IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI WRIT PETITION NO.44511 OF 2018 (T-RES) BETWEEN:
NEW SWAN ENTERPRISES SY. NO. 91, KUTHANDAHALLI VILLAGE VOKKALERI HOBLI KOLAR TALUK REP. BY ITS PARTNER MR.UPKAR SINGH AHUJA AGED ABOUT 57 YEARS S/O.S.ATAM SINGH. … PETITIONER (BY SRI.ASHOK G.V. & SRI.SHASHANT G. ADV.) AND:
1. THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES LGSTO 180, BINDU BUILDING 1ST FLOOR, NEAR DOOMLIGHT CIRCLE KOLAR-563 101 2. THE COMMISSIONER OF COMMERCIAL TAXES VANIJYA THERIGE KARYALAYA KALIDASA ROAD, GANDHINAGARA BENGALURU- 560 009. ... RESPONDENTS (BY SRI.T.K.VEDAMURTHY, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED: 03.01.2018 VIDE ANNEX-F PASSED BY R-1 UNDER SEC. 72 (1) AND 36 (1) OF THE KARNATAKA VALUE ADDED TAX ACT, 2003 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In the instant petition, petitioner has prayed for the following reliefs:
(a) Quashing the impugned order bearing No.ACCT/ LGSTO-180-2017-18 dated: 03.01.2018 (Annexure F) passed by the 1st Respondent under Sections 72 (1) and 36 (1) of the Karnataka Value Added Tax Act, 2003.
(b) Quashing the demand notice dated: 03.01.2018 (Annexure-G) issued by the 1st Respondent under Section 72 (1) and 36 (1) of the Karnataka Value Added Tax Act, 2003.
(c) Quashing the notice bearing No. T.N./147/18- 19, Dated: 25.05.2018 (Annexure-H) issued under Section 45 of the Karnataka Value Added Tax Act, 2003 to Honda Motor Cycle & Scooters (I) Pvt. Ltd., and (d) Grant any other order or orders as may be seen fit in the facts and circumstances of the case, in the interest of justice and equity.
2. Petitioner even though filed returns from time to time, however, he has not paid taxes timely, which is due to the Department. Consequently, during the period from August ’14 to June ’15, respondent/department has levied interest on belated payment of tax. Learned counsel for the petitioner in order to overcome in not exhausting the statutory remedy of appeal, he has pointed out that under Section 36(1) read with the decision in the case of SHAILY ENGINEERING PLASTICS LTD. Vs DESIGNATED AUTHORITIES UNDER KAR VIVID SAMADHAN SCHEME, (1999), 239 ITR 90 3. On the other land, learned counsel for the respondent submitted that based on Sub-section (1) of Section 72(1) of KVAT Act, petitioner has not appraised relating to not exhasuting statutory remedy of appeal under Section 62 of the Act.
4. Heard learned counsel for the parties.
5. Undisputed facts are that petitioner has statutory remedy of appeal under Section 62 of the Act. Petitioner has not appraised this Court that he need not exhaust statutory remedy of appeal. Merely pointing out Art.14 which has been discussed in the cited decision at para.24, that does not mean that there is a waiver of statutory remedy of appeal under Section 62. Even in the cited decision there is no discussion relating to non- exhausting remedy of statutory appeal. Supreme Court in the case of State of Jammu and Kashmir V/s. R.K.Zalpuri and others reported in AIR 2016 SC 3006 paragraph-20 has held has under:
“20. Having stated thus, it is useful to refer to a passage form City and Industrial Development Corporation V/s.Dosu Aardeshir Bhiwandiwala and others(6), wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:-
“The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:
(a) Adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved;
(b) The petition reveals all material facts;
(c) The petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) Person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) Ex facie barred by any laws of limitation;
(f) Grant of relief is against public police or barred by any valid law; and host of other factors”
(Underline emphasized) 6. In terms of the Supreme Court decision, petitioner has a remedy of statutory appeal under Section 62. In view of the principle laid down in the aforesaid decision of the Supreme Court, appeal stands disposed of reserving liberty to the petitioner to approach appropriate forum to invoke Section 62 of the Act in filing the appeal. Appellate Authority is hereby directed to condone the delay in respect of time spent by the petitioner before this Court. Petitioner is permitted to file an appeal within a period of 4 weeks from today. Consequently, appellate authority is hereby directed to decide the appeal within a reasonable period of three months from the date of receipt of the petitioner’s appeal by considering each and every contentions to be raised by the petitioner in the appeal.
With the above observations, petition stands disposed of.
Sd/-
JUDGE Brn