to C.-U V IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 19"' DAY OF NOVEMBER, 2010:§f;,l_i~~.__ BEFORE THE HON'BLE MR. JUSTICE ASHQK,.B_. HI?<lC'HI.C§_fE.Fiir: it it WRIT PETITION No.3589S/12.4010'BIT-FEB)' E AND WRIT PETITION Nos.3S978~3'S988/2Q1E_Q= = BETWEEN: M/S. Jindal Aluminium Ltd, Jindal Nagar, Tumkur Road,----.._ ; Bangalore ~ 560 073. ' Represented by its _ p =.. General Manager--C.0rpo--r_ate§:Affairs, ' " Mr.P. Ashok Rap, '_ ' " Aged about 43 years, '_ S/o Sri P. Rameslfi Ra.:')_. ' .. Petitioner (By Sri TlIiArujI.TIa.§V§:3n3s(tI and.'V_Sri_ (.E."l§abinathan, Advocates) AND: A E E A it 1. Stateof Karn.ataka, Represented b'y-Principal Secretary to Government, FiV'nanee= Department} ' _Ga.vernIne«n't"'o_f Karnataka, V_idhia.rI'a«._(S'oIIdVhia, Bangalore -- 560 001. of Commercial Taxes Karnataka, V Vanijy'aaTherige Karyalaya, Gandhinagar, Bangal__ore - 560 009. _ 'Deputy Commissioner of Commercial Taxes (Audit 63), DV"O~6, Bangalore Division, Srinivasa Complex, 15' Main Road, Sheshadripuram, Bangalore --- 560 020. Respondents
(By Sri KM. Shivayogiswamy, HCGP)
2
These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to quash the common
reassessment orders passed by Deputy Commissioner of
Commercial Taxes (Audit 63), Bangalore, third respondent
herein, under Section 39(2) of KVAT Act, 2003 for the tax period
April 2005 to March 2006 as the orders passed without authority
of law and without jurisdiction under Section 39(2) of_gth’e_<is.aid
Act and consequently quash also the common ord..€_Fs.Vp*as.se«d
under Section 72(2) and Section 36 of the said Act-3vfor"'thjfe
tax periods levying penalty and interest vicle Anx–C"a.nd»etc;'
These writ petitions coming on for'Fr'e|iminaryltfieari:ngCth'i's
day, the Court made the following: .
0 R DE-R_._
Sri K.M.Shivayogiswamy, _Vlear’ned:V:l”:Hig:;Vf!’i Court
Government Pleader is notice for the
respondents.
2. The the challenge to the common
reassessment oi”-dVers,VVdated3()~I1O.2O10 (Annexure–C).
Sari Thitrurnalesh, the learned counsel for the
petit_.io’ner’ in the instant case no further evidence
S 2*-ii’»has Cornet to Vtheili-notice of the prescribed authority; therefore the
–«.il’.j’;-que-stion ofpassing any further reassessment order under
settiens”9(2) of the Karnataka Value Added Tax Act, 2oo3 (‘VAT
. for short) would not arise. He brings to my notice the
‘v””~p4r’ovisions contained in Section 39(2) of the VAT Act, The said
provisions of the VAT Act are extracted hereinbelow:
3
“39. Re-assessment of tax
(1 ) xxxxxx
(2) Where after making a re–assessment under this
Section, any further evidence comes to the notice.__’ofV”’-””i ‘
the prescribed authority, it may make any further
assessments in addition to such earlier re-assessment.”‘C: «
4. Nextly, Sri Thirumaiesh brings to mynotice_the-ci’rc:u.i_a’i=;_i’
dated 26.6.2006 (Annexurep) issirie’d._Vby”the’ CVOnii’Ifn§AS§S:§._QnHVei3 of
Commercial Taxes. He submits that thne-i:m,o_ugned«.ordersi runs in
contrast to the directions contazi?ned’A._in;pahra._’9i.and 14 of the said
circular. The respondent i\Io~.i3._jou’g–ht__r’iotbtoghave imposed
interest and maiesh.
5. the impugned orders are
without the_autho-r.,ity~ that the same are barred by
lirjnitation..’:L_:l’*ie3»___suomits°tha.t.««under Section 40(1)(a) of the VAT
Actfithe’asse’s,srn:e’nt’~or reassessment order cannot be passed
.1′
.’u7–..after fi\}e»’y*ears i~i6%rfi the end of the prescribed tax period and
_:%’_i&th_re’e,_»years after the evidence of facts comes to the knowledge
‘[_ofrxeahs’sessirig authority. in the instant case, the tax period
‘V_’in___qo’estion was for April 2005 to March 2006.
§§fi
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6. Sri Thirumalesh further submits that the passing of the
further reassessment order does not presuppose the passing of
the reassessment order in every situation.
‘7. Sri K.M.Shivayogiswamy, the learned
Government Pleader appearing for the respo–n.d’en_4ts”.sLi’bn1itsthat,
the impugned orders are passed only under
VAT Act. He emphatically submitsVth:a’i:..Vthe Aihrnpugnie-d o._rd’e~rs”jare ” i
only the reassessment orders and—~~–not. ifurtheri”reassessment
orders. Only the provision of_.’lavv._i’s?wrorzglyr»mentioned, so
submits Sri Shivayogis.v}ia.my.:_”
8. ‘issuance of the notice in
reassessment proceeydiirigsé’ the period of limitation. As
these pet,it,§i:pns. invol’vi’e..V:pure: questions of facts, these petitions
canno.t:be_Ver}tertain~ed. According to the Government Pleader,
the pet.§.ti’t§.ne§’i5r}gme;d’y is to file an appeal invoking Section 62 of
V7?I_thVe.VVAT Act.”—V:&iI\iil1″ether the petitioner should have been given
4: ‘rebateior special rebate can always be gone into by the
Aothority.
In the course of his rejoinder, Sri Thirumalesh submits
that the order which is bad in the beginning cannot be made
good by offering explanation or by fiiing the affidavits. To advance
this contention, he has reiied on the Hon’bie Supreme..iCo:u~rt’s
judgment in the case of MOHINDER SINGH
ELECTION COMMISSIONER, reported in_AI_R 19788ai1«.~_ ”
10. This Court finds considerabie force:i’n_ the
the Government Pleader that the””‘siAIII’Dugned._Votd:érsV”:,:4aVré £on1Y’VV
reassessment orders and not ordefs for one
simpie reason. The further be passed
only after the passii1g’«i9f_-.the=A__ If there is no
reassessment Wpassing the further
reassessmentgfofrdfyeriflotifan se “art.
11. As byvthe Court in the case of B.S.E.
ByRoKER.’.:§;¥”I=DRuM,fDoMr§.Ay AND OTHERS v. secunrrnas
A’N_l_VJ’EXCH§ArtGfiVA”BVOARD or INDIA AND OTHERS reported in
(20£51_)’3__SCC’*_d¢B2v;r~*mentioning the wrong provision of law wouid
no’: vitiate the ‘order as such.
A It is profitabie to refer to the latest Supreme Court’s
V’ V–V:y”rj.tjVd”gnayent in the case of UNIIED BANK or INDIA v.
V””‘r,_sATYAwATI TONDON AND omens reported in (2010) 8
SCC 110, wherein the Apex Court has expressed the considered
egg
6
view that the statutory remedies must be exhausted before
resorting to the remedy under Article 226 of the Constitution of
India. The Apex Court has emphasized the need for
circumspection, caution and care by the High Courts toVV_ie.nsu_re
that the statutory schemes are not defeated by
jurisdiction. The relevant paragraph of the s*a”i’t;.– it
extracted hereinbeiow:
“43. Unfortunately, the High___VCour£?,_ overlooi€’e.g’~..tbVe
settled law that the High will ‘brains;-iiy”*;:not
entertain a petition V-‘the
Constitution if an effeciivg.rernedizllisgalifailabie to the
aggrieved personand that.:ti7.is aifipliesjywith greater
rigour,’ in matters ‘”iinv’oiv:’.ng recovery of taxes, cess,
fees, dither types«.”o.f_.money and the dues of
Banks and a other }”inancia.i institutions… . . ”
13._–,In the caseof’ THANSINGH NATHMAD v.
SV’ueeRI”N’ra.Noetyt ol=””T1ixEs, DHURBI 81 omens reported
in the Supreme Court has observed that
v”~’the i~£igli1..44Couyrthw:ou.!d not act as the Court of appeal against the
‘<../..:':vd'9€'j3iOn of"'a__C33ourt or Tribunal to correct the errors of facts and
4:'-'.V.x<:i'oesV'cAAnotjlby assuming the jurisdiction under Articie 226 of the
'V:t.VdCo.nsti_fution trench upon an alternative remedy provided by
statute for obtaining the relief. tinder Articie 226, the High Court
flgg;
7
does not generally enter upon a determination of questions,
which demand an elaborate examination of evidence. In the
case of TITAGHUR PAPER MILLS CO. LTD. AND ANOTHER v.
STATE OF ORISSA AND OTHERS reported in (1983)’e’.:.’«:!”‘SCC
433, the Apex Court has held that the a|terna_ti’\’/el..’g’~,r;§fi€’e3dy*.A
provided by the statute is not to be bypasse_d,–…Aifvv.th:e:::matteifll”
involves the revenue.
:14. Considering the law laid .down”l)y’*the
not finding any extraordinary circunfistances. entertaining
these writ petitions, I reject,_.then.iVA. ,N’.e’ed§es’s.%to observe that all
the conten,jtio%nls”are_, bheflulrged before the appellate
forum. Thez’Gov-ernrnent’sll’s’u,,b’inlissi0n, that the impugned orders
are to be treated’ as the o’neVs””.passed under Section 39(1) of the
:.fvA’§’.,Act.,. its ‘piaced on record.
Vpefitions are accordingly rejected. No order as
‘”‘”‘to costs.
ea/»;
FUDGE