained.
5. In the circumstances as aforesaid, it cannot be held that no statutory remedy of appeal is available to the petitioner. Since the issue involved is a mixed question of fact and law, it is appropriate to direct the petitioner to file a statutory appeal before the Appellate Authority. If such an appeal is filed within a period of two weeks from the date of receipt of certified copy of the order, the Appellate Authority shall consider the same on merits in accordance with law without objecting to the period of limitation after providing a reasonable opportunity of hearing to the petitioner and an appropriate decision shall be taken in an expedite manner.
The writ petition stands disposed of in terms of the above.
Sd/- JUDGE PMR