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TMI Blog2016 (7) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... 013, but the appellant did not challenge the validity of the rule. Not only that, but thereafter for the subsequent assessment years, notices were issued by the Assessing Officer, but the appellant did not challenge the validity of the rule by appropriate proceedings before this Court, but appeared in response to the notice and the assessment orders were passed. Not only that, but thereafter the appellant has preferred the statutory appeal before the Appellate Authority under the KVAT Act and those appeals are pending consideration. Under these circumstances, we find that the challenge to the validity of the rule if not entertained by the learned single Judge, it cannot be said that the discretion is perversely exercised or that the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave to approach the High Court under Article 226 of the Constitution of India. Thereafter, the appellant/original petitioner preferred Writ Petition No.4363/2015 before the learned single Judge of this Court, challenging the validity of the Rule, but the learned single Judge found that the issue is already covered by the earlier decision in Writ Petition No.9464/2008 decided vide order dated 16/7/ 2008 and the decision of the Division Bench of this court da ted 19/3/2014 in STA.Nos.120/2012 and 1-10/2013 against which, the matter is pending before the Apex Court an d therefore, learned single Judge declined to entertain the petition. It is the submission of the learned counsel for the appellant that the learned single Judge ought to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r can further be examined in two facets: one, pertaining to the liability which has already been confirmed by the Division Bench of this Court in STA.Nos.120/2012 and 1-10/2013 and the other, is in respect of taxation liability for the subsequent assessment years. It is not in dispute and it is a part of the record of Writ Appeal Nos.1615-1626/2015 that the assessment in respect of subsequent assessment year has been made and the taxation liability is fixed upon the appellant. Further, the appellant has challenged the said assessment orders before the appellate authority under the respective statute and the matters are pending. Not only that, but further the appellant has challenged the subsequent assessment orders for the subsequent assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternative remedy. The appellant/original petitioner had the option of challenging the validity of the rule when the appeals were preferred in respect of earlier assessment order before this Court in STA.Nos.120/2012 and 1-10/2013, but the appellant did not challenge the validity of the rule. Not only that, but thereafter for the subsequent assessment years, notices were issued by the Assessing Officer, but the appellant did not challenge the validity of the rule by appropriate proceedings before this Court, but appeared in response to the notice and the assessment orders were passed. Not only that, but thereafter the appellant has preferred the statutory appeal before the Appellate Authority under the KVAT Act an d those appeals are pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals are pending before the statutory appellate authority under the KVAT Act. If ultimately, the question arises regarding a challenge to the liability, which is finalized by the statutory authority before this court in the appellate jurisdiction, the appellant may also challenge the validity of the rule at that stage. But not at this stage when the statutory appeals are pending before the Appellate Authority. Under the circumstance s, the exercise of discretion by the learned single Judge not to entertain the petition cannot be said to be erroneous, which may call for interference in exercise of the power under Article 226 of the constitution. 12. The attempt to contend that the matter was directly preferred under Article 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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