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2009 DIGILAW 302 (KAR)

GLOBAL STONE INDIA LIMITED v. STATE OF KARNATAKA.

2009-04-21

D.V.SHYLENDRA KUMAR

body2009
ORDER D. V. SHYLENDRA KUMAR, J. - Writ petition by a dealer who is assessed to tax under the provisions of the Karnataka Value Added Tax Act, 2003. It appears, the petitioner was aggrieved by the assessment order passed against him under the provisions of the Act and has preferred an appeal to the Joint Commissioner of Commercial Taxes. It appears, in the meanwhile, the Commissioner of Commercial Taxes has caused a Circular No. 12 of 2008-09 dated December 3, 2008, copy of which is produced as annexure A to the writ petition, and circulated amongst all authorities including the appellate authority functioning under the Act to apprise them that some of the dealers who are in appeal before the appellate authority are in the habit of producing the statutory forms such as forms C, F, E and H which enable them to claim certain concession for the first time before the appellate authority; that they would not have filed such forms before the assessing authority but would seek commensurate relief by production of such forms, for the first time before the appellate authority and it had been found in several cases that the forms so produced for the first time before the appellate authority were not genuine but forged documents and therefore has caused a circular to get the genuineness or otherwise; that such forms produced by the assessee for the first time before the appellate authority are to be verified from a common source such as Additional Commissioner of Commercial Taxes (Intelligence and Coordination) who has been entrusted with such responsibility to cause verification of the genuineness of the statutory forms, etc.; and to go by the result of such verification for the purpose of acceptance or otherwise of the claims of the appellants. It is aggrieved by this circular the present writ petitions are filed contending that the circular of this nature virtually amounts to interference in the exercise of the appellate powers by the appellate authority. It is aggrieved by this circular the present writ petitions are filed contending that the circular of this nature virtually amounts to interference in the exercise of the appellate powers by the appellate authority. Appearing on behalf of the petitioner, Sri Shashidharan, learned counsel, would submit that the Commissioner no doubt is enabled to issue administrative instructions under the provisions of section 59 of the Act but that power is held to be not a power enabling the Commissioner to interfere with the functioning of an appellate authority in the exercise of quasi-judicial functions; that the circular virtually amounts to interference and therefore the circular is bad in law and should be quashed. A perusal of the circular indicates that the Commissioner is issuing circular of this nature in the wake of several assessees putting forth false claims by producing fake and forged documents. Verification of a fake or forged document is not necessarily a part of quasi-judicial function and outside the administrative functions, but a verification of this nature more dependent on technical expertise is a matter which even otherwise a quasi-judicial functionary may have to depend upon as outside information and support. The circular only impresses upon the appellate authorities to seek expert guidance when certain documents are produced for the first time before the appellate authority. If such is the nature of the circular, no exception can be taken in respect of the legality of the circular as the circular does not directly interfere with the exercise of the quasi-judicial powers by the appellate authority. It is for the appellate authority, if it is inclined to act as per the circular, make it known to the assessees about the genuineness or otherwise of the documents which they have produced and proceeded further in the matter. If an appellate authority has got the document verified for its genuineness and is likely to reject it on the basis of the expert opinion indicating the document to be not genuine, then the appellate authority should necessarily put the appellant on notice about the proposal and if the verification of an appellate authority should proceed without apprising an appellant of such developments then the appellant can definitely complain about the action of the appellate authority. Such being not the complaint in the present petitions and, on the other hand, submission of Mr. Such being not the complaint in the present petitions and, on the other hand, submission of Mr. Shashidharan, learned counsel appearing for the petitioner, being that the appellate authority has already heard the matter and reserved it for orders, there is no occasion to interfere with the functioning of the Commissioner on the basis of the circular nor an occasion to quash the circular. It is for the petitioner to pursue the matter before the appellate authority. Without prejudice, these petitions are dismissed.