M/s.S.K.Sales Agencies vs The Commissioner of Commercial Taxes & Anr.

The petitioner-M/s.S.K.Sales Agencies has assailed the reassessment order passed by the respondent - Assessing Authority under Section

39(1) of the KVAT Act, 2003 (Act) for the period 2011-2012 vide Annexure-F dated 17.6.2017.

The order impugned is appelable under Section 62 of the Act before the Joint Commissioner (Appeals).

Mr.K.M.Shivayogiswamy, the learned counsel for the petitioner has raised the ground of breach of principles of natural justice while passing of

the said order by the Assessing Authority on 17.6.2017 and he submitted before the Court that in pursuance of the notice given to the petitioner-

assessee, the petitioner made an application Annexure-E dated 10.5.2017 and requested the Assessing Authority for providing a period of one

month time to file the reply to the said notice, as the Auditor of the said petitioner Company, who was authorized to respond to the queries of the

Department, was out of country and was not available at that time.

The learned counsel submitted that however since no further time was granted by the Assessing Authority nor the adjournment request was

rejected by the Assessing Authority, there was a breach of principles of natural justice, which renders this impugned reassessment order liable to

be quashed by this Court in the writ jurisdiction.

Mr.T.K.Vedamurthy, the learned Additional Government Advocate appearing for the respondents - Commercial Taxes Department, however,

opposed the submissions made by the petitioner.

Having heard the learned counsel for the parties, this Court is satisfied that the petitioner has an efficacious alternative remedy available to him

under Section 62 of the KVAT Act and therefore, the present Writ Petitions are not maintainable.

The ground raised by the petitioner of the alleged breach of principles of natural justice is also not sustainable, because prima facie, the

petitionerassessee filed the said application Annexure-E dated 10.5.2017 and had asked for a very large period of one month without adducing

any evidence that it was impossible for the petitioner-assessee to reply to the queries and points of notice issued to him within a period of one

month. Merely by a bald averment that because the Auditor or the Authorized Representative was out of country, assuming it to be true, while no

such evidence was there on the record, it does not entitle the petitioner - assessee to ask for such a long period. The order impugned has been

passed on 17.6.2017 after a period of one month, which was prayed for by the petitioner-assessee. Therefore, nothing prevented the petitioner-

assessee from filing his objections with the relevant evidence even before the date on which the said order was passed on 17.6.2017. But there is

nothing on record to show that the petitioner-assessee produced any such objections with relevant evidence before the Assessing Authority.

Merely raising a hue and cry about the breach of principles of natural justice does not entitle the petitioner-assessee to invoke the extraordinary

Writ jurisdiction of this Court against the orders, which are appealable before the regular Authorities of the Department created under the

enactments.

The power of these Appellate Authorities with two-tier appeal remedies provided under the KVAT Act, first under Section 62 of the Act

before the Joint Commissioner (Appeals) and secondly, before the Karnataka Appellate Tribunal under Section 63 of the Act, which have co-

extensive powers, as the Assessing Authority has under the said Act. Even assuming that the petitioner-assessee could not adduce relevant

evidence before the Assessing Authority, he still has such opportunity available to him even before the Appellate Authorities.

In view of this, nothing entitles the petitioner - assessee to invoke the Writ jurisdiction of this Court in these circumstances. The Writ Petitions

thus being devoid of merit are liable to be dismissed and the same are accordingly dismissed. The petitioner- assessee may prefer such appeal

within a period of four weeks and if such appeal is preferred by him within four weeks from today, the Appellate Authority may not raise any

objection about the bar of limitation, however, subject to the other conditions for maintenance of appeal being fulfilled by the petitioner - assessee.

No order as to costs.