Classic Developers Vs. Deputy Commissioner of Commercial Taxes and ors. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 166: [a.n. venugopala gowda, j] accident claim dishonour of cheque issued towards the premium due to insufficiency of funds - intimation to the insurer - cancellation of the policy - liability of the insurer to honour the contract of insurance -legality of the award - held, the insurance company is not liable to satisfy the claim made by the claimant on cancellation of the insurance policy insured obtained the cover note by entering into an insurance contract with the insurer on 22.3.2003. the cheque issued towards premium of rs. 4281/- was returned dishonoured by the bank concerned, which is evident from the endorsement dated 26.3.2003 of the bank. the insurer immediately informed the insured i.e., on 28.3.2008 about the dishonour of the cheque and the resultant cancellation of the policy since inception. the said intimation was sent by rpad. the insurer notified the concerned regional transport authority on 28.3.2003 wherein the cancellation of policy was made known and simultaneously the insured was also sent with a copy thereof, notifying him to immediately surrender the policy for cancellation. thus the insurance contract being one without consideration, is void in terms of section 25 of the contract act and as a necessary corollary, the insured cannot have the coverage of the policy and demand performance of indemnity by the insurer. the contract of insurance was cancelled and the insured was duly notified of the same, much prior to the date of accident, in view of which, the appellant not be liable to indemnify the insured. it is trite that, the court should not place reliance on decisions without discussing as to how the factual position fits in with the facts situation of the decision on which reliance is placed. the ratio of any decision must be understood in the background of the facts of that case as it has been said that, a case is only an authority for what it actually decides and not what logically follows from it. a little difference in the presidential facts may make a lot of difference in the presidential value of a decision. the court below, without noticing the factual difference and without discussing the testimony of rw.1 and exs.r2 to r8, has mechanically applied the decision reported in ilr 1998 kar 1976 and has thereby committed an error in fastening the liability on the insurer. - 2 who is not the assessing authority, that notwithstanding the serious objections filed by the petitioner, the second respondent has concluded by re-assessing and re-computing the liability of the petitioner for the very period as per the order at annexure c and has issued the consequential demand notices, that the order apart from being bad on merits as the premise on which the second respondent has re-determined the liability is a postulate which is not free from doubt and even as indicated by the supreme court in the case of larsen & toubro limited v. , is not correct or proper ;that unless the commissioner has passed orders conferring such jurisdiction for reassessment under section 39 of the act on the first respondent as well as the second respondent, they cannot pass orders of reassessment ;that in the present case, respondent nos.orderd.v. shylendra kumar, j.1. writ petitions by an assessee who is assessable to tax under the karnataka value added tax act, 2003.2. the petitioner is aggrieved by the reassessment orders passed under section 39 of the karnataka value added tax act for the period from april 1, 2005 to march 31, 2006 for each of the month, copy of the order is produced as annexure c, dated january 20, 2009 and consequential demand notice annexures d to d9.3. the submission of mr. surenderanath, learned counsel appearing for the petitioner, is that in respect of the returns filed by the petitioner for the relevant period, the assessing authority had, while not accepted the returns, passed an assessment order in terms of the provisions of section 38(1) of the act for the year 2005-06, as per the orders at annexures b to b11, that much later the petitioner had been issued with the notice to reopen the concluded assessment by issue of notice under section 39(1) of the act and that too by respondent no. 2 who is not the assessing authority, that notwithstanding the serious objections filed by the petitioner, the second respondent has concluded by re-assessing and re-computing the liability of the petitioner for the very period as per the order at annexure c and has issued the consequential demand notices, that the order apart from being bad on merits as the premise on which the second respondent has re-determined the liability is a postulate which is not free from doubt and even as indicated by the supreme court in the case of larsen & toubro limited v. state of karnataka reported in [2008] 17 vst 460, but more importantly the second respondent lacks jurisdiction to pass such an order as he is not the assessing authority and the order being one lacking in jurisdiction it should be quashed and the respondents be directed to pass orders only in accordance with law.4. so far as the arguments of lack of jurisdiction is concerned, it proceeds on the instant the reassessment order under section 39(1) of the act can be passed by a prescribed authority who has reason to believe that any return furnished, etc., is not correct or proper ; that unless the commissioner has passed orders conferring such jurisdiction for reassessment under section 39 of the act on the first respondent as well as the second respondent, they cannot pass orders of reassessment ; that in the present case, respondent nos. 1 and 2 are not the regular assessing authorities ; that in spite of this, the first respondent having already passed the assessment order, it is now not open to respondent no. 2 to reopen the same ; that it is only for the first respondent having reopened once earlier if at all to pass further orders and not by respondent no. 2 ; that respondent no. 2 cannot pass further reassessment orders, etc.5. it is on such premise, the impugned orders are sought to be attacked, contending that the orders are lacking in jurisdiction.6. when the learned counsel for the petitioner submits that both respondent nos. 1 and 2 are conferred with powers to pass orders under sections 38 and 39 of the act, then it is not as though the second respondent lacks jurisdiction to pass an order under section 39 of the act just because the first respondent had passed an order under section 38 of the act. it is not as though there is lack of jurisdiction in respondent no. 2 to pass such an order.7. prima facie, it is not necessary to go into the question of merits of the order passed by respondent no. 2. ultimately consequence of such order is re-determination of the liability of the petitioner under the provisions of the act. it is open to the petitioner to pursue his remedy as per the act by filing appeals as provided under the statute and to seek his relief.8. these writ petitions being prima facie examined only for the purpose of ascertaining any patent lack of jurisdiction on the part of the second respondent and therefore any observation incidentally on the merits of the order is not to be construed as an order passed, but is only for the purpose of examining the question as to whether the matter is to be examined in writ jurisdiction by-passing the appeal remedy or to relegate the petitioner to the statutory remedy.9. therefore, it is made clear that it is open to the petitioner to raise all contentions before the appellate authority including the question of jurisdiction.10. these writ petitions are not entertained and are dismissed.

Judgment:
ORDER

D.V. Shylendra Kumar, J.

1. Writ petitions by an assessee who is assessable to tax under the Karnataka Value Added Tax Act, 2003.

2. The petitioner is aggrieved by the reassessment orders passed under Section 39 of the Karnataka Value Added Tax Act for the period from April 1, 2005 to March 31, 2006 for each of the month, copy of the order is produced as annexure C, dated January 20, 2009 and consequential demand notice annexures D to D9.

3. The submission of Mr. Surenderanath, learned Counsel appearing for the petitioner, is that in respect of the returns filed by the petitioner for the relevant period, the assessing authority had, while not accepted the returns, passed an assessment order in terms of the provisions of Section 38(1) of the Act for the year 2005-06, as per the orders at annexures B to B11, that much later the petitioner had been issued with the notice to reopen the concluded assessment by issue of notice under Section 39(1) of the Act and that too by respondent No. 2 who is not the assessing authority, that notwithstanding the serious objections filed by the petitioner, the second respondent has concluded by re-assessing and re-computing the liability of the petitioner for the very period as per the order at annexure C and has issued the consequential demand notices, that the order apart from being bad on merits as the premise on which the second respondent has re-determined the liability is a postulate which is not free from doubt and even as indicated by the Supreme Court in the case of Larsen & Toubro Limited v. State of Karnataka reported in [2008] 17 VST 460, but more importantly the second respondent lacks jurisdiction to pass such an order as he is not the assessing authority and the order being one lacking in jurisdiction it should be quashed and the respondents be directed to pass orders only in accordance with law.

4. So far as the arguments of lack of jurisdiction is concerned, it proceeds on the instant the reassessment order under Section 39(1) of the Act can be passed by a prescribed authority who has reason to believe that any return furnished, etc., is not correct or proper ; that unless the Commissioner has passed orders conferring such jurisdiction for reassessment under Section 39 of the Act on the first respondent as well as the second respondent, they cannot pass orders of reassessment ; that in the present case, respondent Nos. 1 and 2 are not the regular assessing authorities ; that in spite of this, the first respondent having already passed the assessment order, it is now not open to respondent No. 2 to reopen the same ; that it is only for the first respondent having reopened once earlier if at all to pass further orders and not by respondent No. 2 ; that respondent No. 2 cannot pass further reassessment orders, etc.

5. It is on such premise, the impugned orders are sought to be attacked, contending that the orders are lacking in jurisdiction.

6. When the learned Counsel for the petitioner submits that both respondent Nos. 1 and 2 are conferred with powers to pass orders under Sections 38 and 39 of the Act, then it is not as though the second respondent lacks jurisdiction to pass an order under Section 39 of the Act just because the first respondent had passed an order under Section 38 of the Act. It is not as though there is lack of jurisdiction in respondent No. 2 to pass such an order.

7. Prima facie, it is not necessary to go into the question of merits of the order passed by respondent No. 2. Ultimately consequence of such order is re-determination of the liability of the petitioner under the provisions of the Act. It is open to the petitioner to pursue his remedy as per the Act by filing appeals as provided under the statute and to seek his relief.

8. These writ petitions being prima facie examined only for the purpose of ascertaining any patent lack of jurisdiction on the part of the second respondent and therefore any observation incidentally on the merits of the order is not to be construed as an order passed, but is only for the purpose of examining the question as to whether the matter is to be examined in writ jurisdiction by-passing the appeal remedy or to relegate the petitioner to the statutory remedy.

9. Therefore, it is made clear that it is open to the petitioner to raise all contentions before the appellate authority including the question of jurisdiction.

10. These writ petitions are not entertained and are dismissed.