Karnataka High Court
M.K. Girish vs Commissioner Of Commercial Taxes In ... on 19 April, 2002
Equivalent citations: [2003]132STC142(KAR)
Author: P. Vishwanatha Shetty
Bench: P. Vishwanatha Shetty
ORDER P. Vishwanatha Shetty, J.
1. Though this petition is posted for preliminary hearing in "B" group, with the consent of the learned counsel appearing for the parties, this petition is taken up for final hearing and disposed of, by this order.
2. In this petition, the petitioner has sought for a direction to the third respondent to furnish the copy of the order dated to have been passed by the respondent under Sub-section (4) of Section 28A of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as "the Act").
3. It is the case of the petitioner that while he was transporting eleven bags of cardamom on the strength of relevant documents such as delivery note in form 39 in No. 049057 and sale bill bearing No. 724, on October 24, 2001 the third respondent stopped the vehicle of the petitioner at check-post and demanded production of relevant documents ; and though the petitioner produced relevant documents for verification by the third respondent, the third respondent without any justification imposed a penalty of Rs. 3,000 on the petitioner in purported exercise of the powers conferred on him under Sub-section (4) of Section 28A of the Act even without making an order under Sub-section (4) of Section 28A of the Act. In this petition, as noticed by me earlier, the petitioner has prayed for issue of order made under Sub-section (4) of Section 28A of the Act to enable the petitioner to pursue the appeal already filed by him challenging the levy of penalty imposed on him.
4. Sri T.K. Vedamurthy, learned Government Pleader appearing for the respondents, after taking instructions from the respondents submitted that there is no order made by the third respondent under Sub-section (4) of Section 28A of the Act. He has also filed an affidavit of the third respondent. In the affidavit filed by the third respondent, it is stated that in form 39, the month was not accurately mentioned ; and according to him instead of referring to the month as October, it was referred as November; and under those circumstances when he intended to levy penalty in terms of Sub-section (4) of Section 28A of the Act, the petitioner voluntarily agreed to pay the penalty ; and therefore, the third respondent without passing a formal order, collected the penalty after issuing receipts. In other words, it is the case of the third respondent that the penalty was collected from the petitioner as he voluntarily made the payment without making an order as required under law.
5. Admittedly, there is no order made under Sub-section (4) of Section 28-A of the Act levying penalty of Rs. 3,000 on the petitioner. Under these circumstances, the collection of a sum of Rs. 3,000 by way of penalty from the petitioner must be held as illegal and unauthorised. The third respondent could collect the penalty from the petitioner only on order being made under Sub-section (4) of Section 28-A of the Act. Since, as noticed by me earlier, there is no such order made, the levy of penalty on the petitioner and collection of the same from the petitioner must be held as the one without the authority of law. However, it is the case of the third respondent in the affidavit filed before this Court, that since the petitioner had voluntarily paid the penalty, when the third respondent intended to levy penalty on the petitioner on account of certain defects noticed by him in form 39, the third respondent did not proceed to make an order under Sub-section (4) of Section 28A of the Act. Though this version of the third respondent is disputed by the petitioner, having regard to the facts and circumstances of the case, I am of the view that it is unnecessary to adjudicate on this question. As noticed by me earlier, it is only on making an order under Sub-section (4) of Section 28A of the Act, the third respondent could proceed to collect the penalty. If the petitioner had admitted the deficiencies in the documents, that could have been made as a basis for making an order under Sub-section (4) of Section 28A of the Act. However, in the absence of an order made under Sub-section (4) of Section 28A of the Act, the third respondent could not have collected the penalty even if the petitioner had voluntarily paid the penalty. The authorities, who are conferred with the statutory and quasi-judicial powers, it is needless to point out that they are required to strictly comply with the requirement of law. The absence of it would result in totally arbitrary exercise of power. However, in the affidavit filed by the third respondent he has expressed his regrets for the procedural irregularities committed by him and for not passing an order under Sub-section (4) of Section 28A of the Act before collecting penalty.
6. In the light of the discussion made above, I make the following :
ORDER The third respondent is directed to refund a sum of Rs. 3,000 collected from the petitioner by way of penalty within two weeks from today.
7. In terms stated above, this petition is disposed of. However, no order is made as to costs.
8. Sri T.K. Vedamurthy, learned Government Pleader is given four weeks' time to file his memo of appearance.