ORDER

The petitioner has impugned the common order dated 03.03.2022 by the Karnataka Appellate Tribunal, Bengaluru [for short, ‘the Tribunal’] in STA Nos.74, 75 and 76 of 2021 under Section 63 of the Karnataka Value Added Tax Act 2003 (for short, ‘the KVAT Act’). The Tribunal by the impugned common order has rejected the petitioner’s application for waiver of pre-deposit under Section 63(4) of the KVAT Act, and the petitioner’s appeals in STA Nos.74, 75 and 76 of 2021 must stand rejected because the petitioner has not made the necessary pre-deposit. However, on 21.04.2022 this Court has granted stay of dismissal of the petitioner’s appeals.

2. The petitioner, apart from calling in question the Tribunal’s common order dated 03.03.2022, had challenged the validity of the provisions of Section 63(4) of the KVAT Act as arbitrary and unconstitutional, but consequent to this Court’s orders dated 13.04.2022 and 20.04.2022, the prayers in this regard stand deleted. As such, the question that remains for consideration is whether there must be interference with the Tribunal’s common order refusing to grant waiver of pre-deposit. The Tribunal has opined that waiver of pre-deposit cannot be granted, and Tribunal’s opinion is in the light of this Court’s decision in Holeyappa C Nayak V/s. The Karnataka Appellate Tribunal, Bengaluru and others1. The Tribunal has finally concluded thus while rejecting the petitioner’s application:

"In view of aforesaid reasons, in the light of clear provision of law u/s.. 63(4) of the KVAT Act, 2003 and decision/s of the Hon'ble High Court of Karnataka, we are of the considered opinion that this KAT is not vested with power or discretion to waive of or dispense with the payment of predeposit because, it is mandate of law."

3. Sri Sandeep Huilgol, the learned counsel

for the petitioner, submits that the petitioner’s grievance as against the order-in-original is essentially because the petitioner is denied the benefit of input tax credit [ITC] on the ground that the Returns in Form VAT 100 are filed belatedly, but 1 This petition is disposed of by the order dated 07.03.2009.

the question whether ITC could be denied when the Returns are filed belatedly is pending consideration before the Hon’ble Supreme Court in Civil Appeal No.4936/2016. If the Hon’ble Supreme Court holds that the benefit of ITC will not be available to an assessee who has filed belated Returns, the petitioner’s grievance will fail and therefore the appeals before the Tribunal under Section 63 of the KVAT Act would also fail. With the afore as prefatory submissions, Sri Sandeep Huilgol submits that this Court must grant waiver of the pre-deposit as contemplated under Section 63(4) of KVAT Act and grant further liberty to the petitioner to seek deferment of the appeals by the Tribunal under Section 63(5) of the KVAT Act.

4. Sri.Sandeep Huilgol submits that the Assessing Officer does not dispute that the petitioner has paid taxes for the purchase during the relevant period viz., from February 2014 to September 2015 and these amounts have also been remitted by the concerned manufacturer/distributor. Though the petitioner cannot deny that the Returns for the aforesaid period are filed in the month of November 2015 after inspection in the month of September 2015, bona fides are pleaded in placing on record that the Managing Partner’s wife was suffering from cancer and was undergoing frequent hospitalization until she breathed her last in the month of April 2015. There is no loss to the State Exchequer or evasion of tax, and the order-in-original visits petitioner with harsh terms.

5. Sri Sandeep Huilgol further submits that unless there is a final decision on the question whether the benefit of ITC should be denied because Returns are filed belatedly, there would be multiple proceedings in the present instance, and such final decision could only be with the decision of the Hon’ble Supreme Court in the pending proceedings in Civil Appeal No.4936/2016.