IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION NO.1251/2018 BETWEEN:
Sushil Kumar Rungta S/o. late Banwarilal Rungta Aged about 59 years Proprietor M/s. Reliable Suppliers H.O.617, Avenue Road, Bengaluru – 02 Branch Office : No.8, Katriguppe road, Vivekananda Nagar, Banashankari 3rd stage, Bengaluru – 85. ... PETITIONER (BY SRI. Chitnis P.R., ADV.) AND:
State of Karnataka by Commercial Tax Officer DVO-2, Audit 2.3, Bengaluru – 47 Represented by Govt. Pleader, High Court Building Annex, Bangalore – 560001. ... RESPONDENT (BY SRI. K.P.Yoganna, HCGP.) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. 401 CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED 15.10.2018 PASSED BY THE SPECIAL JUDICIAL MAGISTRATE FIRST CLASS (SALES TAX) COURT, BENGALURU IN CRL.MISC.NO.86/2014 AS PER ANNEXURE-A, ETC.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner filed this revision petition aggrieved by the order passed on objections by the Special JMFC (Sales Tax), Bangalore in Crl.Misc. No.86/14.
2. Heard the learned counsel for the petitioner and the learned HCGP for the respondent.
3. The case of the petitioner before the Court below is that he was the registered dealer, whose head office is situated at No.617, Avenue Road, Bengaluru. The respondent after assessing the Value Added Tax, issued a demand notice to the petitioner for recovery of arrears of tax and penalty for Rs.9,96,196/- for the period 01.04.2007 to 31.03.2008. The petitioner appeared before the Court below and took a contention that notice was not served on the petitioner as required under law as per Rule 176 of the Karnataka Value Added Tax Rules (hereinafter referred to as `Rules’ for short). In spite of raising of objection on the ground that notice was not properly served on the petitioner, the Court below accepted the contention of the respondent and over ruled the objection and issued FLW for recovery of the amount from the petitioner. It is also contended that the notice issued by the respondent goes to show that the addressee was not found and on demand notice the address of the petitioner was shown as Head Office No. 617, Avenue Road, Bengaluru, whereas the panchanama prepared for having affixed the notice of service shows Katriguppe main road, Bengaluru, and there is no other document produced by the respondent to show that notice was served. Therefore, the petitioner requested the trial Court for giving a chance to adduce evidence in respect of service of notice, but the same was not considered. Therefore, he prays for setting aside the order.
4. Per contra, the learned HCGP contended that as per Rule 176(4) of the Rules, the notice has been affixed on the conspicuous place of the address last mentioned by the petitioner. Therefore, there was proper service of notice and there is no question of interference of the order passed by the trial Court and therefore, prayed for rejecting the same.
5. On careful perusal of the records available before this Court, produced by the petitioner, especially the demand notice – Annexure `E’, it shows the address of the petitioner as `Sri. Sushil Kumar Rungta, Proprietor M/s. Reliable Suppliers, Head Office No.617, Avenue Road, Bangalore, and there is no alternative address of Branch Office at Katriguppe, Bangalore, shown in the notice. On the back side of the demand notice, an endorsement was made that addressee had left `not found in the address’ and it does not reflect whether the process server visited the address of the petitioner. Subsequently, the trial Court order shows, the respondent also issued notice through RLAD. An endorsement is also found on Exhibit `E’. It was stated that RLAD was returned unserved as `left address’. The said document was not produced before the trial Court. On the other hand, the panchanama reveals, they visited the address of the petitioner at No.8, Katriguppe main Road, Bangalore, but on enquiry they came to know that petitioner had vacated one year back itself. On perusal of the demand notice, it goes to show that even though Katriguppe address was not mentioned in the demand notice – Annexure `E’, but while filing the application, the respondent mentioned two addresses of the petitioner i.e. Head Office at Avenue Road and Branch office at Katriguppe main road. But there is no reference available in respect of demand notice in respect of the second address. Therefore, as per Rule 176(4), the respondent is required to affix the notice on the conspicuous place of the address of the assessee where he last resided or does business. There is some difference in the address of the petitioner. These aspects were not considered by the Court below.
6. The learned counsel also relied upon the order of this Court passed in Crl.R.P.864/2018 dated 12.10.2018. In an identical case, this Court remanded the matter back to the trial Court for giving an opportunity to lead evidence in respect of service of notice to the petitioner. Therefore, without expressing any opinion on the merits of the case, in holding that an opportunity should be given to the petitioner and the respondent to establish service of notice as required under law stated supra, the petition is allowed.
7. The order under revision passed by the Special JMFC (Sales Tax) Court, Bengaluru, in Crl.Misc.No.86/2014 vide Annexure-A is hereby set aside, with a direction to the Court below to hold a detailed enquiry for the limited purpose of service of notice as per Rule 176 of the Rules and to proceed in accordance with law.
In view of disposal of the main matter, I.A.1/2018 does not survive for consideration and the same is dismissed.
Sd/- JUDGE Mgn/-