IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.13509/2019 (T – RES) BETWEEN:
M/S. NATIONAL PLYWOOD INDUSTRIES LTD., No.45, INDUSTRIAL HOUSE RACE COURSE ROAD BENGALURU-560001. REP. BY ITS DIRECTOR SHRI PIYUSH PERIWAL. …PETITIONER (BY SRI ATUL K. ALUR, ADV.) AND:
1. STATE OF KARNATAKA REP. BY ITS FINANCE SECRETARY GOVERNMENT OF KARNATAKA AMBEDKAR VEEDHI, VIDHANA SOUDHA BENGALURU-560001.
2. THE COMMISIONER OF COMMERCIAL TAXES ROOM No.101, 1ST FLOOR VTK 1, KALIDAS ROAD, GANDHINAGAR BENGALURU-560009.
3. THE ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES ROOM No.400, 4TH FLOOR VTK 1, KALIDAS ROAD, GANDHINAGAR BENGALURU-560009.
4. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES [AUDIT & RECOVERY]-1.8 DVO-1, BMTC BUS STAND TTMC, YESWANTHPUR BENGALURU-560022. …RESPONDENTS (BY SRI T.K.VEDAMURTHY, AGA.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENDORSEMENT DATED 10.10.2018 ISSUED BY THE RESPONDENT No.3 AT ANNEXURE-M IN SO FAR AS THE PETITIONER IS CONCERNED; AND ETC., 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.
2. The petitioner has challenged the endorsement dated 10.10.2018 issued by the respondent No.3 at Annexure-M to the writ petition, whereby it is informed that the request of the petitioner for rectification of the assessment order dated 26.05.2004 relating to the assessment year 2000-01 cannot be considered in terms of the decision of the Joint Commissioner of Commercial Taxes [Administration].
3. The petitioner is claiming to be a limited company registered under the Companies Act, 1956 as amended in the year 2013. The petitioner company is engaged in manufacturing and trading different types of plywood, blackboard and Laminates. The petitioner company was registered under the provisions of the Karnataka Sales Tax Act, 1957 ['KST Act' for short] and also under the provisions of the Central Sales Tax Act, 1956 ['CST Act' for short]. During the assessment year 2000-01, the original assessments were concluded creating some tax liabilities against which appeals were preferred. The Appellate Authority rejected the appeal as barred by limitation by order dated 21.05.2005. Being aggrieved by the same, the petitioner filed further appeal before the Sales Tax Tribunal. The matter was considered along with the appeal relating to the other assessment year. A common order was passed by the Tribunal by an order dated 21.02.2008 rejecting the appeal as far as the assessment year 2000-01 is concerned. It appears that the petitioner has filed Sales Tax Revision Petitions [STRP Nos.290 & 291/2018] before this Court against the said order of the Tribunal dated 21.02.2008 and the same are presently pending for adjudication.
4. It transpires that the petitioner through its learned counsel addressed a letter dated 11.06.2009 to the DCCT, Assessment – 12, Bengaluru submitting that the dealer company has become sick industry as declared by the BIFR during the proceedings under Sick Industrial Companies Act [SICA] and accordingly requested to accept the declaration for the assessment years 2000-01 and 2001-02 and to arrive at the actual liability to make the claim before the BIFR authority in accordance with law. Subsequently, again the petitioner through its learned counsel submitted a reminder to the Commissioner of Commercial Taxes, Government of Karnataka, Bengaluru on 01.08.2018 requesting the Commissioner to direct the Assessing Authority to consider the application dated 11.06.2009 to accept the declaration and to arrive at the actual tax liability. On consideration of the same, the endorsement is issued by the respondent No.3 rejecting the request of the petitioner. Hence, this writ petition.
5. Learned counsel Sri.Atul K. Alur appearing for the petitioner vehemently argued that the period of limitation prescribed under Section 20 of the KST Act to prefer an appeal before the Appellate Authority is 210 days. However, misinterpreting the same, the First Appellate Authority dismissed the appeal on the ground of limitation, as no power is vested with the Authority to condone the delay of 200 days in filing the appeal. On further appeal before the Tribunal, indeed it was obligatory on the part of the Tribunal to consider the same but unfortunately proceeded to dismiss the appeal on the ground that no satisfactory explanation was offered by the assessee to condone the delay of 200 days. It is submitted that the company was facing financial difficulties and proceedings were initiated under the SICA. In such circumstances, in view of the order passed by the BIFR, a lenient view ought to have been taken by the authorities by considering the representation/request for rectification of the assessment order dated 26.05.2004 under Section 25A of the KST Act.
6. The learned counsel in support of his contentions placed reliance on the order of this Court in W.P.No.32610/2010 [D.D. 29.08.2018] in the case of M/s. Vijay Mining and Infra Corp. Pvt. Ltd., V/s. The Commercial Tax Officer and others as well as the judgment of the Hon'ble Apex Court in the case of Commissioner of Income Tax, Kolkata-II V/s. West Bengal Infrastructure Dev. Fin. Corpn Ltd., reported in 2010 [279] E.L.T. 3 [S.C].
7. Per contra, the learned Additional Government Advocate would submit that the order of the assessment dated 26.05.2004 being challenged before the Appellate Forums and now being seized of by this Court in STRP.Nos.290 & 291/2018 addressing the grievance of the petitioner on the representation dated 11.06.2009 would not be justifiable. The learned Additional Government Advocate justifying the impugned endorsement at Annexure-M submitted that no authorities are vested with the power to consider the statutory declaration forms at this length of time even invoking Section 25A of the KST Act assuming but not accepting any rectification application has been filed by the petitioner under Section 25A of the KST Act.
8. I have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
9. At the outset, it is significant to observe that this Court is not adjudicating upon the orders of the Appellate Forums to address the grievances of the petitioner in as much as the power vested with the Appellate Authority to condone the delay of 200 days in filing the appeal. Moreover, assailing the order of the Tribunal whereby the order of the Appellate Authority is confirmed, Sales Tax Revision Petitions in STRP Nos.290 & 291/2018 are pending before this Court. In such circumstances, the plea of the petitioner to analyze the provisions of Section 20 and to arrive at a decision on this aspect is unreasonable/unjustifiable and cannot be countenanced. It is the exclusive jurisdiction of the Division Bench under Section 23 of the KST Act to adjudicate upon the said issue in as much as challenge to the orders of the Appellate Forums.
10. As regards the request/representation said to have been made on 11.06.2009 requesting the authorities to consider the declaration forms along with the reminder dated 01.08.2018 also does not call for any interference by this Court, in view of the decision to be taken in the STRP proceedings. The proceedings now initiated by the petitioner is nothing but parallel proceedings which cannot be entertained. Moreover at every stage, there is delay ex-facie apparent from the records in the claim made. No satisfactory explanation is offered for consideration of the reminder/representation dated 11.01.2018 to consider the request of the petitioner dated 11.06.2009. The lackadaisical attitude of the petitioner is manifest. As per Section 25A of the KST Act, any mistake apparent from the record, the Assessing Authority, Appellate Authority or Revising Authority may, at any time, within five years from the date of the orders passed by it, amend such order. Even it is doubtful whether the claim of the petitioner comes within the ambit of Section 25A of the Act to rectify the mistake apparent from the record. It is submitted that the statutory declaration forms are now submitted on 10.09.2018 before the respondent authorities. It is very surprising that the petitioner has failed to submit the said statutory forms either before the First Appellate Authority or before the Tribunal. However, in view of the revision proceedings pending before this Court, no decision can be taken by the authorities at this stage.
11. The judgments relied upon by the learned counsel for the petitioner was rendered in a different context and the same are not applicable to the facts of the case. In the case of M/s. Vijay Mining and Infra Corp. Pvt. Ltd., supra, the Cognate Bench of this Court was adjudicating upon the order of the Appellate Authority in rejecting the appeal on the ground that the Appellate Court has no power to condone the delay beyond 210 days.
12. In the case of West Bengal Infrastructure Dev. Fin. Corpn Ltd., supra, the Hon'ble Apex Court has observed that looking to the amount of tax involved, the High Court ought to have decided the matters on merits. In all such cases where there is delay on the part of the Department, it was requested the High Court to consider imposing costs but certainly to examine the cases on merit.
13. As aforementioned in the preceding paragraphs, this Court is not adjudicating upon the order of the Appellate Authorities in this writ petition. Hence, the aforesaid judgments are of no assistance to the petitioner.
Even otherwise, viewed from any angle, the petition is bereft of merits and accordingly stands dismissed.
Sd/- JUDGE NC.