Karnataka High Court
WP/65600/2016 of NCR CORPORATION INDIA PVT LTD Vs DEPUTY COMMISSIONER OF COMMERCIAL TAXES (AUDIT) on 29 December 2016
HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF DECEMBER, 2016 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO.65600/2016 (T-RES) BETWEEN: NCR CORPORATION INDIA PVT. LTD., HAVING ITS REGISTERED OFFICE AT 3RD FLOOR, NITON BUILDING 11, PALACE ROAD, BENGALURU-560 052 REP.
IN THR HIGH COURT OF KARNATAKA AT BBNGALURU|
DATED THIS THE 29[TH]DAY OF DECEMBER, 2016)
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR.
W.P.NO.65600/2016 (T-RES)
BETWEEN:
NCR CORPORATION INDIA PVT. LTD.,.HAVING ITS RBGISTRBRED OFFICEAT 3[RD]FLOOR, NITON BUILDING|11, PALACE ROAD,BENGALURU-560 052REP. BY ITS AUTHORISED SINGNATORYSRIVIDYA VENUGOPALAN
... PETITIONER|
(BY SRI.DEEPAK BHASKAR, ADVOCATE)
AND:
1.DEPUTY COMMISSIONER OFCOMMERCIAL TAXES (AUDIT)TITMC BUILDINGBMTC BUS STAND|3[RD]FLOOR, 9[TH]LBVELYRBSHWANTHPURABENGALURU-560 022..COMMERCIAL TAXES (AUDIT)TITMC BUILDINGBMTC BUS STAND|3[RD]FLOOR, 9[TH]LBVELYRBSHWANTHPURABENGALURU-560 022..
2STANDARD CHARTEKERED BANTRADE SERVICES- CHENNAL.TRADE SERVICES- CHENNAL.
GRINDLAYS CENIRE|
NO.19, RAJAJI SALAICHEBENNAI-600 OO1REP. BY ITS MANAGER.CHEBENNAI-600 OO1REP. BY ITS MANAGER.
—. RESPONDENTS
(BY SRI.MAHANTESH T 8, AGA FOR R-1;|NOTICE TO R-2 DISPENSED WITH V/O DATED |29.12.2016) |
THIS WRIT PETITION [IS FILED UNDER ARTICLES 226AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TOQUASH THE ANNEXURE-A PURPORTED DATED 12.12.2016ISSUED BY THE R-1 TO THE R-2 SEBKING BENCASHMENTOF THER BANK GUARANTEE.
THIS PETITION COMING ON FOR ORDERS THIS DAY,|THR COURT MADE THR FOLLOWING:|
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ORDER
sri Mahantesh, learned AGA accepts notice onbehalf of respondent-1. Notice to respondent-2 is|dispensed with. By consent of learned Advocates|appearing for the parties, this writ petition is disposed|of at the stage of preliminary hearing.
iaPetitioner is seeking for quashing of notice.No.DCCT(Audit)-1.4/VAT/ Divn1/ 16-1dated12.12.2016 - Annexure-A issued by first respondent tosecondrespondentseekingencashmentoT|bank|guarantee. —
3. Petitioner is a company registered under the,CompaniesActengagedinthebusiness|otmanufacturing and selling Automated Teller Machines|
O|
Spare parts and is a registered dealer under the|Karnataka Value Added Tax Act, 2003 (KVAT Act’ for|short) and the Central Sales Tax Act, 1996 (‘CST Act’ for|short). On 10.03.2016 a notice came to be issued to thepetitioner for production of books of accounts under|section 92(1) of KVAT Act and notice dated 28.05.2016|issued under Section 9(2) of CST Act read with Section|39(1) of KVAT Act. Same was produced by petitioner|and first respondent, by assessment order dated|20.06.2016 passed under Section 9(2) of CST Act read|with Section 39(1) of KVAT Act, 2003 raised a demand|for Rs.14,42,70,169/- vide Annexure-E.
4Being aggrieved by same, petitioner filed an)appeal before Joint Commissioner of Commercial Taxes|(Appeals) and at the time of filing of the appeal, a sum ofRs.4,32,81,050/- being 30% of the total demand came|to be deposited. Subsequently, appellate authority, by|order dated 02.08.2016 — Annexure-G granted stay of|the balance disputed amount of Rs.10,09,89,118/- on|the condition that petitioner should furnish irrevocable|
4. local bank guarantee to the satisfaction of first|respondent within 15 days of receipt of the order andreserved libertyTO|firstrespondentTO|Initiateproceedings to recover the balance deposited amount if|such bank guarantee is not furnished. Accordingly,|petitioner is stated to have furnished bank guarantee by|executing it in favour of Government of Karnataka,|acting through first respondent for Rs.10,09,89,118/-|on 28.09.2016. It is thereafter appellate authority by|order dated 28.11.2016 dismissed the appeal and when|the petitioner was in the process of filing a statutory|appeal under Section 63(1) of the KVAT Act, had|requested first respondent on 12.12.2016 — Annexure-u|not to invoke the bank guarantee during the period|available to the petitioner to file a statutory appeal|namely, within 60 days. However, a communication|came to be torwarded by first respondent to the BankersotpetitionerOT]19.12.2016invoking|thebanksuarantee and calling upon them to honour the|suarantee and pay the proceeds. At that stage,|petitioner has approached this Court.
5Learned Additional Government Advocate, oninstructions from the Officers present before Court,|would submit that in the event of petitioner continuing|to keep the bank guarantee alive, till appellate Tribunal|dispose of the application that may be filed by petitioner|for stay of the disputed tax demand, first respondent|would not precipitate the matter. His submission is |placed on record. Petitioner’s counsel would also|submitthat.bank|guaranteewouldbe|issuedaccordingly.
6. By placing said submission on record, I|proceed to pass the following:
ORDER.
!,"Writ petition stands disposed of byreserving libertyTO|thepetitionerherein to file a second appeal beforetheKarnatakaAppellateTribunal,Bengaluru (second appellate authority)on or before 10.01.2017 along with anapplication for stay of the disputed tax 6|
amount and in the event ot such!application being filed, Tribunal shalldispose of the same on merits and inaccordance with law expeditiously, atany rate, within an outer limit of fourweeks from said date.
!,,"Tul disposal of the said application, first respondent shall not encash thebank guarantee and in the event ofcheque having been issued by secondrespondent — Bank, same shall not be presented for its encashment.
Ordered accordingly.
SD/-
JUDGE
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