Karnataka High Court
M/S Pfizer Ltd vs State Of Karnataka on 7 June, 2012
Author: B.S.Patil
Bench: B.S.Patil
WP 16767/2012
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF JUNE, 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.16767/2012 (T-RES)
BETWEEN:
M/s. Pfizer Ltd.
Sy. No.115/38, Panthara Palya,
Nayanda Halli, Mysore Road,
Bangalore - 560 039.
represented by its
Senior Manager, Taxation (Tax Head)
Sri. Mukesh Kanaiyalal Shah,
Aged about 53 years,
S/o. Sri. Kanaiyalal Shah. ... PETITIONER
(By Sri. M. Thirumalesh, Adv.)
AND:
1. State of Karnataka
Represented by Principal
Secretary to Government
Finance Department,
Government of Karnataka,
Vidhana Soudha,
Bangalore - 560 001.
2. Commissioner of Commercial
Taxes Karnataka
Vanijya Theriga Karyalaya,
Gandhinagar, Bangalore - 09.
3. Asst. Commissioner of
Commercial Taxes
LVO-060 (Addl.)
Adhichunchagiri Building,
Vijayanagar, Bangalore - 40. ... RESPONDENTS
WP 16767/2012
2
(By Sri. H. Vedamurthy, GP)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to issue a writ of certiorari or a
declaration in the nature of writ of certiorari quashing the
Endorsement issued under Section 42 of KVAT Act, 2003 in
No.ACCT/LVO-060/A/12-13 dated 22.05.2012 by the
Assistant Commissioner of Commercial Taxes LVO-060 (Addl.)
Bangalore for the tax period January 2006 under Central
Sales Tax Act, 1956 along with attachment notice issued
under Section 45 of KVAT Act attaching the Bank account of
the petitioner in No.ACCT/LVO-060A/12-13 dated 22.05.2012
Annexure-N.
This petition coming on for Preliminary Hearing, this
day, the Court made the following:
ORDER
1. In this writ petition, petitioner is calling in question the endorsement issued by the Assistant Commissioner of Commercial Taxes, LVO-060, Bangalore, thereby calling upon the petitioner to pay arrears of tax under Section 42 of the KVAT Act, 2003 (for short 'the Act').
2. The impugned endorsement is issued pursuant to the order passed by this Court in W.P.Nos.37209 & 37306- 311/2011 disposed of on 13.10.2011. In the aforementioned writ petitions, the petitioner had challenged the orders passed by the Assistant Commissioner of Commercial Taxes on 02.09.2011 and 12.09.2011 under Section 9(2) of the Central Sales Tax Act, 1956 read with Section 69(1) of the Act. The WP 16767/2012 3 said orders which were impugned in the batch of writ petitions referred to supra are produced along with this writ petition as Annexures-D, E and F. As can be seen from the order passed by this Court, these three orders dated 02.09.2011 and 12.09.2011 were set aside on the ground that the petitioners were not given permission to cure the defects crept in in From No.F filed by them. It is useful to refer to the relevant portion of the order passed by this Court in the aforementioned writ petitions.
"From the above it is prima facie clear that the Apex Court was in favour of grant of permission for curing the defects in Form-F in certain circumstances. In the matter on hand, as aforementioned, the petitioner had prayed for return of F-Forms for getting them cured or for filing fresh Forms as per law. Having regard to the totality of the facts and circumstances of the case, in my considered opinion, interest of justice will be met if the defective Forms filed by the petitioner which is found to be tampered, need not be returned. By the said process, no prejudice or injustice will be caused to either of the parties. Accordingly, the following order is made:
The impugned orders at Annexures-H, J and K dated 02.09.2011, 02.09.2011 and 12.09.2011 WP 16767/2012 4 respectively, stand set aside.
The third respondent is directed to return the defective F-Forms to the petitioner except Form relating to January 2005 to January 2005 (tampered as January 2006 to January 2006) within one week from the date of receipt of this order. The petitioner shall file fresh F-Forms as per law, within four months thereafter. Within the said span of four months, the petitioner shall furnish indemnity bond indemnifying tax arrears in respect of four months to the satisfaction of the prescribed Authority. After filing of the fresh F- Forms by the petitioner, the prescribed Authority shall proceed in accordance with law.
Accordingly, writ petitions are disposed of".
3. It is thus clear from the order passed by this Court that after setting aside the orders impugned in the writ petitions passed on 02.09.2011 and 12.09.2011, the 3 rd respondent therein namely the Assistant Commissioner of Commercial Taxes, LVO-060 (Additional), Vijaynagar, Bangalore was permitted to return defective F-Forms to the petitioner except the Form relating to January 2005 which was allegedly tampered and the petitioner was permitted to file fresh F- Forms as per law within four months from the date of return WP 16767/2012 5 of the F-Forms and thereafter the Prescribed Authority was directed to proceed in accordance law.
4. However, after this Court passed the order dated 13.10.2011, without passing any fresh order, the respondent has straightaway issued Annexure-N endorsement calling upon the petitioner to pay the arrears immediately. He has worked out the amount due and payable in the notice issued under Section 45(1) of Act dated 22.05.2012 which is enclosed to the impugned endorsement.
5. Learned counsel for the petitioner contends and in my considered view very rightly that the Competent Authority ought to have proceeded in accordance with law after the fresh F-Forms were submitted by the petitioner and passed necessary orders determining the arrears due and payable by the petitioner. In the absence of such an exercise, the impugned endorsement issued cannot be sustained. Though learned counsel for the petitioner strongly submits that in fact the respondent-Authority has done the said exercise while issuing the endorsement Annexure-N although no formal order has been passed, the said contention cannot be accepted as the order passed by this Court makes it very WP 16767/2012 6 clear that the earlier orders passed on 02.09.2011 and 12.09.2011 were set aside and a direction was issued to the Prescribed Authority to proceed in accordance with law. In the wake of such a direction it was incumbent for the competent authority to pass a fresh order in accordance with law.
6. Hence, this writ petition is allowed. The endorsement Annexure-N is set aside. The respondent-Authorities are directed to follow the directions issued by this court in W.P.Nos.37209 & 37306-311/2011 disposed of on 13.10.2011 and pass necessary orders in accordance with law. The entire exercise shall be concluded within three months from the date of receipt of this order. It is needless to observe that the consequential notices issued along with the impugned endorsement are also set aside.
Sd/-
JUDGE VP