2019 (2) TMI 388 – KARNATAKA HIGH COURT – TMI – Levy of tax on construction activities – value of the land at one-third of the total amount charged – Constitutional validity of entry 5(b) of Schedule II to the GST Act, 2017 – legislative competence – Article 246A and 265 of the Constitution – Held that:- passing of a legislation by itself does not confer any such right to file the writ petition unless a cause of action arises therefor
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Enacting a legislation or issuing Notification/Circular could not confer a right to challenge unless the litigant is affected by the action initiated by the executive in furtherance of such legislation/administrative Circular/Notification more particularly, in taxing statutes. Cause of action is sine qua non for challenging such legislation/ Notification/Circular. The writ Court cannot adjudicate upon such matters in vacuum – The petitioner involved in construction activity or works contract would not be suffice to examine the constitutional vires
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CGST Act, 2017 (enclosed as Annexure-A) being unconstitutional lacking legislative competence and violative of Article 246A and 265 of the Constitution. (C) Writ or direction in the nature of a Writ of Certiorari or any other writ or direction to quash the provisions of entry 3(i) read with para 2 of the Notification No.11/2017-CT(R) dt. 28.06.2017 to the extent it covers entry 3(i) (enclosed as Annexure-B) as unconstitutional being violative of Article 14, 19(1)(g), 246A, 265, 366(12A) and 366(29A) of the Constitution. (D) Writ or direction in the nature of a Writ of Certiorari or any other writ or direction to quash the provisions of entry 3(i) read with para 2 of the Notification No.11/2017-CT(R) dt. 28.06.2017 to the extent it covers entry 3(i) (enclosed as Annexure-B) as being illegal and ultra vires the provisions of Section 15 of CGST Act, 2017; In the alternative to read down the said provisions of paragraph 2 as not being mandatory and the petitioner is allowed to value the l
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ble Apex Court reported in (2004)6 SCC 254 = 2004 (4) TMI 342 – SUPREME COURT OF INDIA in the case of Kusum Ingots & Alloys Limited Vs. Union of India and another. 4. Learned Counsel for the petitioner, placing reliance on the judgments of the Hon ble Apex Court as well as other High Courts, submitted that the petitioner is aggrieved by the Notification and Circular issued by the respondent-authorities pursuant to Entry 5(b) of Schedule II to the Central Goods and Services Tax Act, 2017 ( Act for short) which envisages levy of tax on construction activities and deeming the value of the land at one-third of the total amount charged. Learned Counsel argued that irrespective of any action initiated or not by the respondent-authorities, the petitioner is entitled to challenge the same and hence the writ petition is maintainable. Host of cases are referred to, and the same are discussed infra. 5. I have carefully considered the rival submissions of the learned counsel appearing for the
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uddin (Nasiruddin Vs. State Transport Appellate Tribunal reported in 1975 (2) SCC 671 = 1975 (8) TMI 126 – SUPREME COURT) and Kusum Ingots & Alloys Limited observed that, keeping in view the expression cause of action used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered. The jurisdiction of the High Court based on the cause of action doctrine was the subject matter adjudicated upon. 9. In the case of Namit Sharma Vs. Union of India reported in (2013) 1 SCC 745 = 2012 (9) TMI 809 – SUPREME COURT the Hon ble Apex Court observed that no prejudice needs to be proved in cases where breach of fundamental rights is claimed. Violation of a fundamental right itself renders the impugned action void. 10. In Dr.Md.Rezaul Karim Vs. State of West Bengal reported in 2017 SCC OnLi
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he reason that the summons per se was not the subject matter of challenge, but the basis thereof, be that as it may, the clarificatory circular was also the subject matter of challenge. 12. In the case of Collector, District Magistrate, Allahabad Vs. Raja Ram Jaiswal reported in 1985 (3) SCC 1 = 1985 (4) TMI 328 – SUPREME COURT, the Hon ble Apex Court while examining the challenge made to the preliminary Notification issued under Section 4(1) of the Land Acquisition Act, 1894, held that a Notification under Section 4(1) initiates the proceedings for acquisition of land and uses the expression shall , the mandate of the legislature becomes clear and therefore, the infirmities therein cannot be wholly overlooked on the specious plea that the courts do not interdict at the stage of a mere proposal. It is needless to observe that in the land acquisition proceedings, at the time of issuance of preliminary Notification, lands proposed to be acquired are identified along with the respective l
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Industrial Policy and Promotion 2018 (5) TMI 1762 – MADRAS HIGH COURT, the High Court of Madras held that the writ petitioners therein were broadcasters owning several television channels in as many as eight languages which are indisputably being beamed within the territorial jurisdiction of that Court. The impugned clauses in the regulations challenged and the tariff order impact their content creation, generation, exploitation of content, licensing terms and broadcast reproduction rights. In that context, the plea that the writ petitions have to be dismissed on the ground of lack of cause of action was over-ruled. 15. Hence, the judgments relied upon by the learned counsel for the petitioner are not applicable to the facts of the present case. Whereas the dictum laid down by the Hon ble Apex Court in the case of Kusum Ingots and Alloys Ltd., has a bearing in the fact situation. 16. Enacting a legislation or issuing Notification/Circular could not confer a right to challenge unless t
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