- (1.) The judgment and order of a Division Bench of the High Court at Karnataka in writ appeals is challenged, with special leave, by the assessee.
(2.) 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. Cl 138 SPC 90 (P) dated 27th September, 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 27-9-1990 (vide Annexure A) was not issued in exercise of its powers under Section 8-A of the KST Act, 1957. It was neither published in the Official Gazette nor was laid before the State Legislature as contemplated under Section 39 of the Act," (Emphasis supplied). The averments in the rejoinder were verified on affidavit, as true to his knowledge, by R. Krishna Murthy, Deputy Commissioner of Commercial Taxes (Assessments VI). It was found during the course of the argument that the said Government Order had, in fact, been published in the State Government Gazette dated 7th March, 1991. We, therefore, passed the following order:- "It, therefore, becomes clear that the statement made in the rejoinder verified on oath as aforementioned that the said Government Order was not published in the Official Gazette is false. It is, therefore, necessary to ascertain whether the other statement in the rejoinder, namely, that the Government Order was not laid before the Legislature as contemplated under Section 39 of the Karnataka Sales Tax Act, is also incorrect. An enquiry must be made and an affidavit setting out the true position must be filed. It also becomes necessary to find out how a Deputy Commissioner of Commercial Taxes could verify on oath as true to his own knowledge that a Government Order relating to his own department was not gazetted, when it was. It was either done out of gross negligence or deliberately to mislead the Court. Having regard to the seriousness of what is involved, we direct that an affidavit in regard both to the compliance with Section 39 and in regard to the Deputy commissioners 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 7-3-91 is marked as Exhibit A and shall be treated as a part of the record."
(3.) 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 found from the enquiries made that Shri R. Krishna Murthy had bona fide believed that no publication had been effected. The said Government Order was prepared and issued by the Commerce and Industries Department of the State Government. The Office and Department of Commercial Taxes to which Shri Krishna Murthy belongs had nothing to do with the preparation of the Government Order in question. Shri R. Krishna Murthy had himself personally looked through the back numbers of the Karnataka Gazette for a period of 3 months after 27-9-90 having regard to the normal practice of State Governments Notification under S. 8-A of the KST Act being generally published within a week or two of their date of issue. The statement made to the effect that there was no publication of the Government Order in question in Official Gazette could have been circumscribed in respect of the period for which he had made a thorough search, namely, three months, instead of making it an absolute statement. However, in the circumstances of the case, what Sri R. Krishna Murthy had stated may not be construed as gross negligence on his part". The Chief Secretary goes on to state, "The conduct of Sri R. Krishna Murthy in making the statement which he did not know to be false at the time of its being made, leads me to conclude that there had been no wilful intention to mislead the Honble High Court of Karnataka". Again, "In view of the above, I respectfully submit that I am of the opinion that there was no gross negligence or any deliberate intention to mislead the Honble High Court on the part of Sri. R. Krishna Murthy". (Emphasis supplied.);