State of Karnataka by the Commissioner of Commercial Taxes v. N. Jayaram, Partner M/s. Manjunatha Marketing Services
2017-02-07
A.N.VENUGOPALA GOWDA, JAYANT PATEL
body2017
DigiLaw.ai
ORDER : 1. The present petition is directed against the order dated 13.02.2015 passed by the Karnataka Appellate Tribunal (hereinafter referred to as the Tribunal for the sake of brevity), whereby, the Tribunal has remanded the matter with a direction to the authority to comply with the earlier directions of the Tribunal dated 16.06.2011 in STA No. 511/2010. 2. We have heard Mr. T.K. Vedamurthy, learned AGA appearing for the petitioner. 3. The contention raised on behalf of the petitioner was that inspite of the record available, the Tribunal has remanded the matter. He submitted that when the record was already collected, the Tribunal ought to have examined the record and ought to have given decision on merits. Therefore, the discretion could be said as perversely exercised for remand of the matter and this Court may consider in the present petition. 4. We may at the outset record that the Tribunal in the earlier order dated 16.06.2011 in the operative portion had directed thus: “The order passed by the first revisional authority under Section 21(2) of KST Act, 1957 R/w. Section 9(2) of CST Act, 1956 dated 9.10.2009 bearing No. SMR.CR.08/09-10 is remanded to the first revisional authority for fresh disposal with a direction to allow opportunity for cross-examination and examination of records as prayed for by the appellant. The first revisional authority is directed to conduct proper enquiries and bring all materials on record in support of his decision before rejecting ‘C’ Form on the turnover impugned. Consequent to the above orders, appeal in STA No. 511/2010 filed before this Tribunal is allowed. Send lower court records along with a copy of order.” 5. The authority, inspite of the aforesaid direction appears to have not complied with the direction and passed a further order after remand. The Tribunal in the impugned has recorded the reasons at paragraph 8, which read as under: "(1) 8. Thus, this tribunal by its considered order has remanded the matter to the first revisional authority for fresh disposal with a direction to allow opportunity for cross-examination and examination of records as prayed by the appellant.
The Tribunal in the impugned has recorded the reasons at paragraph 8, which read as under: "(1) 8. Thus, this tribunal by its considered order has remanded the matter to the first revisional authority for fresh disposal with a direction to allow opportunity for cross-examination and examination of records as prayed by the appellant. Inspite of the same, the FRA on the grounds that the Tamil Nadu authorities had not appeared for cross-examination for want of permission by the Commissioner of Commercial Taxes, Chennai, the FRA based on the visit and verification report of the ACCT (Audit & Recovery) 6.8, DVO-6, Bangalore has come tot the conclusion that the ‘C’ Forms are not genuine by assigning reasons based on the investigation reports. The same is not being followed and it is not known whether the appellant has been allowed to examine the material evidence or records also. When such being the case, it is not proper on the part of the FRA to conclude the impugned revision order which is against the directions given by this tribunal. In view of the above discussion, the appeal has to be allowed and the matter has to be remanded back to the FRA to adhere to the directions given by this tribunal in its order dated 16th June 2011 in STA No. 511/2010 in case of the appellant only. Secondly, the FRA has to be directed to allow the appellant to examine the material evidence and the records in this regard. Therefore, the above point is answered in the negative…..” 6. As the earlier direction of the Tribunal itself was not complied with and if the Tribunal has directed for remand by compliance of the directions issued earlier, by no stretch of imagination it can be said that the discretion has been perversely exercised. In any case, no question of law arises for consideration which is the only scope of judicial review in the present petition. 7. Hence the present petition is dismissed.