MYSORE CEMENTS LTD Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THESE petitions call in question the constitutional validity of section 5 (3-D) of the Karnataka sales Tax Act, 1957. Also under challenge is the validity of two proposition notices both dated february 19, 1991 issued against the petitioner under the provisions of the Karnataka Sales Tax act, 1957 and the Central Sales Tax Act, 1956 for the assessment year 1986-87.

(2.) THE petitioner-company is engaged in the manufacture and sale of cement. For the assessment year 1986-87, it filed a return under the Act, on April 30, 1987. In terms of section 12 (5) of the state Act, no assessment is permissible after a period of three years from the date on which a return under sub-section (1) of section 12 is submitted by the dealer. In the ordinary course therefore the period of limitation for completing the assessment would expire on April 20, 1990. Much before which date, the assessing authority issued to the petitioner a proposition notice dated January 19, 1990. The petitioner filed a reply in which it was, inter alia, pointed out that since it had filed Writ Petition No. 18988 of 1986 challenging the constitutional validity of section 5 (3-D) and the operation of the said provision had been stayed by an interim order of this court dated October 30, 1986, the proposed assessment proceedings could not be completed. The proceedings initiated by the assessing authority consequently remained inconclusive on account of the interim order of stay granted in the aforementioned writ petition. The writ petition was however disposed of by this Court by an order dated December 13, 1990, following a division Bench decision in Ranganatha Associates v. State of Karnataka [1990] 78 STC 1 (Kar ). This order of dismissal was subsequently recalled and the writ petition restored to its original number as it appeared that the view taken in Ranganatha Associates [1990] 78 STC 1 (Kar) did not have any direct application to the case of the petitioner. The writ petition was disposal of for, the second time by order dated March 28, 1996, following the decision of the Supreme Court in vasavadatta Cements' case AIR1996 SC 1035 , JT1996 (1 )SC 508 , 1996 (1 )SCALE483 , (1996 )2 SCC88 , [1996 ]1 SCR749 , [1996 ]101 STC168 (SC ) where the apex Court has upheld the constitutional validity of section 5 (3-D ). In the meantime, the commissioner of Commercial Taxes in Karnataka had by an order dated April 25, 1990, deferred the assessment proceedings, in the light of the interim order of stay granted by this Court in the aforementioned writ petition. It is noteworthy that while restoring the writ petition on March 27, 1991, this Court did not restore the interim order of stay earlier granted by it. The result was that the interim order of stay suspending the operation of section 5 (3-D) remained operative only between October 30, 1986 and December 13, 1990. On account of the vacation of the order of interim state, the assessing authority issued a second proposition notice dated February 19, 1991 proposing to complete the assessment in the manner and to the extent indicated therein. Aggrieved, the petitioner has filed the present writ petitions in which it has not only challenged the validity of the proposition notices issued to the petitioner but also assailed the constitutional validity of section 5 (3-D) for a second time.

(3.) MR. Shankargowda, learned counsel for the petitioner, fairly conceded that in the light of the decision of the Supreme Court in Vasavadatta Cement's case AIR1996 sc 1035 , JT1996 (1 )SC 508 , 1996 (1 )SCALE483 , (1996 )2 SCC88 , [1996 ]1 SCR749 , [1996 ]101 STC168 (SC ), nothing further survives for consideration in so far as the challenge to the constitutional validity of section 5 (3-D) of the Act, was concerned. He accordingly, gave up the said challenge and confined his submissions to the validity of the impugned proposition notices. In so far as that aspect was concerned, the learned counsel raised but a solitary plea in support of the petition. He contended that the impugned notices were beyond the period prescribed by section 12 (5) of the Act, and were therefore incompetent hence could not serve as a sound basis for the proposed assessment. He urged that the period of limitation for completing the assessment reckoned from April 30, 1987 would expire on April 30, 1990 so that the impugned proposition notice issued in February, 1991, was ex facie illegal, being outside the period prescribed. He further contended that the respondents could not rely upon the commissioner's order of deferment dated April 25, 1990, which was according to the learned counsel, illegal in that it had been passed without any notice to the petitioner and was at no stage communicated. Reliance in support was placed upon a decision of this Court in Union Home products Ltd. v. Assistant Commissioner of Commercial Taxes (W. P. No. 22497 of 1991, dated september 15, 1993 ). It was also urged that the Commissioner of Commercial Taxes was not competent to pass an order of deferment under Section 12 (6) (b) of the Act on the basis of an interim order of stay from any court or authority. That power could according to the learned counsel be exercised only by an assessing authority under section 12 (a) of the Act so that an order of deferment issued by the Commissioner on the basis of any such order of stay would be a nullity.