Karnataka High Court
M/S Sanghvi Foods Pvt Ltd vs The Panchayat Development ... on 3 January, 2023
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.13613/2022 (LB-RES)
BETWEEN:
M/S. SANGHVI FOODS PVT. LTD.,
(REGISTERED UNDER THE COMPANIES ACT, 1956
(No.1 OF 1956)), PLOT No.283, DOABASPETE
4TH PHASE, (AVVERAHALLI) INDUSTRIAL AREA
SOMPURA HOBLI, NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-562111
REP. BY ITS PLANT HEAD
SRI.HARISH.H.K., ...PETITIONER
(BY SRI.H.L.PRADEEP KUMAR., ADVOCATE)
AND:
1. THE PANCHAYAT DEVELOPMENT OFFICER
OFFICE OF THE KULUVANAHALLI GRAMA PANCHAYAT
NELAMANGALA TALUK, TYAMAGONDLU HOBLI
BANGALORE RURAL DISTRICT-562132.
2. THE TALUK PANCHAYAT
NELAMANGALA, BY ITS EXECUTIVE OFFICER
BANGALORE RURAL DISTRICT-562123.
...RESPONDENTS
(BY SRI.M.S.DEVARAJU, ADVOCATE.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
NOTICE BEARING No.NIL DATED 15.03.2022 AND ALSO THE
ATTACHMENT WARRANT BEARING No.NIL DATED 10.05.2022
VIDE ANNEXURE-H AND L RESPECTIVELY ISSUED BY THE
RESPONDENT No.1.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:-
2
ORDER
The petitioner is before this Court under Article
226 of the Constitution of India praying for a writ of
certiorari to quash notice dated 15.03.2022 and
attachment warrant dated 10.05.2022 (Annexures-H
and L respectively), wherein the Gram Panchayath has
demanded total tax of Rs.22,14,126/- from the
petitioner and has issued attachment warrant.
2. Heard the learned counsel Sri.H.L.Pradeep
Kumar for petitioner, learned counsel Sri.G.Nataraj for
respondent No.1 and learned counsel Sri.M.S.Devaraju
for respondent No.2. Perused the writ petition papers.
3. Learned counsel for the petitioner would
submit that the petitioner was allotted industrial site by
the Karnataka Industrial Area Development Board
(KIADB) at Avverahalli Industrial Area, 4th Stage,
Dobbaspet. On payment of allotment price, KIADB
executed lease-cum-sale in favour of the petitioner and
also put the petitioner in possession of the industrial
unit. Thereafter, the petitioner on obtaining sanction
plan for construction of factory building from KIADB,
constructed the factory building. While approving the
sanction plan, KIADB collected the Requisite Fee and
also Approval Charges and Labour Cess of
Rs.5,00,000/-. It is submitted that the KIADB
maintains the industrial area developed by it by
collecting the requisite maintenance charges. It is
submitted that the first respondent-Panchayath has no
jurisdiction to demand tax as demanded under
Annexure-H, demand notice dated 15.03.2022. Learned
counsel would submit that the action of the first
respondent-Panchayath is opposed to the order of this
Court dated 31.05.2021 in W.P.No.11358/2014.
Further, the learned counsel would also submit that the
authority of the respondent-Panchayath to levy tax is
not an absolute or unguided power. The power to levy
tax by the Panchayath is available only in respect of the
buildings and lands in the Panchayath area. Further,
learned counsel would submit that the calculation of
the tax by the Panchayath is not proper. In that, he
submits that the petitioner would not be liable to pay
the tax demanded under Annexure-H, demand notice.
4. On the other hand, learned counsel
Sri.G.Nataraj for respondent No.1 raises preliminary
objection with regard to maintainability of writ petition,
since Section 201 of the Karnataka Gram Swaraj and
Panchayat Raj Act, 1993 (for short, 1993 Act) provides
for appeal against the assessment, levy or imposition of
any tax, rate or fee under Section 199 of the 1993 Act.
Further, learned counsel would also point out that the
Government by Notification dated 31.03.2022
(Annexure-R6) has published Rules called 'the
Karnataka Grama Swaraj and Panchayat Raj (Grama
Panchayath Tax, Rates and Fees) Rules, 2021 (for short
2021 Rules). Rule 37 of 2021 Rules also provides for
appeal against assessment. In view of the alternative
remedy provided to the petitioner, he submits that it is
appropriate for the petitioner to avail the alternate
remedy of appeal.
5. Learned counsel Sri.G.Nataraj would also
submit that the petitioner has already deposited 50% of
the tax in a sum of Rs.11,07,063/- and the question of
depositing 50% under Rule 37 of 2021 Rules would not
arise. Learned counsel would submit that the decision
in W.P.No.11358/2014 was rendered prior to coming
into force of the Notification dated 31.03.2022,
publishing 2021 Rules. Therefore, he submits that the
said decision would have no application to the facts of
the instant case.
6. Learned counsel Sri.M.S.Devaraju for
respondent No.2 would submit that Schedule-IV to
Section 199 of 1993 permits levying of tax on property
including the property situated in KIADB Industrial Area,
SEZ and other Industrial Area Zones notified by the
Government from time to time if it falls within Panchayath
area. Thus, he also submits that it is appropriate for the
petitioner to avail alternative remedy of appeal.
7. The petitioner is before this Court
challenging the tax demand notice dated 15.03.2022
(Annexure-H) wherein the first respondent-Panchayath
has demanded total tax of Rs.22,14,126/- from the
petitioner and on failure to pay the said amount,
attachment warrant under Rule 35 is issued in terms of
Annexure-L dated 10.05.2022. Section 199 of 1993 Act
empowers the Grama Panchayath to levy taxes, rates
etc., in such manner and subject to such exemptions as
prescribed and not exceeding maximum rate prescribed
in Schedule-IV. Section 201 of 1993 Act provides for
appeal, which reads as follows:
"201. Appeal against assessment,
etc.- Subject to such rules as may be
prescribed, any person aggrieved by the
assessment, levy or imposition of any tax,
rate or fee under section 199 may appeal to
the prescribed authority, whose decision shall
be final."
The above provision provides for appeal against
the assessment, levy or imposition of any tax, rate or fee
under Section 199 of 1993 Act.
8. Rule 37 of 2021 Rules, prescribes the Chief
Executive Officer of Zilla Panchayath as Appellate
Authority and requires 50% of tax demanded as deposit
while filing the appeal. It is to be noted here itself that
the petitioner has already deposited 50% of the demand
as submitted by the learned counsel for respondent
No.1 and also Annexure-R1 - Xerox copy of pay order
evidences the same. Thus, depositing 50% at the time of
filing the appeal would not arise.
9. Normally when a statute or enactment
provides alternative remedy of appeal, this Court would
not entertain the writ petition under Article 226 of the
Constitution of India. Moreover, the petitioner's main
contention is with regard to calculation of tax under
impugned demand notice dated 15.03.2022. This Court
under Article 226 of the Constitution of India would not
go into the factual aspect and would not be in a position
to go into correctness or otherwise of the calculations.
Therefore in the peculiar facts of the present case, it
would be appropriate for the petitioner to avail the
remedy of appeal as provided under Section 201 of 1993
Act as well as Rule 37 of 2021 Rules.
9. The judgment relied upon by the petitioner
dated 31.05.2021 in W.P.No.11358/2014 would have no
application to the facts of the present case, since the
said decision was rendered prior to coming into force of
the 2021 Rules, under Notification dated 31.03.2022.
Hence, the writ petition is disposed of with liberty
to the petitioner to avail alternative remedy of appeal
under Section 201 of 1993 Act as well as Rule 37 of
2021 Rules.
The interim order granted by this Court would
enure to the benefit of the petitioner, if the petitioner
files appeal within one month from today.
Sd/-
JUDGE
NC.
