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TMI Blog2007 (11) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... r the years 2002-03 and 2003-04 and even up to date and as to their conduct in not realising he amount due to the State and take commensurate action, if it is found that there is any violation or misconduct on their part. A follow-up report is to be placed before the registry of this court in this regard within a period of six months from today. On and after submission of such report, the report may be placed before this court for further orders. W.P. dismissed. - Writ Petition No. 27318 of 2005 - - - Dated:- 28-11-2007 - SHYLENDRA KUMAR D.V. , J. ORDER:- D.V. SHYLENDRA KUMAR J. This writ petition is a typical illustration of gross abuse of the writ jurisdiction of this court. Petitioner is an artificial person-a company registered under the Companies Act, 1956, and who claims to be a dealer registered under the provisions of the Karnataka Sales Tax Act, 1957 (for short, the KST Act ) and Karnataka Tax on Luxuries Act, 1979 (for short, the KTL Act ) who has come up with prayers which on the face of it may not be achievable, with inadequate pleadings to support the prayers and on irrelevant grounds urged in support of the writ petition. This writ petition is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider the request/representation of the petitioner for such tax benefits under the tourism guidelines issued by the respondents with effect from July 1, 1997 and that writ petition was dismissed, as having become infructuous, by this court in terms of the order dated June 30, 2005 for the reason that the respondent had come up with plea that the representation of the petitioner had been considered and replied in terms of the communication dated February 8, 2005, but that communication only negatived the request of the petitioner and therefore the petitioner is constrained to question this communication by filing the above writ petition yet again seeking for the very relief; that denying such benefits to the petitioner, which the petitioner is otherwise entitled for the benefit in terms of the policy, while by itself is an illegal and arbitrary action, the respondents on the other hand have extended such benefits to other persons who have established such hotel or resort; that notwithstanding such other establishments being located within the city of Bangalore, exemption has been given, whereas the petitioner is denied exemption; that such act on the part of the State amounts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery proceedings in terms of the garnishee notices and demand notices. The petitioner has filed rejoinder to the statement of objections to urge that the disposal of the petitioner's request/representation by the Department of Tourism pointing out that the petitioner is not entitled for any tax concession, in view of the project being located in Bangalore rural district, as per the communication dated March 29, 2001 produced as annexure R1 to the statement of objections, is of no consequence for the petitioner to seek for the benefits of tax concession or to assail the rejection in terms of annexure A for the reason that the petitioner has fulfilled necessary requirements to claim the benefit of Government policy for the period 1992-1997; that the petitioner has been apprising the department concerned of the establishment of a five-star hotel/resort at Nagarur village, Dasanapura hobli, Bangalore north taluk ever since 1995; that correspondence went on between the authorities and the petitioner and it is not as though the petitioner has for the first time apprised the Department of Tourism only in terms of application dated December 23, 2000 referred to in the communication o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compel the respondent-authorities to refrain from recovery nor can the petitioner seek for quashing of these notices, as the basis for issue of recovery notices is not questioned by the petitioner at any point of time before any forum. In respect of demand notices, it is averred in the statement of objections that the demand notice is one for the reduced amount, after giving credit to the amount that had been paid by the petitioner during the pendency of the earlier writ petition and as per the court orders; that whatever amount that had been paid has been deducted and the balance amount was sought to be enforced, which is valid in law; that there is no occasion for this court to quash the same. The additional statement of objections was filed particularly for the purpose of justifying the action on the part of the respondent-authorities in extending the tax benefits in respect of two companies named by the petitioner, viz., M/s. Eagleton Golf Resorts and M/s. Leela Ventures Ltd., by indicating that while M/s. Eagleton Golf Resorts had applied through the single window agency even as early as on March 10, 1995 and May 8, 1995 under the then tourism policy for the period 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not pursued the matter with any vigour and bona fides, etc. It is also submitted that the rejection of the request of the petitioner is most arbitrary and the reason assigned is not tenable and the same should be quashed and necessary directions issued as sought for by the petitioner. It is also the submission of learned counsel for the petitioner that the petitioner collected tax in terms of the monthly returns filed by the petitioner only because the petitioner was entertaining a bona fide belief that it would get the tax exemption and there would not have been any need or liability on its part to pay any tax. Ms. Niloufer Akbar, learned Additional Government Advocate, appearing for the State and its officers, on the other hand, submits that the petition is totally without bona fides; that the petitioner has abused the enabling provision of collecting tax under the enactment from the customers/consumers by collecting the tax but retaining it for itself; that lack of bona fides on the part of the petitioner is also demonstrated by the very conduct, as the petitioner who had collected tax from the customers and who should have remitted to the treasury even as per the statuary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the State, running to several crores, if has retained the same without remitting it in time, it is not only a statutory violation but amounts to a misappropriation of fund of the State, as the petitioner has no legal right to hold on to such amount collected from its customers. Such conduct in itself while is sufficient to disentitle the petitioner the relief sought for, I do not find any factual or legal basis to quash the notices at annexures E, F, G, H, J, K and L to the writ petition. Coming to the prayer for issue of a mandamus, it is found that the petitioner had not made any efforts in terms of the procedure prescribed for getting a benefit like tax concession whether under the 1992-97 policy or 1997-2002 policy also, or even subsequently. While in terms of the records placed before the court, the first attempt made on the part of the petitioner appears to be only through an application dated December 23, 2000, it had been promptly dealt with and responded by the Department of Tourism, Government of Karnataka in terms of its reply dated March 29, 2001 (annexure R1 to the statement of objections). This communication has never been made subject-matter of any challenge. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for. On this ground alone, the prayer for writ of mandamus fails. However, for the sake of completion, in the context of the petitioner's pleadings, particularly in the context of the averments of discrimination, which has been replied by the respondents in their counter, irrespective of he correctness or justifiability of the version of the respondents in making a distinction between the petitioner and the other two units, what can be inferred is that while the respondents have found some uniqueness in the case of the units of M/s. Leela Ventures Ltd., and therefore seek to avoid the allegation of discrimination, in so far as the other unit-M/s. Eagleton Golf Resorts is concerned, what is offered is that they had sought for concession even in terms of 1992-97 policy, when there was no bar for according such benefits in the particular location, and having pursued and got the benefit only in terms of the Government order of the year 2000 and therefore, there is no comparison between the case of the petitioner with that of M/s. Eagleton Golf Resorts. So far as denial of benefit/concession in favour of the petitioner is concerned, it is for the two reasons that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner had collected from the customers on behalf of the State but failed to remit it to the State treasury, the petition is totally devoid of merits and in such circumstance, this writ petition deserves to be dismissed with exemplary costs, which is quantified at Rs. 1,00,000 (rupees one lakh only). Coming to the conduct of the respondent-authorities, it is obvious their conduct is also not free from doubt and lacks fairness. It is firstly to be noticed that when the petitioner had failed to remit the tax collected from the customers on behalf of the Government for as long a period as two years, i.e., 2002-03 and 2003-04, and even when the petitioner had been filing monthly returns indicating that such taxes were being collected by the petitioner and had not been remitted along with the returns and it has not been indicated that it has been deposited or remitted to the treasury, it was the duty of the officials of the commercial tax department to have immediately taken steps to realise such amount from the petitioner, as otherwise it is a risk to the Revenue, as the petitioner, if should ultimately fail and plead inability to pay the amount, the amount collected on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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