M.V. Seshachalapathy Naidu vs The Commissioner Tax Officer (Recovery) Kolar

A.S. Pachhapure

Though the matter is posted for admission, with the consent of the counsel, it is taken up for final disposal.

The petitioner has challenged the Order dated 22.11.2011 issuing attachment of the properties of the petitioner''s father for recovering the tax amount.

The respondent/Commercial Tax Officer [Transition], Kolar, submitted an application before the trial Court seeking recovery of `75,180-00, the tax payable u/s 13(3) of the Karnataka Sales Tax Act, 1957 from the petitioner herein. The copy of the application has been produced at Annexure- "A". The learned Magistrate even without serving the summons upon the petitioner had passed the impugned Order and aggrieved by the same, this revision petition has been filed.

I have heard the learned counsel for the petitioner and also the learned Government Pleader.

The petitioner has produced Annexure-"B", an information with regard to the person, who was holding the license to run the business in the premises in dispute, wherein it is stated that for a period from 01.07.1996 to 30.06.2001, in the disputed premises i.e. khatha No. 141/1, Gudipalli village, Mulbagalu Taluk, one Smt. Padma was holding the license to run the shop. Annexure-"C" endorsement reveals that the said Smt. Padma, who owned the shop in the premises in question for a period between 1992 and 2001. At the first instance, it is necessary to note that the learned Magistrate did not issue any summons to the petitioner for his appearance before the trial Court and in his absence, the impugned Order came to be passed. The records produced reveal that the petitioner was not running brandy shop in the premises in question. The learned Magistrate has not satisfied himself after enquiring as to the person who is actually running the brandy shop in the premises in question and the period for which the tax was due.

This Court in a decision reported in Ganesha Narayana Hegde and Others Vs. Commercial Tax Officer, has held that against the issuance of distress warrant for recovery of the tax, a revision could be maintained before this Court. This Court has also held that the Magistrate must have subjectively satisfied about the tax due and also the person from whom it is due. The impugned Order is without any notice to the petitioner and without any reasons for conclusion, which is against the principles of natural justice. In that view of the matter, I am of the opinion that the impugned Order has to be quashed remitting back the matter to the trial Court to pass appropriate Order after securing the party from the Court and to dispose of the same in accordance with law.

Hence the revision petition is allowed. The Order dated 22.11.2011 at Annexure-"D" issuing attachment warrant for recovery of the taxes is set aside. Consequently, I.A. No.2/11 filed for stay does not survive and hence rejected. The matter is remitted back to the trial Court for disposal of the same in accordance with law and in the light of the observation made above. The trial Court shall issue fresh summons to the petitioner and proceed with the case.