Karnataka High Court
Sri G A Ravish vs The Assistant Commissioner Of on 18 November, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.Nos.26576/2013 & 26580/2013
C/W
W.P.NOS.26581/2013, 26583-26586/2013 &
26587/2013(T-KST)
W.P.NOs.26576/2013 & 26580/2013:
BETWEEN:
Sri. G.A.Ravish,
S/o late Anandaiah,
Aged about 45 years,
CL-9 Licensee,
M/s.Meena Bar & Restaurant
No.13/2, Gayathri Complex,
Hesrghatta Road,
Sidedahalli Cross,
Bangalore-560 073. ....Petitioner
(By Sri.M.Veerabhadraiah, Advocate)
AND:
1. The Assistant Commissioner of
Commercial Taxes (Audit)-6.7,
D.V.O-VI Room,
2
KIDB Building,
3rd Floor, 14th Cross,
Peenya II stage,
Bangalore-560 058.
2. The Deputy Commissioner of Excise,
Bangalore Urban District,
Poornima Building,
J.C.Road,
Bangalore-560 002.
3. The Excise Inspector,
T.Dasarahalli Rangae,
No.159, 2nd Floor, 2nd Stage,
2nd Main, Mahalakshmipuram,
Bangalore-10.
4. Sri.Lingaraju,
Aged about 50 years
No.13/2, Gayathri Complex,
Hesrghatta Road,
Sidedahalli Cross,
Bangalore-560 073. .....Respondents
(By Sri.K.M.Shivayogiswamy, HCGP for R-1 to R-3)
These Writ Petitions are filed under Articles 226
and 227 of the Constitution of India praying to quash
the recovery proceeding and impugned notice dated
24.05.2013 vide No.RC:KST:10630922 issued U/s 13(3)
(aaa) of the KST Act 1957 by the 1st Respondent
authority for the year 1999-2000 and 2000-2001
demanding the total sales tax of `2,92,016/- and
interest U/s 13(2) of the KST Act of `4,60,631/- as per
Annexure-A.
3
W.P.No.26581/2013:
BETWEEN:
Smt. Meena Ravish,
W/o G.A.Ravish,
Aged about 38 years,
CL-9 Licensee,
M/s Hanuman Bar & Restaurant
No.15/1, Hesrghatta Main Road,
Sidedahalli Cross,
Bangalore-560 073. ....Petitioner
(By Sri.M.Veerabhadraiah, Advocate)
AND:
1. The Assistant Commissioner of
Commercial Taxes (Audit)-6.7
D.V.O-VI Room,
KIDB Building,
3rd Floor, 14th Cross,
Peenya II stage,
Bangalore- 560 058.
2. The Deputy Commissioner of Excise,
Bangalore Urban District,
Poornima Building,
J.C.Road,
Bangalore-560 002.
3. Smt.T.Vasant,
Aged about 46 years,
Prop: M/s Venkateswara Bar
and Restaurant,
4
No.15/1, Hesrghatta Main Road,
Sidedahalli Cross,
Bangalore-560 073. ...Respondents
(By Sri.K.M.Shivayogiswamy, HCGP for R-1)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
recovery proceeding and impugned notice dated
19.12.2012 vide No.ACCT/Audit-6.7/VAT DVO-6 issued
U/s 13(3) (b) of the KST Act 1957 by the 1st Respondent
authority for the year 1998 and 1999 demanding the
total sales tax of `2,35,620/- and interest U/s 13(2) of
the KST Act of `3,96,826/- as per Annexure-A.
W.P.Nos.26583-86/2013 & 26587/2013:
BETWEEN:
Smt. Meena Ravish,
W/o G.A.Ravish,
Aged about 38 years,
CL-9 Licensee,
M/s Sea Rock Bar & Restaurant
No.6/1, "Reka Complex",
H.H.G Road,
Mallasandra Cross,
Bangalore-560 058. ....Petitioner
(By Sri.M.Veerabhadraiah, Advocate)
5
AND:
1. The Assistant Commissioner of
Commercial Taxes (Tansition-24)
Srinivasa Building,
Sheshadripuram,
Bangalore- 560 020.
2. The Assistant Commissioner
of Commercial Tax,
Audit & Recovery-5.7,
D.V.O-5, Room No.508,
5th floor, "B" Block,
Commercial Tax office-2,
Koramangala,
Bangalore-560 047.
3. The Joint Commissioner of Excise,
Vakkaligarasanga Building,
Hudson Circle,
Bangalore-560 002.
4. Sri. Gopal,
Prop: M/s Vinayaka Bar and Restaurant,
Aged about 50 years,
No.120, Site No.882,
Laggere Village,
Bangalore-560 058. ...Respondents
(By Sri.K.M.Shivayogiswamy, HCGP for R-1 to R-3)
These Writ Petitions are filed under Articles 226
and 227 of the Constitution of India praying to quash
the recovery proceeding and impugned notice dated
19.02.2013 vide ¸ÀASÉå: ªÁvɸD
À (¯É¥)À -5.7/n./12-13 issued
U/s 13(3) (aaa) of the KST Act 1957 and dated
6
21.02.2013 issued U/S 13(3) (aaa) of the KST Act, 1957
R/w Section 63-A of the Karnataka Excise Act 1965 by
the 2nd Respondent authority for the year 1994-95, 95-
96, 96-97, 97-98 and 98-99 demanding the total sales
tax of `1,79,314/- and interest U/s 13(2) of the KST Act
of `3,70,832/- and penalty U/s 12(4)/12-B(4) of the
KST Act of `4,000/- as per Annexure-A & A-1
respectively.
These writ petitions having been heard and
reserved, coming on for pronouncement of order this
day, the Court made the following:
ORDER
Petitioners are seeking for quashing of recovery proceedings resulting in issuance of notice calling upon the petitioners to remit the amount demanded under the said respective notices.
2. I have heard the arguments of Sri.M.Veerabhadraiah, learned counsel appearing for petitioners in these writ petitions and Sri.K.M.Shivayogiswamy, learned Additional Government Advocate appearing for respondents. 7
3. Facts in brief leading to filing of these writ petitions can be crystalised as under:
RE: WP Nos.26583 to 587/2013:
Petitioner is a licensee under the Karnataka Excise Act, 1965 (hereinafter referred to as "Excise Act" for brevity) and carrying on Bar and Restaurant Business under the name and style of "M/s.Sea Rock Bar and Restaurant". Fourth respondent was the original licensee and was registered as a 'dealer' under the Karnataka Sales Tax Act, 1957 (hereinafter referred to as "KST" for brevity). The CL-9 Licence issued under the Karnataka Excise Act, 1965 was transferred in favour of the petitioner on payment of necessary fee in the year 2007. From time to time petitioner has got renewed the licence standing in her name and was carrying on the said business. At the time of transferring the licence from the name of fourth respondent to the petitioner, a sales tax clearance 8 certificate dated 01.09.2006 was said to have been obtained vide Annexure-D and thereafter CL-9 licence is said to have been transferred to the name of petitioner by the Excise Authorities.
4. On Karnataka Value Added Tax, 2003 (hereinafter referred to as "VAT-2003" for brevity) coming into force from 2005 petitioner has obtained the registration certificate and is said to be filing monthly and annual returns and has been assessed under the VAT- 2003. A notice dated 19.02.2013 Annexure-A came to be issued to the petitioner under section 13(3)(aaa) of KST Act, 1957 read with section 63(A) of Excise Act, demanding thereunder a sum of 3,00,379/- relating to the assessment year 1994-95, 1995-96 and 1998-99 and claiming to be arrears of tax payable by the firm "M/s.Vinayaka Bar and Restaurant" by its proprietor Sri.K.Gopal, namely fourth respondent. 9 RE: WP Nos.26576/2013 AND 26580/2013:
5. Petitioner is a licensee under Karnataka Excise Act, 1965 and carrying on Bar and Restaurant Business under the name and style of "M/s.Meena Bar and Restaurant". Fourth respondent was the original licensee and he was registered as a 'dealer' under the Karnataka Sales Tax Act, 1957. The CL-9 Licence issued under the Karnataka Excise Act, 1965 to the fourth respondent was transferred in favour of the petitioner on payment of necessary fee in the year 1999. From time to time petitioner has got renewed the licence in his name and was carrying on the said business.
6. On Karnataka Value Added Tax, 2003 coming into force from 2005 petitioner has obtained the registration certificate and is said to be filing monthly and annual returns and has been assessed under VAT- 2003. A notice dated 24.05.2013 Annexure-A 10 came to be issued to the petitioner under section 13(3)(aaa) of KST Act, 1957, demanding thereunder a sum of `7,52,647/- relating to the assessment year 1999-2000 and 2000-2001 and claiming to be arrears of tax payable by the firm "M/s.Meena Bar and Restaurant".
RE: WP NOs. 26581/2013 AND 26582/2013:
7. Petitioner is a licensee under the Karnataka Excise Act and carrying on Bar and Restaurant Business under the name and style of "M/s.Hanuman Bar and Restaurant". Third respondent was the original licensee and she was registered as a 'dealer' under the Karnataka Sales Tax Act, 1957. CL-9 Licence issued under the Karnataka Excise Act, 1965 was transferred in favour of the petitioner on payment of necessary fee in the year 2003. From time to time petitioner has got 11 renewed the licence in her name and was carrying on the above said business.
8. On Karnataka Value Added Tax, 2003 coming into force from 2005 petitioner has obtained the registration certificate and is said to be filing monthly and annual returns and has been assessed under VAT- 2003. A notice dated 19.12.2012 Annexure-A came to be issued to the petitioner under section 13(3)(b) of KST Act, 1957, demanding thereunder a sum of `6,32,446/- relating to the assessment year 1998-1999 and 1999-2000 and claiming to be the arrears of tax and informing the petitioner that non payment of the said amount would result in an application being filed before the Special Magistrate Court (Sales Tax).
12CONTENTIONS RAISED BY PETITIONER's COUNSEL:
9. Under the scheme of KST Act the assessing authority has to pass the assessment order under section 12 of the Act and thereafter he has to serve a demand notice in Form No.6 as contemplated under Rule 20-A(1) of KST Rules giving 21 days time to the assessee to pay the said amount and in default the Assessing Officer has to invoke section 13 of the KST Act and issue Form No.40 by giving all the details like year of assessment, date of assessment order, date of service of demand notice, amount in arrears etc., as required under Rule 38-D. It is further contended that only thereafter notice in Form No.41 as contemplated under Rule 38-E can be issued to the assessee to pay the arrears of tax for the respective years within 15 days and on failure to pay the amount so demanded warrant can be issued to recover the dues.
13
10. It is contended by learned counsel Sri.Veerabhadharaiah that it is not forthcoming from the impugned notices as to whether there has been compliance of these Rules and as such it has to be held that notices issued to the petitioners are contrary to provisions of KST Act and Rules made thereunder. It is also contended that service of demand notice is a condition precedent to initiate recovery proceedings and recovery proceedings has been initiated after lapse of many years which is not within reasonable time and there is no opportunity extended to the petitioner and as such they are liable to be quashed.
11. It is further contended that to defeat the statutory right of appeal available to the petitioner the notice of demand has been raised against the petitioners in respective petitions. It is also contended that in W.P.Nos.26583-26587/2013 fourth respondent had obtained clearance certificate dated 01.05.2006 14 from the respondent department certifying that there are no arrears of tax due and payable at the time of transferring the licence to the name of petitioner and as such respondents cannot now turn around and demand tax from the petitioner said to be the tax arrears relating to the assessment years for the period the fourth respondent was carrying on the business and had filed the returns. On these grounds petitioners seek for quashing of the impugned notices. In support of their contentions they rely upon following judgments:
1. (1976) 3 SCC 705 - HOMELY INDUSTRIES VS THE SALES TAX OFFICER, SECTOR-V, KANPUR
2. (1983) 54 STC 273 (SC) - RAM NARAYAN AGARWAL VS STATE OF UTTAR PRADESH AND OTHERS
3. (1975) 35 STC 465 (KAR) -MANUSUKHLAL A. SHAH VS THE STATE OF MYSORE
4. (1976) 1 KLJ 233 - GANESH NARAIN HEGDE VS COMMERCIAL TAX OFFICER, SIRSI & ANR 15
5. ILR 1994 KAR 3739 - SARASWATHI VS STATE OF KARNATAKA
6. (1998) 109 STC 590 - SRIKANTH TRADING COMPANY VS STATE OF ANDHRA PRADESH.
CONTENTIONS RAISED BY ADDITIONAL GOVERNMENT ADVOCATE
12. Per contra, Sri.K.M.Shivayogiswamy, learned Additional Government Advocate contends that under the Sales Tax Act when the ownership of the business of a registered dealer is transferred, the transferor and the transferee would be jointly and severally liable to pay any tax or liability or any other amount remaining unpaid at the time of transfer and even if there is any contractual obligation between the transferor and transferee regarding clearance of such arrears it will not affect the statutory liability which is joint and several on both of them. Hence, question of issuance of any fresh notice to the transferee would not arise before taking 16 recovery action and transferee would be liable to pay the arrears of tax even though not demanded from the transferor prior to the transfer of business.
13. He would further elaborate his submission by contending that registered dealer who is said to have transferred the licence is required to notify the jurisdictional assessing authority within 30 days after such discontinuance or sale or change of name, as the case may be under Rule 41 of KST Rules and contends that in the instant case there was no such intimation delivered by the transferor to the department.
14. He would also draw the attention of the Court to the original records produced to contend that assessment orders and demand notices have been duly served on fourth respondent as could be seen from the records made available.17
15. In W.P.Nos.26583-586/2013 an affidavit of the Assistant Commissioner of Commercial Taxes, Audit -5.3, DVO-5, Koramangala has been filed wherein it is contended that neither the application seeking for issuance of clearance certificate in Form No.53, Annexure-B appended to the writ petition said to have been issued by the department nor the office copy of such certificate is available in the file. Hence, learned Additional Government Advocate submits that photo copy produced along with the writ petition as per Annexure-B cannot be accepted. Hence, he prays for dismissal of the writ petitions. In support of his submissions he has relied upon the following Judgments:
1. (2006) 146 STC 373 - ALI AGRO EXTRACT PVT. LTD., V/S ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, BANGALORE AND OTHERS
2. (2006) 146 STC 420- TORGAL DISTILLERIES PVT. LTD., V/S DEPUTY 18 COMMISSIONER OF COMMERCIAL TAXES (ASSESSMENT), BIJAPUR AND ANOTHER
16. Having heard the learned advocates appearing for the parties and on perusal of the original records produced by the learned Government Advocate and after bestowing my careful attention to the case laws pressed into service, I am of the considered opinion that following points would arise for my consideration:
1. Whether the recovery proceedings initiated against the petitioners is contrary to the provisions of KST Act, 1957, Rules made thereunder, and Karnataka Excise Act, 1965?
2. What order?
FINDINGS ON POINT NO.1:
17. Petitioner is carrying on the business of vending of retail liquor and has been issued licence in Form No.CL-9 under the Excise Act, 1965 and Rules 19 made thereunder. Pursuant to the same petitioners are carrying on Bar and Restaurant business. The original Licensee was fourth respondent in WP 26583-
587/2013, WP 26516/2013 and third respondent in WP 26581/2013. Respective petitioners got transferred the CL-9 licence under Rule 17B of the Karnataka Excise General Condition Rules 1967. There is no dispute to the fact that prior to such transfer fourth/third respondent was carrying on business of vending retail liquor as per licence CL-9 obtained by him/her. It is also not in dispute that these respondents were registered dealers under the KST Act and had been assigned respective sales tax numbers by the Sales Tax authorities.
18. By impugned notices the sales tax arrears or dues relating to the erstwhile dealer/s namely the original licensee/s is demanded from the petitioners by invoking Section 13(3) of KST Act.
20
19. Petitioner does not dispute the fact he is a transferee of the licence held by the original licensors and thus he has stepped into the shoes of the transferor and as such the petitioners would be statutorily liable to pay any tax or penalty or any other amount remaining unpaid at the time of transfer. Even if there is any contract to the contrary it will not affect the statutory liability which is joint and several both on transferor and transferee as per Section 15 of the KST Act.
20. Section 13 prescribes the payment and recovery of tax. Sub-section (3) of Section 13 provides for mode of collection and recovery to be made of the tax assessed. It reads as under:
"13. Payment and Recovery of Tax-
(1) The Tax xxxx (2) xxxx (2A) xxxxx 21 (3) Any tax assessed, or any other amount due under this Act from a dealer [or any other person] may without prejudice to any other mode of collection be recovered-
(a) as if it were an arrear of land revenue, or [(aa) by attachment and sale or by sale without attachment of any property of such dealer or any other person by the assessing authority or the prescribed officer in accordance with such rules as may be prescribed;] [(aaa) as if it were an arrear of excise revenue under the Karnataka Excise Act, 1965 (Karnataka Act 21 of 1966), in the case of a dealer engaged in the manufacture or sale of liquor including beer, spirit and alcohol; or]
(b) [notwithstanding anything contained in [the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)], on application to any Magistrate,] by such Magistrate as if it were a fine imposed by him:
[Provided that where a dealer or other person who has appealed or applied for revision of any order made under this Act and has complied with an order made by the appellate or the revising authority in regard to the payment of 22 the tax or other amount, no proceedings for recovery under this sub-section shall be taken or continued until the disposal of such appeal or application for revision.]"
A careful perusal of section 13(3) would indicate that authorities would be at liberty to recover the tax by way of collection without prejudice to any other mode of collection available to them under the Act. The four modes prescribed under the Act are by way of (1) Land Revenue Proceedings, (2) Attachment proceedings and sale or by sale without attachment, (3) as if it were an arrear of excise revenue under the Karnataka Excise Act, 1965 in case of dealer engaged in the manufacture or sale of liquor, and (4) recovery proceedings through criminal court. There is no prohibition under the Act prohibiting the respondent from recovering the tax by any one or both or all the modes. The Act does not prohibit such initiation of proceeding by the authorities. 23
21. In the instant case the authorities have initiated proceedings against the petitioners as indicated herein below:
SL. WRIT PETITION PROVISION INVOKED NO. NUMBER
1. 26583 -587/2013 Sec.13(3)(aaa) of KST Act read with Sec.63-A of Karnataka Excise Act, 1965
2. 26516/2013 Sec.13(3)(aaa) of KST Act
3. 26581-582/2013 Sec.13(3)(b) of KST Act
22. Under the scheme of KST Act, the jurisdictional assessing authority has to pass an assessment order under Section 12 based on the returns filed by the registered dealer. On passing of such order the assessing officer has to serve a demand notice under Rule 17A, 20 or 37 in Form No.6 as the case may be demanding tax thereunder to be paid within 21 days from the date of service of notice. In default with complying such demand the assessing 24 authority would invoke Section 13 of the Act and take recourse to recover the tax by any of the modes provided under sub-section(3). Rule 38-D provides for issuance of a certificate by the assessing authority to the tax recovery officer in Form No.40 to enable the said officer to recover from such assessee, dealer or other person, the amount specified in the said notice i.e., Form No.40. Thereafter Tax Recovery Officer is required to issue a notice in Form No.41 as prescribed under Rule 38E calling upon the defaulter to pay the amount specified in the certificate within 15 days from the date of service of notice. It is the infraction of these provisions namely non issuance of demand notice in Form No.6 on the assessee, non issuance of Certificate in Form No.40 by the assessing officer to recovery officer and non issuance of notice in Form No.41 as prescribed under Rule 38E by tax recovery officer to the petitioners which 25 are being questioned by the petitioners in these petitions.
23. Issuance of notice before resorting to recovery proceeding is a condition precedent inasmuch as, it results in coercive steps being taken by the authorities or in other words non issuance of notice before resorting to recovery proceedings being visited with civil consequences, Rules mandate issuance of notice as it would be in consonance with the principles of natural justice.
24. The Hon'ble Apex Court in the case of HOMELY INDUSTRIES VS THE SALES TAX OFFICER, SECTOR-V, KANPUR reported in (1976) 3 SCC 705 has held as under:
"18. We may now deal with the second submission of Mrs.Manchanda that no recovery proceedings could be instituted unless a notice of demand had been served 26 on the legal representative under Section 8 of the Act. That section reads as under:
"8. (1) The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, not being less than fifteen days from the date of service of the notice of assessment, as may be specified in the notice. In default of such payment, the whole of the amount then remaining due shall become recoverable in accordance with sub-section (2). (2) Any tax or other dues payable to the State Government under this Act shall be recoverable as arrears of land revenue.
19. It is clear that before a certificate proceeding can be instituted under sub- section (2) of Section 8 a notice of demand under sub-section (1) thereof is a condition precedent. There can be no recovery without service of a demand notice. It is admitted that such notice has not been served on the legal representatives. That being the position the recovery proceedings are not maintainable in law and are invalid and the same along with the certificates are liable to be quashed."
27
25. In the case of RAM NARAYAN AGARWAL VS STATE OF UTTAR PRADESH AND OTHERS reported in 54 STC 273 it has been held by the Hon'ble Apex Court that a defaulter has to be ordinarily served with demand notice before any other processes is adopted for recovery of tax as arrears of land revenue.
26. Division Bench of this court in the case of MANUSUKHLAL A. SHAH VS THE STATE OF MYSORE reported in 35 STC 465 while examining whether affixture can be resorted to for service of such notice it has been held as follows:
"Rule 53 of the Rules xxx or the bill collector. The service of a valid demand notice entails serious consequences, as by the failure to comply with the notice by payment of the tax within the due date, the dealer incurs penalty. Therefore, before ordering the service of notice by affixture, it is the duty of the assessing authority to attempt to serve the notice either by personal delivery as contemplated in clause (a) or by sending it by registered post as contemplated in clause
(c), and if none of the alternative modes is practicable after having tried it and found it 28 to be unsuccessful, then it may order service by affixture."
27. Keeping the above principles in mind when the facts on hand are examined it would indicate that one of the prime contention raised by the petitioner in W.P.Nos.26583-587/2013 is that sales tax authorities themselves had issued clearance certificate to the original licensee namely fourth respondent vide Annexure-D dated 01.09.2006 and as such they cannot raise a demand after long lapse of years requires to be examined at the outset. The Assistant Commissioner of Commercial Taxes, Audit-5.3, DVO-5 has filed an affidavit on 27.07.2013 before this Court stating thereunder that neither the application filed by the petitioner seeking issuance of clearance certificate nor the office copy of such certificate (Annexure-D) is available in the original records cannot be eschewed inasmuch as petitioner has filed the original clearance 29 certificate dated 01.09.2006 issued to the fourth respondent by the Assistant Commissioner of Commercial Taxes (Transition-24), Bangalore and there is no rejoinder or reply filed by the respondent authorities denying issuance of such certificate. In view of the original certificate available on record it cannot be concluded that such certificate has not been issued by the respondent authorities. Hence, contention of the petitioner deserves to be accepted.
28. Be that as it may. Issue relating to recovery of tax for the anterior period namely for the period during which the fourth/third respondent had conducted the business and such tax assessed by the authorities having remained unpaid when examined with reference to the original records and memos filed by learned Additional Government Advocate it would indicate that in WP 26583-587/2013 petitioner while seeking transfer of CL-9 licence from the name of fourth 30 respondent to her, has given an undertaking that if there were to be any arrears of tax due to the Government including arrears of sales tax of the firm in which fourth respondent was the proprietor she would undertake to pay the same to the Government. This undertaking given by her is not denied either by filing reply or rejoinder to the said memo.
29. The original records produced by the respondent authorities would also indicate that in WP Nos.26576-580/2013 notice dated 30.06.2003 in Form No.6 has been issued to the fourth respondent and same has been received by him on 08.11.2003. The demand notice extract register produced along with memo dated 27.06.2013 would also indicate that demand notice had been served on fourth respondent on 08.11.2003. It is thereafter respondent authorities have resolved to initiate proceedings before 31 jurisdictional Magistrate Court and impugned notice dated 25.04.2013 Annexure-A has been issued.
30. Likewise records in W.P.Nos.26581- 582/2013 would indicate that for the assessment year 1998-99 before passing the assessment order, a proposition notice dated 06.01.2001 was issued and it was received by the fourth respondent on 16.01.2001 and later on assessment order came to be passed on 01.03.2002. A demand notice dated 11.03.2002 came to be raised and it was served on the fourth respondent on 11.04.2002 as could be seen from the office copy of Form No.6 available on record which contains the signature of the recipient for having received the notice. The assessment order for the year 1999-2000 came to be passed and a demand notice dated 05.06.2003 was raised on the fourth respondent in Form No.6 as could be seen from the records which would indicate that it was duly served on 18.08.2003. In fact, the fourth 32 respondent through her husband has filed an appeal against the order of assessment in appeal No.249/2003- 04 which came to be dismissed on 26.02.2005. This would clearly indicate that fourth respondent was fully aware of the assessment order passed as well as demand raised thereunder.
31. Insofar as WP Nos.26583-587/2013 is concerned, learned Additional Government Advocate has filed a memo on 27.06.2013 enclosing 14 documents. There is neither reply nor rejoinder filed to the said memo by the petitioner. He has also made available the original records of the assessment years 1994-95, 1995-96, 1996-97, 1997-98, 1998-99 and same has been perused by me. These documents would indicate that for the assessment year 1994-95 order came to be passed on 03.05.1997. Said order came to be revised on 22.02.2001 by the Joint Commissioner of Commercial Taxes pursuant to the same demand notice 33 in Form No.6 came to be raised on 19.03.2001 which is duly served on the representative of fourth respondent namely cashier of the firm Sri. Natarajan K R on 27.03.2001. Recovery notice dated 15.06.2001 came to be issued to M/s.Vinayaka Bar and Restaurant and it was duly served on Sri.K.R.Natarajan (Cashier) on 18.06.2001. He has affixed his signature to the said notice. For the assessment year 1995-96 assessment order came to be passed on 03.05.1997 and it was revised by the Joint Commissioner of Commercial Taxes on 22.02.2001 resulting in issuance of demand notice in Form No.6 dated 19.03.2001 which was also duly served on the cashier of M/s.Vinayaka Bar and Restaurant on 27.03.2001. Likewise for the assessment years 1996-97 and 1997-98 assessment order came to be passed on 26.03.1998 and 20.02.2001 pursuant to which demand notices came to be issued in Form No.6 on 15.03.2001 and 14.03.2001 respectively and it was 34 duly served on 16.03.2001 on the representative of fourth respondent. Even for the assessment year 1998-1999 demand notice dated 29.05.2001 in Form No.6 is duly served on the representative of M/s.Vinayaka Bar and restaurant as could be evidenced from the signature found in Form No.6 dated 29.05.2001. In fact for the above said assessment years, suo-motu proceedings had also been initiated and notice issued to the assessee was duly served.
32. At no point of time fourth respondent/third respondent in these writ petitions as the case may be, have questioned the demand notices at any point of time, except to the extent noticed herein above namely, to the extent of filing of an appeal for the assessment year 1999-2000. Thus, it cannot be contended by the petitioner for want of notice issued to the original assessee the consequential recovery proceedings initiated against the petitioner who undisputedly is the 35 successor-in-interest cannot contend that after having obtained transfer of CL-9 licence from its original licensee that there has been lack of opportunity or violation of principles of natural justice or infraction of rules and thereby resulting in petitioners being deprived of any opportunity. Hence, I do not find any merit in the contentions raised by the learned counsel appearing for petitioners and it stands rejected.
33. Hence, for reasons aforestated, writ petitions are hereby dismissed by directing the parties to bear the costs of these proceedings.
Sd/-
JUDGE SBN