M/S HOTEL SRI.LAKSHMI KANAKACHALA vs. THE STATE OF KARNATAKA AND ORS

1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 29TH DAY OF JUNE 2016 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION No.202339/2016 (T-RES) BETWEEN: M/s Hotel Sri Lakshmi Kanakachala Residency, Lodging and Boarding At Sy.No.221/P-1/3 Panchayata Plot No.56 Maski Village Tq: Lingasugur, Dist. Raichur- 584 124 Represented by its Proprietor Ramanjaneya S/o Venkanna Ellur. .. Petitioner (By Sri Arunkumar A. Advocate) AND : 1. The State of Karnataka Represented by Principal Secretary Finance Department, Vidhana Soudha Bengaluru – 560 001 2. The Deputy Commissioner of Commercial Taxes (Audit)-01 DVO, Room No.12, Commercial Tax Building, Near Railway Station, Kalaburagi – 585 102 3. The Office of Assistant Commissioner Of Commercial Taxes (LVO-535,

2 Sindhanur, Tq. Sindhanur Dist. Raichur – 584 128 .. Respondents (By Smt Archana P. Tiwari, AGA) ******** This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the respondent No.1 and 3 to consider the representation dated 18.06.2016 vide Annexure-C & D and etc. This Writ Petition coming on for Preliminary Hearing this day, the Court made the following: ORDER The petitioner had filed a representation on 18.6.2016 before the Assistant Commissioner of Commercial Taxes, Sindhanoor, wherein he had prayed that he be granted one year’s time to pay the taxes due from the hotel, namely, M/s Hotel Sri Lakshmi Kanakachala Residency. However, just within six days, the petitioner has rushed to this Court seeking a direction from this Court to respondent Nos.1 and 3 to consider his representation dated 18.6.2016, and to stay the operation of the demand notice dated 25.2.2016 issued by the Assessing Authority. 2. Considering the fact that the representation was filed only on 18.6.2016 and the present petition has been

3 filed just six days thereafter, considering the fact that the respondents would require some reasonable time to decide petitioner’s representation, the present petition is premature. Prima facie, it seems that the petition has been filed merely to seek a stay from this Court with regard to the demand notice dated 25.2.2016. But, such a clever ploy cannot be entertained by this Court. Therefore, the present petition is hereby dismissed as being premature. However, the liberty to file another writ petition is hereby granted in case the petitioner is aggrieved by any order passed by the Assessing Authority denying the right to the petitioner under Section 42 of the Karnataka Value Added Tax Act, 2003. Sd/- JUDGE bk/-

4 RSCJ:

W.P.No.202339/2016 04.07.2016 ORDER ON BEING SPOKEN TO By order dated 29.06.2016 this court had dismissed the writ petition inter alia on the ground that writ is premature one.

For, petitioner had submitted a representation before the Assistant Commissioner of Commercial Taxes on 18.06.2016, and yet had filed the present petition on 24.06.2016 i.e., six days after submitting the representation. Subsequently, the petitioner has moved a memo for being spoken to. The learned counsel for the petitioner submits that petitioner’s licence for running a Bar and Boarding has expired on 30.06.2016. Therefore, he requires an NOC to be issued by the Deputy Commissioner of Commercial Taxes. In case NOC is not issued by the Deputy Commissioner of Commercial Taxes, the petitioner would find it difficult to run his lodging and boarding. Therefore, the learned counsel for the petitioner prays that the case should be decided on merits.

5 The learned counsel further submits that the petitioner does not question the fact that he is liable to pay tax from March, 2014 to September, 2015, totaling Rs.15,66,565/-. However, he has filed a representation before the Assistant Commissioner wherein he has prayed that he be permitted to deposit the tax in installments. According to the learned counsel, Section 42 of the Karnataka Value Added Tax Act (‘the Act’ for short) permits an assessee to seek the privilege of depositing tax in installments. Therefore, the petitioner had prayed for the same. Since a discretionary power has been vested on the Deputy Commissioner of Commercial Taxes under Section 42 of the Act to decide whether to permit an assessee to deposit his income tax in lumpsum, or in installments, this court is not inclined to bind the said discretion by issuing any direction. However, this court directs the Deputy Commissioner and Assistant Commissioner to decide the petitioner’s

6 representation as expeditiously as possible, and preferably within a period of two weeks from the date of receipt of a certified copy of this order. The respondents are directed to give an opportunity of hearing to the petitioner before passing any reasoned order. With these directions, the order dated 29.06.2016 is recalled, and the petition is hereby disposed of. Sd/- JUDGE NB*