C.M. Mothimath vs The State of Karnataka and Others

Chandrakantaraj Urs, J.—The petitioner carries on the business in handloom silk kanas (choli pieces). He is a dealer registered under the Karnataka Sales Tax Act, 1957 (hereinafter referred to as "the Act"), and has been filing his monthly returns regularly. The silk kanas sold by the petitioner contain 40 to 50 per cent silk. The remaining percentage being made up of cotton yarn.

By Karnataka Act 7 of 1981, item 146 was substituted in the Second Schedule to the Karnataka Sales Tax Act, 1957. Item 146 now substituted reads as follows :

"146. Silk fabrics -

(i) Manufactured on a handloom two per cent. (ii) In other cases four per cent.

Explanation VIII. - ''Silk fabrics'' means all varieties of fabrics manufactured either wholly or partly from silk, but does not include cotton fabrics, woollen fabrics and man-made fabrics as defined in the Central Excises and Salt Act, 1944."

The petitioner after the amendment, made an application to the second respondent herein (Commissioner of Commercial Taxes in Karnataka) purporting to be an application u/s 3-A of the Act, seeking clarification from the second respondent as to the meaning of the words "silk fabrics" occurring in the explanation to item 146 in the Second Schedule to the Act. The petitioner is aggrieved that though he made the application as long back as on 11th June, 1981, he has not heard from the second respondent-Commissioner. Therefore he has approached this Court under article 226 of the Constitution seeking a writ of mandamus to the second respondent directing him to issue a clarification u/s 3-A of the Act and also for a mandamus to dispose of the application dated 11th June, 1981.

The learned counsel Sri B. V. Katageri appearing for the petitioner urged that the explanation to item 146 in the Second Schedule to the Act, which defines "silk fabrics", has adopted the definition of that term as defined in the Central Excises and Salt Act, 1944.

I am unable to agree with the learned counsel''s submission and I am of the view, that need not be gone into in this writ petition as the relief sought for is for the issue of a writ of mandamus to compel the Commissioner to dispose of the application of the petitioner u/s 3-A of the Act. Section 3-A of the Act reads as follows :

"3-A. Instructions to subordinate authorities. - (1) All officers and persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the State Government and the Commissioner :

Provided that no such orders, instructions or directions shall be given so as to interfere with the discretion of any appellate authority in the exercise of its appellate functions.

(2) Every Assistant Commercial Tax Officer or Commercial Tax Officer employed in the execution of this Act shall observe and follow such instructions as may be issued to him for his guidance by the Deputy Commissioner within whose jurisdiction he performs his functions."

From the above it is clear that it speaks of the power to be exercised by the State Government and the Commissioner to issue instructions to their subordinates; such instructions for the purpose of carrying into effect the provisions of the Act. These instructions are to be issued by the State Government and the Commissioner at their own instance and not at the instance of third parties like the petitioner - a dealer under the Act.

I do not think that any right is conferred on the petitioner under any of the provisions of the Act to seek the type of clarification which the petitioner has sought from the Commissioner. There is no right in the petitioner to seek such clarification, much less is there any duty cast on the Commissioner to clarify or dispose of the application, as made out by the petitioner. This writ petition is a frivolous exercise involving unnecessarily the extraordinary jurisdiction of this Court under article 226 of the Constitution. Whatever the petitioner wants to contend having regard to the meaning of item 146 in the Second Schedule to the Act and its effect, he may do so before the appropriate assessing authority.

For the reasons stated above, this writ petition is dismissed without rule being issued.