TaxTMI 
TaxTMI 
2005 (11) TMI 459
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....n the case of Assistant Sales Tax Officer v. B.C. Kame reported in [1977] 39 STC 237 (SC). Thereafter, there has been a flurry of litigation, an unending tussle between the Revenue and the tax-payer. The decision referred to above, also paved the way of ushering in amendment to the definition of the phrase "tax on the sale or purchase of goods" as it occurs in article 366(29A) of the Constitution of India, enlarging the scope of such levy for the purpose of entry 54 in List II of the Seventh Schedule of the Constitution. That is how section 5B was introduced in the Karnataka Sales Tax Act and over a period of time, new types of contracts or activities were also sought to be brought in within the net of tax and one such entry was introduction of entry 25 relating to processing and supply of photographs, photo prints and photo negatives. Undoubtedly, the petitioner is a person carrying on such activities and the levy of tax in terms of this provision is attracted and for the assessment years 1989-90, 1990-91 and 1991-92, tax had been assessed and levied in respect of assessment year 1989-90 in terms of the assessment order dated October 6, 1995 a sum of Rs. 95,026, in respect of a....
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....t writ petition is filed. Writ petitioner has sought for, inter alia, quashing the endorsement issued by the assessing authority rejecting the refund application as also the appellate order of the Joint Commissioner and also for a writ of certiorari to quash the original assessment orders themselves and the consequential relief for refund by issue of a writ of mandamus in this regard. Writ petition had been admitted and the respondents have entered appearance through Sri Veda Murthy, learned Government Pleader. Statement of objections has also been filed. I have heard Sri Keshava Murthy, learned counsel for the petitioner and also Sri Veda Murthy, learned Government Pleader, appearing for the respondents. Submission of Sri Keshava Murthy, learned counsel for the petitioner is that though the petitioner had paid the taxes in terms of the assessment order and had not carried the matter by way of appeal, in as much as, the very provision, levying the tax, namely, the entry 25 which is part of (1)Reported at [2006] 144 STC 33. section 5B under which the tax is levied on the activity of the petitioner, has been held to be invalid in terms of the judgment of this court render....
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....ame to be declared by this court only in the year 1999, but the assessment orders had already been completed even during the year 1993-94. It is also averred that the petitioner cannot seek for refund at such a belated point of time in respect of tax levied in the year 1993-94 by filing a writ petition in the year 2002 and therefore the writ petition should be dismissed as hit by laches. Mr. Veda Murthy, in addition, submits that the petitioner cannot seek for refund and this court should not exercise its discretionary jurisdiction for passing an order of this nature as a refund order in favour of the petitioner only amounts to permitting unjust enrichment, in the sense that, though for payment of tax in terms of section 17(6) of the Act, the petitioner is debarred from expressly passing on the tax liability to the customers, nevertheless, in fixing the price of the end-product or the value of the product, the petitioner would have necessarily added the component of tax liability and therefore it amounts that the petitioner who had collected that amount from his customers as an amount to be passed on to the State is now asking for return of the same and at this point of time, th....
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.... question of delay, the Supreme Court having taken the view that the petition under article 226 of the Constitution of India within a period of three years can be held to be a petition within a reasonable time and should not be thrown out on the ground of laches and in the instant case, the petitioner having approached this court for relief within three years from the date of declaration of law by this court, the petition is not one that should be thrown out by this court only on the ground of laches. Even on the ground of denying the relief, applying or calling in aid the doctrine of unjust enrichment, I am of the view that the doctrine need not be applied to the petitioner's case, inasmuch as, it is submitted by the learned counsel for the petitioner that on the part of the respondents, in respect of many similarly placed dealers, such dealers had sought for rectification of the assessment orders by filing an application under section 25A for the purpose of claiming refund of tax that they had paid under the assessment orders and the authorities had entertained and allowed such rectification applications and granted refund wherever the applications had been made within a p....