Manmohak Creations Vs. State of Karnataka and anr. - Court Judgment

Excerpt:
- labour & services domestic enquiry: [n. anand, j] charges of forgery and misappropriation against employee of bank dismissal from service finding of the tribunal that the disciplinary enquiry was opposed to principles of natural justice setting aside of disciplinary enquiry held, when the employee admits his guilt by submitting his confessional letters, there is no need for the enquiry officer to further proceed with the enquiry. award of the industrial tribunal was set aside. union bank of india vs babu mahadevappa andani - , the very charging section is bad, the question of the authorities proceeding further pursuant to the show cause notice which is also bad in law does not arise and therefore has prayed for a declaration to the effect that the provisions of section 6d, as.....orderd.v. shylendra kumar, j.1. writ petition is by a dealer registered under the provisions of the karnataka sales tax act, 1957. petitioner was aggrieved on receiving a show cause notice dated may 22, 2000, copy at annexure a to the petition, issued under the provisions of section 12(3), section 12b(4) and rule 16 of the karnataka sales tax act, 1957 and karnataka sales tax rules, 1957 apprising the petitioner that the returns that he had filed for the period april 1, 1998 to march 31, 1999 was not correct or a proper return, particularly, as the petitioner had not quantified his tax liability in terms of section 6d with regard to the liability for payment of cess in terms of this provision.2. it was at this stage the petitioner approached this court challenging the legality of this.....

Judgment:
ORDER

D.V. Shylendra Kumar, J.

1. Writ petition is by a dealer registered under the provisions of the Karnataka Sales Tax Act, 1957. Petitioner was aggrieved on receiving a show cause notice dated May 22, 2000, copy at annexure A to the petition, issued under the provisions of Section 12(3), Section 12B(4) and Rule 16 of the Karnataka Sales Tax Act, 1957 and Karnataka Sales Tax Rules, 1957 apprising the petitioner that the returns that he had filed for the period April 1, 1998 to March 31, 1999 was not correct or a proper return, particularly, as the petitioner had not quantified his tax liability in terms of Section 6D with regard to the liability for payment of cess in terms of this provision.

2. It was at this stage the petitioner approached this court challenging the legality of this notice along with a challenge to the constitutional validity of the very provision, viz., Section 6D of the Act, on the premise that the levy in terms of Section 6D is invalid and if so, the very levy, i.e., the very charging section is bad, the question of the authorities proceeding further pursuant to the show cause notice which is also bad in law does not arise and therefore has prayed for a declaration to the effect that the provisions of Section 6D, as it stood at that relevant point of time, is unconstitutional and has prayed for consequential quashing of the show cause notice.

3. Petition had been admitted and respondents had been called upon to reply. The writ petition itself had come to be amended. Statement of objections have also been filed on behalf of the respondent-State.

4. I have heard Sri. Sarangan, learned Senior Counsel for the petitioner and Sri Vedamurthy, learned High Court Government Pleader representing the State-respondents.

5. Submission of Sri Sarangan, learned Senior Counsel for the petitioner is that the very nature of levy sought to be imposed for the relevant period under Section 6D is one to meet the need of the State Government for the purpose of raising funds to invest it in what is described as equity capital of two Government companies, one of which company was initially described as the Karnataka Infrastructure Development Corporation and now known as the Infrastructure Development Corporation (Karnataka) and another company known as Bangalore Mass Rapid Transit Limited and the levy even in terms of the charging section is to raise the funds so that the Government can invest such amount in the equity funds of companies themselves who have the object of creating infrastructure and development of transport facility available not only in Bangalore Metropolitan area but even in other parts of the State. Learned Senior Counsel submits that, that is the limiting factor even in terms of the charging section and the investment even put at the zenith by the Government in such companies can be as much as the capital base of the companies themselves and not beyond and the learned Counsel further points out that the equity capital of the Infrastructure Development Company is 50 crores whereas the equity capital of the Bangalore Mass Rapid Transit Limited Company is 20 crores and put together it is only 70 crores and the moment the Revenue realises this amount of Rs. 70 crores, through imposition of cess under Section 6D of the Act, thereafter, the question of further realisation under this provision does not arise ; that the charges of the section as indicated in the charging section having been specific, there is no more authorisation under this section for further levies. It is on this premise that the validity is challenged contending that the amount of cess collected under such provision has far exceeded the amount of Rs. 70 crores and therefore, it should be declared that further levy is unauthorised in law on the premise that in terms of Article 265 of the Constitution of India it is no more authorised in law thereafter and under this provision it should be declared as unconstitutional.

6. Sri Sarangan, learned Senior Counsel for the petitioner in support of his submission has placed reliance on a reported decision of a learned single Judge of this court in the case of Sharma Transports v. State of Karnataka, represented by its Principal Secretary, Department of Finance, Bangalore reported in [ : ILR2005KAR80 . Learned Counsel submits that the present writ petition is covered by this decision and is required to be allowed by declaring that the impugned levy in terms of Section 6D is one not authorised in law.

7. On a perusal of the decision of this court relied upon by the learned Counsel for the petitioner, it is noticed that the period with reference to which the validity was examined in that case is different; that in fact much later than the period in so far as the present petition and the petitioner is concerned. Question is one of levy relating to the assessment period April 1, 1998 to March 31, 1999. Petitioner can succeed on the arguments submitted by its learned Counsel only if the petitioner can make good the proposition that the liability for payment of cess under Section 6D of the Act, does not arise as in terms of the charging section unless it is shown that the amount realised hitherto under this provision is more than sufficient for meeting the purpose for which the cess is sought to be imposed, viz., for raising funds to invest as equity funds by the Government in the two companies mentioned above.

8. This factual position having not been made good at all, the petitioner cannot seek the relief of declaration to either for invalidating the provisions of Section 6D or to hold that the provision does not operate after that particular date. As the two situations are not same in the present case and as in the case cited above, relied upon by the learned Counsel the ratio of the case is neither applicable nor helps the petitioner in the present case. Accordingly the submission is rejected.

9. The argument no doubt was attractive and could have been accepted, but the question is as to whether the petitioner 'has made good this proposition on a factual basis. The show cause notice itself is dated May 22, 2000 and the levy is in respect of the period 1998-1999. The question is whether for the period when the petitioner was to pay cess in terms of Section 6D whether factually the collection by way of cess imposed under Section 6D had crossed the upper limit of Rs. 70 crores. Unfortunately for the petitioner, this factual position is not made good in the writ petition except for a general plea, that it has far exceeded Rs. 70 crores. If the petitioner were to succeed on the ground that the levy under this provision becomes unauthorised in terms of Article 265 of the Constitution of India, from a particular point of time, it should be proved to the hilt that the 70 crores had been realised on that particular date. Unfortunately this factual position is not fully made good in the petition. That apart the show cause notice indicates that the petitioner had not paid the cess in terms of provisions of Section 6D of the Act and it is precisely for this purpose the show cause notice had been issued.

10. A writ in the nature of a declaration for invalidating the statutory provisions on the premise that it is unconstitutional will not be issued for the mere asking. The exercise will not be undertaken until and unless the person is really aggrieved and makes good the argument in terms of the legal and constitutional provisions. A declaration cannot be issued by this court in the present case as the petitioner has not made good the argument on the factual position, i.e., the collections had exceeded Rs. 70 crores at a particular point of time, particularly at any time during the year 1998-1999. The mere plea or submission cannot be accepted for the purpose of the declaration sought for by the petitioner.

11. Therefore, a declaration cannot be issued and the consequential relief to quash the show cause notice through a writ of certiorari as prayed for cannot be granted. In the result, this writ petition is dismissed.