TaxTMI 
TaxTMI 
2007 (11) TMI 578
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.... Bangalore, under section 14 of the KST Act (copies produced at annexures E, F, G, H and J) and also notice under section 8A of the KTL Act, produced at annexure K to the writ petition, whereunder it had been indicated that the writ petitioner is liable to pay Rs. 5,05,80,704 due under the KTL Act and recovery notice (annexure L to the writ petition) indicating part of this amount, i.e., Rs. 2,71,26,216 payable for the years 2004-05 and 2005-06, unless paid within 15 days of the receipt of the notice, the amount will be realised by attachment and sale of movable and immovable properties of the petitioner, and it is for quashing of these garnishee notices/demand notices this writ petition is presented. While the petitioner has sought for quashing of the garnishee notices, has also sought for quashing of attachment and restraint notices for recovery of the amount. This apart, a writ in the nature of mandamus also sought for, to direct the first respondent-State to extend the benefit of tax exemption as per the tourism policy and guidelines of 1992, modified from time to time, as per annexures B and C, as given in the case of similarly situated persons. A further mandamus is....
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....put on notice, they have entered appearance through counsel. The State and its officers are represented by Ms. Niloufer Akbar, learned Additional Government Advocate. State and its officers have filed statement of objections on March 31, 2006 and additional statement of objections on July 18, 2006. In the statement of objections it is, inter alia, contended that the petitioner is not entitled for any of the relief sought for, neither for a writ of certiorari nor for a writ of mandamus; that the petition averments are incorrect and misleading; that the petitioner has no entitlement in law to get relief as prayed in the writ petition; that while it is a fact that the petitioner is a registered dealer under the provisions of the KTL Act, Central Sales Tax Act, 1956 and KST Act, the assessment in respect of the petitioner's tax liability under the enactments has been completed up to the year 2002-03 and such assessment orders have also been served on the petitioners; that follow up demand notices had been issued; that the petitioner had paid tax up to this year, but for the financial years 2003-04 and 2004-05, though the petitioner had filed monthly returns and had admitted the ....
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....t will not come in the way of petitioner seeking relief of garnishee notices and demand notices being quashed and also for a mandamus to be issued to the respondents to extend the tax benefits in terms of the policies as prevailed from 1992 to 1997. It is contended in the additional statement of objections filed on behalf of the State that the tourism policy under which tax sops were offered to persons establishing tourist homes and hotels/resorts which were in vogue for the years 1992-97 had come to an end and a new policy is in vogue from June 1, 1997 and under the new policy, tax concessions are not extended to units located within the Bangalore urban district or rural district and the petitioner not falling under the B, C, D or E category of the locations, no benefits can be offered in favour of the petitioner under the policy as it prevailed on and after June 1, 1997. It is also indicated that without admitting, assuming that the petitioner falls under "B" category of location, the petitioner should have complied with the requirements of submitting the prescribed documents such as original plan approved, licence from the authority concerned, title deed of the land/partnersh....
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....up necessary steps, etc., and ultimately was able to get the tax exemption for a period of seven years from April 1, 2000 in terms of the Government notification dated May 30, 1998. It is also indicated that in the case of M/s. Leela Ventures Ltd., it was found to be a unique venture; that it was one of its kind for the entire State; that the Government having regard to the considerable spinoff benefits to the related sectors had extended tax benefits, but the petitioner not having applied in the proper form, not having pursued the matter in terms of the policy for the period 1997-2002 and not being eligible for exemption, the recovery of tax is perfectly justified and the writ petition should be dismissed. On behalf of the petitioner, it is urged by Sri G.K. Bhat, learned counsel that the petitioner has been making efforts for getting the benefit ever since it sought for permission to establish a resort/hotel at its present location, which was in the year 1995, as per the document No. 1 produced along with the rejoinder filed in this writ petition; that it is not open to the respondents now to say that there was no timely effort by the petitioner to get such benefits; that the ....
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.... years 2001-02, had defaulted totally in remitting the tax collected to the department for the years 2002-03 and 2003-04, whereupon follow up action had been taken; that there is absolutely no ground for quashing the garnishee notices and demand notices; that the petitioner taking advantage of an undertaking made by the Government Advocate before the court on April 12, 2006 that recovery proceedings would be kept in abeyance till first week of June, 2006, has avoided paying taxes thereafter; that the petitioner neither paid any tax thereafter, except for paying a sum of Rs. 80,00,000 on one occasion and another sum of Rs. 50,00,000 on another occasion nor has stopped collecting taxes from its customers and the petitioner continues to be in default in respect of the balance, which has added up to Rs 20.30 crore as of now (though Sri G.K. Bhat, learned counsel for the petitioner would dispute the figure regarding the liability of the petitioner as of now) and also submits that the petitioner has not paid all taxes thereafter nor has complied with the provisions of the statutory enactment; that there is nothing placed on record to indicate either way, but if the past conduct of the pe....
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....., (1) the promoter shall obtain clearance from Pollution Control Board and Weight and Measurement Department; and (2) this project is not entitled to get any incentives and concessions announced in the tourism policy as the location of this project falls in Bangalore rural district, and it is clear that the petitioner is not getting the so-called tax benefit which the petitioner had aspired for even in terms of this communication dated March 29, 2001. If the petitioner had not pursued for any relief as against this communication, there is no point in the petitioner keeping on representing to various departments time and again and addressing letters to Chief Minister or other ministers and contending that such representations have elicited adverse response; that they deserve to be quashed. On the other hand, the petitioner's own pleading in this writ petition as contained in para 3, which is as under: ". . . The petitioner even though has not filed application for extension of benefits as per the said guidelines but has filed representation before the first respondent fulfilling all the conditions . . ." clearly indicates that the petitioner ....
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....petitioner's unit was located was not one which is eligible for such concession/benefits. Assuming that the respondent-authorities had committed any infraction, violation or illegality in extending the tax benefit, which was otherwise not available to the other two units namely, M/s. Eagleton Golf Resorts and M/s. Leela Ventures Ltd., that in itself cannot be a ground for the petitioner to seek for issue of a writ of mandamus to compel the authorities to extend like benefits in favour of the petitioner also. A writ of mandamus is issued only if the petitioner is entitled in terms of a statutory provision for a right and that right has been demanded by following the requisite procedure and making applications in the prescribed form, etc., and there is inaction on the part of the statutory authorities in considering the application, and not otherwise. While the illegality on the part of the respondent-authorities in extending an otherwise not available benefit or tax concession in favour of other persons if should have been made subject-matter for issue of a writ of certiorari, perhaps it could have been examined and the possibility of issue of a writ could have been considere....
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....ing the collected tax timely from the petitioner, but resorted to a knee-jerk action in issuing the garnishee notices and demand notices two years after the event. Even here, it is to be noticed that the garnishee notices were never productive, in the sense, the bank account sought to be attached did not yield even a fraction of the amount sought to be realised under that and this court can take judicial notice of the fact that the petitioner who claims to run a luxury hotel of five star status and resort, and has continued the business would have commensurate fund to pay the admitted tax liability. The officials of the department have deliberately failed in realising the amount due from the petitioner and if the version as submitted by the learned Additional Government Advocate, that the petitioner is in arrears of Rs. 20.30 crore is to be believed, then it shows the continued apathy, inaction and possible collusion of the officials of the Commercial Taxes Department with the petitioner. It is a matter of utmost public concern, rather a grave threat to the Revenue, if the officials of the department act in such a remiss manner and the amount collected by way of tax by the persons ....