IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE P.B. BAJANTHRI WRIT PETITION Nos.55061-55065/2016 (T-RES) AND W.P.Nos.55157-55259/2016(T-RES) BETWEEN:
The South Canara District Central Co-Operative Bank Limited, Having its office at Sadashiva Sahakara Sadana, Kodialbail, Mangaluru-575 003 Represented by its CEO Vishwanath Nayar …PETITIONER (By Sri.P.B. Hariah for Sri.Balram R. Rao, Advocate) AND:
1.State of Karnataka, inance Department, Vidhana Soudha, Bangalore-560 001 Represented by its Secretary To the Government 2.The Deputy Commissioner of Commercial Taxes, (Audit)-4, D.V.O., Vanijya Therige Bhavan, Mangalore-575 001. ...RESPONDENTS (By Smt.N.S. Sandhya, HCGP) These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned orders and demand notices issued by R-2 in CAS order No.216759325 & Demand notice No.182351079 for Financial Year 2006-07 dated 27.4.2016(Annexure-A1 and A2) and case order Nos.214855465, 212855575, 224855594, 229855610, 218855663, 216855646, 207855656, 272855760 and dated 28.9.2016 in Demand Notices No.185406592, 110406643, 108406656, 182406660, 1364006668, 180406656, 182406660, 136406668, 180406673, 157406677, 164406680 dated 27.9.2016(Annexure-A3 & A18) for the financial years 2007-08 to 2014-15 and etc.
These writ petitions coming on for hearing this day, the Court made the following:
ORDER Undisputedly, petitioner has statutory remedy of appeal under Section 62 of the Karnataka Value Added Tax Act, 2003(hereinafter referred to as ‘KVAT Act, 2003’). In not exhausting the alternative remedy, the petitioner has relied on the following decisions:
1.State of Jammu and Kashmir .vs. Zalpuria [AIR 2016 SC 3006];
2.CIT .VS. Chabil Das Agarwal [(2014) SC 603;
3.S.N. Mukherjee .vs. Union of India[(1994) 4 SCC 594] 4.Canara Bank and Others .vs. Debasis Das and Others [(2003) 4 SCC 553] 5.Clix Technologies .vs. State of Karnataka and others [W.P.No.10776/2013 disposed of on 13.3.2018] The decision in the case of State of Jammu and Kashmir’s is crystal clear, under what circumstances the writ Court can entertain the writ petition and one of the criteria is, not exhausting the remedy of appeal. The other decisions may not assist the petitioner. That apart, not exhausting the remedy of appeal is wholly on the ground that reasons have not been assigned by the Assessment Officer while referring to the Division Bench decision in the case of Canara Bank and others .vs. Debasis Das and others [(2003) 4 SCC 553] and that he has ignored various contentions raised by the petitioner. The writ Court can entertain writ petition in the absence of exhausting statutory remedy only if there is any violation of Rules or an incompetent authority has passed the order, in other words, without jurisdiction.
Whereas in the present case, it is not the case of the petitioner that there is violation of any statutory provision by the Assessment Authority or he has no competency in assessment. Therefore, the decisions cited do not assist the petitioner.
2. Section 62 of the KVAT Act, 2003, relates to appeals. Sub-Section(6) of Section 62 provides as to how the Appellate Authority is required to decide the appeal, which reads as under:-
“(6) In disposing of an appeal, the appellate authority may, after giving the appellant a reasonable opportunity of being heard, (a) in the case of an order of assessment or penalty:
(i) confirm, reduce or enhance the assessment including any part thereof whether or not such part is objected to in the appeal;
(ii) pass such other orders as it may think fit; and (b) in the case of any other order, [or proceedings] confirm, cancel or vary such order.
In fact sub-section (6-A) which empowers the Appellate Authority to decide on merit and mandate provision provides that the Appellate Authority shall not remand the case to make fresh assessment or fresh order. Sub- section (6-A) (i) and (ii) of the KVAT Act, 2003 reads as under:-
“[(6-A) (i) In disposing of an appeal before it, the appellate authority shall not remand the case to make fresh assessment or fresh order, but shall proceed to dispose of the appeal on its merit, as it deems fit, if necessary by taking additional evidence.
[(ii) The appellate authority shall pass an order by disposing of an appeal, within a period of ninety days from the date on which the hearing of the case was concluded.]”
In view of the aforesaid statutory provision, the writ petitions are premature.
3. Accordingly, the writ petitions stand disposed of.
The petitioner is permitted to approach the Appellate Authority by filing necessary appeal within four weeks from today. If such an appeal is filed, the Appellate Authority is hereby directed to decide the same in terms of Sub-
Section(6-A) of Section 62 of KVAT Act, 2003. The time spent by the petitioner before this Court shall be condoned by the Appellate Authority in the event the petitioner files necessary application for condonation of delay.
Sd/- JUDGE *alb/-.