SHRI. H VIRUPANNA S/O H HUCHAPPA V. THE REGIONAL COMMISSIONER

WP/107557/2018

AI Insights

The case involves a writ petition filed by Shri H. Virupanna against several respondents, including the Regional Commissioner of Kalaburgi Division and other officials, challenging an order dated 15.10.2018. The petitioner, an employee of the City Municipality, contested the order through Articles 226 and 227 of the Constitution of India. The primary legal issue addressed was the appropriate jurisdiction for hearing the writ petition, given that the impugned order was issued by an authority based in Kalaburagi. The High Court of Karnataka, Dharwad Bench, referenced the Supreme Court's decision in Ambika Industries vs. Commissioner of Central Excise to conclude that the matter should be heard by the Kalaburagi bench due to the location of the issuing authority.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 726873 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 24-01-2019
• Assessment Year: misc
• Other Referred Cases: Ambika Industries vs. Commissioner of Central Excise [(2007) 6 SCC 769]
• Laws Referred To: Articles 226 and 227 of the Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: A R RODRIGUES
• Assessee Lawyers: B C SWAMI
• Keywords: Jurisdiction; Writ petition; Kalaburagi Bench; Authority Seat
• Section: 226; 227

Judgement Text

" - 1 - IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE G.NARENDAR WRIT PETITION No.107557/2018 (LB-RES) BETWEEN: SHRI. H VIRUPANNA S/O H HUCHAPPA, AGE: 50 YEARS, OCC: EMPLOYEE OF CITY MUNICIPALILY, HOSAPETE, NOW WORKING AT CITY MUNICIPALITY, GANGAVATHI, KOPPAL DISTRICT. ...PETITIONER (BY SRI B.C.JNANAYYA SWAMI, ADVOCATE) A N D : 1. THE REGIONAL COMMISSIONER, KALABURGI DIVISION, KALABURGI. 2. THE ASSISTANT COMMISSIONER HOSAPETE. 3. THE COMMISSIONER, CITY MUNICIPAL CORPORATION, HOSAPETE. 4. M.MANJUNATH S/O MAREPPA, AGE: MAJOR, OCC: AGRICULTURIST, R/O: RAJAPUR VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT. 5. SHRI.DALWAI MANJUNATH, AGE :MAJOR, OCC: EMPLOYEE OF CITY MUNICIPALITY, HOSAPETE, R/O: KUDLAGI, DIST: BALLARI. - 2 - 6. SHRI.RAMALI, VILLAGE ACCOUNTED, AGE: MAJOR R/O: MARIYAMMA GALLI, H.E.S.COLONY, T.B.DAM, HOSAPETE. ...RESPONDENTS (BY SRI A.R.RODRIGUES, AGA FOR R1 AND R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED:15.10.2018 PASSED BY THE RESPONDENT NO.1 AGAINST THE PETITIONER IN SUM:CUM:PRA.AA.KA/PURASABHE/APPEAL/415/2016-17/7953 VIDE ANNEXURE-D AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Office note states that the order impugned is passed by an authority having its seat at Kalaburagi. Hence, in the light of the law laid down by the Hon’ble Apex Court in the case of AMBIKA INDUSTRIES VS. COMMISSIONER OF CENTRAL EXCISE reported in [(2007) 6 SCC 769], this Court is of the opinion that the instant writ petition is a matter which ought to be heard by Kalaburagi bench. The Hon’ble Apex Court at paragraphs 18 to 25 has held as under: “18. The submission of Mr. C. Hari Shankar, learned counsel, as noticed hereinbefore, is inconsistent and contradictory. The doctrine of dominus litus or doctrine of situs of the Appellate - 3 - Tribunal do not go together. Dominus litus indicates that the suitor has more than one option, whereas the situs of an Appellate Tribunal refers to only one High Court wherein the appeal can be preferred. We may consider two hypothetical cases in order to enable us to find out an answer. A Tribunal may hear out a matter either at Allahabad or at Bombay and pass a judgment at that place. Only because the head office is situated at Delhi, would it mean that a judgment delivered at Allahabad or at Bombay would not attain its finality then and there? 19. We may notice some incongruities if the contention of the appellant is taken to its logical conclusion. It is possible that in a case of emergency while the Tribunal holding its sitting at Allahabad or Bombay may entertain a matter where the cause of action had arisen at Delhi. But that would not mean that when the Tribunal pronounces its judgment at Allahabad or Bombay, although the cause of action had initially arisen at Delhi, the Delhi High Court would have no jurisdiction in relation thereto. 20. The situs of a Tribunal may vary from time to time. It could be Delhi or some other place. Whether its jurisdiction would be extending to 3 States or more or less would depend upon the Executive order which may be issued. Determination of the jurisdiction of a High Court on the touchstone of Sections 35G and 35H of the Act, in our opinion, should be considered only on the basis of statutory provisions and not anything else. While defining High Court in terms of - 4 - Section 36(b) of the Act, the Parliament never, in our opinion, contemplated to have a situation of this nature. 21. An appeal may have to be filed by the Commissioner of Central Excise. His office may be located in a different State. If he has to prefer an appeal before the High Court, he would be put to a great inconvenience whereas, the assessee would not be. 22. We may, keeping in view the aforementioned backdrop, notice a few decisions. In Commissioner of Income Tax, Madras Vs. S. Sivaramakrishna Iyer [AIR 1969 Mad 300], it was held : (AIR pp.301-02, para 5) \"On that view, we think that where a Tribunal has jurisdiction over more States than one, and it has got to make a choice, in the absence of a statutory provision, relating to the matter it must be guided by the principles of Section 64, that is to say, the place where the assessee carries on his business, profession or vocation or resides. On that test, it is the High Court of Kerala which will have jurisdiction. There is also another approach to the question, namely, the subject-matter test As we mentioned, the penalty proceedings were originally initiated by the Income-tax Officer at Trichur and it was because of a directive by Section 274(2) he made a reference to the Inspecting Assistant Commissioner. But in effect, as we think, the penalty proceedings are but a - 5 - continuation of the original assessment orders and the subsequent proceedings started by the Income-tax Officer at Trichur for levy of penalty. On that basis too, we are inclined to think that this court will have no jurisdiction under Section 66(2).\" 23. A Division Bench of Delhi High Court in Seth Banarsi Dass Gupta Vs. Commissioner of Income Tax, 1978 (14) DLT 11, while construing Section 66 of the Income Tax Act, 1922, held as under : (ITR pp. 826- 27) \"The question then arises as to which High Court the Delhi Bench could refer the questions of law proposed in the applications under section 66(1) of the Act. The only relevant provisions in the Act are those in Section 66. Section 66(1) merely states that within the time mentioned therein, the assessee or the Commissioner may require the Appellate Tribunal to refer to \"the High Court\" any question of law arising out of an order under Section 33, and that the Appellate Tribunal shall within the time prescribed in the sub-section draw up a statement of case and refer the question to \"the High Court\" Section 66(2) provides that if the Appellate Tribunal refuses to state a case on an application under Section 66(1) on the ground that no question of law arises, the assessee or the Commissioner, as the case maybe, may, within the time mentioned in the sub-section, apply to \"the High Court\", and \"the High Court\" if it is not satisfied with the correctness of the decision of the Appellate - 6 - Tribunal, require the Appellate Tribunal to state the case and refer it. Section 66(8) provides that for the purposes of Section ' 66, \"the High Court\" means – (a) in relation to any State, the High Court of the State, and (b) in relations to the Union Territory of Delhi, the High Court of Delhi. The aforesaid provisions do not clearly indicate to which particular High Court the Appellate Tribunal has to make a reference under Section 66(1) or which High Court can call for a reference under Section 66(2), in a case where a Bench of the Appellate Tribunal has jurisdiction over more than one State.\" 24. Referring to a judgment of Madras High Court, namely, Commissioner of Income Tax Vs. S. Sivaramakrishna Iyer {1968 (70) ITR 860], the learned Judge opined : (ITR pp. 828-29) \"The said provisions show that in a case where a reference is made to a High Court by a Bench of the Appellate Tribunal under section 66 of the Act the reference is just an intermediate stage, and the case (appeal before the Bench) would be finally disposed of by the Bench after receiving the judgment of the High Court in the reference. So, instead of adopting a different basis for that intermediate stage, if would be quite appropriate to adopt the same basis as the one adopted for determining the jurisdiction of the Bench. - 7 - Thus, it would be appropriate and in consonance with the aforesaid provisions of the Act and the Standing Orders if the basis for the jurisdiction of the Bench is adopted, instead of adopting the basis mentioned in Section 64 of the Act, as suggested in the decision of the Madras High Court in the case. Commissioner of Income-tax, Madars v. S.Sivaramakrishna Iyer.\" 25. Yet again in Suraj Woolen Mills Vs. Collector of Customs, 2000 (123) ELT 471 (Del), Lahoti, J. as the learned Chief Justice of India then was, noticed the aforementioned decision as also other decisions operating in the field and held : (ELT p.477, paras 10-13) \"10. The Division Bench decision in the case of Seth Banarsi Dass Gupta has been followed by another Division Bench in Birla Cotton & Spg Mills Ltd Vs. CIT Rajasthan (1980) 123 ITR 354 (Del). The assessee carried on business in Jaipur. It had its registered office in Delhi. The assessment orders were passed by ITO at Jaipur and appeals were disposed by the AAC at Jaipur. The matter came up before the Tribunal at Delhi and was heard by the Central Bench of the Income-tax Appellate Tribunal as there was no Tribunal at Jaipur. The Division Bench held that the court to which reference should be made would be the court having jurisdiction over the territory in which the office of the ITO was situated. 11. Recently the same principle has been followed by this Court in Suresh Desai & Associates - 8 - Vs. CIT [1998] 230 ITR 912. In this judgment, the Divi- sion Bench has assigned yet another reason why the High Court of that State wherefrom the matter arises would only be competent to hear the reference. A decision of one High Court is a binding authority within its territorial jurisdiction; but it is not a binding precedent for another High Court or Tribunal outside its territorial jurisdiction. The Division Bench has held as under : (ITR p.917 F-H) \"On account of the abovesaid doctrine of precedents and the rule of binding efficacy of the law laid down by the High Court within its territorial jurisdiction, the questions of law arising for decision in a reference should be determined by the High Court which exercises territorial jurisdiction over the situs of the Assessing Officer. Else it would result in serious anomalies. An assessee affected by an assessment order at Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it and suited to him and thus get rid of the law laid down to the contrary by the High Court of Bombay not suited to the assessee. This cannot be allowed.\" 12. Having made a careful comparative reading of the provisions of the Income-tax Act and the Customs Act, as also the relevant rules and orders of the Tribunal we are unhesitatingly of the opinion that the principles laid down in the abovesaid three Division Bench decisions of Delhi High Court can be - 9 - applied and do apply to the facts and circumstances of the present case. 13. The present case arises out of the State of Bombay. The petitioner may have its factory establishment at Panipat in the State of Haryana but that is irrelevant. The adjudicating authority is at Bombay. Obviously it is bound by the law laid down under the provisions of the Customs Act or any other law as interpreted by the High Court of Bombay. For the purpose of the case at hand, the petitioner must be held bound by the law as applicable and as prevailing in the State of Mahrashtra whereat the goods were to be imported and whereat the proceedings under the Act were concluded. In the case at hand if the CEGAT would have stated the case then the reference would have been made to the High Court of Bombay and in the event of the application for statement of case having been refused it is the High Court of Bombay which the petitioner should have approached for issuing a requisition to the Tribunal to state the case.\" 2. Hence, the office to transmit the records to Kalaburagi bench. For statistical purpose, the writ petition stands disposed of. (Sd/-) JUDGE jm/- "