Dayanand Masur vs The Principal Secretary

A.N. Venugopal Gowda, J.—Petitioner, a registered dealer under Karnataka Value Added Tax Act, 2003 with effect from 1-4-2005 having filed monthly returns to the Office of the Local VAT Office, 310, Dharwad, from April 2005 to March 2007, filed this writ petition on 9-1-2009, to declare Section 72 of the Karnataka Value Added Tax Act, 2003, as ultra vires, the powers of State Legislature in Entry 54 of List II of Seventh Schedule to the Constitution of India and quash Sections 36 and 72 of the Act and to also quash the composite reassessment order dated 23-10-2008 passed by respondent 3 along with demand notice in Form VAT 180, dated 23-10-2008, vide Annexures-A and B and for issue of mandamus directing respondent 4 to issue revised demand notice as per order dated 28-1-2005 of Karnataka Appellate Tribunal, vide Annexure-C and issue the revised demand notice in terms of application dated 30-9-2004 u/s 25-A of Karnataka Sales Tax Act, 1957, for the year 2005 and order the refund of tax claimed as a result of rectification sought along with interest in terms of Section 13-A to respondent 3 and for consequential reliefs. In W.A. No. 3751 of 2009 ( The Asst. Commissioner of Commercial Taxes, The Commissioner of Commercial Taxes and State of Karnataka and Others Vs. M/s.Pink City No. 30/3 ) and connected appeals decided on 10-2-2011, Section 72 of the Act was declared as constitutionally valid. However, the order passed by the learned Single Judge, impugned in the writ appeals, insofar as quashing of the demand notice was allowed to stand with a rider that the entire matter is now remitted back to the Assessing Officer with direction: (i) to issue a show-cause notice calling upon the petitioners to show cause as to why the penalty contemplated should not be imposed; (ii) after the appearance of the petitioners to give them a personal hearing; (iii) after considering the cause shown, to find out whether their case falls under any of those circumstances set out in para. 44 and if it falls under any of those circumstances to drop the penalty proceedings; (iv) if it does not fall under these categories, to keep in mind the observations made by this Court as a one time measure and also give the benefit of the amended Section retrospective effect from 1-4-2005 and pass appropriate orders in accordance with law.

Sri Narayan G. Rasalkar, learned Advocate for the petitioner submitted that the aforesaid judgment applies to the instant case and the Assessing Authority should consider the grievance of the petitioner in terms of the directions issued in the judgment noticed supra. Sri M. Keshavareddy, learned AGA, submitted that the case of the petitioner would be considered by the concerned in terms of the directions issued in the judgment rendered in the case of Pink City and the claim/demand, would be regulated in accordance with law. Submissions of the learned Counsel on both the side stand recorded.

In the result, petition is disposed of in terms of the judgment dated 10-2-2011, passed in W.A. No. 3751 of 2009 and connected appeals. Respondents are directed to consider the grievance of the petitioner with regard to refund by keeping in view the directions issued in the aforesaid judgment. It is open to the petitioner to submit representation to the Assessing Authority, in the matter of revision of the demand and the consequential refund etc.

Ordered accordingly.