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2016 (12) TMI 425 - KARNATAKA HIGH COURT

2016 (12) TMI 425 - KARNATAKA HIGH COURT - TMI - Principles of natural justice - Section 39(1) of the KVAT Act, 2003 - maintainability of appeal - effective alternative remedy available to the petitioner under Section 62 of the KVAT Act, 2003 - Held that: - The narrow parameters for invoking writ jurisdiction under Article 226 of the Constitution of India, notwithstanding the appeal remedy available to the petitioner have to be very strictly construed. The contingencies like, question of validit .....

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best known to the petitioner- assessee, the petitioner-assessee ignored and bypassed these remedies. The writ jurisdiction in such circumstances cannot be allowed even to overcome the lapse of the limitation for the petitioner-assessee at this belated stage. - Petition not maintainable and is dismissed. - Writ Petition Nos. 57922-933/2016 (T-RES) - Dated:- 10-11-2016 - Vineet Kothari, J. For the Petitioner : Sri Thirumalesh M For the Respondent : Sri. V. Sreenidhi ORDER 1. These writ petitio .....

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by the respondent-Assessing Authority. 3. The learned counsel for the petitioner-assessee Mr.M.Thirumalesh, has emphasized before this Court that the respondent-Assessing Authority-has not complied with the principles of natural justice, while passing the impugned order by, (i) not giving specific proposition notice while applying G.P.rate and the additions made in the impugned order. (ii) that the details in question were furnished before the Assessing Authority well in advance and without appl .....

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t the admission stage, this Court is satisfied that the present writ petitions are not maintainable and deserve to be dismissed on the ground of an effective alternative remedy available to the petitioner under Section 62 of the KVAT Act, 2003, against the impugned orders assailed before this Court in the present writ petitions. 5. It is not the case of the petitioner that no notice was ever served upon the petitioner before passing the impugned assessment order on 30.04.2015. Such a proposition .....

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apse of more than a year vide Annexure-K dated 21.10.2016. 6. The filing of the proceedings by way of rectification application, does not absolve nor does it bar the petitioner-assessee, if he is aggrieved by the impugned Assessment order, to simultaneously avail the regular remedy by way of Appeal also under Section 62 of the KVAT Act, 2003, notwithstanding the fact he has filed the rectification application under Section 69 of the Act. 7. It appears that since the petitioner crossed the limita .....

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d a reasonable opportunity of hearing is given to the assessee concerned before any order is passed against him which may be adverse to his interest. It is neither the intention of the law nor the alleged breach of principles of natural justice, which allows the aggrieved person to invoke the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India to enjoin an examination of facts to the extent of minute details or an enquiry into the facts regarding the exte .....

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o rate, even that is also first specifically required to be notified to him in advance or that certain materials which are available on the record of the Assessing Authority like Audit report, has also to be specifically notified to him, so as to take his response thereto on record. But this is not what the breach of principles of natural justice on the part of the assessing authority is. But this is really a breach of duty on the part of assessee to fully cooperate in the assessment proceedings .....

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t proceedings itself and the Assessing Authority cannot be pinned down to give everything in writing to him in advance by way of proposition notice before hand and take his objections in writing and then decide them separately and thus in the process delaying the assessment proceedings endlessly. 10. The breach of principles of natural justice which is allowed to be raised as a ground of maintaining a writ petition under Article 226 of the Constitution of India, notwithstanding availability of t .....

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ution of India and the assessee cannot be allowed to invoke the writ jurisdiction of this Court bypassing at least two Appellate Forums provided under the law, the first appeal before the Deputy Commissioner and the Second appeal before the Tribunal. 11. These Authorities constituted under the provisions of the KVAT Act are the only appropriate fact finding bodies before whom, all these grievances raised before this Court, can certainly be raised by the petitioner-assessee and the petitioner-ass .....

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ting the alleged apparent errors on the face of the assessee or not. 12. The moment this Court finds that a notice was given to the assessee and he has participated in the assessment proceedings, the wolf cry of the assessee that principles of natural justice have been breached by the Assessing Authority deserves to be given a quietus and the Court s time spent in looking into these kind of details in the assessment order cannot be allowed to be wasted for the case of the petitioner-assessee on .....

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ourt by reason of its constitutional status alone is a worn-out cliché. This is amply proven by the state of the superior constitutional courts today. Litigations linger on for generations. It is the result of unscientific, non-productive, petrified procedures and a history of wasted judicial time over routine non-judicial repetitive motions in courts without any value addition to the decision-making process. The courts would be committing, unthinking & unilateral, disarmament against .....

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and time-consuming motions, can only perpetuate the problem and not solve it. 14. From a survey recently conducted, it is stated therein that only about 10 per cent of cases from trial courts go to the High Courts; from High Courts to the Supreme Court it is less than 1.5 per cent. The place where things really happen is the trial court and within the trial system including Tax Departments. The problems of the superior courts in their correctional jurisdiction arises from the failure of the tri .....

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der:- Principles of natural justice, it is well settled, are not codified rules of procedure. Courts have repeatedly declined to lay down in a straitjacket, their scope and extent. The extent, the manner and the application of these principles depends so much on the nature of jurisdiction exercised by the court or the tribunal, the nature of the inquiry undertaken and the effect of any such inquiry on the rights and obligations of those before it. The extent of the application of the principles .....

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was considered by the Assessing Authority without being confronted to the assessee and the Assessment Authority had not applied his mind judiciously to the same. With great respects, even if on its own facts, the Writ appeal came to be allowed by the Division Bench of this Court, that cannot be treated as a binding precedent for mandatory entertaining of such writ petitions in all the cases upon such an allegations, even though the Court comes to the conclusion otherwise that an enquiry into co .....

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essee has contended before the Court that certain documents, details and purchase registers etc., were produced before the Assessing Authority which were not analysed and discussed by him and a specific proposition notice was not given to him before hand on that basis of certain inputs of audit report which were also not confronted to him. All these questions require a deep enquiry into the allegations and averments made by the petitioner, which cannot be done in writ jurisdiction and which can .....

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been decided by the superior constitutional courts like the High Court and Supreme Court. 20. A lenient approach of the Court in this regard allowing writ petitions to be entertained against the assessment orders directly, is only likely to consume lot of precious public time of the Court, whereas, ultimately, after a detailed and time consuming analysis of facts, the Court may come to the conclusion that there is not even sufficient material before the Court to pronounce upon the individual co .....

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the relevant statute or Rules or Notifications is involved, whether the assessee concerned has been saddled with the financial liability without any sort of opportunity of hearing given to him, is not to be lightly invoked in all such cases merely on the basis of the allegations and averments made in the writ petitions. 22. Only a prima-facie look at the facts about the opportunity being given to the assessee or not and whether the question of vires as raised is really involved or not, can be l .....

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