Karnataka High Court
M/S Shri Kalabhavirav Cement vs The Government Of Karnataka on 12 March, 2015
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF MARCH, 2015
BEFORE
THE HON'BLE MR.JUSTICE B.MANOHAR
WRIT PETITION NOS.69724-726/2012 (T-RES)
BETWEEN:
M/S SHRI KALABHAIRAV CEMENT
KAMATNUR GATE,
TQ: HUKKERI, DIST: BELGAUM
R/BY ITS PROPRIETOR,
SURESH M. PATANE
... PETITIONER
(BY SRI. YADAWAD PRAMOD SHRINIVAS, ADV.)
AND:
1. THE GOVERNMENT OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
FINANCE DEPARTMENT,
VIDHANA SOUDHA, BANGALORE - 9
2. THE COMMISSIONER OF COMMERCIAL TAXES
VANIJYE THERIGE BHAVAN
I-MAIN, GANDHINAGAR,
BANGALORE-9
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3. THE JOINT COMMISSIONER
OF COMMERCIAL TAXES,
(ENFORCEMENT) CLUB ROAD,
BELGUAM.
4. THE COMMERCIAL TAX OFFICER
(ENFORCEMENT - 1)
VANIJYE THERIGE BHAVAN
CLUB ROAD, BELGAUM
5. THE COMMERCIAL TAX OFFICE
(AUDIT)2, CLUB ROAD,
BELGAUM
... RESPONDENTS
(BY SMT. K. VIDYAVATHI, AGA)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA PRAYING TO QUASH THE PROVISIONS OF
SECTION 11(a)(3) OF THE KARNATAKA VALUE ADDED
TAX ACT, 2003, AS BEING BEYOND THE POWERS
DELEGATED TO THE STATE LEGISLATURE UNDER
ENTRY 54 OF LIST II OF THE VII SCHEDULE OF THE
CONSTITUTION AND BEING RESTRICTIVE OF THE
FREEDOM OF TRADE, COMMERCE AND
INTERCOURSE WITHIN THE TERRITORY OF INDIA
GUARANTEED UNDER ARTICLES 301 TO 307 OF THE
CONSTITUTION OF INDIA AND AS BEING AGAINST
THE BASIC PRINCIPLES OR STRUCTURE OF VALUE
ADDED TAX ACT, 2003 AND AS BEING AGAINST THE
BASIC PRINCIPLES OR STRUCTURE OF VALUE ADDED
TAX ACT, 2003 AND AS BEING AGAINST THE BASIC
PRINCIPLES BASIC FEATURE OR STRUCTURE OF
VALUE ADDED TAX ACT, 2003 AND THEREFORE
ULTRAVIRES OF THE CONSTITUTION AND ETC.
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THESE PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioner in these writ petitions has challenged the reassessment order made under Section 39(1) of the Karnataka Value Added Tax Act, 2003 (hereinafter referred to as 'The Act' for short) for the assessment years 2006-2007, 2007-2008 & 2008- 2009, mainly contending that, the Assessing Authority without following the procedure prescribed under the Act and without following the mandatory provisions, has passed the reassessment order and hence sought for quashing of the impugned orders. and to send back for reconsideration.
2. The learned Government Advocate appearing for the respondents contended that the writ petitions filed by the petitioner are not maintainable. The petitioner has got a statutory remedy under Section 62 of the Act to appeal to the Appellate Authority and the second appeal before the Karnataka Appellate Tribunal against the order passed by the first Appellate Authority, :4: and without exhausting the said remedy, the petitioner could not have filed these writ petitions challenging the reassessment orders passed under Section 39(1) of the Act.
3. I have carefully considered the arguments addressed by the parties and perused the order impugned and other relevant records.
4. In the writ petitions, though the petitioner has challenged the constitutional validity of Section 11(a)(3) of the Act, he would not press the same for the present. The prayer is to consider the reassessment orders as per Annexures B, C and E for the assessment years 2006-07 to 2008-2009. Section 62 of the Act provides for an appeal. Any person aggrieved by the order passed by the Assessing Authority or Reassessing authority, has to prefer an appeal to the Appellate Authority. The Appellate Authority may admit the appeal and pass necessary orders. Against the order passed by the Appellate Authority, the petitioner has got a remedy under Section 63 of the Act to prefer an appeal before the Karnataka Appellate Tribunal. Without :5: exhausting the said remedy, the petitioner has filed these writ petitions. Admittedly, the petitioner has got the statutory remedy under the Act. The extraordinary power under Articles 226 and 227 of the Constitution of India cannot be exercised, when the petitioner has got statutory remedy under the Act. I decline to entertain the writ petitions, while reserving liberty to the petitioner to prefer an appeal before the Appellate Authority in accordance with law within a period of two weeks from today. The Appellate Authority to entertain the appeal and consider the matter on merits without insisting on the delay in filing the appeal. Till the petitioner prefers an appeal, the respondent shall not precipitate the matter.
Writ petitions are disposed of accordingly.
Sd/-
JUDGE gab