1/6 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION NOS.59396-399/2016 & 59892-921/2016 (T-RES) Between M/s Prestige Estates Projects Ltd., Represented by its AGM – Taxation, Sri.Manoj Krishna.J.V, Aged about 32 years, The “Falcon House”, No.01, Main Guard Cross Road, Bengaluru – 560 001 ...Petitioner (By Mr.Suren Thumboochetty, Adv., for Mr.R.Venkatesh Prasad, Adv.) And 1. The State of Karnataka Represented by its Principal Secretary Finance Department Vidhana Soudha Bengaluru-560 001.
2. The Commissioner of Commercial Taxes in Karnataka Vanijya Therige Karyalaya, 1st Main Road, Gandhinagar Bengaluru-560 009.
3. The Deputy Commissioner of Commercial Taxes (I & C), Vanijya Therige Karyalaya, 1st Main Road, Gandhinagar Bengaluru-560 009.
4. The Joint Commissioner of Commercial Taxes (Appeals) – I Shanthinagar, Bengaluru-560 027.
...Respondents (By Mr.T.K.Vedamurthy, AGA for Respondents) These writ petitions are filed under Articles 226 and 227 of the Constitution of India, praying to declare the limitation prescribed under sub-Section (7)(b) of Section 63 of the Act Annexure-F, that if the Karnataka Appellate Tribunal does not dispose of the appeals within 365 days from the date of the stay order, the order of stay granted by it shall stand vacated and that the Karnataka Appellate Tribunal shall not make any further order staying proceedings of recovery of the other 70% of disputed tax and other amount, is arbitrary, unreasonable and unjust and therefore ultra vires of Articles 14 and 19(1)(g) of the Constitution of India and etc.,.
These Writ Petitions coming on for Preliminary Hearing ‘B’ Group this day, the Court made the following:
ORDER Mr.Suren Thumboochetty, Advocate for Mr.R.Venkatesh Prasad, Advocate for Petitioner Mr.T.K. Vedamurthy, AGA for Respondents.
1. Learned counsel for the petitioner submits that the controversy involved in the present case is covered by the decision of this Court in the case of M/s Shakthi Specialities vs. The State of Karnataka and ors. in Writ Petition Nos.26873-877/2017 and 27518- 572/2017 (T-RES) in which this Court has held as under:
“3. It is unfortunate that in view of the limited power given to the Tribunal and not empowering it to extend its own stay order by the said legislative mandate, while the Tribunal finds itself unable to decide all the pending appeals within the stipulated time frame of one year and on account of this legislative lacunae despite there being good intention for the reasons beyond the control of Tribunal this Court is flooded with these kind of petitions unnecessarily.
4. The power to grant stay is an incidental power of the Appellate Authority and if the said Tribunal or Authority cannot dispose of the appeal on merits on account of the heavy work burden or otherwise, for no fault of assessee or the Appellate Tribunal, its stay order should not be allowed to lapse merely by lapse of time on account of such limited powers as are contained in Section 63(7)(b) of the KVAT Act, 2003. The control over administration efficiency of Tribunal Member is a different issue and the same cannot be a reason for making such provision in Law.
5. The State should immediately consider appropriate amendments to the said provisions of Section 63(7)(b) of the KVAT Act,2003 for making powers of the concerned Appellate Tribunal effective while dealing with the pending appeals before them so that no such unnecessary litigation is brought before this Court. State cannot deliberately generate a litigation for the Constitutional Courts.
6. Therefore, the present writ petitions are disposed of with a request to the Karnataka Appellate Tribunal who is seized of the appeal filed by the petitioner - assessee in Sales Tax Appeal No.352/2016 for the year 2006-07 to decide the same expeditiously preferably within six months from today and it is directed that till the disposal of the appeal by the Tribunal, the interim order granted by it on 30/03/2016 shall continue.
7. The copy of this order may be sent to the Law Secretary as well as the Chief Secretary of the Respondent - State to undertake the steps for suitable amendment in the law”
2. However, learned counsel for petitioner informed this Court that the learned Tribunal below has already heard the appeal and the judgment is awaited any day.
3. Learned counsel for respondents-Department submits that they would not undertake any fresh recovery procedure till the order of the appellate-Tribunal is pronounced.
4. In view of this, there is no requirement to pass any specific order in the present writ petition and the same is disposed of in the terms indicated above.
5. No order as to costs.
Sd/-
JUDGE dn/mds Sl.No.35