BALAJI COMPUTERS Vs. STATE OF KARNATAKARESENTED

JUDGEMENT

(1.) THE appellants in this appeal were the petitioners in writ petitions No. 5158-61 of 2005. The substantial grievance of the appellants (hereinafter referred to as 'the assessees') in the writ petitions was that since the parts of Computer and Computer peripherals were exempted from levy of Turnover Tax/resale Tax (hereinafter referred to as 'the TOT/rst) under Section 6b of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as 'the Act'), by means of Notification no. FD 48 CSL 2000 (2) dated 18"' July 2000; No. FD 97 CSL 2001 (7) No. 660 dated 31st march 2001 and No. FD 54 CSL 2002 (4) dated 30"' March 2002, the copies of which have been produced as Annexures-E, F and G respectively to this appeal, the proposition notices issued by the Assessing Authorities pursuant to the Circular dated 31st December 2004 in No. CLR CR. 157/04-05, a copy of which has been produced as Annexure-D to the writ petitions, were without jurisdiction and were liable to be quashed. They have also sought for quashing of the aforesaid circular, Annexure-D. The learned single Judge, by means of his Order dated 10th February 2005 dismissed the writ petitions on the short ground that since the appellants have alternative remedies provided under the Act, it is not appropriate, in exercise of the power conferred on him under Articles 226 and 227 of the Constitution of India, to grant reliefs sought for by the assessees in the writ petitions. Aggrieved by the said order, this appeal is presented.

(2.) FACTS in brief, as set out by the assessees in the writ petitions, may be stated as hereunder: the Appellants 1 to 3 are the dealers in parts and accessories of Computers and Computer peripherals and are registered as dealers under the provisions of the Act on the file of the 3rd, 4th and 5th respondents respectively. The assessments of the 1st appellant for the year 2001 -02 was concluded on 21sl November 2002 assessing the gross and taxable turnover as at Rs. 7,30,46,1727- (Rupees seven crore thirty lakh forty six thousand one hundred seventy two only ). The turnover of subsequent sales of parts of computers and computer peripherals was determined at Rs. 7,29,016/- (Rupees Seven lakh twenty nine thousand and sixteen only) and the Assessing authority exempted the levy of turnover tax under Section 6b of the Act on the ground that the levy of turnover tax under Section 6-B of the Act was exempted in view of the notifications annexures-E and F, issued by the Government of Karnataka in exercise of the power conferred on it under Section 8a of the Act. Subsequently, the Assessing Authority had issued proposition notice dated 25th January 2005, a copy of which has been produced as Annexure-A to this appeal, proposing to levy turnover tax under Section 6-B of the Act at a sum of Rs. 7,25,000/ (Rupees Seven lakh twenty five thousand only) on the ground that the levy of turnover tax on the parts of Computer and Computer peripherals had escaped.

(3.) THE 4th respondent calculated the assessment of the 2nd appellant for the assessment year 2002-2003 on 14th September 2003 in respect of subsequent sales and determined the gross turnover at Rs. 99,27,642. 58 (Rupees Ninety nine lakhs twenty seven thousand six hundred forty two and paise fifty eight only) and exempted the turnover of the said subsequent sales of parts of computer and Computer peripherals from levy of tax under Section 6-B of the Act in view of notification Annexure-G issued by the State Government, in exercise of the power conferred on it under Section 8-A of the Act. However, the Assessing Authority subsequently issued proposition notice dated 18th January 2005 to the assessee under Section 12-A of the Act proposing to levy resale tax under Section 6-B of the Act on the ground that the said turnover of the subsequent sale of parts of Computer and Computer peripherals were not exempted from levy of resale tax in terms of the Notification Annexure-G dated 30th March 2002 issued by the state Government and as such the said turnover had escaped the assessment. The copy of the said proposition Notice has been produced as Annexure-B to this appeal. Similarly, the assessment of the 3rd appellant for the assessment year 2002-03 was calculated by the assessing authority on the turnover of subsequent sales of parts of Computer and Computer peripherals and granted exemption from levy of resale tax under Section 6-B of the Act in view Notification annexure-G. However, subsequently, the assessing authority issued proposition notice dated 6th january, 2005, a copy of which has been produced as Annexure-C to this appeal, under Section 12-A of the Act proposing to levy resale tax under Section 6-B of the Act on a turnover of Rs. 1,14,31,818/- (Rupees One crore fourteen lakh thirty one thousand eight hundred eighteen only)on the ground that the turnover on subsequent sales of parts of Computer and Computer peripherals were not exempted from levy of resale tax in terms of Notification Annexure-G dated 30th March 2002 and as such levy of real tax under Section 6-B of the Act in respect of subsequent sale of parts of Computer and Computer peripherals had escaped.