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2011 DIGILAW 369 (KAR)

Hubli Electricity Supply v. State of Karnataka

2011-03-31

D.V.SHYLENDRA KUMAR

body2011
Judgment :- 1. Writ petitions by M/s. Hubli Electricity Supply Company Limited [HESCOM], questioning the legality of the assessment orders passed by the assessing authority under the provisions of the Karnataka Value Added Tax Act, 2003 [for short ‘the Act’], determining the tax liability of the assessee for the periods from April 2005 to March 2007 and from April 2007 to March 2010 [Annexures –L & L1 to the writ petitions] in a sum of Rs.94,95,880/- and mulcting penalty of Rs.10,23,777/-. 2. Petitioner though has remedy of appeal in terms of section 62 of the Act, has nevertheless, chosen to by pass the statutory remedy and jump into the High court seeking the following reliefs: i) “Issue a writ of certiorari quashing re-assessment Notice No.ACCT/ENF-1/HBL/SCHESOM/10-11/B- dated 14.02.2011 passed by the 3rd Respondent produced at ANNEXURE-F to this writ petition. ii) Issue a writ in the nature of certiorari quashing the final assessment order No.ACCT/ENF-1HBL/INS-13/10-11 dated 07.03.2011 passed by the 3rd Respondent produced at ANNEXURE-L and L1 to this writ petition. iii) Issue a writ in the nature of certiorari quashing the Order No.JDNCR-229/2010-11 dated 9.12.2010 passed by the 2nd Respondent in empowering the investigation officer to initiate the assessment proceedings is produced at ANNEXURE-E to the writ petition. iv) Pass any other order as this Hon’ble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity”. 3. Sri. Shivaprakash, learned counsel for the petitioner urges that the petitioner though is aware of the statutory remedy, is nevertheless, compelled to approach this court for justifiable reasons; that in the first instance, the assessing authority has not taken into account assessment periods in respect of which he could not have reopened assessments; that some part of the period for which demand is raised is beyond the period of five years etc.,. 4. It is secondly contended that the assessing office had not given adequate opportunity to the petitioner to place before the assessing authority the relevant books of accounts and other records which were quite voluminous in nature and therefore want of opportunity is also a ground for interference in writ jurisdiction. 5. 4. It is secondly contended that the assessing office had not given adequate opportunity to the petitioner to place before the assessing authority the relevant books of accounts and other records which were quite voluminous in nature and therefore want of opportunity is also a ground for interference in writ jurisdiction. 5. Thirdly, it is contended that the assessing officer is no less than the very officer who had conducted the search investigation at the premises of the petitioner earlier as on 20th and 22nd of July 2010 and therefore the assessee has a bona fide apprehension that the assessing officer was biased against the petitioner and this has resulted in the impugned demand etc.,. 6. Petitioner being a public authority or demand raised being huge can never be a ground for invoking extraordinary jurisdiction under Article 227 of the Constitution of India, until and unless the petitioner is complaining of a genuine grievance, insurmountable difficulty to get over that in the normal course. 7. Taxation legislations have all provided adequate appellate remedies wherein an aggrieved assessee can seek to get over not only questions of law wrongly decided by the assessing authority but also findings of facts. In fact, interference in writ jurisdiction will be much lesser. 8. Be that as it may, the first ground of limitation is also a ground that can be very well urged before the authority and if the assessee had not chosen to put forth that in his explanations or show cause notice running to 46 pages [Annexure-J date 28.2.2011] and another 5 pages additional reply dated 7.3.2011 [copy at Annexure-K], it cannot be raised in writ jurisdiction and even though it has been raised, it can be raised before the appellate authority as it is not in respect of entire period but only part of the period. All these things involve verification of facts. It is not the function of this court to look into such facts for the purpose of granting relief in writ jurisdiction and to waste the precious judicial time required to be apportioned amongst all litigants, particularly when large number of litigants are waiting in the queue before this court and there is large pendency and even when adequate statutory remedies are provided. 9. 9. The second ground of no opportunity is only a ruse as the petitioner had ample opportunity and if the petitioner either deliberately or for whatever reason did not choose to place its books of accounts and other record and cannot be laid at the doorstep of the respondent-authority even assuming petitioner wants to place further material, it can always be attempted in the appeal and not before this court in the petition under Article 227 of the Constitution of India. 10. The third contention that the assessing officer is biased is again an idle contention as in tax matters it is only assessing authorities who pass the orders and just because the assessing officer also had caused investigation cannot of any consequence as the principle of bias is not attracted in that sense in respect of the assessing officer who are all inevitably employees of the revenue department. This contention is also not one eliciting exercise of extraordinary jurisdiction of this court calling for interference. 11. Therefore, these writ petitions are dismissed. 12. It is open to the petitioner to avail of the statutory remedies in accordance with law.