Karnataka High Court
M/S Veekash Agencies vs State Of Karnataka on 4 December, 2012
Author: H.G.Ramesh
Bench: H.G.Ramesh
-1-
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE H.G.RAMESH
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007 (T-KST)
BETWEEN : IN WP.No.13294/2007
1 M/S VEEKASH AGENCIES
NO.174/1
NARAYANPILLAI STREET
BANGALORE 560 001
REPRESENTED BY ITS PROPRIETOR
SHRI. D.ASHOK KUMAR
AGED ABOUT 43 YEARS
S/O SHRI J DEVILAL BAFANA
2 M/S KAVYA AGENCIES
411, MAHATMA GANDHI ROAD
DAVANGERE - 577 001
REPRESENTED BY ITS PROPRIETOR
SHRI R G SRINIVASAMURTHY
AGED ABOUT 48 YEARS
S/O SHRI R V GOPALAKRISHNA SETTY
3 M/S VENKATESH AGENCIES
1086, BICHU GALLI, SHAHAPUR
BELGAUM 590 003
REPRESENTED BY ITS PROPRIETOR
SHRI SANJAY BANKATLAL CHINDAK
AGED ABOUT 37 YEARS
S/O SHRI BANKATLAC CHINDAR
4 M/S NATIONAL CHEMICALS & FERTILIZERS
NO. 306, 3RD MAIN, NEW THARAGUPET
-2-
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
BANGALORE 560 002
REPTD BY ONE OF ITS PARTNERS
SHRI R G SRINIVASA MURTHY
AGED ABOUT 48 YEARS
S/O SHRI R V GOPALAKRISHNA SETTY
5 M/S M B ASSOCIATES
CTS NO.273, BASEMENT, POST BOX NO.36
MARKET ROAD, DHARWAD 580 001
REPTD BY ONE OF ITS PARTNERS
SHRI VINAY M MAHINDRAKAR
AGED ABOUT 34 YEARS
S/O SHRI MADUKAR H MAHINADRAKAR
6 SRI RANGANATHA SALES CORPORATION
"A" BLOCK, 2ND PARALLEL ROAD
GANDHINAGAR (ANK ROAD
OPP. FOREST OFFICE)
SHIMOGA 577 201
REPTD BY ITS PROPRIETRIX
SMT R LAXMI, AGED ABOUT 48 YEARS
W/O SHRI G S RANGANATH
7 M/S M B ASSOCIATES
CTS NO.273, BASEMENT
POST BOX NO.36
MARKET ROAD, DHARWAD 580 001
REPTD BY ONE OF ITS PARTNERS
SHRI VINAY M. MAHINDRAKAR
AGED ABOUT 34 YEARS
S/O SHRI MADUKAR H MAHINADRAKAR
8 M/S EL-TOOLS ASIA PVT LTD
BEHIND VIJAYA TALKIES
DHARWAD 580 001
REPTD BY ITS DIRECTOR
SHRI HEMAL DESAI
AGED ABOUT 35 YEARS
S/O SHRI HARSH DESAI
-3-
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
9 SRI RANGANATHA SALES CORPORATION
A BLOCK, 2ND PARALLEL ROAD
GANDHINAGAR, (ANK ROAD
OPP FOREST OFFICE)
SHIMOGA 577 201
REPTD BY ITS PROPRIETRIX
SMT. R LAXMI
AGED ABOUT 48 YEARS
W/O SHRI G S RANGANATH
10 M/S EL-TOOLS ASIA PVT LTD
BEHIND VIJAYA TALKIES
DHARWAD 580 001
REPTD BY ITS DIRECTOR
SHRI HEMAL DESAI
AGED ABOUT 35 YEARS
S/O SHRI HARSH DESAI
11 M/S GOPALAKRISHNA TRADERS
P B NO.28, HASSAN 573 201
REPTD BY ONE OF ITS PARTNERS
SHRI B R NAGENDRA GUPTA
AGED ABOUT 64 YEARS
S/O SHRI B G RANGA SETTY
12 M/S MEHTA MARKETING
NO.134/2, TULSI COMPLEX
SULTANPET, BANGALORE-560 053
REPTD BY ITS PROPRIETOR
SHRI AMIT KUMAR MEHTA
AGED ABOUT 36 YEARS
S/O SHRI SURAJMAL M MEHTA
13 M/S MEHTA AGENCIES
NO.344, 1ST A CROSS, 8TH MAIN
3RD STAGE, 4TH BLOCK
BASAVESHWARANAGAR
BANGALORE-560 079
REPTD BY ITS PROPRIETRIX
SMT SHOBHA SAI MEHTA
-4-
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
AGED ABOUT 34 YEARS
W/O SHRI SAI MEHTA
14 SRI MALLIKARJUNA TRADERS
186, 1ST MAIN ROAD, 3RD CROSS
3RD PHASE, MANJUNATHANAGAR
BANGALORE 560 010
REPTD BY ITS PROPRIETOR
SHRI JAGADISH MALLIKARJUNAYYA HOSMATH
AGED ABOUT 38 YEARS
S/O SHRI MALLIKARJUNAYYA
15 M/S SHANKER SHIVAYYA GAADA
GANDHI GUNJ, BIDAR 585 403
REPTD BY ONE OF ITS PARTNERS
SHRI SHANKER GAADA
AGED ABOUT 55 YEARS
S/O SHRI SHIVAYYA GAADA
16 M/S M R N MARKETING
NETAJI RAOD, RAICHUR 584 101
REPTD BY ONE OF ITS PARTNERS
SHRI M R NAVEEN KUMAR
AGED ABOUT 34 YEARS
S/O SHRI M R NARASAIAH SETTY
17 M/S PRAKASH TEA DEPOT
NEHRU MARKET, RANEBENNUR 581 115
REPTD BY ITS PROPRIETOR
SHRI PRAKASH P GUPTA
AGED ABOUT 53 YEARS
S/O SHRI PYARELAL
18 M/S PRAKASH TEA DEPOT
NEHRU MARKET
RANEBENNUR 581 115
REPTD BY ITS PROPRIETOR
SHRI PRAKASH P GUPTA
AGED ABOUT 53 YEARS
S/O SHRI PYARELAL
-5-
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
19 M/S SRIDHAR COMMERCIALS
SANTHEPET, CHITRADURGA 577501
REPTD BY ITS PROPRIETOR
SHRI K S MALLIKARJUNA SETTY
AGED ABOUT 48 YEARS
S/O SHRI K V SRIHARA SETTY
20 M/S GABRADI BROTHERS
PLOT NO.3, SHOP NO.1,
N V SOCIETY LAYOUT
S B TEMPLE ROAD, GULBARGA-03
REPTD BY ONE OF ITS PARTNER
SHRI RAJKUMAR
AGED ABOUT 38 YEARS
S/O SHRI BABU RAO
21 M/S SUDHIR AGENCIES
DO.NO.2198, 5TH CROSS, K BLOCK
KUVEMPUNAGAR, MYSORE 570 023
REPTED BY ITS PROPRIETRIX
SMT VIMLA KHURANA
AGED ABOUT 72 YEARS
W/O LATE SHRI DARSHANLAL
22 M/S GABRADI BROTHERS
PLOT NO.3, SHOP NO.1
N V SOCIETY LAYOUT
S B TEMPLE ROAD
GULBARGA 03
REPTD BY ONE OF ITS PARTNER
SHRI RAJKUMAR
AGED ABOUT 38 YEARS
S/O SHRI BABU RAO
23 M/S SUPER TRADERS
3269, BHENDI BAZAR CHOWK
BELGAUM - 2
REPTD BY ONE OF ITS PARTNERS
SHRI VIKRAM J PORWAL
AGED ABOUT 42 YEARS
S/O SHRI JAVERCHAND V PORWAL
-6-
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
24 M/S SUPER TRADERS
3269, BHENDI BAZAR CHOWK
BELGAUM - 2
REPTD BY ONE OF ITS PARTNERS
SHRI VIKRAM J PORWAL
AGED ABOUT 42 YEARS
S/O SHRI JAVERCHAND V PORWAL
25 M/S KAVYA AGENCIES
411, MAHATMA GANDHI RAOD
DAVANGERE 577 001
REPTD BY ITS PROPRIETOR
SHRI R G SRINIVASAMURTHY
AGED ABOUT 48 YEARS
S/O SHRI R V GOPALAKRISHNA SETTY
26 M/S UNION MARKETING
NO.14-7-990, 'PANCHAVATI'
K S RAO ROAD
MANGALORE 575 001
REPTED BY ONE OF ITS PARTNERS
SHRI N SURESH PRABHU
AGED ABOUT 55 YEARS
S/O SHRI N SADASHIVA PRABHU
27 M/S SIDDARTH MARKETING
OPP. KEB DAM ROAD
HOSPET 583 203
REPTD BY ONE OF ITS PROPRIETOR
SHRI J RAJESH MEHTA
AGED ABOUT 45 YEARS
S/O LATE SHRI JAWAHAR D MEHTA
28 M/S SIDDARTH MARKETING
OPP. KEB DAM ROAD
HOSPET 583 203
REPTD BY ONE OF ITS PROPRIETOR
SHRI J RAJESH MEHTA
AGED ABOUT 45 YEARS
S/O LATE SHRI JAWAHAR D MEHTA
-7-
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
29 M/S. R V G & SONS
NO.306, NEW TARAGUPET
3RD MAIN ROAD
BANGALORE 560 002
REPTD BY ONE OF ITS PARTNER
SHRI R S SRINIVASA MURTHY
AGED ABOUT 48 YEARS
S/O SHRI R V GOPALAKRISHNA MURTHY
30 M/S M R N MARKETING
NETAJI ROAD, RAICHUR-584 101
REPTD BY ONE OF ITS PARTNER
SHRI M R NAVEENKUMAR
AGED ABOUT 34 YEARS
S/O SHRI M R NARASAIAH SETTY
31 M/S SHANKER SHIVAYYA GAADA
GANDHI GUNJ BIDAR (KS) 585 403
REPTD BY ONE OF ITS PARTNER
SHRI SHANKER SHIVAYYA GAADA
AGED ABOUT 55 YEARS
S/O SHRI SHIVAYYA GAADA
32 M/S VENKATESH AGENCIES
NO.1086, BICHU GALLI, SAHAPUR
BELGAUM 590 003
REPTD BY ITS PROPRIETOR
SHRI SANJAY BANKATALAL CHINDAK
AGED ABOUT 37 YEARS
S/O SHRI BANKATLAL CHINDAK
33 M/S MEHTA MARKETING
134/2, TULSI COMPLEX, SULTANPET
BANGALORE 560 079
REPTED BY ITS PROPRIETOR
SHRI AMIT KUMAR MEHTA
AGED ABOUT 32 YEARS
S/O SHRI SURAJMAR M MEHTA ... PETITIONERS
(BY SRI. G RABINATHAN, ADVOCATE)
-8-
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
AND :
1 STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT
FINANCE DEPARTMENT
VIDHANA SOUDHA
BANGALORE - 560 001
2 COMMISSIONER OF COMMERICAL TAXES KARNATAKA
VANIJYA THERIGE KARYALAYA
GANDHINAGAR
BANGALORE - 560 009
3 JOINT COMMISSIONER OF COMMERCIAL
TAXES (ADMINISTRATION) DVO II AND IV
LIC BUILDING, SAMPIGE ROAD
MALLESWARAM
BANGALORE-560 003
4 JOINT COMMISSIONER OF COMMERCIAL
TAXES (ADMINISTATION AND INTELLIGENCE)
COMMERCIAL TAX OFFICES
BELLARY
5 DEPUTY COMMISSIONER OF COMMERCIAL TAXES
(ASSTS-21-FAST TRACK)
LIC BUILDING, SAMPIGE ROAD
MALLESWARAM
BANGALORE-560 003
6 DEPUTY COMMISSIONER OF COMMERCIAL TAXES
(ASSTS-II), BUDO COMPLEX
MOTI CIRCLE
BELLARY ... RESPONDENTS
(BY SRI. K.M.SHIVAYOGISWAMY, AGA)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS
DT.10TH MAY 2007, PASSED BY THE COMMISSIONER OF
-9-
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
COMMERCIAL TAXES, THE SECOND RESPONDENT HEREIN IN THE
CASES OF THE PETITIONERS AS DETAILED IN WRIT PETITION AS
ULTRA VIRES SUB-SECTION (4) OF SECTION 18-AA(4) READ
WITH RULE 20-B OF KST ACT AND RULES 1957, VIDE ANN-A TO
H, J TO N, AND P TO Z, AA, AB, AC, AD, AE, AF, AG, AH, AND AJ.
In WP.No.11841/2007
BETWEEN :
1 M/S NILESH AGENCIES
40/A, BAGI BUILDING
SOMWARPET, TILAKWADI
BELGAUM-590 006
REP BY ITS PROPRIETRIX
SMT. PADMASHRI B. BAGI
AGED 39 YEARS
W/O. SRI BHARAT B. BAGI
2 M/S REKHA AGENCY
KATTE ACHARYA ROAD
KUNJIBETTU, UDUPI-2
REP BY ITS PROPRIETOR
SMT. NAMADEV RANGANATH MALAVADE
AGED 43 YEARS
S/O. SRI RANGANATH N. MALAVADE
3 M/S ARIHANT AGENCIES
RATNATARY BUILDING, BORGAON
BELGAUM DISTRICT
REP BY ITS PROPRIETOR
SRI. KUNDAN GUNDE
AGED 37 YEARS
S/O. SRI. BRAHMANATH V. GUNDE
4 M/S ARIHANT ENTERPRISES
RATNATARY BUILDING, BORGAON
BELGAUM DISTRICT
REP BY ITS PROPERITOR
SRI. KUNDAN GUNDE
AGED 37 YEARS
S/O. SRI. BRAHMANATH V. GUNDE
- 10 -
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
5 M/S B K KOTTURAPPA AND CO
B.H.ROAD, MUNICIPAL CIRCLE
ARASIKERE 573 103
REP BY ONE OF ITS PARTNER
SRI. B.P. VISHWANATH
AGED ABOUT 33 YEARS
S/O. SRI. B.K.PRASANNA KUMAR
6 M/S B A HALUNDI
GHATAPRABHA, GOKAK TALUK
BELGAUM DISTRICT
REP BY ITS PARTNER
SRI. GOPAL ANNAPPA HALUNDI
AGED ABOUT 61 YEARS
S/O. SRI. ANNAPPA HALUNDI
7 M/S CHITRA AGENCIES
ANAND BUILDING
NITYANANDA MOTH ROAD
MARATHI KOPPA, SIRSI
REP BY ITS PROPRIETOR
SRI. PRAKASH P.HEGDE
AGED ABOUT 41 YEARS
S/O. P.HEGDE
8 M/S SHRI GANAPATI ADIKE STORES
SATISH MUNICIPAL COMPLEX
GOKAK
REP BY ITS PROPRIETOR
SRI. MANJUNATH G. HEGDE
AGED ABOUT 52 YEARS
S/O. SRI. G. HEGDE
9 M/S KRISHNA AGENCIES
NEAR AMAR TALKIES
L.G. ROAD
GANGAVATI-583227
REP BY ITS PROPRIETRIX
SMT. BHARATHI DEVI
AGED ABOUT 48 YEARS
W/O. SRI. TEEKAMDAS PARYANI
- 11 -
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
10 M/S KRISHNA SWEETS
NEAR AMAR TALKIES
L.G.ROAD
GANGAVATI-583227
REP BY ONE OF ITS PARTNER
SRI. TEEKAM DAS PARYANI
AGED ABOUT 55 YEARS
S/O. LATE SRI KISHAN DAS PARYANI
11 M/S MAHALAKSHMI TRADERS
CCB 39, JOSHI CHAWL
SOMWARPET, TILAKWADI
BELGAUM 590 006
REP BY ONE OF ITS PARTNER
SRI. SATISH B. BAGI
AGED ABOUT 45 YEARS
S/O. LATE SRI BAGI BAHUBALI
12 M/S PARAMANAND ENTERPRISES
SHUTTARMATH GALLI
MAIN ROAD, ATHANI 591 304
REP BY ITS PROPRIETOR
SRI. VARIWDAS J.DHARMADASANI
AGED ABOUT 65 YEARS
S/O. SRI. JETHANDA DHARMDASANI
13 M/S STAR AGENCIES
OLD ADAT BAZAR
BIJAPUR - 586 101
REP BY ITS PROPRIETOR
SRI SUNIL V. DHARMADASANI
AGED ABOUT 40 YEARS
S/O. SRI VARILDAS J.DHARAMDASANI
14 M/S VIBHUTI AGENCIES
C/O. VEERABHADRESWARA KRUPA HOUSE
BARAJHI LAYOUT
KANNARPADI KADAKARA POST
UDUPI
REP BY ITS PROPRIETOR
SRI SHIDDHAPPA PUTTAPPA VIBHUTI
- 12 -
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
AGED ABOUT 46 YEARS
S/O. PUTTAPPA B. VIBHUTHI
15 MOHANLAL DWARKADAS BANG
STAR GUTKHA DEALER
B.B.ROAD
BAGALKOT 587101
REP BY ITS PROPRIETOR
SRI DWARAKADAS BANG
AGED ABOUT 35 YEARS
S/O. M.D.BANG
16 M/S SOMANATH TRADERS
KOTI MAHAL MAIN ROAD
SURPURA
REP BY ITS PROPRIETOR
SRI. BASAVARAJ M.GADDI
AGED ABOUT 49 YEARS
S/O. MUDKAPPA B.GADDI
17 M/S ZUBAIR AGENCIES
C/O. RAJ TOBACCO
P.B.ROAD, NIPPANI
REP BY ITS PROPRIETOR
SRI. MOHAMMAD BAGBAN
AGED ABOUT 34 YEARS
S/O. SRI RAJ MOHAMMAD S.BAGBAN
18 M/S SHRI BASAVA TRADERS
KIRAN NILAVA BEHIND WATER TANK
T.B.ROAD, KADUR
REP BY ITS PARTNER
SRI. G.B. BASAVARAJA
AGED ABOUT 48 YEARS
S/O. SRI. G.BASAVANNAPPA
19 M/S SHRI DATTAGURU AGENCIES
NEAR HANUMAN TEMPLE
ASHOK NAGAR, HUBLI
REP BY ITS PROPRIETRIX
SMT. SMITA P.WAKALE
- 13 -
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
AGED ABOUT 33 YEARS
W/O SRI. PUSHPARAJ S WAKALE
20 M/S SAI TRADERS
3209, 10TH MAIN
4TH CROSS, MCCB BLOCK
DAVANAGERE-2
REP BY ITS PROPRIETOR
SRI ZAKIR HUSSEN A.NADAF
AGED ABOUT 35 YEARS
S/O SRI. AMEER A NADAF
21 M/S SANJAY TRADERS
III CROSS
SHIVABASAVA NAGAR
HAVERI
REP BY ITS PROPRIETRIX
SMT. AKKAMAHADEVI CHANDRASHEKAR
AGED ABOUT 34 YEARS
W/O. SRI. CHANDRASHEKAR GUNJETTI
22 M/S SUNIL TRADERS
OLD ADAT BAZAR
BIJAPUR 586 101
REP BY ITS PROPRIETOR
SRI SUNIL V. DHARMADASANI
AGED ABOUT 40 YEARS
S/O SRI. VARILA DAS J.DHARAMDASANI
23 M/S SRI V J SHINDHI
MAIN ROAD
ATHANI 591 304
REP BY ITS PROPRIETOR
SRI JAGADISH V. DHARAMDASANI
AGED ABOUT 43 YEARS
S/O. SRI VARIAL DAS J. DHARAMADASANI ... PETITIONERS
(BY SRI. G RABINATHAN, ADVOCATE)
- 14 -
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
AND :
1 STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT
FINANCE DEPARTMENT
VIDHANA SOUDHA
BANGALORE 560 001
2 COMMISSIONER OF COMMERCIAL TAXES KARNATAKA
VANIJYA THERIGE KARYALAYA
GANDHINAGAR
BANGLORE-560 009
3 JOINT COMMISSIONER OF COMMERCIAL TAXES
(ADMINISTRATION)
DVO, COMMERCIAL TAX OFFICES
SADASHIVNAGAR
BELGAUM-590 001
4 ADDL. DEPUTY COMMISSIONER OF
COMMERCIAL TAXES ( ASSTS-II)
COMMERCIAL TAX OFFICES
SADASHIVNAGAR
BELGAUM - 590 001 ... RESPONDENTS
(BY SRI. K.M.SHIVAYOGISWAMY, AGA)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS DT.
10.05.2007, PASSED BY COMMISSIONER OF COMMERCIAL
TAXES, SECOND RESPONDENT HEREIN IN THE CASES OF THE
PETITIONERS AS DETAILED IN THE WRIT PETITION VIDE ANN-A,
B, C, D, E, F, G, H, J , K, L, M, N, P, Q, R, S, T, U, V, W, X AND Y
ALL DT. 10.5.2007 AS ULTRA VIRES SUB-SECTION (4) OF
SECTION 18-AA (4) READ WITH RULE 20-B OF KST ACT AND
RULES, 1957.
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WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
In WP No.10245/2007
BETWEEN :
SEEMA MEDICAL AND GENERAL STORES
REP BY ITS PARTNER
SRI SADANAND B BELLAD
B R BELLAD AND SONS COMPLEX
1ST CROSS, HOSUR, HUBLI ... PETITIONER
(BY SRI. SATHISH K.R., ADV FOR
SRI. S MAHESH & SRI. K T NAGENDRA, ADVOCATES)
AND :
THE COMMISSIONER OF COMMERCIAL TAXES
OFFICE OF THE COMMERCIAL TAXES
GANDHINAGAR
BANGALORE 560009 ... RESPONDENT
(BY SRI. K.M.SHIVAYOGISWAMY, AGA)
THIS WP IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF
PROCEEDINGS OF THE RESPONDENT DT.10.5.2007 VIDE
ANNEXURE-B AND ETC.
In WP No.14993/2007
BETWEEN :
1 M/S SEETHA DISTRIBUTORS
NO.177, A/44, 22ND CROSS
III BLOCK, JAYANAGAR
BANGALORE 560 011
REP BY ITS PARTNER
SRI D.M.RANGANATH
AGED ABOUT 64 YEARS
S/O SRI D MANJAPPA
- 16 -
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
2 M/S VIKRAM DISTRIBUTORS
NO.177, A/44, 22ND CROSS
III BLOCK, JAYANAGAR
BANGALORE 560 011
REP. BY ITS PROPRIETOR
SRI D.M. RANGANATH
AGED ABOUT 64 YEARS
S/O SRI D MANJAPPA ... PETITIONERS
(BY SRI. G RABINATHAN, ADVOCATE)
AND :
1 STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY TO GOVERNMENT
FINANCE DEPARMENT
VIDHANA SOUDHA
BANGALORE 560 001
2 COMMISSIONER OF COMMERCIAL TAXES KARNATAKA
VANIJYA THERIGE KARYALAYA
GANDHINAGAR
BANGALORE 560 009
3 JOINT COMMISSIONER OF COMMERCIAL
TAXES (ADMINISTRATION)
BANGALORE CITY DIVISION III
MALLESHWARAM, BANGALORE 560 003
4 DEPUTY COMMISSIONER OF COMMERCIAL TAXES
(ASSESSMENTS 35)
BANGALORE CITY DIVISION III
MALLESHWARAM, BANGALORE 560003
5 ASSISTANT COMMISSIONER OF COMMERCIAL TAXES 32
BANGALORE CITY DIVISION III
MALLESHWARAM
BANGALORE 560 003 ... RESPONDENTS
(BY SRI. K.M.SHIVAYOGISWAMY, AGA)
- 17 -
WP.No.13294/2007 C/W
WP.Nos.11841, 10245 & 14993 OF 2007
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS
DT.10TH MAY 2007, PASSED BY THE COMMISSIONER OF
COMMERCIAL TAXES, THE SECOND RESPONDENT HEREIN IN THE
CASES OF THE PETITIONERS M/S. SEETA DISTRIBUTORS
BANGALORE VIDE ANNEXURE-A AND M/S VIKRAM
DISTRIBUTORS, BANGALORE VIDE ANNX-B AS ULTRA VIRES
SUB-SECTION (4) OF SECTION 18-AA(4) READ WITH RULE 20-B
OF KST ACT AND RULES 1957 AND ETC.
THESE WPs COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
H.G.RAMESH, J. (Oral):
In all these writ petitions, the challenge is to the separate orders dated 10.05.2007 passed by the Commissioner of Commercial Taxes, Bangalore, rejecting the applications of the petitioners seeking for refund of the taxes paid by them on their purchase of 'Gutkha'.
2. I have heard learned counsel appearing for the petitioners and the learned Additional Government Advocate for the respondents and perused the impugned orders. Sri Rabinathan, learned counsel
- 18 -
WP.No.13294/2007 C/W WP.Nos.11841, 10245 & 14993 OF 2007 appearing for the petitioners, has also filed written submissions which read as follows:
"(1) As per provisions of section 18-AA (4) read with rule 20-B of KST Act and Rules, 1957, refund of the tax unauthorisedly recovered by the first dealers and forfeited in terms of the orders passed under section 18-AA (3) is entitled to the dealers from whom the tax was recovered.
(2) Commissioner of Commercial Taxes passed the orders dated 10-7-2003 in all cases of petitioners - second dealers rejecting the claim to refund merely by presumption that the petitioners - second dealers must have passed on the tax to the consumers and there is no finding of fact that the petitioners - second dealers had in fact passed on the tax to the consumers. (3) Judgment of Hon'ble Supreme Court of India in the case of M/s. Mafatlal Industries Ltd Vs Union of India (1998) 111 STC 467 is not applicable. Hon'ble Supreme Court was concerned with the refund of excise duty to manufacturers who were liable to
- 19 -
WP.No.13294/2007 C/W WP.Nos.11841, 10245 & 14993 OF 2007 pay the excise duty and there was provision of section 12-B of Central Excise Act, 1944 prescribing for "Presumption that incidence of duty has been passed on to the buyer". (4) In support of entitlement to refund of tax paid to first dealers, the petitioners - second dealers rely upon the following judgments:
(i) Judgment of Hon'ble Supreme Court of India in the case of Corporation Bank Vs Saraswati Abharansala and another (2009) 19 VST 84.
(ii) Judgment of Hon'ble High Court of Karnataka in the case of M/s. Hindustan Photo Film Manufacturing Co. Ltd., Bangalore Vs State of Karnataka 2003 (54) Kar. L. J. 99."
3. The petitioners are the second dealers. It is stated that the levy of tax on 'Gutkha' is a single point levy. It is not in dispute that sales tax on 'Gutkha' was erroneously collected from the first dealers. The case of the petitioners is that since they had erroneously paid
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WP.No.13294/2007 C/W WP.Nos.11841, 10245 & 14993 OF 2007 tax on the sale of 'Gutkha' to the first dealers, they are entitled for refund of the same.
4. Learned counsel for the petitioners submitted that the petitioners did not collect any tax from the consumers i.e. the end users and therefore, it cannot be said that the petitioners had passed on the tax burden to the consumers. Sri Sathish K.R., learned counsel appearing for the petitioner in W.P.No.10245/2007 reiterated the submissions made by Sri Rabinathan. They prayed for allowing of the writ petitions by directing refund of the taxes paid.
5. Learned Additional Government Advocate appearing for the respondents submitted that the finding recorded by the Commissioner that the tax burden had been passed on to the consumers cannot be said to be erroneous. The Commissioner has
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WP.No.13294/2007 C/W WP.Nos.11841, 10245 & 14993 OF 2007 considered the matter in great detail and has rightly recorded the said finding. He prayed for dismissal of all the writ petitions.
6. The law relating to refund of taxes/duties is explained by a Nine Judge Bench of the Supreme Court in MAFATLAL INDUSTRIES LTD. v. UNION OF INDIA [(1997)5 SCC 536]. Sub-para (iii) of para 108 of the said judgment requires reference which read as follows:
"108(i) ..........................................
(ii) ...........................................
(iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in the situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall
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WP.No.13294/2007 C/W WP.Nos.11841, 10245 & 14993 OF 2007 be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he had not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a proposition.
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WP.No.13294/2007 C/W WP.Nos.11841, 10245 & 14993 OF 2007 The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched."
(Underlining supplied)
7. In the light of law laid down by the Supreme Court which is referred to above, the question that requires to be examined in these writ petitions is as to whether the petitioners had passed on the burden of tax to the consumers or not? If it is found that they had not passed on the tax burden to the consumers, they become entitled for refund of the tax paid.
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WP.No.13294/2007 C/W WP.Nos.11841, 10245 & 14993 OF 2007
8. To examine the aforesaid question, it is relevant to refer to the reasoning of the Commissioner at para 27 of the respective impugned orders:
"27. The applicant was not aggrieved by the imposition of tax upon 'Gutkha' when the assessments were made and he had paid the tax to the first dealer, but sought refund only after the Supreme Court held in the Kothari Products Case that states can not impose tax on 'Gutkha' as it was a tobacco product. So the presumption should be that being a prudent businessman, having paid the tax to the government he had passed on the burden of the tax upon the customers and woke up to make a claim only when the Supreme Court made the order in the Kothari Products Case. The words "Inclusive of all taxes" printed next to MRP on the sachets of 'Gutkha' sold by the applicant go to show that he had in fact passed on the burden of tax to the ultimate consumers in the usual course of business. I, therefore, hold that the applicant in this case has not borne the burden of tax and that he had, in the absence of clear proof to the contrary, passed
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WP.No.13294/2007 C/W WP.Nos.11841, 10245 & 14993 OF 2007 on the burden of tax to the ultimate consumers or customers and therefore the applicant is not eligible to get refund of the tax amount claimed by him in form 51 of the Rules. ....................."
(Underlining supplied) I find no legal infirmity in the above reasoning of the Commissioner.
9. The judgments referred to by the petitioners' counsel in the written submissions referred to above are of no relevance to the present case as in the said cases, the tax burden had not been passed on to the consumers. On the facts of the case, in my opinion, the finding recorded by the Commissioner that the petitioners had passed on the tax burden to the consumers cannot be said to be erroneous. I find no legal infirmity in the impugned orders of the Commissioner to warrant interference under the extraordinary jurisdiction of this Court under Articles
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WP.No.13294/2007 C/W WP.Nos.11841, 10245 & 14993 OF 2007 226 & 227 of the Constitution of India. The writ petitions are devoid of merit and are accordingly dismissed.
Petitions dismissed.
Sd/-
JUDGE hkh/ata.