Karnataka High Court
Indus Mobile Distribution Private ... vs The State Of Karnataka on 20 June, 2018
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NOs.25153 & 25469/2018 (T-RES)
BETWEEN:
Indus Mobile Distribution Pvt. Ltd.,
No.21, Deepanjalinagar Layout,
Gali Anjaneya Temple Road,
Bengaluru - 560 026.
Reptd. by its Director
Sri. C. Sivanandam. ...Petitioner
(By Sri. Venkatesh. S. Arabatti for
Sri. K.S. Harish, Advocate)
AND:
1. The State of Karnataka,
By its Principal Secretary,
Finance Department,
Government of Karnataka,
Vidhana Soudha,
Bengaluru - 560 001.
2. The Joint Commissioner of
Commercial Taxes (Appeals-2),
2nd Floor, BMTC, TTMC,
'B' Block, Shanthinagar,
Bengaluru - 560 027.
3. The Deputy Commissioner of
Commercial Taxes (Audit 2.5)
VTK-2 'B' Block, Room No.608,
6th Floor, Near National Games
2
Village Complex, Koramangala,
Bengaluru - 560 047. ....Respondents
(By Sri. T.K. Vedamurthty, AGA)
These Writ Petitions are filed under Articles 226
and 227 of Constitution of India praying to quash by a
writ of certiorari or any other appropriate writ or order
or direction in the nature of a writ, order No. CAS order
No.249475725 APP dated 25.04.2018 (Wrongly shown
as 25.04.2017) in vide Annexure-L passed by R.2 and
etc.,
These writ petitions coming on for Preliminary
Hearing this day, the Court made the following:
ORDER
The petitioner has filed the present writ petitions for a writ of certiorari to quash the order dated 25.04.2018 (wrongly shown as 25.04.2017 as per Annexure -L) passed by the 2nd respondent and to quash the reassessment order dated 23.03.2017 passed by the 3rd respondent and the demand notice in form VAT 180 dated 23.03.2017 vide Annexure -C issued by 3rd respondent.
2. It is the case of the petitioner that, he is engaged inter-alia in the business of sales of mobile phones, its parts and accessories and is registered 3 under Karnataka Value Added Taxes Act, 2003 (KVAT Act) for the said purpose with TIN No.:29230767398/LVO-060A. During the assessment period 2010-11, the petitioner purchased and sold the said goods and also declared the same in its monthly returns as required under the KVAT Act.
3. It is the further case of the petitioner that the sales of mobile phones is made in packages as per the statutory requirement in terms of the Legal Metrology Act, 2009 and the Legal Metrology (Packages Commodities) Rules, 2011 with the declaration of the information on the package as required under the Package Laws. The mobile phones are sold in packages along with the charger, earphones, user manual etc. The sealed packages of mobile phone are necessarily sold along with the other contents thereof. Though the sealed packages contains charger, earphones, etc., the intent of a customer to purchase the said package is to buy the mobile phone and not the other contents of the said package.
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4. It is the further case of the respondent that the 3rd respondent by an endorsement dated 20.01.2017, granted time to file the reply. Thereafter, respondent No.3 has passed the reassessment order bearing CAS No. VAT:213020932 dated 23.03.2017 and also issued Notice of Demand of Tax, Penalties and Interest in Form VAT 180 dated 23.03.2017. Later, petitioner sent a notice bearing No. DC(A)2.5/374/2017-18 dated 04.07.2017 in Form VAT 350 intimating that the petitioner has failed to pay tax, penalty and interest aggregating to Rs.1,90,07,280/-. Therefore, the petitioner filed an appeal before the Appellate Authority under the provisions of Section 62(2) of KVAT Act. The Appellate Authority, considering the appeal, has proceeded to dismiss the appeal as barred by limitation by impugned order dated 25.04.2017. Hence, the present writ petitions are filed.
5. I have heard the learned counsel for the parties to the lis.
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6. Sri. V.S. Arabatti learned counsel for the petitioner contended that the impugned order passed by the Appellate Authority dismissing the appeal as barred by time is erroneous and contrary to law. He would further contend that the impugned order passed by the 3rd respondent on 23.03.2017 was received by the petitioner on 22.07.2017 as per Annexure -B, and an appeal came to be filed manually on 17.02.2018 as per Annexure -D before the Appellate Authority and the appeal filed also through online on 19.03.2018. If the appeal filed manually is considered as within time, the Appellate Authority has not considered the same and proceeded to dismiss the appeal only on the ground of 2 days delay which is erroneous and contrary to the intention of the provisions of the Section 62(3) of KVAT Act. Therefore, he sought to quash the impugned order passed by the 3rd respondent by allowing the present writ petitions.
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7. Per contra Sri. T.K. Vedamurthy learned AGA, on taking notice, sought to validate the impugned order and contended that the notice issued i.e., the impugned order reassessment order passed by the 3rd respondent is on 22.07.2017 and the online appeal filed is on 19.02.2018. Therefore, there was a delay of 212 days in filing the appeal. The provisions of Section 62(3) of KVAT Act mandates that the appeal should be filed within 180 days after 30 days i.e., in total 210 days, the appeal should be filed. The appeal is filed beyond 210 days. The Appellate Authority has no power to condone the delay beyond 210 days. Therefore, he sought to dismiss the writ petitions.
8. Having heard the learned counsel for both the parties, it is undisputed fact that the petitioner is engaged in business of sales of mobile phones and its parts and accessories and is registered under KVAT Act. It is not disputed that the 3rd respondent, by reassessment order dated 23.03.2017, has issued notice on payment of tax, penalty and interest for a sum of 7 Rs.1,90,07,280/-. Aggrieved by the said order/demand order, the appeal came to be filed before the Appellate Authority. It is the specific case of the petitioner that upon receiving the reassessment order passed by the 3rd respondent on 27.07.2017, the manual appeal was filed on 17.02.2018 and online appeal was filed on 19.02.2018. If the appeal is taken from the date of manual appeal, it is within time. If the online appeal is considered, the delay comes to 212 days.
9. The provisions of Section 62 of the KVAT Act clearly defines that an appeal may be filed before the Appellate Authority in respect of an order of assessment, within thirty days from the date on which the notice of assessment was served on the appellant, and in respect of any other order or proceedings, within thirty days from the date on which the order was communicated to the appellant. The appellate authority may admit an appeal preferred after the period as aforesaid but within a further period of one hundred and eighty days, if it is satisfied that the appellant had 8 sufficient cause for not preferring the appeal, within that period. Therefore, Appellate Authority has got power to admit the appeal within 30days +180 days = 210 days.
10. In the present case even assuming the appeal is filed beyond the limitation i.e., 2 days later, the Appellate Authority cannot dismiss the appeal mainly on the ground of technicality since the amount involved in respect of the tax, penalty and interest is about Rs.1,90,07,280/- and the rights of the parties cannot be deprived on mere technicality.
11. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for, the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by 9 resorting to delay. In fact, he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
12. Hon'ble Supreme Court in the case of Dhiraj Singh Vs. State of Haryana and others reported in (2014) 14 SCC 127 has held that ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
13. In view of the afore said orders, writ petitions are allowed. Impugned orders passed by the 3rd respondent dated 25.04.2017 made in No. VAT.AP. No.130/17-18 CAS ORDER No.249475725 10 APP as per Annexure -L is hereby quashed. The delay of 2 days is condoned. The matter is remanded to Appellate Authority, Joint Commissioner of Commercial Taxes (Appeals)-2, Shanthi Nagar, Bengaluru for consideration of appeal on merits without reference to limitation and to pass orders strictly in accordance with law.
Ordered accordingly.
Sd/-
JUDGE BVK