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1982 DIGILAW 206 (KAR)

NANDI STEEL WORKS PVT. LTD. v. ASSISTANT COMMERCIAL TAX OFFICER (RECOVERY-I), BANGALORE

1982-09-16

D.M.CHANDRASHEKHAR, M.N.VENKATACHALIAH

body1982
CHANDRAKANTRAJ URS, J. ( 1 ) THE petitioner is aggrieved by the assessment order which is at annexdure C made by the first respondent that came to be confirmed by the Deputy Commissioner of Commercial Taxes and a copy of that appellate order is at annexure D, the petitioner has not filed the second appeal provided for in the Karnataka Sales Tax Act to the Appellate Tribunal. In this writ petition the challenge made is to the recovery proceeding initiated as seen from annexure B. This cannot be permitted, as long as the assessment order has become conclusive. ( 2 ) FOR the above reason this writ petition is rejected. ( 3 ) ON appeal, the case came up before the Division Bench : k. Srinivasan, for the appellant. S. Udayashankar, High Court Government Pleader, for the respondent No. 1. JUDGMENT chandrashekhar, C. J. ( 4 ) BY consent of the learned counsel, this appeal is treated as having been posed for hearing and we have heard them. ( 5 ) THIS is an appeal from the order of Chandrakantaraj Urs, J. , dismissing W. P. No. 28787 of 1982 [see supra]. The petitioner therein has presented this appeal and for the sake of convenience, it will hereinafter be referred to as the assessee. ( 6 ) THE learned single Judge dismissed the writ petition solely on the ground that the petitioner had not exhausted the remedy by way of an appeal. The existence of an alternative remedy is only one of the factors to be taken into account by this Court while deciding whether or not to entertain a writ petition and the existence of an alternative remedy does not affect the jurisdiction of this Court to entertain such writ petition. In the present case, the position of law was altered by an amendment which came into force on 1st April, 1982, but with retrospective effect. Such retrospective amendment could not have been considered by the appellate authority if the assessee had preferred an appeal immediately after the assessment order was made. In the circumstances, we consider this to be the appropriate case where this Court should exercise its jurisdiction under article 226 of the Constitution in spite of the assessee had not availed itself of the remedy by way of appeal. ( 7 ) THE material facts for the purpose of this appeal are briefly these. In the circumstances, we consider this to be the appropriate case where this Court should exercise its jurisdiction under article 226 of the Constitution in spite of the assessee had not availed itself of the remedy by way of appeal. ( 7 ) THE material facts for the purpose of this appeal are briefly these. The assessee, who is a manufacturer of steel products in a rolling mill, was assessed to sales tax for the period 1st April, 1976, to 31st March, 1977. The assessee claimed exemption from tax on its entire turnover on the ground that these goods were manufactured out of iron ingots and iron scraps on which sales tax had already been levied and that hence sales tax could not be levied on the products manufactured out of those raw materials. That plea of the assessee was turned down by the assessing officer who observed as follows in the course of the assessment order : "the plea that the finished products are manufactured out of the tax-suffered steel raw materials, it cannot be considered in view of the Supreme Court decision as cited above. The object is to tax the sale of each commercial commodity and not the sale of substance out of which they are made. " ( 8 ) FROM the above observation, it is clear that the assessing officer took the view that even if iron ingots and iron scrap out of which the assessee manufactured finished products, had suffered sales tax, the finished products were still liable to sales tax. By the Karnataka Taxation and certain Other Laws (Amendment) Act, 1982, explanation II was added at the end of the Fourth schedule to the Karnataka Sales Tax Act, 1957. That explanation provides, inter alia, that where tax has been paid in respect of raw material for the manufacture of steel products such steel products shall be exempt from sales tax. This explanation has been given retrospective effect from the commencement of the Act and is effective till 1st April, 1978. In the light of the aforesaid amendment with retrospective effect, the view taken by the assessing officer that that finished steel products are exigible to sales tax even if the raw materials out of which those products were manufactured has suffered sales tax, is unsustainable. In the light of the aforesaid amendment with retrospective effect, the view taken by the assessing officer that that finished steel products are exigible to sales tax even if the raw materials out of which those products were manufactured has suffered sales tax, is unsustainable. ( 9 ) IN the result, we allow this appeal, reverse the order of the learned single Judge, allow the writ petition, quash the assessment order dated 10th January, 1978, for the assessment year 1976-77 and direct the concerned Commercial Tax Officer to make a fresh assessment in accordance with law. ( 10 ) IN this appeal, we direct the parties to bear their own costs.