Karnataka High Court
M/S Kone Elevator India (P) Ltd vs The State Of Karnataka on 3 June, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03RD DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NO.13537/2008 (T-RES)
BETWEEN:
M/s Kone Elevator India (P) Ltd.,
No.4/1, Zenith Chambers, 2nd Floor,
Anjaneya Temple Road, Opp. 6th Cross,
Wilson Garden, Bangalore-560 027
Represented by its Company Secretary,
Sri.C.V.S.Krishnakumar. .....Petitioner
(By Sri.N.Manohar, Advocate)
AND:
1. The State of Karnataka,
Represented by its Secretary to
Government, Department of Commercial
Taxes, Vidhana Soudha,
Bangalore-560 001.
2. The Assistant Commissioner of Commercial
Taxes (Enforcement)-4, South Zone,
Bangalore. Office of the Joint Commissioner of
Commercial Taxes (Enf) South Zone, V.T.K.-II
5th Floor, 80 Feet Road, Viveknagar Post,
Koramangala, Bangalore. ...Respondents
(By Sri.K.M.Shivayogi Swamy, AGA)
2
This Writ Petition is filed Under Articles 226 of the
Constitution Of India with a prayer to quash the further
proceedings in pursuant to the notice under section 39(1) of
KVAT Act 2003 R/w Rule 46 of the KVAT Rules 2003 dated
29.9.2008 passed by the Assistant Commissioner of
Commercial Taxes, (Enforcement) 4 South zone, Bangalore for
the period April 2007 to December 2007 (Vide Annexure-M)
This Petition coming on for preliminary hearing this day
the court made the following:
ORDER
Petitioner is seeking for issue of writ of certiorari by quashing the proceedings pursuant to notice issued under Section 39(1) of the Karnataka Value Added Tax Act, 2003 (hereinafter referred to as 'KVAT Act' for short) read with Rule 46 of KVAT Rules, 2003 dated 29.09.2008, Annexure-M.
2. Petitioner is an assessee under the Provisions of KVAT Act. Being aggrieved by the proposition notice dated 29.09.2008, Annexure-M issued by the Assistant Commissioner Tax (Enforcement), 4 South Zone, Bangalore, invoking Section 39(1) of the Act for the purpose of reopening and reassessing the liability of payment of tax on the part of 3 petitioner under the Act for the period April 2007 to December 2007 petitioner is before this Court. Petitioner has not filed objections to said proposition notice before the authority but has approached this Court by invoking extraordinary jurisdiction of this Court contending interalia that notice issued is one without jurisdiction. It is also contended that assessing authority could not have issued the said proposition notice in view of development subsequent to the judgment of Apex Court in petitioner's case itself namely, matter was taken up to the Supreme Court by the State of Andhra Pradesh in the context of Andhra Pradesh Sales Tax Act, 1957 and Supreme Court itself had doubted correctness of its earlier decision and having referred a similar question at the instance of the very same petitioner to a larger Bench, a proposition notice, particularly for reopening of earlier assessment for the period based on judgment in the case of STATE OF ANDHRA PRADESH VS. M/S.KONE ELEVATORS (INDIA) LTD. reported in 140 STC 22 is without application of mind and it is without jurisdiction. The contentions raised in present writ petition is similar to 4 the one raised by the very same petitioner in W.P.No.4537/2008 (T-RES).
3. This Court after examining the contentions urged by petitioner and also in the light of plea put forward by the revenue in W.P.No.4537/2008, by order dated 19.08.2008, dismissed the writ petition. It has been held by this Court with regard to the merits of the claim to the following effect in the said case:
"7. It is also submitted that so long as the law declared by the Supreme Court in the case of 'STATE OF ANDHRA PRADESH vs. KONE ELEVATORS [INDIA] LTD.,' reported in 140 STC 22 is the law of the land, there cannot be any impediment or attribute of any illegality to the authority applying this law and taking action in terms of the law as laid down by the Supreme Court and prays for dismissal of the writ petition and to permit the authority to conclude the assessment in accordance with law."
4. Insofar as jurisdiction to issue notice, this Court has taken a view that extraordinary jurisdiction can be invoked only when the authority travels beyond the scope of statutory provision and not otherwise. The Coordinate Bench in detail has answered all the contentions now raised in the present writ petition while disposing of W.P.No.4537/2008, 5 which related to the period 2005 to 2007. When a proposition notice is issued to the assessee which admittedly is not a coercive proceedings for recovery of any dues, petitioner would be at liberty to file objections to said proposition notice and take all available pleas and can also take umbrage under the law declared by the Hon'ble Supreme Court, which is said to be in favour of the petitioner. Mere pendency of an issue before Hon'ble Supreme Court would not be a ground to stay the proposed notice or proceedings pursuant thereto, in asmuch as, any finding given adverse to the claim of petitioner will lead to proceeding being continued therefrom and till then the adjudicating proceedings will be in cold storage. As such, this Court is of the considered view that action of the petitioner in approaching this Court quashing the proposition notice is speculative in nature and I do not find any good ground to keep this petition pending. Hence, petition stands dismissed.
5. Dismissal of this writ petition would not come in the way of writ petitioner filing objections to said proposition notice within an outer limit of three weeks from today and in the event of said objections filed, authorities shall proceed to 6 adjudicate the same in accordance with law. Petitioner would also be at liberty to seek appropriate relief in appropriate forum if any coercing steps are taken by respondents.
Sd/-
JUDGE DR