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Univercell Telecommunications Versus Commissioner of commercial taxes in Karnataka and others

2016 (5) TMI 434 - KARNATAKA HIGH COURT

Grant of stay - condition to deposit 30% of the demand amount and furnishing of bank gurantee for the remaining amount - Appellant contended 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. Also that even section 39(2) was not on the statue, which has been invoked since section 39, which is invoked has come into force in the year 2013, whereas reasses .....

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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.

Therefore, the interim order passed by the learned single judge shall stand modified to the effect that there shall be stay against .....

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ths from the date of final order. - Appeal disposed of - Writ appeal : 842/2016, 992-1002/2016 - Dated:- 28-4-2016 - Mr. Jayant patel and Mr. B.V. Nagarthna JJ. For the appellant : Cherian punnose For the Respondent : K.M. Shivayogiswamy ORDER Admit 2. Mr. K.M. Shivayogiswamy, learned Addl. Government advocate appears on advance copy and waives notice. 3. With the consent of learned counsel appearing on both sides are finally heard. 4. The present appeals are directed against interim order dat .....

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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 contenti .....

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subsequent reversal of the legal position of the decision by the judgment of the supreme Court does not authorize the Department to reopen the assessment, which stood closed on the basis of the law, which stood closed on the basis of the law, as it stood at the relevant time 9. On the aspects of availability of Section 39 of the KVAT Act, learned counsel has relied upon a decision of this court in case of M/s. Amma Construction India Pvt. Ltd. Vs. The Assistant Commissioner of commercial Taxes .....

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rcumstances, it appears to us that the learned single while granting the interim 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 supre .....

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