Dismissed

M/S Suma Oil Agencies v. the Commissioner of Commercial Taxes

Karnataka HC24 Mar 2021WP/1241/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a 2009 reassessment order. It held that a subsequent 2013 order declaring the petitioner non-assessable was nonest and a new order could not be passed after the first. The petition was also dismissed as barred by delay.

What did the court decide?

Quashing of recovery proceedings and set-aside of reassessment order dismissed.

M/S Suma Oil Agencies Vs the Commissioner of… — Writ and Judicial Review | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF MARCH 2021

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BEFORE

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THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

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WRIT PETITION NO.1241/2019 (T-RES)

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BETWEEN:

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M/s. Suma Oil Agencies, No.507, Pillanna Garden, 3^rd Stage, Nagawara Main Road, Bangalore. (Represented by its Propritrix Smt. Suma U.S. Aged 50 years) ... Petitioner (By Sri.K.M.Shivayogiswamy, Advocate)

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AND:

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The Commissioner of Commercial Taxes, Vanijya Therige Karyalaya, Gandhinagar, Bangalore-560009.

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Deputy Commissioner of Commercial Taxes (Audit)-51, DVO-5, V.T.K-2, 5^th Floor, Koramangala, Bangalore-560047.

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The Commercial Tax Officer (Audit)-5.3, DVO-5, VTK-II, Near NSV, Koramangala, Bangalore-560047.

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…Respondents (By Sri.K.Hema Kumar, AGA)

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This Writ Petition is filed under Article 226 and 227 of the Constitution of India praying to quash the impugned reassessment order dated 27.01.2009 passed by the R-2 under the provisions of CST Act in relation to the assessment period 2005-06 in the petitioner’ case vide Annex-A and etc.,

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This Writ Petition coming on for consideration of interim prayer , this day, the Court made the following:

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ORDER

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The petitioner is stated to be engaged in the business of trading in edible oil. It is submitted that in respect of the assessment year 2005-2006, an order came to be passed under Section 9(2) of the CST Act, 1956 read with Section 61(2) of the KVAT Act, 2003 on 27.01.2009 determining the tax, interest and penalty payable.

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The petitioner submits that for the same taxable period an order came to be passed on 11.03.2013, copy of which is enclosed at Annexure-C,

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wherein the order indicates that the petitioner was Non-assessable as he had not effected interstate sales

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as per the information available in MIS of VAT Soft e- filing System.

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It is further submitted that recovery

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proceedings were initiated in Crl.Mis.No.323/2018 seeking to recover arrears of tax as per the reassessment order at Annexure-A.

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The learned counsel for the petitioner has sought to assail the validity of the reassessment order at Annexure-A and has sought for issuance of writ of certiorari to quash the proceedings in Crl.Misc.No.323/2018.

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The learned counsel for the petitioner submits that the order at Annexure-A is liable to be set aside in light of the order at Annexure-C dated 11.03.2013 with respect to the same period as was the subject of the order of reassessment at AnnexureA.

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It is submitted that levy of penalty is

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impermissible in light of the order passed in Fosroc Chemicals (India) Pvt. Ltd., v/s State of

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Karnataka reported in (2015) 79 VST 25 (Karn) .

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It is submitted that the question of

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initiating recovery proceedings to recover tax, arrears and penalty as quantified in the reassessment order at Annexure-A is impermissible in light of the order passed in the year 2013 enclosed at Annexure-C.

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Learned Additional Government Advocate

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submits that petition is liable to be dismissed on the ground of delay and latches as the challenge is now sought to be made i.e., in 2019 to reassessment order dated 27.01.2009 on the ground that order is passed at Annexure-C declaring the petitioner to be Nonassessable.

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It is submitted that even if the cause of

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action is stated to have been accrued in the year 2013 when the order at Annexure-C is passed, the present petition filed after about 6 years cannot be entertained.

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It is submitted that explanation as made

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out does not constitute sufficient cause to entertain the petition at this stage.

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Learned Additional Government advocate

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further submits that the order at Annexure-A has been communicated on the petitioner on 04.02.2009 and the said order has not been called in question within a period of limitation before the appropriate authority.

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Heard both sides.

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Insofar as the petitioner’s assailing of the

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order at Annexure-A on the ground that order is passed on 11.03.2013 for the same period declaring

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the petitioner to be Non-assessable is liable to be rejected, as once an order is passed as reflected at Annexure-A, the respondent authority does not retain any power to pass a fresh order as the power to pass an order has exhausted itself on passing of the order at Annexure-A.

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Insofar as the contention of the petitioner that penalty could not have been imposed and is relied on the judgment of the Fosroc Chemicals (India) Pvt. Ltd., it must be noticed that present petition is filed in the year 2019 while the order passed is on 27.01.2009 there is no sufficient cause that is made out for having filed the petition after such considerable delay. The passing of the second order in 2013 as relied on by the petitioner does not come to the aid of the petitioner insofar as the order dated 11.03.2013 is ‘still born’ as one being without jurisdiction, even otherwise the respondents have filed

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the memo and state that they have withdrawn the order dated 11.03.2013 as per the order dated 22.03.2021 the said order passed on 22.03.2021 is rather superfluous. Insofar as the order at Annexure-C as observed above is nonest in the eye of law.

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Liberty is reserved to raise such contentions as are permissible in the recovery proceedings.

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Accordingly, the petition is dismissed .

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Sd/JUDGE

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NS

M/S Suma Oil Agencies v. the Commissioner of Commercial Taxes

Case brief

What is this about?

What did the court decide?

M/S Suma Oil Agencies v. the Commissioner of Commercial Taxes

Case brief

What is this about?

What did the court decide?

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