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TMI Blog2008 (8) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... h the petitioner has been prosecuting this petition even without complying with the conditional order passed by this court also disentitles the petitioner from seeking relief before this court and rendering the petition liable for dismissal. In the result, interim orders granted earlier in the writ petition are all vacated and the writ petition is dismissed. - Writ Petition No. 11473 of 2007 - - - Dated:- 11-8-2008 - SHYLENDRA KUMAR D.V. , J. ORDER:- D.V. SHULENDRA KUMAR J. Writ petitioner is a private limited company having its registered office in the first floor of R.K. Commercial Complex, Behind Ramamurthynagar Police Station, Banaswadi Village Panchayat, Bangalore 560 016 and claims to have been engaged in construction of residential apartments on its own lands and sale of the same on and after construction. It is the version of the petitioner that the petitioner had started its business of construction and sale of flats in the year 2001-02 and the said business had been carried on up to March 31, 2005. It appears that the Deputy Commissioner of Commercial Taxes (Intelligence-I), South Zone, Bangalore 560 020 had issued notice to the petitioner under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of this nature mandating deposit of high amount as 50 per cent even in a situation where the amount as determined by the assessing authority is an arbitrary amount is unreasonable provision; that it is violative of article 14 of the Constitution of India, etc. The petitioner has also sought for quashing of the proceedings before the court of the Spl. JMFC (Sales Tax), Seshadripuram, Bangalore in Civil Misc. No. 06/2007 wherein the respondents have taken steps for recovery of the amount of Rs. 39,54,049 which is the amount determined as due and payable by the petitioner for the years 2001-02 to 2004-05 for recovery of this amount as though it is fine under the provisions of the Criminal Procedure Code. Notice had been issued to the respondents. The respondents-State and the statutory authorities have entered appearance through Sri K.M. Shivayogiswamy, learned Government Pleader and have also filed statement of objections wherein the validity of the provisions is defended. The facts leading to the determination of the amount as sales tax liability on the part of the petitioner, particularly, after the inspection of the premises and by reopening the proceedings and by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India. Sri Chythanya, learned counsel for the petitioner, would also draw attention to yet another prayer in the writ petition which is one for issue of directions to the Tribunal to entertain the appeal even without any such deposit in terms of the provisions of section 22(3) of the Act by exercising the inherent power and jurisdiction of this court in writ jurisdiction. In support of such submission, learned counsel for the petitioner would draw attention to the decision of the Madras High Court in the case of Royal Insulation (P) Ltd. v. Commercial Tax Officer, Manali Assessment Circle, Chennai reported in [2006] 147 STC 246 and the decision of the Supreme Court in the case of L. Chandra Kumar v. Union of India reported in [1997] 105 STC 618; [1997] 228 ITR 725. What is sought for is that the petitioner may be relieved of the rigor of operation of the statutory provisions for the present and the Tribunal directed to entertain the appeal and dispose of the same on merits as otherwise it would put undue hardship on the petitioner and it virtually would deprive the appellate remedy before the Tribunal. Sri K.M. Shivayogiswamy, learned Government Pleader, also seek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof which is declared surplus after leaving the permissible area to the appellant or the petitioner. Having regard to those aspects, particularly the meagre rate of the annual land tax payable, the fetter imposed on the right of appeal/revision, even in the absence of a provision conferring discretion on the appellate/revisional authority to relax or waive the condition, cannot be regarded as onerous or unreasonable. The challenge to section 18(7) must, therefore, fail. Sri Shivayogiswamy, learned Government Pleader, also points out that this court while issuing notice had granted a conditional interim order to stay further proceedings before the Magistrate subject to the condition that the petitioner deposits 50 per cent of the amount which is subject-matter of the appeal before the Tribunal; that the petitioner never deposited this amount in terms of the order dated October 3, 2007 and therefore the respondents had brought this to the notice of this court and therefore the order had been further clarified by this court on November 6, 2007 which reads as under: DVSKJ: November 6, 2007 While Ms. Manjula, learned counsel for the petitioner, seeks two weeks' time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax or other amount disputed along with the prescribed form of appeal: Provided further that the Appellate Tribunal shall dispose of such appeal within a period of one-hundred-eighty days from the date of the order staying proceedings of recovery of one half of tax or other amount and, if such appeal is not so disposed of within the period specified, the order of stay shall stand vacated after the said period and the Appellate Tribunal shall not make any further order staying proceedings of recovery of the said tax or other amount. As pointed out by Sri Shivayogiswamy, learned Government Pleader, it is now quite well-settled that a right of appeal which is creature of the statute can be availed of in the manner provided for in the statute itself and no one can claim any right independent of the statutory provision as pointed out by the Supreme Court time and again. It is neither any fundamental right nor any vested right. It is open to the petitioner to avail of the right of appeal in terms of the provisions of section 22 of the Act itself. Even a discretion conferred on the Tribunal for grant of interim order being made subject to certain compliances is again a statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X
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