Karnataka High Court
Sap India Private Limited vs The Assistant Commissioner Of ... on 23 November, 2010
Author: Ashok B.Hinchigeri
Bench: Ashok B.Hinchigeri
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23RD DAY OF NOVEMBER, 2010 BEFORE THE HON'Bi_E MR. JUSTICE ASHOK B. HINCHI(_3;'iE'i?:i--,',,'_~...'..: WRIT PETITION Nos.35456-35467/2010 (T.--RTE:s3'vAO.f: BETWEEN: SAP India Private Limited, Salarpuria Softzone, Wing A, 2"" Floor, Tower B, Sarjapur Outer Ring Road, Bellandur Post, Bangalore -- 560 103. '-- L Represented by its Chief Financial .Qffi_cer ' " Mr. Samir Kashyap. Petitioner (By "E3r.i iIkata.ra--rn an,' 'Sr; "Advoca te for I _ "S_-:i.P."«Din,es!';_, Adyocate) AND: 1. The Assistant Civomnwissioner of Commercial "i"a><'e.s,,(_AIJdit) - 41, -DAVO--4, ?-.Ban"g.alore. "" T' 2. .The_ 'State, of"'i~'.a rnata ka, Hniance"i3'é.3ai'trnent, vidhanasou*--dha, -- Bangalore 45560 001. "-.Represer_Tted by its Secretary to the Government. ":O:"'_i"heT"Manager, 1 Citiisank N.A, Prestige Meridian, A "M.G. Road, Bangalore - 560 001. Respondents
(By Sri K.M. Shivayogiswamy, HCGP for R~1 and R--2, Notice to R~3 dispensed with) 2 These writ petitions are fiied under Articies 226 and 227 of the Constitution of India praying to quash bank attachment notice dated 29.10.2010 vide Annexure-A issued by the R-1 to the R-3 to keep Rs.14,14,1S,878/- in abeyance and pass such further or other orders and etc. These writ petition are coming on for Preliminary Hearing this day, the Court made the foliowing: V QRDER Sri K.M.Shivayogiswamy, the A Government Pieader is directed to take n»otic_e~f,or tt;e'~resp'oVn'd.ei:::t_i Nos.1 and 2. Notice to the respond'er'.t_No.V3'-isxdispe'nse.d...wVith. A
2. The petitioner hasraisedy_..the.._chai|en'g'e.to the bank attachment notice, dated
3. The*--.fa'cts tjrief are that the respondent No.1 passed theireasseissrnnantgorder on 25.9.2010. The copies of,.the reassessinent ord«e.r___a.rid the consequentiai demand notice were'se'rv.ed».__onf.th'e_ petitioner on 12.10.2010. The bank 1"'...§ttachme.n'ti'waisiaifiéiied on 23.10.2010. Monev was recovered _ifi_'omVhthe petit'ionhexr's account in the banks on 26.10.2010. The fpeétitifonlerl'challenged the reassessment orders by filing an appeal "'V_1befo«i'e the Joint Commissioner of Commercial Taxes invoking 62 of the Karnataka Value Added Tax Act, 2003 ('VAT for short).
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4. Sri N. Venkataraman, the learned Senior Counsel appearing on behalf of the petitioner submits that:'fth.e respondent Nos.1 and 2 have resorted to the measures even before the expiry of |imitati.on_ period'"fo.rjvfili'ng_'they K' aPDea|. He also submits that 80% of It-heidfemaride-Cl,'arno_un'tsj are already recovered. When the li'?lq\/_\\>'i,,0Q olffflie afTl§':i,ui'i:t[S~~--i.tse3lf is = L' in dispute, the respondents are no_t.?justified lin'-c,o_iAle_¢3ting the amounts, so submits Senior V
5. Sri learned High Court Government thjlelliriesiplondent Nos.1 and 2 submits thatthelsefi beudispéosed of with a direction to the Appellate'' Commissioner of Commercial Taxes) to d_is_pose4"of_:the.'petitioh.er's pending appeal. He further submits' the pet'i't'i'oner succeeds in the appeal, the amoun__t's,AAr;a'n refunded to the petitioner.
6. of rejoinder, Sri Venkataraman submits "-«tlh'at__V'-merely.'because there is a provision for refund, the Nos.1 and 2 are not justified in retaining the which they have collected prematurely and forcibly. figéé 4
7. The submissions of the learned counsels have received my thoughtful consideration. It is beneficial to refer to the provisions of Section 62(4) of the VAT Act. The said prov.i-sions are extracted hereinbelow: be e "62. Appeals (4) (a) No appeal against an or.der.of shall be entertained by the appellate aluthioritye unless it it is accompanied by satisfactoryeproofoV.of..:th'e payment of tax and penalty'--«.n'ot disputed _°ine';the' appeal.
(b) The tax or other paid in accordance witlifthe order' appeal has (C) '{"i)_ " The "authority may, in its discretion, stay .pa.ynn'.ent" of one half of tax, if the V. appeilanet njiakes"-pa_yrnent of the other half of the tax e.Aa'ion:9 iris/'ith prescribed form of appeal. 'L'.('ii) application made by an applicant forehstaying'proceedings of recovery of any tax or amount has not been disposed of by the V":"_A,opeA;'late Authority within a period of thirty days __ tom the date of such application, it shall be deemed "that the Appellate Authority has made an order staying proceedings of recovery of such tax or other amount subject to payment of one half of the tax 93% disputed and furnishing of sufficient security to the satisfaction of the Assessing Authority in regard Jtoii the other half of such tax or amount within a further».'__'__i' "
period of fifteen days. (0') xxxxxxx
(e) xxxxxxx"
8. The perusal of the afore-extrac:ted--.gproiiisi~onsA show that the party is entitled to the ben.ef*:t_ 'O---f'.'b:éerned stay in the appeal, if he has dep.ositedvA...50% and has executed the remaining 50% amounts. This being and provision, the petitioner's off by resorting to the coercive during the pendency of the aPDeaL 55 5 H "of justice wouid be met by my passing the 1 ._ following. _ o5.r'__d er': ' V V _i) ""The«._"resp'ondent Nos.1 and 2 shail retain 50% of the .. ___coI|'e'c:ted amounts and refund 30% to the petitioner '' forthwith.
The petitioner shail execute the bank guarantee for the remaining 50% of the amounts.
fig}! T no The respondent Nos.1 and 2 shall not resort to recovery proceedings during the pendency oF----.ythe appeai on the respondent Nos.1 and V. with the clause i) and the petitioner corhpiyijnrpiii'vrith"f the clause ii) directed hereinevjdboye; ._ The Appeiiate Authority. (}oi"n_t'"'Comrriisésiiioynertg of Commerciai Taxes) is to"--dis'pose; of the petitioner's appeéifle-.s e§:><p§e.d'iti.gu;s'i;r_as possibie and in any case within..é_n..ot;Vteyr 'i.i*nfii't3Co~f'V'"three months from the 'iss_uéinc_e certified copy of toyd '5" er: _ t ' ' «.
10. Thes«e'r~petitioi':sdeter"ticcordingly disposed of. Vd*c.-' ooooo gag-
RIDGE