M.V. Sheshachalapathy Naidu vs The Assistant Commercial Tax Officer, Kolar

A.N. Venugopala Gowda

Challenge in this petition is to an order of attachment of an immovable property belonging to the petitioner''s father, for recovery of the alleged arrears of tax etc. Petitioner has been prosecuted in the Court, by the respondent for recovery of Rs. 75,180/-, being the tax payable under S. 13(3) of the Karnataka Sales Tax Act, 1957. Learned Magistrate passed an order dated 18.10.2011 attaching the property of the petitioner''s father. Said order was questioned in Crl. R.P. No. 1258/2011. By an order dated 14.12.2011, while allowing the petition and remanding the matter to the learned Magistrate, Court below was directed to decide the matter in the light of the observations made i.e., after issue of fresh summons to the petitioner.

The observations made in the said order, which are material, reads thus:

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.

(underlined for emphasis)

Petitioner has appeared through an advocate and has produced a copy of the said order on 20.12.2011. Petitioner having not appeared on the subsequent dates, the impugned order has been passed. Perusal of the impugned order shows that the learned Magistrate has not kept in view the observations made by this Court, noticed supra and that the impugned order is bereft of any reasons for the conclusion. There is a mechanical act on the part of the learned Trial Court Judge.

In the result, the impugned order being vitiated cannot be upheld. The petition is allowed and the impugned order is set aside and the learned Magistrate is directed to proceed further in the matter, keeping in view the observations made in the order dated 14.12.2011 passed in Crl. R.P. No. 1258/2011.

Petitioner is directed to appear before the Trial Court on 24.9.2012 and receive further orders.

Further petitioner/counsel to appear before the Trial Court on all the dates of hearing and the Trial Court is directed to decide the matter expeditiously and at any event before 31.12.2012.