IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION Nos.5265 & 5551 – 5552/2019 (T – RES) BETWEEN:
M/s PAN PARAG INDIA LIMITED, SURVEY NO.120/4, ALUR VILLAGE POST, DASANAPURA HOBLI, BENGALURU NORTH-562162 REP. BY ITS GENERAL MANAGER, SRI ANIL KUMAR, AGED ABOUT 64 YEARS ... PETITIONER [BY SRI N.VENKATARAMAN, SENIOR COUNSEL FOR SMT.VEENA J. KAMATH, ADV.] AND:
JOINT COMMISSIONER OF COMMERCIAL TAXES, (APPEAL-6), BMTC BUILDING, SHANTINAGARA, BENGALURU-560057. …RESPONDENT [BY SRI T.K.VEDAMURTHY, AGA.) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE RECTIFICATION ORDER DATED 30.11.2018 (ANNEXURE-A) PASSED BY THE RESPONDENT AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has assailed the order passed by the respondent under Section 69(1) of the Karnataka Value Added Tax Act, 2003 inter alia seeking a direction to the respondent to consider the rectification application dated 9.1.2017 afresh in accordance with law, after giving reasonable opportunity of being heard and providing copy of any adverse materials relied upon by the respondent, if any, and pass a reasoned order expeditiously.
2. This litigation has a chequered history. The petitioner is engaged in manufacturing and sale of pan masala and being registered dealer under the provisions of the Karnataka Value Added Tax Act, 2003 (‘Act’ for short) has filed the monthly returns in Form No.VAT 100 and final returns in Form No.VAT 240 relating to the tax period April 2012 to June 2014. The assessments were concluded by the Deputy Commissioner of Commercial Taxes, (audit) – 6.4, under Section 39 of the KVAT Act by an order dated 4.5.2016. The petitioner filed the rectification application for rectifying the mistakes in the said order dated 04.05.2016 before the Assessing Officer, which was rejected on 13.06.2016. The petitioner filed W.P.No.33992/2016, challenging the order of rejection of the rectification application and the same came to be allowed on 27.06.2016, directing the Assessing Officer to reconsider the rectification application providing an opportunity of hearing to the petitioner pursuant to which Assessing Officer partially rectified the computation of mistake committed by him and reframed the Assessment Order under the provisions of Section 69(1) of the Act. The said order was challenged before the respondent herein. As no orders were passed after hearing the matter, the petitioner approached this court in W.P.No.49083/16 and the same being disposed of on 28.11.2016, with an observation that the First Appellate Authority would expeditiously pass the order, in consequence of the hearing, the respondent passed the order directing the Deputy Commissioner (audit)–6.4 (assessing officer) to recompute the rectification order and then issue fresh demand notice. Besides this, the petitioner also filed STA Nos.7 to 9 of 2017 before the Karnataka Appellate Tribunal challenging the order of the Joint Commissioner dated 27.12.2016 in addition to filing the rectification application dated 9.1.2017, for rectifying the order dated 27.12.2016 passed by the respondent. The Deputy Commissioner passed an order on 18.01.2017 and issued a revised demand notice in terms of the order of the respondent dated 27.12.2016. The petitioner filed appeals against the order of the Deputy Commissioner dated 18.1.2017. In the meantime, STA Nos.7 to 9 filed by the petitioner before the Karnataka Appellate Tribunal was dismissed for default and the same was recalled, finally got dismissed as withdrawn on 27.03.2018. The petitioner filed W.P.No.36883/18 for directing the respondent to consider and dispose of the rectification application dated 9.1.2017. During the pendency of the said writ petition, the respondent has passed an order on the rectification application. Being aggrieved by the same, the petitioner is before this court.
3. Learned Senior counsel Sri.Venaktaraman representing the learned counsel on record has argued that the impugned order suffers from legal flaws. The basis of remand order in not assigning reasons for rejecting the rectification application noticed by this court in terms of the order passed in W.P.No.33992/16 and allied matters remains uncured in rejecting the rectification application pursuant to the remand order. The tenor of the order impugned indicates the predetermined mind of the respondent to reject the application. It was incumbent on the respondent to consider the grounds raised by the petitioner and address the same while disposing of the rectification application. None of the grounds urged by the petitioner has been addressed. The order impugned is ex facie illegal for not assigning the reasons much less the valid reasons. It was argued that the order of the quasi judicial authority lacking reasons is void ab-initio and unsustainable .
4. According to the learned Senior counsel number of pouches and machine capacity were wrongly construed by the respondent and the relevant notifications applicable to the case on hand were not considered. There was an arithmetical error in the computation of tax liability. These vital aspects being the mistake apparent on the face of the record, rectification application ought to have been allowed. Reliance was placed on the judgment of this Hon’ble Court in the case of Dishnet Wireless Limited V/s.
Assistant Commissioner of Commercial Taxes and Others reported in [2011] 45 VST 255.
5. Learned Additional Government Advocate justifying the impugned order, submitted that the writ petitions are not maintainable circumventing the alternative statutory appeal contemplated under the Act. It was argued that the respondent has assigned valid reasons for rejecting the rectification application. Hence, the writ petitions are liable to be dismissed.
6. I have carefully considered the rival submissions of the respective parties and perused the material on record.
7. To analyze the arguments advanced by the learned counsel for the parties, it is apt to refer to Section 69 of the Act, which reads thus:
“69. Rectification of mistakes.
(1) With a view to rectifying any mistake apparent from the record, the prescribed authority, appellate authority or revising authority, may, at any time within five years from the date of an order passed by it, amend such order.
(2) xxxxx [(2-A) xxxxx (3) Where an order has been considered and decided in any proceedings by way of appeal or revision relating to an order referred to in sub-section (1), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided.
(4) An order passed under sub-section (1), shall be deemed to be an order passed under the same provision of law under which the original order, the mistake in which was rectified, has been passed”.
A reading of this provision makes it clear that this provision can be invoked to rectify any mistake apparent from record. It is well settled law that a mistake apparent on record must be patently glaring and not to be discovered by further investigation or an enquiry or considering the arguments or proof of a debatable issue. The scope of rectification is limited. The same cannot be enlarged to re-examine the concluded issues on which there may be permissible different opinions. The Authority becomes functus officio on concluding the proceedings and the same cannot be re- opened to revisit the concluded issues in the guise of rectification.
8. The arguments of the learned Senior Counsel that the order impugned is not a speaking order, exfade animate non-application of mind cannot be countenanced in view of the elaborate reasons assigned by the respondent to arrive at a decision which are as under:
Firstly, it is recorded that, there appears to be no mistake apparent in the appeal order nor any documentary evidence or point of submission missed by inadvertence/oversight from the appeal records; there is no ground whatsoever to rectify the mistake as per Sub- section [1] of Section 69 of the Act.
Secondly, the said order was the subject matter of the suo moto proceedings initiated by the competent authority whereby the said proceedings were dropped resulting in the approval of the order of the Appellate Authority/respondent. Re-adjudication of the matter in the pretext of rectification would disturb the order passed by the higher authority under the suo moto revision proceedings, which would be nothing but exceeding the jurisdiction.
Thirdly, the current application dated 09/10.01.2017 has been filed to rectify the order dated 27.12.2016 whereas pursuant to the said order, the Assessing Officer has passed an order dated 18.01.2017 which was challenged by the petitioner in the appeal Nos.131, 132 & 133/2016-17 and the same has been disposed of by the respondent herein on 28.11.2018, considering the grounds urged by the petitioner which are again raised in the present rectification application. The grounds urged being duly considered and adjudicated in the appeal proceedings drawn by the respondent, consideration of the rectification application filed, to rectify the order dated 27.12.2016 would not arise.
9. In view of the aforesaid reasons assigned by the respondent, at any stretch of imagination, the order impugned cannot be held to be a non-speaking order.
10. In the case of Dishnet Wireless Limited supra, the orders impugned were not speaking orders and in addition, the decision relied upon by the Assessing Officer in the case of Bharti Airtel Limited V/s. State of Karnataka, reported in [2009] 22 VST 465 was set aside by the Apex Court by Special Leave Petition [Civil Appeal] No.4481/2009 dated 02.03.2009. The Assessing Officer therein without adverting to the contentions advanced by the petitioner in the objections and recording the findings over the same, had held that the objections were untenable. In that context, the Cognate Bench of this Court has held that the impugned order was illegal for want of recording of reasons. The said judgment is not applicable to the facts of the present case, as the order impugned reflects the application of mind by the respondent and the reasons are recorded for arriving at a decision.
11. It is well settled law that no writ jurisdiction can ordinarily be exercised where alternative and efficacious remedy available under the Act is not exhausted by the assessee. It is beneficial to quote the relevant passage of the judgment of the Hon'ble Apex Court in the case of CIT V/s. Chhabil Dass Agarwal, reported in [2014] 1 SCC 603, which reads as under:
“15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419], Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”
The endeavour made by the learned Senior Counsel to bring the case within the exceptions to the rule of alternative remedy recognised by the courts has failed. On this ground alone, it can be held that the writ petition is not maintainable.
For the aforegoing discussions and observations, the writ petitions does not merit any consideration and stand dismissed with liberty to the petitioner to resort to appropriate proceedings in accordance with law.
It such an appeal is filed within a period of two weeks from the date of receipt of certified copy of the order, the Appellate Forum shall consider the same on merits in accordance with law without objecting to the period of limitation, subject to fulfillment of other procedures required under law.
Sd/- JUDGE Dvr:/NC