IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.5301/2019 (T – RES) BETWEEN:
WIPRO INFRASTRUCTURE ENGINEERING, (A DIVISION OF WIPRO ENTERPRISES (P) LTD.) A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING OFFICE AT NO.9B-10A, PHASE I, PEENYA INDUSTRIAL AREA BANGALORE-560 058, KARNATAKA REP. BY ITS AUTHORIZED REPRESENTATIVE Mr. RAJESH R., S/O RANGAPPA ... PETITIONER [BY SRI N.VENKATARAMAN, SENIOR ADV. FOR SRI P.CHINNAPPA, ADV.] AND:
1. STATE OF KARNATAKA REP. HEREIN BY THE COMMISSIONER OF COMMERCIAL TAXES, HAVING OFFICE AT DEPARTMENT OF COMMERCIAL TAXES, VANIJYA THERIGE KARYALAYA, KALIDASA MARG, GANDHINAGAR, BANGALORE-560 009 2. THE ASSITANT COMMISSIONER OF COMMERCIAL TAXES, (AUDIT 6.5), HAVING OFFICE AT 2ND BLOCK, 3RD FLOOR, M.S.COMPLEX, 4TH PHASE, PEENYA INDUSTRIAL AREA, BANGALORE-560 058 …RESPONDENTS [BY SRI T.K.VEDAMURTHY, AGA.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 29.12.2018 (ANNEXURE-A) PASSED BY R-2 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the order dated 29.12.2018 passed by the respondent No.2 under Section 9(2) of the CST Act, 1956 read with Section 36 of the KVAT Act, 2003 and the consequential demand notice dated 29.12.2018, inter alia, seeking a direction to respondent No.2 to consider the petitioner’s application for rectification/revision dated 04.01.2019 and 18.01.2019 at Annexures – M and P respectively.
2. The petitioner is the registered dealer under the provisions of Central Sale Tax Act, 1956 (‘CST Act’ for short) and the Karnataka Value Added Tax Act, 2003 (‘KVAT Act’ for short). It is the grievance of the petitioner that the physical Forms – C and F submitted by the petitioner on 02.11.2018 in reply to the proposition notice dated 11.07.2016 and the revised proposition notice dated 17.10.2018 were not accepted by the Assessing Officer – respondent No.2 and it was directed to upload the same on the electronic portal. Accordingly, the said Forms were uploaded by the Assessee on 01.01.2019, but the respondent No.2 passed the order impugned on 29.12.2018 creating a huge demand of Rs.25,57,39,936/- for the tax periods April 2013 to July 2013.
3. Learned Senior Counsel Sri. N. Venkataraman, representing the learned counsel on record for the petitioner would submit that the files relating to the tax periods August 2013 to March 2014 are pending before the Assessing Authority at Mysuru in view of the scheme of demerger arrangement. Learned Senior Counsel would submit that the order impugned suffers from the vice of arbitrariness as no sufficient opportunity was provided to the petitioner to upload the Forms – C and F on electronic portal and the Assessing Officer having directed the assessee to upload the same on electronic portal ought not to have proceeded to conclude the assessment hurriedly, since the time limit was available until 31.03.2019. It is further submitted that in view of the file pertaining to the assessee is pending for the other tax periods before the Assessing Officer at Mysuru, the present assessment proceedings can be transferred to the Assessing Officer at Mysuru and a request has been made by the assessee before the Commissioner to the said effect. It is also argued that the source of power for transferring the case to the Commissioner being contemplated under Section 59 of the KVAT Act, 2003, the Commissioner – respondent No.1 is required to consider the representation of the petitioner to transfer the present proceedings as sought for.
4. In the alternative, it was submitted that rectification application filed by the petitioner before the Assessing Officer has not been considered and disposed of so far and a direction may be issued to the respondent No.2 - Assessing Officer to dispose of the rectification application in accordance with law and till then, the order impugned herein, shall not be given effect to.
5. Learned Additional Government Advocate appearing for the revenue justifying the impugned order would submit that the petitioner has rushed to this Court without exhausting the alternative remedy of appeal available under the Act. Hence, writ petition deserves to be rejected relegating the assessee to avail the appellate remedy available under the Act. Learned Additional Government Advocate further submits that the statutory Forms – C and F were uploaded only on 01.01.2019 subsequent to passing of the reassessment order dated 29.12.2018. Hence, there is no substance in the arguments of the learned counsel appearing for the petitioner and the writ petition is liable to be dismissed dehorse the rectification application filed by the petitioner, which is nothing but a delay tactics designed by the petitioner to delay/avoid the payment of tax which is legally liable to pay and rightly demanded by the respondent No.2.
6. I have given my careful consideration to the arguments advanced by the learned counsel appearing for the parties and perused the material on record.
7. It is not in dispute that the petitioner has uploaded the statutory Forms – C and F on electronic portal on 01.01.2019. It is also not in dispute that the physical Forms submitted before the Assessing Authority along with the reply to the proposition notice were not accepted. It is apparent that, at the time of passing the reassessment order on 29.12.2018 the statutory Forms – C and F were not available while determining the taxable turnover. This determination of the taxable turnover vis-a-vis the statutory Forms submitted by the assessee on electronic portal on 01.01.2019 goes to the root of the matter. In the circumstances, it cannot be held that no discretionary jurisdiction under Articles 226 and 227 of the Constitution of India cannot be exercised. There is no absolute bar to exercise the writ jurisdiction, despite the alternative remedy available under the statute when ex- facie, the order impugned is hit by the principles of natural justice. As aforesaid, the order impugned suffers for not providing adequate opportunity to upload the statutory forms on the electronic portal. Hence, the writ petition is maintainable. It is apparent that the Assessee indeed possessed the statutory Forms – C and F, the genuineness of the same, if ascertained or verified by the Assessing Officer and found to be true and correct, the assessee is entitled to concession in the rate of tax/deduction in the rate of tax/benefit of branch transfer. Hence, it is incumbent upon the Assessing Authority to consider the rectification application filed by the petitioner at Annexures – M and P and take a decision in the matter.
8. Accordingly, this Court deems it appropriate to direct respondent No.2 to consider the rectification application filed under Section 69(1) of the KVAT Act at Annexures – M and P to the writ petition and take a decision in the matter in accordance with law after hearing the petitioner rather than acceding to the request of transferring the file to the Assessing Officer at Mysuru.
9. The request of the learned Senior Counsel to transfer the proceedings to the Assessing Officer at Mysuru appears to be not a reasonable option, more particularly the rectification application now being pending consideration before the Assessing Authority – respondent No.2, who is more competent to decide the same.
10. The petitioner shall appear before the respondent No.2 on 11.02.2019 without expecting any notice and the respondent No.2 shall take a decision on the rectification application in accordance with law in an expedite manner. Till then, the reassessment order dated 29.12.2018 impugned, at Annexure-A and B shall not be given effect to.
With the aforesaid observations, writ petition stands disposed of.
Sd/- JUDGE PMR