'yr! I\f"'IlI5I.l'IlI'IlII"' Ill'!!! \a»'|-I\Jl\I \l'I !\l'I5\,' V ' " BANGALORE-560 » BY ITS MANAG1NG'TR%JSTEE'= » 4 SR1. MAD}-IU PAIiD!'f'.DAS:'S.;..._ , " AGED ABoU'§*5oYEAI;>.s. 1'; ' PETITIONER _ [By spat, H,_ vani, Adm] 1.» V. '_ s'im?3: OF' KARNATA~KA., ' - DEPARTMENETAOF FINANCE, » REP, VB'! 'SECRETARY, A V£DHAhlI%SOU'£}P§A, BA'r;¢1ALc>.R§:__e~;36o 001. M2.' _ THF}---C0;'M1sti:'sf'S!ONER 01? COMMERCIAL TAXES, " VANIJYP.-THERIGE KARYALAYA, V. GANDHINAGAR, ' ._BAN_GALORE -- 560 009. h THE ASSISTANT COMM!SSIONER op' " COMMERCIAL TAXES (AUI.'}I'!')-22, D.v.o....n, BANGALORE. RESPONDENTS
[By Smt. Niloufer Akbar, AGA]
I \4lP1O7_21V;_Ot’)fi_7OO…_
IF XARNATAKA H-¥GH CODE!’ OF KARNAYAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNAYAKA HIGH OF KARNATAKA HIGH COUE
5 WP1O721.O’? e._4 ‘e._V
(2) Immishing of cz cheque or any
instrument towards payment q,=’Aa.s’un-zbyv ” e ‘
any such dealer shall be deemed mere fj * A
compounds an o_fi”er-tee fg
the order referred teiyl — ” A
(:1) Shall be in cmd”
o_0″e=.-nee. oommmecl, ” ‘of
m0M’~’§”t.°1’ be flit? date
(b) __ who
..{£7Z} eflforoed in the same
V’ malmer am decree of a court fur
_ ‘«the”‘pqyment of the anwunt stated
(4; the prescribed authority
‘ x T the-tfealercorleemedshall notbe liableto
‘prosecution in respect ofsuch ofenoe or
V-to anyfiutherpenaltyunderthis Section
and such dealer shall not appeal against
thesaidproeeedings.’
a dealer is relieved of any possibifity of being
OF KARNATAKA HIGH COURT OF KARKATAKA I-i¥GH COURT OF KARNAYAKA HSGH COURT OF KARNATAKA HSGH €03.33? OF !€A&%%A’§’AKA MGR COL!
prosecuted before the criminal court.
3: arxnmarra are mien Wfllifififi’ me Ill nnsavawa u-ecu r-nun’! ht vanuafmfa flififl {“fiHfl1′ OF ifA§N§TAKA H193; 93?: giggaéfigggg H355 cone
DE KARNATAKA HIGH COURT OF KARNATAKA RIG!-*1 COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH C01}?
7 wpgtiizmv
9. Though the communication at
9.4.2007 is tarmac! as a’ show.
petitioner is given an oppoxtmlitftp
charge sheet should not fi”gainst_T’>t1A1:é..;VVpetii;ioner,~ L’
instead of showing caygsc thee’ afapzoached
th1sV ‘ court raising va11oi1$.T_ieg’fial»:Vc<mT"'
10. on 133136 V. Akbar, learned
Additionalv entemd appearance
for gin£i’vvstat£:x11ent of objecfions has also
V. – With’%*Qons§éiit”‘6f learned counsel for the parties, the
up for disposal.
12.2″ Smt. Vani, learned counsel for the petitioner
~ §na,sn};t. Nnoum Akbar, learned Additional Government
13. The flrst oontemtion is that the facts of the present
case are such that the ruling of the Supreme Court; in
RA.FwJ&’scase does not applyto the petitioncr’s case.
M imgmanim Lmzu £”.(‘!lil!’I’ on KARNATAKA HIGH count OF KARNATAKA i-!!%!>-2 QQQRT OF KARNATAKA H16!-1 (SOUR? OF KARNATAKJA MGR COW
1-way»: ‘l”IIl”Il\l’I | Iu\.i| I \.\,;§;
3 ,w’9:io721.o7
14. The second contention is that whieni: the
similar circumstances a distinetionwas to ’33:1ax.de'<
and this court did not agx*et1V J
affirmed the View in ,;ua;gs¢mtttaatsaee 3.8.2007
rendered in ofsoofir in the case
of 'LARSEN Q; vs. '1HE
sum or the appellant
therein 'further to the Supreme
coming up before the
should wait to know the
outcome' ,~. _ T-
” _ A tI1tt’d””L*ontenfion is that the advance ruling is
on facts the Judment of the Supreme
‘A case is not applicable, nevertheless,
x the advance ruling authority has opined it is appiicable
it is based on this clarification the authorities are now
rushing to launch prosecution against the petitioner and
therefore submitted that the advance ruling given by the
authority in terms of Anne-xure-D also deserves to be
quashed.
WW
nxamnnugnn -In ntnufiulhulh I
9 wP1o721.o7f
16. The last contention is that Anne:-mre-E ._j[j–i: I .
notice to launch prosecution is not valid i_I.1~1e_W; .
is no detemiined tax liability by any *4.’
determining the tax liability for :t1on¥peiy;:(1ex1{“oi’ of
which? prosecution could have that tile
authority who has indicated in the
so called show cause not the
competent authozcitj? 1 assuming
that there is jietitioner for the
period in queetioiii. and quantification
can only be _done authority that too in
fl1e’i’/iilbcveegi ” . _ “‘}:.j.’n’:’gisv.u11(1er Se 39 of the Act and not in a
section 79 or section 82 of the
each submissions, Smt. Niloufer Akbar,
3F KARNATAKA I-HGH COURT OF KARNATAKA HJGH COURT OF KARNATAKA HEGH COURT OF KARNATAKA HIGH uuum ur axmcrvusnzua ru-urn ……..-2…’
fiidditional Government Advocate would submit
4: the petitioner cannot urge before this court that the
of the Supreme Court cannot be made applicable to
the present case on the facts of this case for the simple
reason that the facts have not even been examined by the
E. /-
. f
2″
men COURT or KARNATAKA HIGH cook”: or KARNATAKA men or ” m’..o’1=§i
cs KARNAIAKA me:-I COURT or KARNATAKA 3% KMNMMA ‘7″?-‘g- -993
DF KARNATAKA HHS!-I COURT OF KARHATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HEG!-E COURT OF KAKNAEAIKA ruurl yuan
12 wP1o721.Q7f”»o..
but it is proper for the authorities to examine and _
the matter reaches’ this court on the beam’ of u
provision provided under the Act 77A
examined.
23. While Smt Vani, is
right in submitting, proper
determination assuming
that the peutioxger-is open for the
authorities notice as under
sections 79 or 8Q_ of show cause notice at
itsolf the assessor: had filed ‘nil’
in question. If a ‘nil’ return is filed,
is ‘.fi$fs3essing authority to examine that
once the return is filed in terms of
354,i1;is taken to be a doomed assessment on the
unless in terms of section 38(1) of the Act
V : _ reads as under:
’38. Assasmunt of tax
(1) Every dealershall be_de_emed to have
beenassewedtotaxbasexiontheretum
»- –a – —- — «snaps: 1-uni hair 15!! illlhkiflfflvfi “If.”
-an-ur-u
15
possible tax liability on the part of the
Without a proper determination~by_ 3.
As rightly submitted by learned i
and by drawing attezitioii’-.if;o~~ of “Aer. whieh
reads as under:
“83. Validity… not to he
ii’:
z assessment of
or’oj”-the Zeixy of any fee or other
.. ‘* _ Vtirider this Act, or the
* V 0-[any person to pay any tax, fee
a « or e$h_er«.;Imount so assessed or levied
not in any Criminal
in “any prosecution or other
prooeediflg, whether under this Act or
._otheru}ise. ‘
1 whom prosecution proceedings are
heiannot question the validity or legality of the
2 * ioiiier Vflof assessxnents for non-compliance with which
is being launched. Correctness of the order
‘ can only be questioned in an appeal as provided under the
Act. The criminal court is also not enabled to either set:
aside or modify the assessments as expressly provided in
section 85 of the Act. The compounding of oflence in
. ..
n..J:IL..Ili.l|lIlI-l\I IA I\ll’\!\”\ lllil
– want’:-
KIT I\af\I’\I’If’|lf”1l\”‘ ‘ 7’\Il I ‘\-‘fur!’ F
1 7 w=P_ 1o721.o7
25. While it is no doubt true that the
fraudulent evasion of tax as one’ offence vaend’4pi’o\jides fore’
penalty as Well as imprisonmeiin ingee’ it
being a serious . not
casually but only when when the
authorities are fully’ a definite case of
fraudu1ent.vevasion.§;_ 1:
26. txiereiiti provided under the Act
even’ can be launched only with the
sanction’ by eefiominiissioner. it is no doubt true that in
Vtiieyv i’p1eseVnt~–» the petitioner also could have
‘ ‘approached. the Clonimissioner to impress upon the
” . “Commissioner that it is not a fit case for prosecution and
siiould not be permitted etc., but that does not come in
” it way of the petitioner seeking relief in writ jurisdiction
as the proposed action on the part of the third respondent
— officer is an instance of malafide exercise of authority.
27. In the present set of facts and circumstances, I am
of the View that Annexupe~–E proposition notice is definitely
._ __-… ….. -._… gm-Ln-‘autumn: III l\lfl(“\ I..!£’tI
}_ 9 w’i?_§;t*3ff21.07
tax liability and not otherwise. In the
whether right or wrong, the petitioner
liability. In such an event, it the J
competent authority first es.
takes up further action éiwithijhe statutory
provisions.
30. It is .__ii.*3c”’13ro130sition notice bearing
No.JCC,’.1_’ ~ i§oV1nri1issioner~XH/INS-49/06~07
dated 9.4.i200~;rif[c9pyjat Aimexure-E] issued by the third
respondent alone of a writ of certiorari
andsin’ all other s,;–£hve azithorifies are free to proceed
;Iv.i”:.€V –;9etiiione_r in accordance with law for
and on the basis of the law as
fllerssnécmme Court and as has been noticed
I applicable in the similar facts and
in LARSEN 3. 100320 mnmzrs case in
inie””‘iigxppea; N0.1409 of 2007.
The advance ruling clarifying the applicability of the
ratio of the Judgment of the Supreme Court in RAHEJA’s
.- …._…- .uu.un Lnnuuunsuuu .15 nnnnn Llfil