Karnataka High Court
M/S Univercell Telecommunications ... vs State Of Karnataka on 28 April, 2016
Bench: Jayant Patel, B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 28TH DAY OF APRIL, 2016
PRESENT
THE HON'BLE MR. JUSTICE JAYANT PATEL
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
WRIT APPEAL No.842/2016 &
WRIT APPEAL Nos.992-1002/2016(T-RES)
BETWEEN:
M/S. UNIVERCELL TELECOMMUNICATIONS
(INDIA) PVT. LTD.,
NO.1 & 2, 3RD MAIN, GROUND FLOOR,
SESHADRIPURAM,
BANGALORE - 560 020.
REP. BY ITS DIRECTOR AND
AUTHORISED REPRESENTATIVE
SHRI. G.S. RAMAMURTHI. ... APPELLANT
(BY SRI: CHERIAN PUNNOSE, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
THROUGH ITS PRINCIPAL SECRETARY,
FINANCE DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE - 560 001.
2. THE COMMISSIONER OF
COMMERCIAL TAXES IN KARNATAKA,
"VANIJYA THERIGE KARYALAYA",
GANDHINAGAR,
BANGALORE - 560 009.
3. THE DEPUTY COMMISSIONER OF
COMMERCIAL TAXES,
(AUDIT)-1.6, DOV-1,
BANGALORE - 560 009. ... RESPONDENTS
-: 2 :-
(BY SRI: K.M. SHIVAYOGISWAMY, ADDL. GOVT. ADVOCATE)
*****
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION 6134-6145/2016
DATED 05/02/2016 AND ETC.,
THESE APPEALS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, JAYANT PATEL J., MADE THE
FOLLOWING:
ORDER
Admit.
2. Mr. K.M.Shivayogiswamy, learned Addl. Government Advocate appears on advance copy and waives notice.
3. With the consent of learned counsel appearing on both sides, the appeals are finally heard.
4. The present appeals are directed against interim order dated 5/2/2016, passed by the learned single judge in the respective main writ petition, whereby the learned single Judge has granted stay with a condition to -: 3 :- deposit 30% of the demand amount and to furnish bank guarantee for the remaining amount within eight weeks.
5. We have heard Mr.Cherian Punnose, learned counsel appearing for the appellant and Mr.K.M.Shivayogiswamy, learned Addl. Government Adocate, who appeared on advance copy for the respondents.
6. As such, two principal contentions are raised by the learned counsel for the appellant in the main writ petitions. One is that there was a concluded re- assessment and thereafter based on the subsequent decision of the Supreme Court Section 39 of the KVAT Act has been invoked.
7. Learned counsel for the appellant submitted that once the concluded re-assessment was there, it could not be reopened merely because, subsequently, Supreme Court has held that charger is not a part of mobile for the purpose of levying VAT. The second contention by the -: 4 :- learned counsel for the appellant is that even Section 39(2) was not on the statute, which has been invoked since Section 39, which is invoked has come into force in the year 2013, whereas reassessment is concluded in the year 2012.
8. Learned counsel for the appellant has also relied upon the decision of the Apex Court in the case of Deputy Commissioner of Imcome Tax & others Vs. M/s.Simplex Concrete Piles (India) Limited [2012 (IT1)-GJX-0430-SC], whereby the view taken is that the subsequent reversal of the legal position of the decision by the judgment of the Supreme Court does not authorize the Department to reopen the assessment, which stood closed on the basis of the law, as it stood at the relevant time.
9. On the aspects of availability of Section 39 of the KVAT Act, learned counsel has relied upon a decision of this court in case of M/s.Amma Construction India Pvt. Ltd. Vs. The Assistant Commissioner of Commercial -: 5 :- Taxes & others [2015(7)TMI 547], which is by one of us (B.V.Nagarathna J.). As such, there is a point of jurisdiction to reopen the reassessment and the matter deserves consideration as the learned counsel has already admitted the matter, the same appears to be appropriate, but if the jurisdiction to reopen the concluded assessment is not available, everything would fall to ground.
10. We leave it at that because the matter is pending before the learned single judge. Considering the facts and circumstances, it appears to us that the learned single judge while granting the interim relief ought to have considered the aforesaid aspects. We are conscious of the fact that in normal circumstance, there would not be any stay against the recovery of tax, but in the peculiar circumstances of this case where there was a concluded assessment and the reopening of the assessment is based on the subsequent decision of the Supreme Court and the point as to jurisdiction under Section 39 is under consideration, it would be just and proper to modify the -: 6 :- interim order passed by the learned single judge and since the matter is pending before the learned single judge, the parties should be relegated to agitate the contentions before the learned single judge who is seized of the matter.
11. Hence, we find that, following direction would meet the ends of justice:
The interim order passed by the learned single judge shall stand modified to the effect that there shall be stay against recovery of the demanded amount on condition that the appellant furnishes bank guarantee equivalent to 30% of the demand on or before 06/06/2016 and further gives an undertaking also to be given before that date to this court through its Managing Director for the remaining 70% of the demanded amount declaring that, in the event the appellant fails in the petition and the demand is confirmed, ultimately, the amount equivalent to 70% with accrued interest shall be paid within a period of three months from the date of the final order. -: 7 :-
The parties shall agitate their rights and contentions before the learned single judge in the main petitions and the learned single judge shall be at liberty to independently decide the matter in accordance with law without being, in any manner, influenced by the interim arrangement made by this court in the present appeal.
Suffice it to state that, the rights and contentions of both sides, before the learned single judge, shall remain open and shall not be prejudiced by observations made by this court in the present order.
All the appeals are disposed of in terms of the aforesaid directions.
Sd/-
JUDGE Sd/-
JUDGE S*