SAP India Private Limited vs Deputy Commissioner of Commercial Taxes

D.V. Shylendra Kumar, J.—The writ petition by an assessee under the provisions of the Karnataka Sales Tax Act, 1957 was being assessed to certain tax liability for the periods 2002-03, 2003-04 and 2004-05. The tax liability in respect of these periods with penalty are as under:

Details of Arrears ________________________________________________________________________ Year KST Penalty Total ________________________________________________________________________ 2002-03 1,37,64,358 2,06,46,537 3,44,10,895 2003-04 2,84,49,636 4,26,74,454 7,11,24,090 2004-05 37,54,11,027 56,31,16,659 93,85,27,686 ________________________________________________________________________ Total 41,76,25,021 62,64,37,650 1,04,40,62,671 ________________________________________________________________________

The liability is sought to be realised by the respondents, Commercial Tax Department of the Government of Karnataka, by resorting to the provisions of Section 13(3)(b) of the Karnataka Sales Tax Act, 1957.

However, before embarking on such course of recovery, it appears the Deputy Commissioner of Commercial Taxes (Recovery)-11, Bangalore, had caused a show-cause notice u/s 13(3)(b) of the Act on the petitioner produced as annexure B to the writ petition. It is for quashing of this show-cause notice the present writ petition.

The respondent being put on notice the respondent is represented by the learned Government Pleader.

Submission of Sri Harish, learned Counsel appearing for the petitioner, is that the amount of tax which is sought to be recovered under the notice at annexure "B" is an amount referable to the assessment orders on the assessee for the years 2002-03, 2003-04, 2004-05; that the assessment order determining this tax liability in itself is the subject-matter of W.P. No. 1984 of 2008 ; and when this matter is now pending before this Court, the recovery is bad in law and therefore the notices at annexure "B" should be quashed.

Appearing on behalf of the respondent Sri Shivayogiswamy, learned Government Pleader, on the other hand, submits that a writ petition merely questioning recovery proceedings is not tenable and that the demand is only consequential. If the assessment order has already been questioned elsewhere an independent writ petition cannot be filed for the same cause of action ; that the notice u/s 13(3)(b) is merely in the nature of information that in itself is not determinative of the rights of the petitioner and the writ petition is liable to be dismissed.

If the subject-matter of demand is already in issue in a different writ petition, in respect of that amount an independent writ petition does not lie. It is for the petitioner to seek appropriate orders in the very writ petition and not to question the recovery in an independent writ petition.

That apart, in the notice u/s 13(3)(b), while can be characterised as an innocuous notice or as an unnecessary notice, what is indicated therein is that if the assessee fails to remit the amount as has been assessed within a period of seven days from the date of receipt of the notice, action u/s 13(3)(b) of the Act will be resorted to. Section 13(3)(b) reads as under:

Payment and recovery of tax.- (1) The tax or any other amount due under this Act shall be paid in such manner in such instalments, subject to such conditions, on payment of such interest and within such time, as may be prescribed:

Provided that where the amount paid...

(2) ...

(3) Any tax assessed, or any other amount due under this Act from a dealer or any other person may, without prejudice to any other mode of collection, be recovered-

(a) as if it were.

(b) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), on application to any magistrate, by such magistrate as if it were a fine imposed by him:

Provided that where a dealer or other person who has appealed or applied for revision of any order made under this Act and has complied with an order made by the appellate or the revising authority in regard to the payment of the tax or other amount, no proceedings for recovery under this sub-section shall be taken or continued until the disposal of such appeal or application for revision.

(4) The High Court...

This is a provision which enables the Revenue to realise arrears; of tax in a particular manner, i.e., by filing an application before the jurisdictional magistrate who can realise the tax due as though it is fine imposed by him. It is only a mode of recovery and any recovery notice itself cannot achieve its object. Even for that an application is necessary to be filed before the magistrate. The authority issuing notice as Deputy Commissioner of Commercial Taxes is not competent to opine one way or the other on the application of this nature. By notice itself nothing can be achieved for the Revenue. If at all, it can be treated as a friendly notice, as the possible future course of action on the part of the Revenue for realisation of tax dues.

There is no question of quashing a notice of this nature. But it is impressed on the respondent that it is not even necessary for the respondent to keep on issuing such unnecessary notices as the procedure contemplated for realising any outstanding tax amount is only by making an application u/s 13(3)(b) to the jurisdictional magistrate who on making such application can proceed further after issuing notice to the person by whom taxes are payable and it can constitute valid notice for such persons for compliance or otherwise.

This writ petition is, therefore, totally unnecessary and without any justifiable cause of action. In any view of the matter, the writ petition deserves to be dismissed. It is open to the petitioner to pursue his remedies in the writ petition which is already filed.

This writ petition is dismissed.