TaxTMI 
TaxTMI 
1996 (10) TMI 387
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....----- The judgment and order of a Division Bench of the High Court of Karnataka in writ appeals is challenged, with special leave, by the assessee. During the course of the argument on 13th August, 1996, we found that the Division Bench had proceeded upon the basis that Government Order No. CI 138 SPC 90(P), dated September 27, 1990, had not been published in the State Government Gazette. The reason for doing so was the stand of the State Government. In a rejoinder filed on behalf of the State Government in the writ appeals, the following had been stated: "It is submitted that the Government Order dated September 27, 1990 (vide annexure A) was not issued in exercise of its powers under section 8-A of the KST Act, 1957. It wa....
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.... the Deputy Commissioner's affidavit be put on affidavit to be made by the Chief Secretary of the State of Karnataka. This shall be done within 3 weeks from today. One week, thereafter, is given to the appellants to file an affidavit in reply thereto. The matter is adjourned for 4 weeks. This shall be treated as part-heard. The State Government Gazette dated March 7, 1991 is marked as exhibit 'A' and shall be treated as a part of the record." In response to that order, Cecil Noronha, Chief Secretary of the State of Karnataka, has made an affidavit on 31st August, 1996. With respect to the stand taken in the rejoinder about the publication of the said Government Order in the State Government Gazette, the Chief Secretary states that he ....
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.... there was no gross negligence or any deliberate intention to mislead the honourable High Court on the part of Sri R. Krishna Murthy". (Emphasis supplied). The said officer has also made an affidavit, in which he apologises and seeks pardon for his bona fide and unintended mistake. It was, he states, his genuine impression that if the said Government order had been published in the State Government Gazette, it would have been published within a reasonable time from its date and, on this basis, he carefully checked and examined all the gazettes which were issued during the subsequent three month period and found that it had not been published. He, therefore, believed that it had not been published, "having made all sincere and d....
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....ary thinks it necessary to take action against the said officer or not is not our concern. Our concern is that the State Government made a statement on oath before the High Court that was incorrect and the judgment of the High Court accepts and proceeds upon the basis of that statement. The High Court's judgment must, therefore, be set aside and the matter remanded to the High Court to be heard and decided afresh. We must caution the High Court at Karnataka, having regard to what we have stated above, that it should be very vigilant in accepting as correct a statement, even though it be made on oath, on behalf of the State Government. It is unfortunate that we should have to say this of a State Government, but the record before us leaves....