Karnataka High Court
Lakshmi Brooke Coffee Hosts (P) Ltd vs The State Of Karnataka on 22 February, 2023
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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WA.NO. 1654 OF 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
WRIT APPEAL NO. 1654 OF 2009 (T-RES)
BETWEEN:
M/S. NEW TAJ MAHAL CAFE PVT. LTD
HAMPANAKATTA,
MANGALORE - 575001.
BY ITS MANAGING DIRECTOR
K. JAGADISH SHENOY,
AGED ABOUT 57 YEARS.
...APPELLANT
(BY SHRI.T.N. KESHAVA MURTHY., ADVOCATE)
AND:
THE STATE OF KARNATAKA
Digitally BY ITS PRINCIPAL SECRETARY
signed by TO GOVERNMENT FINANCE DEPARTMENT,
YASHODHA
N VIDHANA SOUDHA,
Location: BANGALORE - 560 001.
HIGH
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI. JEEVAN J. NEERALGI, AGA. ADVOCATE)
THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH
COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE
WRIT PETITION No.10135/2006 DATED 26/03/2009. AS IN
ANNEXURE-A AND DECLARE THAT THE DENIAL OF COMPOSITION
ASSESSMENT IN SECTION 15(1) OF THE ACT WHEN A DEALER
EFFECTS PURCHASES OR OBTAINS GOODS FROM OUTSIDE THE
STATE OR OUTSIDE THE TERRITORY OF INDIA AS IRRATIONAL,
IRRELEVANT, OBNOXIOUS AND NOT SUSTAINABLE IN LAW AND
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WA.NO. 1654 OF 2009
THAT THEREFORE THE SAID OFFENDING PORTION IN SECTION
15(1) OF THE ACT IS LIABLE TO BE STRUCK DOWN AS
UNCONSTITUTIONAL. GRANT SUCH OTHER RELIEF OR RELIEFS AS
THIS HON'BLE MAY DEEM FIT IN THE FACTS AND CIRCUMSTANCES
OF THE CASE.
THIS APPEAL, COMING ON FOR HEARING, THIS
DAY,P.S.DINESH KUMAR J,. DELIVERED THE FOLLOWING.
JUDGMENT
Heard Shri T.N.Keshava Murthy, learned Advocate for appellants- writ petitioners and Shri Jeevan J. Neeralgi, learned AGA for respondent-Revenue.
2. At the outset, Shri Keshavamurthy, submitted that appellant does not press the challenge to the vires of conditions and restrictions contained in sub-section 91 of Section 15 of the Karnataka Value Added Tax Act, 20031 in the instant writ petitions and he would be satisfied if, Annexures A to A11 are quashed. He submitted that the petitioner runs a Hotel. He had availed composition tax benefit under Section 15(1) of the KVAT Act. For the A.Y.2 01.04.2005 to 31.03.2006, the Deputy Commissioner of Commercial Taxes, TPS, DVO, Mangalore vide 1 'the KVAT' Act for short 2 Assessment Year -3- WA.NO. 1654 OF 2009 order at Annexures A to A11 all dated June 21, 2006 imposed KVAT as per notification, at the rate of 12.5%
3. He submitted that this Court in M/s. Oriental Cuisines Pvt. Ltd. Vs. The Deputy Commissioner, Bengaluru3 has held that composition certificate issued cannot be cancelled and dealer would be entitled to continue with the benefit under Section 15 of the KVAT Act. According to him, the said judgment has been accepted by the Revenue.
4. The submission made by Shri Keshavamurthy, is not disputed by Shri. Neeralgi. However, he submitted that when there is a clear violation of conditions under Section 15(1) of the KVAT Act, the certificate is liable to be cancelled under Section 15(1) of the KVAT Act from the date of violation.
5. Admittedly, vide Annexures A to A11 dated 21.06.2006, the Assessing Officer has re-assessed the cases and imposed KVAT at 12.5% without canceling the composition certificate.
3 WP Nos.57182-57193/2016 dated 02.04.2018 (para No. 17) -4- WA.NO. 1654 OF 2009
6. The Revenue has accepted the judgment in Oriental Cuisines Pvt.Ltd. (Supra). Therefore, re-assessment orders as per Annexures A to A11 are untenable in law.
7. In view of the above, the following:
ORDER
(i) Appeal is allowed.
(ii) Order at Annexures A to A11 all dated June 21, 2006 are quashed holding that assessee shall be entitled for composition benefit for the period mentioned therein.
No costs.
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JUDGE Sd/-
JUDGE SK/-