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TMI Blog2018 (9) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... equential demand notice issued by 1st respondent in VAT Form-180 dated 01.03.2017 as per annexure P and Q and T and T1 dated 14.06.2018 and 19.06.2018 and rectification order and also to quash the order passed by the appellate authority-4th respondent dated 21.02.2018 as per Annexure -R dismissing the appeal on the ground of delay. 2. It is the case of the petitioner that the petitioner was engaged in the activity of mine raising, extraction of ores and transportation for an agreed price as per the contract and involves pure labour. The petitioner does not carry on any trading activity in the State of Karnataka and does not effect transfer of property in goods in any manner, thus the activities of the petitioner in the State of Karnataka d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the petitioner in various States across the country, wrongly, instead of confining only to the facts and figures relating to the State of Karnataka and more so the works contract receipts of the other States were subjected to levy of VAT under the KVAT Act although there was no receipts from works contract within the State of Karnataka. Accordingly 1st respondent proceeded to pass the reassessment order as per Annexure-P dated 01.03.2017. Subsequently, on the basis of reassessment order, demand notice was issued by the 1st respondent as per Annexure-Q. Against the reassessment order, the petitioner filed an appeal before the 4th respondent- Joint Commissioner of Commercial Tax in Aappeal No. JCCT.APLS:DVG:2017-18/1617 dated 21.02.2018, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner proceeded to pass the reassessment order dated 01.03.2017 as per exercising the power under Sec. 39(1), 36 and 72(2) to proceed to pass reassessment order which was subject matter of appeal before the Appellate Authority. The Appellate Authority dismissed the appeal mainly on the ground of delay though, the learned AGA sought to justify the action of the appellate authority in dismissing the appeal on the ground of delay. The facts remain that the petitioner is questioning the reassessment order before the appellate authority on the ground that he is not liable to pay any tax. The appellate authority proceeded to dismiss the appeal mainly on the ground of delay in view of Sec. 62(3) of KVAT Act and the appellate authority cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the jurisdiction or by over-stepping or crossing the limit of jurisdiction or that there is failure of justice, or it has resulted in gross injustice, it would be a case falling under the exceptional category for exercising the power under Article 226 of the Constitution and to interfere with the order of the original authority or the appellate authority, as the case may be. In order to find out as to whether the case is fit for exercising of the power under Article 226 of the Constitution, we may record that as per the decision of the Delhi High Court, Rule 5, on the basis of which the original authority has passed the order for levying of tax is held to be ultra vires to Sec.67 of the Act. Further, the matter may fall in the realm of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal. The present petitioner explained the delay on the ground of illness and has made out exceptional category to exercise the power under Article 226 of the Constitution of India. 14. In view of the dictum of Division Bench of this Court referred supra, the writ petition is allowed, delay is condoned and the matter is remanded to appellate authority to decide the appeal on merits without reference to the limitation and direct the Joint Commissioner to proceed with the appeal on merits and pass appropriate order in accordance with Law within the period of four weeks from the date of copy of receipt of this order. The concerned authority shall not implement the assessment order till the disposal of the appeal, within a period of four w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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