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Karnataka High Court

M/S. Vishwa Structural Engineering ... vs The Commissioner Of Commercial Taxes on 16 January, 2018

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                                          W.P.NO.112381/2017




           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BEN CH


       DATED THIS THE 16 T H DAY OF JANUA RY 2018


                         BEFORE

         THE HON'BLE MRS . J USTICE K.S .MUDAGAL


         WRIT PETITION N O. 112381/ 2017 ( T-RES)


BETWEEN:


M/S. VISHWA STRUCTURAL EN GINEERING
PRIVATE LTD.,
(NOW KNOWN AS
M/S. HALLEYS BLUE STEELS PVT. LT D.,)
REPRES ENTED BY ITS DIRECTOR,
SRI.K.M. SHIVAMURTHY,
AGED ABOUT 60 YEARS,
NO.57, MUNDARGI INDUSTRIAL AREA
2 N D STA GE, BENGLAURU ROAD ,
BALLARI-583102.

                                           ... PETITIONER

(BY SRI H R KAMBIYAVAR, ADVOCAT E.)


AND:

1.   THE COMMISSIONER OF COMMERCIA L TAXES
     VANIJYA THERIGE KARYALAYA,
     KALIDASA ROAD , GANDHINAGARA ,
     BENGLA URU- 56000

2.   DEPUTY COMMISSIONER OF
     COMMERCIAL TAXES (AUDIT) ,
                                2
                                                 W.P.NO.112381/2017




    2 N D F LOOR, BUDA COMPLEX,
    NEAR MOTI CIRCLE, BALLA RI-583101.

                                                ... RES PONDENTS

(BY SRI RAVI V. HOSMANI, ADDL. GOVERNMENT
ADVOCATE.)


     THIS WRIT PETITION IS FI LED UNDER ARTICLES 226 &
227 OF CONSTITUTION OF INDIA, PRAYING TO:

       A)  SET ASIDE THE CLARIFICATION PA SSED BY THE
1 S T RESPONDENT THE COMMISSIONER OF COMMERCIAL
TAXES IN CLR-CR.84/ 13- 14 DATED 01.03.2017 (ANNEXURE-
A);

     B)  SET ASIDE THE ENDORSEMENT BEARING N O.
DCCT(A)BLY/VISHWA/17- 18/T- 674     DATED    05.12.2017
ISSUED U/S .9( 2) OF THE CST ACT R/W. SECTION 36 OF THE
KVAT ACT FOR THE PERIOD 2010- 11 BY THE 2 N D
RESPOND ENT THE DEPUTY COMMISSIONER OF COMMERCIAL
TAXES (AUDIT) , BELLARY (ANNEXURE-E), ETC.,.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DA Y, THE COURT MADE THE FOLLOWIN G:



                             ORDER

Sri Ravi V. Hosmani, the learned Addl. Government Advocate accepts notice for the respondents.

2. Heard.

W.P.NO.112381/2017

3. Petitioner has supplied pre-painted galvanized corrugated roofing iron and steel sheets to its customers under invoices Annexure-B, C and D. On that he was proposed to pay tax at 4%, 2% and 5% respectively. The 1st respondent under Annexure-A dated 1.3.2017 acting under section 59(4) of Karnataka Value Added Tax Act issued clarification to the following effect.

"It is clarified that "Pre-painted Galvanized Steel Metal Sheets" are liable to tax at 14.5% under section 4(1)(b)(iii) of Karnataka Value Added Tax Act, 2003 w.e.f. 1.8.2012 onwards".

4. Based on Annexure-A the 2nd respondent issued Annexure-E dated 5.12.2017 stating that he proposes to levy tax at 14.5% and the petitioner is liable to pay the difference amount. Under Annexure-E the 2 n d respondent called upon the petitioner to file objections if any to the said proposal. 4 W.P.NO.112381/2017

5. The petitioner seeks to quash Annexure-A and E on the ground that, the commodity in question is covered under section 14 and 15 of the Central Sales Tax Act.

6. Sri Ravi V. Hosmani, the learned Addl. Government Advocate relying on the judgment of this Court in M/s.Karthik Roofings vs. The Commissioner of Commercial Taxes in W.P.Nos.56388/2017 and 56464/2017 (T-RES) dated 15.12.2017 submits that the petition is prematured.

7. In M/s.Karthik Roofing's case referred to supra this Court has held that the writ petition is premature. It is useful to extract the relevant paragraphs of the said judgment which are as follows:

5. From a bare perusal of the order passed by the Respondent-Commissioner of Commercial Taxes under Section 59(4) of the KVAT Act, 2003, it is clear that the said Commissioner has not considered the effect 5 W.P.NO.112381/2017 of Section 14(vi) of the CST Act, 1956 at all and therefore, whether the commodity dealt with by the petitioner would fall under clause

(vi) or not, was not an issue before the Respondent-Commissioner of Commercial Taxes.

6. However, if the said order passed by the Respondent-Commissioner of Commercial Taxes is the cause for issuing reassement notice against the petitioner in the present case, it is open to the petitioner to seek requisite clarification from the Respondent-Commissioner of Commercial Taxes himself with regard to the effect of clause (vi) of section 14 of the CST Act, 1956 in the first instance. It is equally open to the petitioner to contend before the Assessing Authority in pursuance of the reassessment notice issued to him that the commodity in question would fall under Section 14(vi) of the CST Act, 1956 and not under Section 14(iv) of the CST Act, 1956 and it is for the Assessing Authority to decide such contention in accordance with law.

7. Since all these contentions and aforesaid remedies are still available to the petitioner, it is considered premature for this Court to interfere in the matter.

8. The writ petition is accordingly disposed of as pre-mature with a liberty and direction to the petitioner to approach the concerned authorities with suitable replies and representations. No costs.

8. This matter is squarely covered by the aforesaid judgment. Therefore the petition is disposed of as premature with liberty and direction to the petitioner to approach the concerned authority with suitable replies and representations. No costs.

9. Having regard to the disposal of the petition, I.A.No.1/2018 does not survive for consideration and disposed of accordingly.

Sd/-

JUDGE Mrk/-