IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.41695/2019 (T – RES) BETWEEN:
M/s. SOWPARNIKA GRANITES No.84/05, HARAPANAHALLI VILLAGE JIGANI HOBLI, ANEKAL TALUK BENGALURU RURAL-560105 REP. BY ITS PROPRIETOR:
SRI MAHESH.S S/O SRI S. RAJASHEKAR AGED ABOUT 34 YEARS R/AT No.4176G, E 2ND MAIN 2ND STAGE, E-BLOCK, RAJAJINAGAR BENGALURU-560010. …PETITIONER (BY SRIYUTHS: MALLAHAR RAO AND JEEVAN, ADVS.) AND:
1. THE STATE OF KARNATAKA REP. BY CHIEF SECRETARY GOVERNMENT OF KARNATAKA II FLOOR, VIDHANA SOUDHA BENGALURU-560001.
2. PRINCIPAL SECRETARY FINANCE DEPARTMENT GOVERNMENT OF KARNATAKA II FLOOR, VIDHANA SOUDHA BENGALURU-560001.
3. THE COMMISSIONER OF COMMERCIAL TAX VANIJYA THERIGE KARYALAYA KALIDASA MARG, GANDHI NAGAR BENGALURU-560009.
4. THE COMMERCIAL TAX OFFICER [AUDIT] – 4.2, DGSTO-04, VTK-2 NEAR NATIONAL GAMES VILLAGE KORAMANGALA BENGALURU-560047. …RESPONDENTS (BY SRI T.K.VEDAMURTHY, AGA.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO STRIKE OFF THE PROVISIONS OF SECTION 44 OF THE KVAT ACT; QUASH THE IMPUGNED RECOVERY PROCEEDINGS INITIATED UPON THIS PETITIONER, VIDE IMPUGNED ASSESSMENT ORDER ANNEXURE-D ISSUED BY THE COMMERCIAL TAX OFFICER, [AUDIT] – R4 VIDE DATED 31.03.2017 IN RESPECT OF ASSESSMENT YEAR 2010-11 UNDER THE KVAT ACT, 2003; 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. Though the petitioner has challenged the vires of Section 44 of the Karnataka Value Added Tax Act, 2003 [‘Act’ for short], the same is not pressed. The writ petition is now confined to the challenge made to the re-assessment order passed by the respondent No.4 in respect of the assessment years 2010-2011 and 2011-12 and the consequential demand notices issued as well as the recovery proceedings initiated by the respondent authorities.
3. The petitioner is a registered dealer under the provisions of the Act. It is the contention of the petitioner that one Sri.Kiran Acharya has misused the password and TIN number of the petitioner and has indulged in the business of granite unauthorizedly which has been considered by the authorities and criminal action has been initiated against the said culprit who is the habitual offender,. In such circumstances, the respondent No.4 – Authority re- assessing the petitioner and subjecting the petitioner to levy of tax for the transactions done by Sri.Kiran Acharya is wholly unsustainable. It is submitted that the petitioner indeed has not effected any sale or purchase of goods during the said assessment years. These factual aspects though was well within the knowledge of the Department Authorities, initiating the re-assessment and recovery proceedings against the petitioner is wholly unjustifiable.
4. Learned counsel for the Revenue has made an endeavor to justify the impugned order.
5. I have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record.
6. It is ex-facie apparent that the issue involved herein is pure disputed questions of facts which requires to be adjudicated by the Appellate Authority. The petitioner without exhausting the statutory remedy of appeal available under the Act, has rushed to this Court. These disputed questions not being amenable for adjudication under the Writ Jurisdiction, the petitioner is relegated to avail the statutory remedy of appeal available under the Act.
Hence, the writ petition stands disposed of with liberty to the petitioner to avail the remedy of statutory appeal under the provisions of the Act. If such an appeal is preferred within a period of two weeks from the date of receipt of certified copy of the order, the Appellate Authority shall consider the same on merits in accordance with law, without objecting to the period of limitation.
All rights and contentions of the parties are left open.
Writ petition stands disposed of in terms of the above.
Sd/- JUDGE NC.