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2015 (7) TMI 586 - KARNATAKA HIGH COURT

2015 (7) TMI 586 - KARNATAKA HIGH COURT - [2015] 86 VST 21 (Kar) - Premature recovery proceedings on the basis of best judgment re-assessment order - garnishee/recovery notices - petition has submitted rectification application - Held that:- order of re-assessment as well as demand notices came to be served on the petitioner namely when it was despatched by respondent under Registered Post Acknowledgement Due on 07.04.2015, and it came to be received by petitioner on 09.04.2015. Thus, 30 days pe .....

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the impugned Garnishee notices Annexures-G and H cannot be sustained. Though Annexures-G and H cannot be sustained same is not quashed, in as much as pursuant to Demand notices respondent has issued notices dated 28.03.2015 and 30.03.2015, Annexures-J and K respectively under Section 45 of the Act to debtors of petitioner and same being held bad in law and as such they require to be quashed by reserving liberty to the respondent to issue fresh notices in the event of petitioner application for r .....

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Vedamurthy, HCGP ORDER 1. Petitioner is a sole proprietary concern engaged in the works contract mainly for Government of Karnataka and its social wings and is registered as a dealer under the Karnataka Value Added Tax Act, 2003 (for short the 'Act'). For the Assessment Years 2008-09 and 2009-10, reassessment proceedings came to be initiated by respondent proposition notices came to be issued calling upon petitioner to produce books of account and on the ground of ill health petitioner .....

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orders on 28.02.2015, vide Annexures - D and E respectively and consequential demand notices, Annexures - G and H also came to be issued to petitioner raising tax demands. Alleging non payment of tax demanded under said demand notices, respondent initiated recovery proceedings and issued notices under Section 45 of the Act to the Garnishees and also attaching bank accounts of petitioner - Firm vide Annexures-K and J respectively. On coming to its knowledge of such attachment through its debtors .....

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avail the remedy of filing appeal. Hence, petitioner has sought for withdrawal of recovery proceedings and quashing of demand notices dated 28.02.2015 and for direction to respondent to dispose of rectification applications, Annexures - M and N. 3. I have heard the arguments of Sri. K.G. Kamath, learned counsel appearing for petitioner and Sri. T.K. Vedamurthy, learned HCGP appearing for respondent who has submitted his arguments on instructions from respondent present before the Court and by m .....

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hich would clearly indicate that within 30 days petitioner was required to pay the amount demanded under these notices and contends before lapse of said 30 days period petitioner cannot be treated as a defaulter and only after lapse of 30 days namely after 08.05.2015 and 09.05.2015 respectively and as such, initiation of recovery proceedings for recovery of tax by issuance of notices to debtors under Section 45 of the Act on 28.03.2015 vide Annexures - J and K is illegal. It is also contended su .....

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ported which was also on account of petitioner/assessee being unavailable at the address indicated in the assessment orders as was informed by the Official of respondent office namely Group 'D' Official, who was deputed to serve the assessment order and on account of this factual position it resulted in effecting service through affixture on the same day and in support of his contention he has made available the mahazar drawn at the spot which is at page No.16 of the original records. He .....

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post on 02.03.2015 itself which was also returned unserved and as such, respondent/Assessing Officer has forwarded the assessment orders by Registered Post Acknowledgement Due on 10.04.2015, which is duly received by the assessee and as such, it is contended that there is no infirmity, whatsoever, in the impugned notices or orders passed by respondent for this Court to exercise extraordinary jurisdiction. Hence, he prays for dismissal of writ petitions. 6. Having heard the learned Advocates appe .....

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reassessment orders came to be passed on 28.02.2015 and it does not indicate as to time at which the said order came to be passed. Alleged mahazar drawn for effecting service by affixture also does not indicate as to what time the Group 'D' official had been entrusted the task of visiting the petitioner's registered address to serve reassessment orders on petitioner. However, mahazar said to have been drawn at spot would indicate that Group 'D' Official had visited the petiti .....

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ted in any of the following ways, namely - (1) by giving or tendering it to such dealer or his manager or agent; or (2) if such dealer or his manager or agent is not found, by leaving it at his last known place of business or residence or by giving or tendering it to some adult member of his family; or (3) if the address of such dealer is known to the prescribed authority by sending it to him by registered post; or (4) if none of the modes aforesaid is practicable, by affixing it in some conspic .....

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filing returns but also by submitting the representations as evidenced from Annexures- A and B requesting for adjournment of reassessment proceedings and address mentioned in both these representations is No.12, 'Anantha', 4th Floor, 15th Cross, 2nd Temple Road, Malleshwaram, Bengaluru - 560 003. In fact, perusal of reassessment order dated 28.02.2015 at Annexure-D would indicate that address reflected therein is No.36, 16th Cross, 8th Main, Malleshwaram, Bengaluru - 55 and as on the da .....

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. It requires to be noticed that respondent at the first instance ought to have adopted the courses left open under Sub-Rule (1) to (3) of Rule 176 to effect service of reassessment orders in the manner prescribed thereunder. In other words, said reassessment orders could have been despatched by Registered Post Acknowledgement Due or by Speed Post or efforts could have been made to serve personally on petitioner. Undisputedly reassessment orders as well as demand notices have been forwarded to p .....

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tioner. 11. Prescribed Authority in order to recover tax, penalty or any other amount duet to State may resort to recovery of such tax or penalty as provided under Section 45 of the Act by calling upon such persons from whom money is due or may become due and payable to the dealer or any person who holds or may subsequently hold such money for or on account of dealer, to pay to the prescribed Authority such money held by it/them. On order of re-assessment being passed and consequential demand be .....

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, interest and penalty demanded thereunder is paid within 30 days of service of this notice'. Thus, the words service of notice' would acquire significance inasmuch as non service of notice would amount to violation of principles of natural justice. 12. When the facts on hand are examined in the background of what is indicated herein above, it would indicate that order of re-assessment as well as demand notices came to be served on the petitioner namely when it was despatched by responde .....

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cting them to remit the funds to the Department within three (3) days from the date of notices dated 28.03.2015, Annexures - J and K respectively. Thus, Annexures - J and K has to be necessarily held as premature. 13. It also requires to be noticed that immediately on coming to know about such notices having been issued by respondent, petitioner has filed applications for rectification of re-assessment orders dated 28.02.2015 (Annexures - D & E) by submitting applications on 13.04.2015 as pe .....

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ns on merits. It is needless to state that when such applications have been filed seeking rectification alleging there is error apparent on face of record, then such Authority is required to examine the said application and pass orders in accordance with law. However, it cannot be kept idle or direct the assessee to file an appeal without passing orders on such rectification application. 14. In the light of discussion made hereinabove, this Court is of the considered view that respondent had tak .....

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d therein, it can be effected in any one of the modes prescribed thereunder. 15. Now turning my attention back to facts in hand it would indicate that order of assessment as well as consequential demand notices have been served on the petitioner only on 09.04.2015, petitioner had a statutory right to file an appeal against said order as provided under section 62 of the Act or in the alternate had a right to deposit the tax within 30 days from date of service of notice as indicated in the demand .....

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