IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR. WRIT PETITION Nos /2015 (T-RES)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5 TH DAY OF MARCH, 2015 BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION Nos /2015 (T-RES) BETWEEN: M/S.PAHARPUR COOLING TOWERS LTD. REP. BY ITS SENIOR EXECUTIVE COMMERCIAL SRI.B.N.BALAKRISHNA, AGED ABOUT 48 YEARS, PAHARPUR HOUSE, NO.41, CUNNINGHAM CROSS ROAD, BENGALURU PETITIONER (BY SRI.R.V.PRASAD FOR VASAN ASSTS, ADVS.) AND: 1. THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT) 1.3 D.V.O 1, 5 TH FLOOR, TTMC BUILDING, BMTC BUS STAND, YESHWANTHPUR, BENGALURU THE COMMISSIONER OF COMMERCIAL TAXES IN KARNATAKA VANIJYA THERIGE KARYALAYA, 1 ST MAIN, GANDHINAGAR, BENGALURU RESPONDENTS (BY SRI.T.K.VEDAMURTHY, HCGP)

2 2 THESE WRIT PETITIONS ARE FILED UNDER SECTION ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS OF RE- ASSESSMENT DATED AND RESPECTIVELY PASSED BY THE R-1 UNDER SECTIONS 39(2) AND 39(1) OF THE ACT, PERTAINING TO THE ASSESSMENT PERIODS COMMENCING FROM APRIL, 2007 AND UPTO MARCH 2009 AND THE CONSEQUENTIAL NOTICES DEMAND DATED AND VIDE ANN-E AND F. THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R Heard Sri.R.V.Prasad, learned counsel appearing for petitioner and Sri.Vedamurthy, learned HCGP for respondents who has appeared on adverse notice. 2. Petitioner is a Limited Company engaged in Works Contract of constructing cooling towers and supply, erection and commissioning of cooling towers for plants, steel plants, HVAC, apart from carrying

3 3 incidental activities. For the period April 2007 to March 2008 re-assessment proceedings was concluded on and on service of said order, petitioner filed an application to rectify the re-assessment order on the ground that in re-assessment order Works Contract turn over was not considered in the background of books of account and other documents made available by it, which was in accordance with Rules namely, Karnataka Value Added Tax Rules, 2005 (hereinafter referred to as Rules for short). After issuance of notice by respondent, petitioner produced books of account and respondent-authority proceeded to adjudicate the application filed by petitioner and re-assessment order came to be concluded under Section 39(1) of the Karnataka Value Added Tax Act, 2003 (hereinafter referred to as KVAT Act for short) read with Sections 36, 37, 47 and 72 for the periods vide Annexure-E, for the period i.e., April to March. Re-assessment proceeding was commenced and notice came to be issued to petitioner, who on appearance

4 4 through its authorized representative filed books of account and documents for verification. After verification of records and books of account, re-assessment proceedings was concluded by order dated vide Annexure-F. Assailing said orders, petitioner is before this Court. 3. It is the contention of Sri.R.V.Prasad, learned counsel appearing for petitioner, that impugned orders are bad in law and liable to be set aside on the ground of violation of principles of natural justice and first respondent has not considered the accounts produced by petitioner in proper perspective, which was maintained by it in the course of its business activities as required to be maintained under the Rules and as such, said impugned orders have been passed erroneously and prays for quashing of the same. 4. Sri.R.V.Prasad, learned counsel has drawn attention of the Court to the impugned orders in extenso to buttress his arguments that mode, manner

5 5 and method in which the tax component has been arrived at by the respondent authority is contrary to Rules. Relying upon the judgments extracted in the writ petition, he would seek for setting aside the impugned orders and prays for allowing the writ petition. 5. Per contra, Sri.Vedamurthy, learned HCGP appearing for respondents would support the impugned orders and contends that present writ petition is maintainable since petitioner is having alternate remedy of filing an appeal against impugned orders as provided under Section 62 of the KVAT Act and without availing said remedy, petitioner cannot be permitted to challenge the correctness and legality of impugned orders in writ jurisdiction. Hence, he prays for dismissal of the writ petitions. 6. Having heard the learned Advocates appearing for parties and after bestowing my careful consideration to the rival contentions raised by learned

6 6 Advocates appearing for parties, this Court is of the considered view that present writ petition is liable to be dismissed on the ground that petitioner is having efficacious and alternate remedy of appeal under Section 62 of the KVAT Act by challenging the impugned orders and as such writ petitions would not be maintainable. 7. Perusal of impugned orders at Annexures E and F would clearly indicate that re-assessment orders came to be passed on , after considering the contentions raised by petitioner and same came to be served on the petitioner. It is pursuant to such service of re-assessment orders on petitioner, a letter dated came to be filed by the petitioner seeking for re-assessment of orders on the ground that Works Contract turn over was not considered. This was followed by issuance of notice under Section 52(1) of the KVAT Act by respondent by calling upon the petitioner to produce books of account, which related to the period

7 7 April 2008 to March Likewise for the period April 2008 to March 2009 re-assessment proceedings came to be initiated, which was for the first time by issuance of notice under Section 52(1) and in response to said notice, books of account and documents were produced for verification in respect of both periods of assessment. Same came to be examined by the authority adjudicating the claim of petitioner and impugned orders came to be passed by considering the books of account and rejecting the reply filed by petitioner. 8. It is no doubt true that there is no bar on this Court to examine the correctness or otherwise of any order passed by an authority, in exercise of power available under Article 226 of Constitution of India, subject to certain exceptions namely, violation of principles of natural justice, order being without jurisdiction validity of a statutory provision being under challenges.

8 8 9. Though an attempt has been made by Sri.R.V.Prasad, learned counsel appearing for the petitioner, in the instant case to contend that jurisdiction has been erroneously exercised by respondent authority, I am not inclined to accept the same since undisputedly respondent is the authority, which can exercise the jurisdiction under Section 39(1) and 39(2) of KVAT Act, 2003 while concluding the re-assessment proceedings and impugned order would also indicate that notices had been issued to petitioner prior to initiation of re-assessment proceedings and petitioner had participated in the proceedings before adjudicating authority through authorized representative. In that view of the matter, without expressing any opinion on the claim made in the writ petition and keeping open all contentions to be urged before appellate authority, this writ petition is dismissed.

9 9 Petitioner is granted two weeks time to file appeal before the appellate and in the event of such an appeal being filed within two weeks from today appellate authority, shall consider the same on merits and without insisting on delay aspect. Ordered accordingly. Sd/- JUDGE DR