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2009 DIGILAW 677 (KAR)

WIRES & CABLES (INDIA) v. STATE OF KARNATAKA.

2009-08-27

K.BHAKTHAVATSALA, V.GOPALA GOWDA

body2009
JUDGMENT V. GOPALA GOWDA, J. - The correctness of the order dated February 9, 2009 passed by the learned single judge in Writ Petition No. 10862 of 2008 (T-Res) is questioned in this appeal urging various grounds and prayed to set aside the same and grant the reliefs as prayed in the writ petition. The ground of attack of the impugned order is that the learned single judge, contrary to law and the material on record, has passed the order holding that there is no need for clarification by the State Government in exercise of its power under section 90 of the Karnataka Value Added Tax Act (in short, "the KVAT Act") is not legal and valid. Further, the order passed is not tested from the view point of article 14 of the Constitution of India. Therefore, it is submitted that the dismissal of the writ petition rendered grave injustice to the appellant as it amounts to depriving legitimate right created in its favour. The relief sought for by the appellant is not concession, but it is a substantive statutory right created in its favour under the provisions of the Act. The appellant would have enjoyed the concession of full tax relief as second dealer and the continuance of KST Act, would have been continued for the assessment year 2005-06, i.e., with effect from April 1, 2005. Hence, the impugned order is a nullity in the eye of law as the same is contrary to the Statement of Objects and Reasons for enacting the KVAT Act. The learned single judge adverting to the relevant facts and the legal contentions urged by the learned counsel for the appellant in the writ petition after referring to section 18 of the KVAT Act and Rules framed under rule 166 of the Rules, which is a statutory provision, made an observation that the concession claimed by the appellant/registered dealer is not in terms of statutory provisions and he cannot claim the benefit beyond the provisions of the KVAT Act. The learned single judge, after careful examination of the aforesaid provisions and rule, has rightly made an observation that the order passed by the authority restricting the concession to the extent of liability under the latter is in consonance with the statutory provisions but also the provisions by themselves do not suffer from any illegality or ultra vires the provisions of section 18 of the KVAT Act. Therefore, he has further held that irrespective of the tax liability under the earlier Act, the concession claimed by the applicant cannot be extended to the tax liability under the earlier Act. Further, learned single judge, after careful examination of the order passed by the Principal Secretary to the Finance Department, which is impugned in the writ petition has held that if the petitioner should have incurred a lesser liability, there was no possibility for the appellant to get the concession to the extent of the liability under the later enactment. The learned single judge, after considering all the relevant aspects of the matter and the legal grounds urged in the writ petition, has rightly rejected the writ petition, affirming the order passed by the State Government. Therefore, the same does not call for interference. The appeal is devoid of merit. The same is liable to be dismissed. Accordingly, it is dismissed. Government Advocate is permitted to file memo of appearance within two weeks from today.