Karnataka High Court
Kriplani M vs The State By Its Secretary on 11 September, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 11th DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.26717/2017 (T-RES)
BETWEEN:
KRIPLANI .M
PROPRIETOR
M/S. NEXT GEN TECHNOLOGIES
NO.863, 7TH MAIN, 3RD CROSS
HAL 2ND STAGE, INDIRANAGAR
BANGALORE - 560 008.
...PETITIONER
(BY SRI. B.A. BELLIAPPA, ADV.)
AND:
1. THE STATE BY ITS SECRETARY
DEPARTMENT OF REVENUE
VIDHANA SOUDHA
BENGALURU-560 001.
2 THE COMMISSIONER OF COMMERCIAL
TAXES, 1ST MAIN ROAD
GANDHINAGAR, BENGALURU-560 009.
3 THE ADDL.COMMISSIONER OF
COMMERCIAL TAXES (ENFORCEMENT)
SOUTH ZONE, 4TH FLOOR, 'B' BLOCK
VTK-2, 80 FEET ROAD, KORAMANGALA
BENGALURU - 560 047.
4 THE DEPUTY COMMISSIONER
OF COMMERCIAL TAXES
(ENFORCEMENT)-1, SOUTH ZONE, VTK-2
80 FEET ROAD
Date of Order 11-09-2017 W.P.No.26717/2017
Kriplani. M. Vs. The State by its Secretary and others.
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KORAMANGALA
BENGALURU-560 047.
5 THE ASSISTANT COMMISSIONER
OF COMMERCIAL TAXES
(ENFORCEMENT)-4
SOUTH ZONE, VTK-2
80 FEET ROAD, KORAMANGALA
BENGALURU - 560 047.
6 SMT. SHAILA RAVIKUMAR
PRESENTLY WORKING AS
ASSISTANT COMMISSIONER OF
COMMERCIAL TAXES
(ENFORCEMENT)-4, SOUTH ZONE
VTK-2, 80 FEET ROAD, KORAMANGALA
BENGALURU - 560 047.
7 THE STATE PUBLIC INFORMATION OFFICER
OFFICE OF THE ADDL. COMMISSIONER
OF COMMERCIAL TAXES
(ENFORCEMENT), SOUTH ZONE
VANIJYA THERIGE KARYALARA-2
80 FEET ROAD, KORAMANGALA
BENGALURU - 560 047.
8 S.M. SRINIVAS
DCCT ENFORCEMENT-1
SOUTH ZONE, VANIJYA THERIGE
KARYALARA-2, 80 FEET ROAD
KORAMANGALA, BENGALURU - 560 047.
9 MR. MANJUNATHASWAMY
ACCT ENFORCEMENT -9
SOUTH ZONE, VANIJYA THERIGE
KARYALARA-2, 80 FEET ROAD
KORAMANGALA, BENGALURU-560 047.
...RESPONDENTS
(BY SRI. T.K. VEDAMURTHY, AGA)
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO DIRECT THE R-2 TO
HOLD AN ENQUIRY, BY CONSIDERING THE PETITIONER'S
COMPLAINT AT ANNEXURE-D DTD:26.7.2016 RECEIVED BY HIM
Date of Order 11-09-2017 W.P.No.26717/2017
Kriplani. M. Vs. The State by its Secretary and others.
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ON 5.8.2016 AND THEREAFTER IT FOUND GUILTY TO DIRECT
THE AUTHORITY CONCERNED TO TAKE APPROPRIATE
CIVIL/CRIMINAL ACTION.
THIS W.P. COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Mr. B.A.Belliappa, Adv. for Petitioner Sri T.K.Vedamurthy, AGA for Respondents
1. Heard the prolonged arguments on both sides.
2. This Court is satisfied that with the proceedings undertaken by the concerned Authority of the respondent-Commercial Taxes Department for reassessment based on intelligence report of the Customs Authorities, commencing from the survey proceedings undertaken at the business premises of the petitioner under Section 52 of the KVAT Act, 2003 appears to be in order and upon due assignment of authorization of the concerned Additional Commissioner in favour of the Assistant Commissioner.
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3. The present petition is filed by the petitioner under Article 226 of the Constitution of India, therefore does not brook any further interference by this Court.
4. Besides the Statement of Objections filed by the respondent-Commercial Taxes Department, though Annexure-R2, the Assignment Note produced by them is not a signed document and it only gives the assignment No.170466975 and date 01-07-2016, and the same does not bear any designation or seal of the said Officer, therefore it is not known whether the proper authorization by the Additional Commissioner was issued in this regard or not.
5. The learned Counsel appearing for the Revenue Mr.T.K.Vedamurthy, upon instructions, submitted that the said Annexure-R2/Assignment Note is signed by Mr.K.B.Shivakumar, IAS, who is the Additional Commissioner (Enforcement-1), South Zone, Bengaluru of the Respondent-Commercial Taxes Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others. 5/18 Department and therefore, in pursuance of the due authorization only, the Assistant Commissioner (Enforcement-4), with his team of subordinate officials have visited for survey of the office premises of the petitioner on 01-07-2016.
6. Learned counsel for the Respondent Mr.T.K.Vedamurthy has also brought to the notice of the Court that from the Note Sheets/Annexure-R6 produced by the Respondent-Department, it appears that on account of threats given by the petitioner to the said Assistant Commissioner (Enforcement-4), he even requested the Additional Commissioner to change the proceedings from his charge and assign it to some higher officer.
7. Accordingly, on 13-07-2017, the said Additional Commissioner transferred the proceedings to the higher officer viz., Deputy Commissioner-I. Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others. 6/18
8. Mr.Vedamurthy, has also drawn the attention of the Court towards the Intelligence Report- Annexure-R7 given by the Additional Commissioner of Commercial Taxes Department (Enforcement), South Zone, Bangalore and submitted that several purchases of electronic goods were made by the petitioner which was not recorded in the regular books of accounts. Therefore, proceedings have been initiated against the petitioner for assessment/reassessment under Section 39 of the Act.
9. Mr.Vedamurthy also pointed out that vide Annexure-R8, various assignments are made by the higher officials for taking different proceedings with regard to the same petitioner M/s.Next Gen Technologies with his TIN No.29430885143 LVO-045 and this computer sheet has been produced to submit that the internal working of the Respondent-Department takes place in the aforesaid manner. With due Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others. 7/18 assignment, different proceedings under the Act including the proceedings of search and survey under Section 52 of the Act were undertaken in the present case.
10. He has also brought to the notice of the Court Annexure-R10 dated 16-08-2016 signed by Mr.D.Anil, Additional Commissioner of Customs, A & ACC Customs Commissionerate, a letter addressed to the Additional Commissioner of Commercial Taxes (Enforcement) seeking information of details of imports made by the petitioner-assessee under IEC- 0710001134 through Bengaluru Air Cargo Complex from the date of registration till date was furnished in soft form in the CD. It is also informed that the records relied upon in the notice have been returned back to the petitioner on 27-07-2016. On the basis of aforesaid documents, learned counsel for the respondent has sought to contend that the proceedings undertaken Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others. 8/18 against the petitioner-assessee right from 01-07-2016 commencing from the survey conducted at the business place of the petitioner, are being carried out in orderly and legal manner and therefore, the present petition filed by the petitioner is misconceived and is liable to be dismissed.
11. On the contrary, the learned counsel for the petitioner Mr.B.A.Belliappa has vehemently submitted before the Court that the only prayer made in the present petition is that the second respondent namely the Commissioner of Commercial Taxes Department, Gandhinagar, Bengaluru should hold an enquiry on the complaint made by the petitioner vide Annexure-D dated 26-07-2016 which was received by the Commissioner on 05-08-2016 and then take appropriate action against the concerned authorities.
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12. He submitted that the entire proceedings initiated by the respondent-Commercial Taxes Department are based on the personal involvement of the Customs Officer named above against whose illegal action, the petitioner had even filed a petition before this Court and in the writ appeal filed by him in W.A.No.659/2016(T-TAR) in SRI.M.KRIPLANI v/s. THE GOVERNMENT OF INDIA AND OTHERS, the Division Bench of this court on 23-4-2016 had even directed change of officer at the instance of the Chief Commissioner of the Customs.
13. The relevant para No.3 to 8 of the order passed by the Division Bench of this Court on 23-04- 2016 is quoted below for ready reference:
"3. Learned Counsel appearing for the appellant, after arguing the matter for sometime, submitted that there are serious allegations against the Addl. Commissioner of Customs who passed the order not to give effect to 'out of charge order' of the goods and if Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others.10/18
he is not to hold enquiry and the enquiry be entrusted to any other officer of the rank of Addl. Commissioner of Customs, which may be decided by the Chief Commissioner of Customs, he would not press the matter.
4. Whereas, Mr.Neeralgi, learned counsel appearing for the customs authorities submitted that the department cannot have any objection to assigning the work to any other Addl. Commissioner of Customs. But the appellant should not make any baseless and reckless allegation against the officer who may be assigned the work by the Chief Commissioner of Customs.
5. Mr.Belliappa, learned counsel appearing for the appellant submits that if the work is assigned to any other officer of the rank of Addl. Commissioner of Customs, he would co-operate with the enquiry and shall not make any baseless allegation.
6. In view of the above, we find that in order to instill confidence in the enquiry, if the work is entrusted to any other officer of the Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others.11/18
rank of Addl. Commissioner of Customs, no prejudice would be caused since the enquiry even otherwise is directed to be held as per the observations made by the learned Single Judge in the impugned order. Hence, we direct the Chief Commissioner of Customs, Bengaluru, to look into the matter and assign the work of holding of enquiry to any other officer of the rank of Addl. Commissioner of Customs (other than the Addl. Commissioner of Customs, Airport who passed the order for suspension of out of charge order of the goods).
7. It is also clarified that the officer who may hold the enquiry shall not be influenced by the order dated 16-02-2016 (Annexure-P) and he shall independently consider the matter in accordance with law on the basis of the material available before him after giving an opportunity of hearing both sides.
8. We also direct that the appellant shall co-operate with the enquiry proceedings. The nomination of the officer shall be completed by the Chief Commissioner of Customs within a Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others.12/18
period of two weeks from the date of receipt of the certified copy of this order."
14. Learned counsel for the petitioner also submitted before the court that the petitioner-assessee had even filed an application under the provisions of Right to Information Act, 2005, seeking information not only about the Assignment Note through Assistant Commissioner, but also about the visit of business place on 1-7-2016. But no copy of the order, if any, passed on his complaint at Annexure-D dated 26-7-2016 was not supplied to the petitioner ever and that was the reason, the petitioner has approached this Court by way of this writ petition.
15. Having heard the learned counsel for the parties and upon perusal of the documents placed before this Court, this Court is satisfied that the proceedings of the respondent-Commercial Taxes Department, in the present case, does not require any Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others. 13/18 interference or investigation under the directions of this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
16. The documents produced by the respondent- Revenue Department prima facie indicate that the survey proceedings undertaken at the business place of the petitioner on 01-07-2016 were duly authorized by the Competent Officer namely the Additional Commissioner, vide Annexure-R2/the Assignment Note produced before this Court. There is no reason to hold any further investigation in the matter under the directions of this Court as to whether any letter or order communicating the disposal of the complaint Annexure-D dated 26-7-2016 filed by the petitioner, was sent to him or not and the respondent-Department and its various authorities could proceed in accordance with law or not.
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17. This Court does not have any supervisory jurisdiction to oversee the dealing of the complaints of the individual assessees by Heads of Commercial Taxes Department or any other Department for that matter. If there are allegations of corruption or other specific nature duly supported with the evidence, there are Agencies and Authorities to look into that and the writ jurisdiction of this Court cannot be invoked for the purpose of directing such investigations.
18. This Court also does not find any substance in the arguments advanced by the learned counsel for the petitioner, that Mr.D. Anil, Assistant Commissioner of Customs had committed certain illegalities according to the learned counsel for the petitioner and since the Division Bench of this Court, upon the concession of the learned counsel for the respondent-Customs Department Mr.Neeralgi that they have no objection to assign the work to any other Additional Commissioner Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others. 15/18 of Customs, thought it appropriate to instill confidence and fairness in the enquiry and directed the change of concerned Additional Commissioner of Customs before whom the petitioner also undertook to co-operate in the enquiry. Without going into allegations and without mentioning even the name of Mr.D.Anil, Assistant Commissioner, as indicated in the order passed by the Division Bench, this Court at the present stage cannot draw inference that merely because Mr.D.Anil, vide Annexure-R10 forwarded the information with regard to said imports of electronic goods made by the petitioner to the Additional Commissioner of Commercial Taxes Department (Enforcement) South Zone, Bengaluru, therefore, the said proceedings should fall to the ground. Nothing beyond change of enquiry from that officer to another officer under the directives of the Division Bench of this Court in the order dated 23-4-2016, upon a concession given by the learned counsel for Revenue is placed on record of the court nor Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others. 16/18 any such adverse material against the said officer of Customs could have had any adverse effect on the proceedings initiated by the authorities of the Commercial Taxes Department commencing with the survey proceedings under Section 52 of the KVAT Act on 01-07-2016.
19. If there is any allegations of the petitioner made against that Customs Official, that is not the subject matter of the present writ petition. Therefore, even if a complaint is filed against any official of the Commercial Taxes Department as well, that too, also cannot be the matter of investigation under the writ jurisdiction.
20. On such allegations alone, no sufficient foundation can be said to have been laid for invoking the writ jurisdiction of this Court, to quash those proceedings. The facts can be on either side of the coin. It may be the case of a disgruntled and an aggrieved Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others. 17/18 assessee complaining against the officials of the Departments concerned, may be Customs Department or Commercial Taxes Department on one side or it may be case of corrupt officials initiating the proceedings making use of their powers under the respective Acts against an honest assessee. But, no such investigation can be either directed much less monitored. If this kind of petitions were to be entertained under Articles 226 or 227 of the Constitution of India, any observation of this Court on merits of this case may influence the proceedings pending before the authorities of respective Departments and therefore, the Court would advisedly desist from doing so.
21. Therefore, the present writ petition is disposed of with liberty to the Respondent-Department to proceed further in accordance with law and Court would leave free the petitioner-assessee, if he is aggrieved by any particular act or particular officer of Date of Order 11-09-2017 W.P.No.26717/2017 Kriplani. M. Vs. The State by its Secretary and others. 18/18 the Department against whom he has some evidence to make some allegations of malafides or corruption, he is also free to proceed further in accordance with the relevant laws before the various relevant authorities under the said enactments.
22. With these observations, the petition stands disposed of. No costs.
Sd/-
JUDGE mpk/-*