IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 14TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.2976 OF 2018 (T-RES) AND WRIT APPEAL NOS.2750-2760 OF 2019 BETWEEN:
SMT. SUJATA K.C. W/O. SHIVAKUMAR K. AGED ABOUT 51 YEARS R/A. No.281, 3RD ‘A’ MAIN 8TH BLOCK, KORAMANGALA BANGALORE – 560095 (BY SRI. D. R. RAVISHANKAR, ADVOCATE) AND 1. M/S. KALYANI MOTORS (PVT) LTD.
…APPELLANT No.24/1, 25/1, NEAR NAYANDAHALLI, 100 FT. RING ROAD, MYSORE ROAD, BANGALORE – 560039 REPT. BY ITS MR. A. MOHAN RAJU MANAGING DIRECTOR AGED ABOUT 50 YEARS S/O. S. ANANTHA RAJU 2. DEPUTY COMMISSIONER COMMERCIAL TAXES (AUDIT) 2.4 DVO-2, VAT DIVISION II, VTK-2, ‘B’ BLOCK 80 FEET ROAD, RAJENDRA NAGAR KORAMANGALA BENGALURU - 560047 3. DEPUTY COMMISSIONER OF COMMERCIAL TAXES (ENFORCEMENT)-3, SOUTH ZONE VTK-2, ‘B’ BLOCK, 80 FEET ROAD RAJENDRA NAGAR, KORAMANGALA BENGALURU – 560047 …RESPONDENTS (BY SRI. RAGHURAM B., ADVOCATE FOR R1 SRI. VIKRAM HUILGOL, HCGP FOR R2 AND R3) THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 24.09.2018 PASSED IN W.P.NOS. 60480/2016 AND 62125-135/2016 (T-RES) AND ONLY TO THE EXTENT OF REMARKS MADE AT PARAS 7 AND 8 AND THE PORTION OF COSTS TO THE EXTENT OF RS.50,000/-.
THESE WRIT APPEALS COMING ON FOR ADMISSION THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order passed by the learned Single Judge dated 24.09.2018, wherein the appellant was directed to deposit cost of Rs.50,000/- on the ground that the appellant has passed a whimsical order, the instant appeal is filed.
2. Learned counsel for the appellant contends that the order of the learned Single Judge is erroneous and liable to be interfered with. That the appellant was not heard and hence no order could be passed behind her back. That there is no whimsical order passed by her. In support of his case, he has placed reliance on the additional documents filed in the court today, as well as the judgment of the Hon'ble Supreme Court in the case of STATE OF MADHYA PRADESH VS. NARMADA BACHAO ANDOLAN AND ANOTHER reported in (2011) 12 SCC 689, with reference to para 13 to 15.
3. On hearing the learned counsel, we are of the considered opinion that there is no merit in this appeal.
4. So far as the first contention that the appellant was not heard in the matter, the same cannot be accepted in view of the fact that she was represented by the Government Advocate before the learned Single Judge. She was arrayed as respondent No.1 in her official capacity. It is needless to state that the writ petitions are filed against the State in the name of the office held by the concerned officer. There is no individual malice with which the writ petitions are filed. Therefore, the contention of the appellant that she was not a party and was not heard when the order was passed, is incorrect. The said submission, therefore, cannot be accepted.
5. So far as reliance placed on the judgment of the Hon'ble Supreme Court is concerned, we have considered the same. The first question as to whether she was a party or not, is since answered hereinabove. So far as the second and third points made by the Hon’ble Lordships in para-13 are concerned with regard to the evidence on record touching upon the conduct justifying the remarks and whether it is necessary for the decision of the case, are both matters that have been considered by the learned Single Judge in the impugned order.
The learned Single Judge while considering the plea has held at paragraphs 5 to 8, as follows:
“5. The learned AGA for the Respondent-Revenue Mr.T.K.Vedamurthy was unable to make out any ground for non applicability of the said Notification to the facts and circumstances of the case. The satisfaction of condition of the Notification by the Assessee is also not disputed by the Revenue.
6. Undisputedly, the Assessee during the relevant period has dealt with the business of sales and purchase of used cars only and therefore, the applicability of the said Notification on all fours on the case of the present assessee for the period in question is not in dispute and denied in the present case.
7. After hearing the learned counsels, this Court is surprised and is pained by the manner in which the authority has passed the impugned reassessment order in the second round of assessment for the period 01.04.2011 to March 2012 just ignoring the applicable Notification and throwing it to winds. The said order is therefore nothing less than suffering from malice-in-facts as well as malice-in-law. Therefore, the said responsible officer deserves to pay the exemplary costs for passing such whimsical order and the writ petition deserves to be allowed.
8. Accordingly, the writ petition is allowed and the impugned order Annexure-A dated 28.10.2016 passed by the 1st respondent is hereby quashed and set aside. The 1st respondent – Assessing Authority Ms.K.C.Sujatha, Deputy Commissioner of Commercial Taxes (Audit) – 2.4, Bengaluru, is directed to deposit the costs quantified at Rs.50,000/- from her personal resources with the Registrar General of this Court within a period of one month from today, failing which, the same may be deducted from her salary by the Commissioner, Commercial Tax Department and the same to be paid to the Registrar General of this Court. The amount upon deposit shall be remitted to the ‘Prime Minister’s Relief Fund’, Delhi, for meeting the costs of relief to sufferers of natural disasters.”
6. Therefore points (a), (b) and (c) as narrated by the Hon'ble Supreme Court in para-13 of the judgement, has since been complied with. The learned Single Judge has come to the conclusion that the order passed by the officer is whimsical and therefore has imposed cost on her. We find no good ground to interfere with the discretion exercised by the learned Single Judge in the said matter. The reasons assigned by the learned Single Judge does not merit any interference. Hence the appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE RD