Karnataka High Court
M/S The Himalaya Drug Company vs The Registrar on 19 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:6983
WP No. 2528 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 2528 OF 2024 (T-RES)
BETWEEN:
M/S THE HIMALAYA DRUG COMPANY
(NOW CALLED AS 'HIMALAYA WELLNESS COMPANY)
MAKALI, TUMKUR ROAD,
BENGALURU-562 123.
A PARTNERSHIP FIRM
REPRESENTED BY ITS MANAGER,
SRI G N VENKATESH
MANAGER TAXATION
AGED ABOUT 57 YEARS
S/O LATE SRI G NAGARAJ
...PETITIONER
(BY SRI. THIRUMALESH M.,ADVOCATE)
AND:
1. THE REGISTRAR
KARNATAKA APPELLATE TRIBUNAL
MULTI STORIED BUILDING, 2ND FLOOR
BENGALURU-560 001.
Digitally signed by
VANDANA S 2. DEPUTY COMMISSIONER OF COMMERCIAL TAXES
Location: High (AUDIT)-6.3 DVO-6, 3RD FLOOR,
Court of Karnataka K.I.A..B. BUILDING, 2ND STAGE PEENYA
BENGALURU-560 058.
3. DEPUTY COMMISSIONER OF COMMERCIAL TAXES
(AUDIT)-6.7 DVO-6, 3RD FLOOR,
K.I.A..B. BUILDING, 2ND STAGE PEENYA
BENGALURU-560 058.
4. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES
(AUDIT)-6.6 DVO-6, 3RD FLOOR,
K.I.A..B. BUILDING, 2ND STAGE PEENYA
BENGALURU-560 058.
...RESPONDENTS
(BY SRI.SHAMANTH NAIK, HCGP)
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NC: 2024:KHC:6983
WP No. 2528 of 2024
THIS W.P FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE PROCEEDING DTD
30.12.21 IN STA NO. 393//2018 AS HAVING BEEN PASSED WHEN THE
APPEAL IS NO MORE PENDING BEFORE THE BENCH AND BEING
CONTRARY TO REGULATION 54 OF THE KARNATAKA APPELLATE
TRIBUNAL REGULATIONS , 1979/ ANNEXURE-C AND ETC.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
In this petition, petitioner has sought for the following reliefs:-
"(i) Issue a writ of certiorari or a declaration in the nature
of writ of certiorari quashing the proceeding dated:
30.12.2021 in STA No. 393/2018 as having been
passed when the appeal is no more pending before
the Bench and being contrary to Regulation 54 of The
Karnataka Appellate Tribunal Regulation, 1979-
Annexure-'C'.
(ii) Issue a writ of certiorari or a declaration in the nature
of writ of certiorari quashing the proceeding dated:
to 463/2016 as having been passed when the appeals
are no more pending before the Bench and being
contrary to Regulation 54 of The Karnataka Appellate
Tribunal Regulation, 1979-Annexure-'D'.
(iii) Issue a writ of certiorari or a declaration in the nature
of writ of certiorari quashing the notification dated:
03.09.2022 issued by the Chairman, Karnataka
Appellate Tribunal consisting a Full Bench to hear the
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appeals and answer the questions referred for opinion
in STA No.534/2017, STA Nos. 459 to 463/2016 and
STA No.393/2018 as being contrary to Regulation 54
of The Karnataka Appellate Tribunal Regulation,
1979-Annexure-'E'.
(iv) Grant such other relief or reliefs as this Hon'ble Court
may deem fit in the circumstances of the case, in the
interest of justice."
2. Heard learned counsel for the petitioner and learned
HCGP for the respondents and perused the material on record.
3. The material on record discloses that in relation to the
assessment year 2008-09, the Karnataka Appellate Tribunal,
Bangalore (for short ' the KAT'), passed an order dated 21.12.2020
dismissing the appeal filed by the petitioner - assessee. However,
subsequently, for the assessment year 2007-08 to 2013-14, the
KAT, Bangalore, allowed the appeals filed by the petitioner -
assessee. It is the grievance of the petitioner that after
pronouncement of the judgment for the assessment years 2007-08
to 2013-14 on 09.03.2021, the KAT became functus officio and
would not be entitled to invoke Regulation 54 of the Karnataka
Appellate Tribunal Regulations, 1979 and place / refer non -
existent proceedings before the Chairman to constitute a Full
NC: 2024:KHC:6983
Bench as has been done by the Chairman vide the impugned
proceedings dated 30.12.2021 at Annexures-C and D and
consequently, the impugned Notification dated 03.09.2022 issued
by the KAT deserves to be set aside.
4. Per contra, learned HCGP would support the impugned
order and submits that there is no merit in the petition and the
same is liable to be dismissed.
5. As rightly contended by the learned counsel for the
petitioner, the material on record obtaining in the instant case will
indicate that while insofar as assessment year 2008-09 is
concerned, the KAT passed an order on 21.12.2020 dismissing the
appeal filed by the petitioner - assessee. However, for the
subsequent years 2007-08, 2009-10 to 2013-14, the KAT
proceeded to pass the order on 09.03.2021 allowing the appeals
filed by the petitioner - assessee. In this context, it would be
profitable to extract Regulation 54 of the Karnataka Appellate
Tribunal Regulations, 1979, which reads as under:-
" 54. (a) The Members of a Bench shall refer any
proceeding before then; to the Chairman with a
recommendation that it may be placed before a Full
Bench.
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(i) when they consider that the decision
which they propose to take in the proceeding
involves a substantial departure from the
previous decision of the Tribunal; or
(ii) when the case involves a point of law
of general importance; or
(iii) when conflicting decisions of the
Tribunal are brought to their notice; or
(iv) when they differ in opinion on any
point material for the decision of the case.
While making the recommendation for constitution of
Full Bench, the Members shall formulate the specific points
for determination by the Full Bench.
(b) The Full Bench shall hear the case and either
record its opinion or dispose it of, as the case may be.
(c) When any particular question or questions are
referred to a Full Bench, it shall furnish its opinion on those
questions to the Bench which made the reference. Tine
Bench shall dispose of the case in conformity with such
opinion.
(d) The decision of the Full Bench shall be in
accordance with the opinion of the majority."
6. So also, Section 9 of the Karnataka Appellate Tribunal
Act, 1976, reads as under:-
" 9.Finality of the orders of the Tribunal:
Notwithstanding anything contained in any law, but subject to
the provisions of every decision of the Tribunal shall be final
and shall not be called in question in any Court."
NC: 2024:KHC:6983
7. A conjoint and harmonious reading of the aforesaid
provisions is sufficient to come to the conclusion that only if an
appeal is pending consideration before the Bench of the KAT that
the Bench would be entitled to refer any matter / question / issue to
the Chairman for constitution of a Full Bench in the event it
proposes to pass order, judgment or take a view contrary to the
earlier view expressed by the KAT. In other words, the pendency of
proceedings / appeal / revision petition before the one Bench of
KAT is absolutely essential and sine qua non mandatory pre-
condition for the Bench to invoke Section 9 of the KAT Act r/w
Regulation 54 of the Karnataka Appellate Tribunal Regulations,
1979 and refer it to the Chairman for constitution of a larger Bench.
In other words, if an order is already passed by a Bench of KAT, it
would become functus officio and thereafter, would not be entitled
refer the matter to a larger Bench.
8. In the instant case, the KAT Bench having already
allowed the appeals of the petitioner - assessee for the
assessment years 2007-08 to 2013-14, was not entitled to
thereafter refer the matter to the Chairman for constitution of a
larger Bench in respect of the appeals which were no longer
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pending consideration and as such, the impugned proceeds /
orders and notifications are clearly illegal and without jurisdiction or
authority of law and deserve to be quashed.
9. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) The impugned proceedings / orders at Annexures-C and
D both dated 30.12.2021 and impugned Notification at Annexure-E
dated 03.09.2022 are hereby set aside / quashed.
SD/-
JUDGE
Srl.
