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2004 (3) TMI 737 - HC - VAT and Sales Tax

Issues:
1. Legality of the order dated January 22, 2004 passed by the respondent under section 28(6) of the Karnataka Sales Tax Act, 1957 for the period 2002-03.
2. Validity of provisional assessment orders passed after the end of the year.
3. Enforcing demand based on provisional assessment orders.
4. Concept of double jeopardy in civil proceedings.
5. Judicial consistency in granting relief against provisional assessment orders.

Analysis:
1. The petitioner challenged the legality of the order dated January 22, 2004, passed under section 28(6) of the Karnataka Sales Tax Act, 1957. The petitioner sought relief from the High Court despite having a statutory remedy of appeal available. The petitioner argued that the order was passed after the relevant year had ended, and a regular assessment order could have been issued instead of a provisional one. The court was urged to stay the recovery proceedings based on past interventions where relief was granted to assessees facing similar situations.

2. The court noted that provisional assessment orders can be issued based on monthly or annual returns filed by the assessee under the Act. Such orders can be appealed to the appellate authority. The purpose of provisional orders is to allow for adjustments against final assessments. The validity of a provisional order does not automatically become void if passed after the year ends. The authority may pass a provisional order if justified, such as when the dealer fails to maintain proper accounts or is unlikely to continue the business for the entire year.

3. The court addressed the issue of enforcing demands based on provisional assessment orders. It clarified that demands raised under provisional orders are subject to final assessment and can be adjusted accordingly. The court rejected the argument that enforcing demands based on provisional orders amounts to double jeopardy in civil proceedings, emphasizing that inconvenience to the dealer does not render the authority's actions illegal.

4. The concept of double jeopardy in civil proceedings was further discussed, with the court asserting that acting within statutory limits does not constitute double jeopardy. The court rejected the notion that subjecting the dealer to payment based on provisional orders and later final assessment amounts to double jeopardy.

5. The court examined past instances where relief was granted against demands enforced before regular assessment orders were passed. It emphasized that such interventions were based on discretion and specific circumstances, not on a legal principle or interpretation of the law. The court highlighted that each case should be considered individually, and relief granted in one instance does not establish a legal precedent.

In conclusion, the High Court rejected the writ petition, emphasizing that the petitioner should pursue remedies under the statute and seek relief if a regular return had been filed. The court clarified that past interventions were discretionary and did not establish legal principles.

 

 

 

 

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