Karnataka High Court
M/S. Premier Teleconnect India vs State Of Karnataka on 27 March, 2018
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2018
BEFORE:
THE HON'BLE MRS. JUSTICE S.SUJATHA
WRIT PETITION No.11402/2018 (T - RES)
BETWEEN:
M/s PREMIER TELECONNECT INDIA
PRIVATE LIMITED
D.No.17-6-362/13(10)
SHALOM SHOPPING COMPLEX,
JEPPU, MANGALURU - 575002
REP. BY ITS DIRECTOR
NICHOLAS CLAUDY LEWIS. ... PETITIONER
[BY SRI MALLHARA RAO K., ADV.]
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY
FINANCE DEPARTMENT,
VIDHANA SOUDHA
BANGALORE - 560001
2. THE COMMISSIONER
OF COMMERCIAL TAXES
VANIJYA THERIGE KARYALAYA,
KALIDASA MARG, GANDHI NAGAR,
BANGALORE - 560009
3. THE DEPUTY COMMISSIONER
OF COMMERCIAL TAXES
ENFORCEMENT WEST ZONE
VANIJYA THERIGE BHAVANA,
MAIDAN ROAD,
MANGALORE. ...RESPONDENTS
[BY SRI T.K.VEDAMURTHY, AGA.)
-2-
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER DATED 08.02.2018 PASSED UNDER
SECTION 39(1) OF THE KVAT ACT, 2003, PASSED BY
RESPONDENT No.3 VIDE ANNEX-C.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Learned Additional Government Advocate is permitted to accept notice on behalf of the respondents.
2. The petitioner has challenged the Re- assessment order passed under Section 39(1) of the Karnataka Value Added Tax Act, 2003 ('KVAT Act' for short) passed by the respondent No.3 at Annexure-C to the writ petition, interalia seeking for a direction in the nature of writ of mandamus directing the respondent No.3 to reconsider the returns filed by the petitioner and restrain from coercive proceedings.
3. The prescribed authority has concluded the reassessment under Section 39(1) of the KVAT Act placing reliance on the judgment of this court in the -3- case of M/S. LAVA INTERNATIONAL LIMITED V/S. STATE OF KARNATAKA AND OTHERS in W.P.Nos.55790-801/2016 (DD 10.11.2016), whereby the separate rate of tax on the "mobile battery chargers" sold along with mobile phones is held to be exigible to levy of tax under the provisions of KVAT Act. Following the judgment of the Hon'ble Apex Court in the case of the STATE OF PUNJAB AND OTHERS V/S. NOKIA INDIA PRIVATE LIMITED reported in (2015) 77 VST (SC), this court at paragraph 3, has held thus:
"3. The main question involved in the present case is also about the rate of tax applicable under the Karnataka Value Added Tax Ac, 2003, on the sale of mobile battery chargers, which are sold in the same package as the mobile phones and separately also. As far as this issue is concerned, that is no longer res integra, as the same has been decided by the Hon'ble Supreme Court in the case of State of Punjab and others - versus- Nokia India Private Limited (2015) 77 VST 427 (SC), which was quoted -4- in the revised proposition notice itself by the respondent-Assessing Authority and the same is again quoted herein below for ready reference;
"If the charger was a part of cell phone, then cell phone could not have been operated without using the battery charger. But in reality, it is not required at the time of operation. Further, the battery in the cell phone can be charged directly from the other means also like laptop without employing the battery charger, implying thereby, that it is nothing but an accessory to the mobile phone. Further, as per the information available on the website of Nokia, the Company has invariably put the mobile battery charger in the category of an accessory which means that in the common parlance also, the mobile battery charger is understood as an accessory. It has also been noticed that, a Nokia make battery charger is compatible to many models of Nokia mobile phones and also many models of Nokia make battery chargers which are compatible to a particular model of Nokia mobile phone, imparting -5- various levels of effectiveness and convenience to the users .... and " .... The mobile/cell phone charger is an accessory to cell phone and is not a part of the cell phone. We further hold that the battery charger cannot be held to be composite part of the cell phone but is an independent product which can be sold separately, without selling the cell phone."
(emphasis supplied)
4. It is the contention of the learned counsel for the petitioner that the prescribed authority failed to appreciate that there was no "Sale" at the hands of the petitioner relating to the mobile battery chargers. This controversy being decided by this Court as aforesaid, the arguments advanced at the hands of the learned counsel prima-facie cannot be countenanced.
5. Petitioner can distinguish the judgment relied upon by the prescribed authority before the Appellate Authority if the same is not applicable to the -6- facts of the case. The arguments of the petitioner that there is no sale of battery charger, is a factual aspect to be determined, petitioner cannot rush to this court without exhausting the alternative and efficacious remedy available under the Act.
6. No ground made out by the petitioner to allow the petition to circumvent the alternative and efficacious remedy available under the Act. Even on this ground also petition is liable to be dismissed.
For the aforesaid reasons, writ petition stands dismissed with liberty to the petitioner to resort to the appropriate proceedings in accordance with law. If such an appeal is filed within a period of 15 days from today, the Appellate Authority shall consider the matter on merits without objecting to the aspect of limitation.
Sd/-
JUDGE NC.