Karnataka High Court
M/S. Wind World (India) Infrastructure ... vs State Of Karnataka on 31 May, 2017
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY 2017
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
WRIT PETITION Nos.16384-16388/2017
&
WRIT PETITION No.16389/2017 (T-RES)
BETWEEN :
M/S. WIND WORLD (INDIA) INFRASTRUCTURE PVT. LTD.,
NO.10, BRUNTON ROAD,
3RD FLOOR, CASA BIRGITTA,
BANGALORE-560025,
REPRESENTED BY ITS AUTHORISED SIGNATORY
AND ASST. MANAGER,
SRI H. S. HARISHA,
AGED ABOUT 54 YEARS. ... PETITIONER
(BY SRI K. M. SHIVAYOGISWAMY, ADV.)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS FINANCE SECRETARY,
DEPARTMENT OF FINANCE,
VIDHANA SOUDHA,
BANGALORE-560001.
2. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES
(AUDIT-1.4), DVO-1,
TTMC BUILDING,
2ND FLOOR, 9TH LEVEL, BMTC,
YESHWANTHPUR,
BANGALORE-560022.
3. THE JOINT COMMISSIONER OF COMMERCIAL TAXES
(APPEALS)-1,
BMTC "B" BLOCK,
2
SHANTHINAGAR,
BANGALORE-560027. ... RESPONDENTS
(BY SRI T. K. VEDAMURTHY, AGA)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE AND HOLD THAT SECTION 62(3) OF THE KVAT ACT
2003, IS REFERABLE TO SECTION 14 OF THE LIMITATION ACT,
1963 EXCLUDING THE TIME SPENT ON BONAFIDE PURSUING A
LEGAL REMEDY IN APPROACHING WRONG FORUM IN RESPECT
OF CALCULATING THE PERIOD OF LIMITATION, AS SECTION
62(3) OF THE KVAT ACT, 2003, DOES NOT IN ANY EVENT
EXPRESSLY EXCLUDE THE APPLICATION OF SECTION 14 OF
THE LIMITATION ACT, 1963 AND SECTION 14 OF THE
LIMITATION ACT, 1963 BEING CENTRAL ACT AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING :
ORDER
The petitioner is aggrieved by the order dated 31.12.2016, passed by the Joint Commissioner of Commercial Taxes, whereby the Joint Commissioner has dismissed the appeals filed by the petitioner under Section 62 (6) of the KVAT Act, 2003, interalia on the ground that the appeals filed by the petitioner are delayed. According to the learned Joint Commissioner, since he does not have the 3 power to condone the delay under Section 62 of the KVAT Act, and since the appeals were hit by limitation, he has dismissed the appeals.
2. Briefly the facts of the case are that the petitioner, M/s. Wind World (India) Infrastructure Pvt.Ltd., formerly known as M/s. Enercon (India) Infrastructure Pvt. Ltd., is in the business of construction of sub-station/switchyard for power evacuation and has constructed and capitalized power sub-stations in different states of the country. The petitioner is registered under the provisions of the KVAT Act, and under the Central Service Tax. According to the petitioner, the petitioner began its business in the year 2007-08. It is declaring the amount of rent charged on the sub-stations as taxable services under the provisions of the Service Tax Act. Simultaneously, the petitioner has also been filing the VAT returns under the respective state legislations.
3. However, on 04.04.2014, the Officers of the Commercial Tax Department inspected the Books of Accounts of the petitioner-Company and issued an 4 endorsement on 14.05.2014, for production of books of accounts and other documents. For the Assessment period 2008-09, the re-assessment order was passed on 06.03.2015. Since the petitioner was aggrieved by the re-assessment order, it filed a writ petition before this Court. However, the learned Single Judge of this Court had dismissed the writ petition interalia on the ground that the petitioner had an alternative remedy of filing of an appeal.
4. With regard to the assessment period 2009-10, 2010-11, 2011-12, and 2012-13, the respondent passed the re-assessment order on 30.11.2015.
5. With regard to the assessment period 2007-08, the respondent passed the re-assessment order on 27.12.2015. Since the petitioner was again aggrieved by this re-assessment order, again the petitioner filed a writ petition before this court challenging the same. However, by order dated 26.02.2016, the learned Single Judge dismissed the writ petition interalia on the ground that the petitioner had the availability of efficacious alternate remedy in filing an 5 appeal. Since the petitioner was aggrieved by the said order, it filed different writ appeals before the learned Division Bench. The different writ appeals were dismissed by the learned Division Bench on 21.03.2016, relating to the assessment period 2009-10, by its judgment dated 21.04.2016 relating to the assessment periods 2010-11, 2011-12, and 2012-13, and by its judgment dated 10.08.2016, relating to the assessment period 2008-09.
6. Since this Court was of the opinion that the petitioner should actually avail an efficacious alternate remedy for filing the appeal, eventually, the petitioner filed six appeals before the Joint Commissioner of Commercial Taxes. However, by order dated 31.12.2016, the learned Joint Commissioner has dismissed the appeals as mentioned above. Hence, this petition before this Court.
7. This Court has asked a pointed query to the learned counsel for petitioner as to why the alternate remedy provided under Section 63 of the KVAT Act has not been pursued by the petitioner? To this query, the learned 6 counsel for petitioner submits that since the petitioner would be required to deposit 50% of the tax liability, the alternate remedy is not an efficacious one. Secondly, the petitioner has sought a declaration from this Court to hold that Section 62 (3) of the KVAT Act, 2003, should be interpreted in light of Section 14 of the Limitation Act. Therefore, the time taken by the petitioner before the wrong Forum, the said period should have be deducted while calculating the period of limitation. However, according to the learned counsel, such declaration cannot be given by the learned KAT. Therefore, the petitioner has directly approached this Court.
8. The position being taken by the learned counsel for petitioner is clearly untenable.
Firstly, according to Section 63 of the KVAT Act, any person aggrieved by any order passed by the Appellate Authority under Section 62 of the KVAT Act is required to file his appeal under Section 63 before the Tribunal. Merely because the right to appeal is subject to depositing part of the tax due, it cannot be said that the alternate remedy is an 7 inefficacious one. In catena of cases, the Hon'ble Supreme Court has already opined that right to file an appeal is statutory one. Even if the statute imposes certain burden upon the assessee, the assessee cannot claim that alternate remedy is not an efficacious one.
Secondly, in the case of M. P. Steel Corporation v. Commissioner of Central Excise [ 2015 (310) E.L.T. 373 (S.C.) ] the Hon'ble Supreme Court has already opined that the philosophy of Section 14 of the Limitation Act has to be kept in mind while dealing with the power to condonation. Thus, this Court need not declare that Section 62 (3) of the KVAT Act should be read in light of Section 14 of the Limitation Act. For once the Apex Court has settled the law, this Court need not re-iterate the same. The interpretation of the Apex Court is binding on the Tribunal as well. Therefore, there is no legal justification for the petitioner to have circumvented the alternate remedy and have come directly before this Court.
8
10. Therefore, for the reasons stated above, this Court is of the opinion that this Court should not exercise its writ jurisdiction in the present case. Hence, the petition stands dismissed.
Sd/-
JUDGE Np/-