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TMI Blog2011 (1) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment officer passed at annexures C, D and G, respectively, directing the petitioners to pay 12.5 per cent of VATexercising the power under section 4(l)(b) of the Karnataka Value Added Tax Act, 2003, could be quashed and they are accordingly quashed. It is made clear that the clarification issued in the circumstances, by the Commissioner at annexure A would not be made applicable to the tiles which are in the form of paving bricks and are held to be covered under the exhaustive definition of "all kinds of bricks/ asphalt tiles". It is directed to collect the tax for the said assessment years only at four per cent as provided under entry 2 of the Third Schedule to the KVAT Act. Appeal allowed. - Writ Petition Nos. 13172, 13173, 13376, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for floor, ground, footpath, garden and car parking areas generally and they have been sold to the dealers by raising necessary sale invoice. As per section 35 of the Karnataka Value Added Tax Act, 2003, the petitioner has been filing the returns by collecting four per cent VAT and remitting the same to the credit of the State. Entry 2 of the Third Schedule reads thus: 'All kinds of bricks' including fly ash bricks; refractory bricks and the like; asfaultic roofing sheet; earthen tiles. All kinds of bricks in the abovesaid entry is an exhaustive entry and include several kinds of bricks though not specified in the entry individually. As such, the petitioners have treated the paving bricks as falling within entry 2 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds, the petitioners have challenged the said clarification issued by the Commissioner as ultra vires and to treat, the paving tiles as bricks and the clarification issued is violative of the power under entry 2 of the Third Schedule and by no stretch of imagination it falls under residuary power to define it in a different manner other than what is provided under the Third Schedule. The petitioners have also sought for quashing of annexures C, D and G, respectively, the reassessment orders made for the years 2007-08, 2008-09 and 2009-10, respectively. According to the learned Government Pleader, annexure A is only a clarification issued by the Commissioner in respect of different cement hollow bricks and not with regard to the pavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessments and collection of revenue. At clarification 1 issued it was with reference to cement hollow or solid blocks of the size mentioned therein and at clarification 2 it is stated that, cement hollow or solid blocks of any other size are taxable at 12.5 per cent. VAT under section 4(1)(b) of the Karnataka Value Added Tax Act, 2003. Might be that in the usual course against the mistake crept in or erroneous assessment made, the orders are normally being challenged before the appellate authority as exhaustive remedy is provided under the Act. In the case on hand, the reassessment authority, in order to arrive at a conclusion, has referred to clarification 2 of the order of the Commissioner dated September 8, 2006 at annexure A. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinate to the Commissioner, though are supposed to act independently, may not vary in their appreciation and rather they stick on to the order being passed by the reassessing authority thus, leading to waste of time much less putting the parties to hardship in not taking decisions at the earliest. Even a speedy remedy is a fundamental right. Wherever it is necessary, the court should not shirk the responsibility to answer the issue raised at the earliest, if prima facie, it appears to be a wrongful act on the part of the assessing authority so as to save money and waste of time. In the circumstances, while exercising the power under article 226 of the Constitution, though alternative remedy is available to the petitioners, when it is app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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