2016 (5) TMI 434

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..... ng the interim relief ought to have considered the aspects. We are conscious of the fact that in normal circumstance, there would not be any stay against the recovery of tax. But in the peculiar circumstances of this case where there was a concluded assessment is based on the subsequent of this case and the reopening of the assessment is based on the subsequent decision of the supreme court and the point as to jurisdiction under section 39 is under consideration, it would be just and proper to modify the interim order passed by the learned single judge and since the matter is pending before the learned single judge, the parties should be relegated to agitate the contentions before the learned single judge who is seized of the matter. The .....

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..... the appellant and Mr. K.M. Shivayogiswamy, learned Addl. Government Advocate who appeared on advance copy for the respondents. 6. As such, two principal contentions are raised by the learned counsel for the appellant in the main writ petitions. One is that there was a concluded re assessment and thereafter based on the subsequent decision of the Supreme Court section 39 of the KVAT Act has been invoked. 7. Learned counsel for the appellant submitted that once the concluded re-assessment was there, it could not be reopened merely because, subsequently, Supreme court has held that charger is not a part of mobile for the purpose of levying VAT. The second contention by the learned counsel for the appellant is that even section 39(2) was .....

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..... nterim relief ought to have considered the aforesaid aspects. We are conscious of the fact that in normal circumstance, there would not be any stay against the recovery of tax. But in the peculiar circumstances of this case where there was a concluded assessment is based on the subsequent of this case where there was a concluded assessment and the reopening of the assessment is based on the subsequent decision of the supreme court and the point as to jurisdiction under section 39 is under consideration, it would be just and proper to modify the interim order passed by the learned single judge and since the matter is pending before the learned single judge, the partied should be relegated to agitate the contentions before the learned single .....

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