IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION NO.11388/2019 (T RES) BETWEEN M/S M K TRADERS, 4TH CROSS, MYSORE TRADERS COMPOUND, APMC YARD, TIPTUR REPRESENTED BY ITS PROPRIETOR.
... PETITIONER (BY SMT. LAKSHMI MENON, ADV. FOR M/S. KAMATH & KAMATH, ADVS.) AND 1. JOINT COMMISSIONER OF COMMERCIAL TAX (APPEALS-6), 2ND FLOOR, BMTC BUILDING, K.H.ROAD, SHANTINAGAR, BENGALURU-27.
2. DEPUTY COMMISSIONER OF COMMERCIAL TAX (AUDIT)-6.2, DVO-6, KIADB BUILDING, PEENYA SMALL INDUSTRIAL AREA, IV PHASE, BENGALURU-58.
... RESPONDENTS (BY SRI T.K.VEDAMURTHY, AGA.) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE/QUASH THE IMPUGNED ORDER DTD:31.1.2019 PASSED BY THE R-1 UNDER SECTION 62[6] OF THE KARNATAKA VALUE ADDED TAX ACT 2003 READ WITH SECTION 9[2] OF THE CENTRAL SALES, TAX 1956 IN CST AP.NO.32/2016-17 [ANNEXURE-A] AND IMPUGNED ORDER DTD:29.11.2014 PASSED BY THE R-2 UNDER SECTION 9[2] OF THE CST ACT READ WITH SECTION 72[2] OF THE KVAT ACT [ANNEXURE-B] ON THE GROUND THAT THE SAME IS PASSED WITHOUT ANY JURISDICTION ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the order dated 31.01.2019 passed by respondent No.1 under Section 62 (6) of the Karnataka Value Added Tax Act, 2003 (for short ‘KVAT Act’) read with Section 9 (2) of the Central Sales Tax Act, 1956 (for short ‘CST Act’) as well as the order passed by respondent No.2 under Section 9 (2) of the CST Act read with Section 72 (2) of the KVAT Act.
2. The petitioner was a dealer registered under the provisions of KVAT Act and CST Act during the relevant tax periods 2013-14.
3. The respondent No.2 issued notice on the petitioner, calling upon him to produce books of accounts and other documents and thereafter the proceedings under Section 9 (2) of the CST Act read with Section 72 (2) of the KVAT Act were concluded against which, the petitioner preferred an appeal under Section 62 (1) of the KVAT Act which came to be dismissed confirming the order of the prescribed authority. Being aggrieved by the same, the petitioner is before this court.
4. Learned counsel Smt. Lakshmi Menon, appearing for the petitioner submits that the incriminating material relied upon by the Assessing Officer to determine the taxable turnover were not made available to the petitioner despite sufficient requests made. The same was pointed out before the appellate authority. However, the appeal came to be rejected confirming the assessment order. Non furnishing of the incriminating documents relied upon by the respondent authorities and arriving at a decision based on such incriminating material against the interest of the assessee is wholly unjustifiable and such orders passed are void ab initio and deserves to be set aside.
5. Learned counsel appearing for the respondents/revenue submit that the petitioner has availed the alternative/statutory remedy of appeal available under the KVAT Act and being unsuccessful, has now filed the writ petition sans availing the further appeal provided under the KVAT Act as such, writ petition is not maintainable.
6. I have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
7. The primary challenge of the petitioner is that no incriminating documents relied upon by the respondent authorities have been made available to the petitioner and as such, the order impugned are passed without jurisdiction and against the principles of natural justice.
8. It is not in dispute that the petitioner having suffered an order from the appellate authority is before this court on the grounds as aforesaid. There is no legal impediment for the petitioner to urge all these grounds before the appellate tribunal, the machinery provided under the statute. Circumventing the same, the petitioner cannot invoke the writ jurisdiction merely on the alleged ground that no documents are furnished to the petitioner. It is also significant to note that the statement of objections has been filed by the revenue and the documents at Annexures-R1 and R2 are placed along with the statement of objections. It is contended that these two documents were furnished to the petitioner and no other documents have been relied upon by the respondent authorities other than this. In such circumstances, the challenge made by the petitioner on the ground of non furnishing of the documents requires to be negated. Moreover, the disputed facts involved in the petition cannot be adjudicated under the writ jurisdiction. Hence, writ petition stands dismissed with liberty to the petitioner to avail the alternative remedy of statutory appeal available under the KVAT Act. If such an appeal is filed within a period of four weeks, the same shall be considered by the Appellate Tribunal on merits without objecting to the aspect of limitation.
With the aforesaid observations and directions, the writ petition stands dismissed.
Sd/- JUDGE Chs* CT-HR