ORDER :

1. A demand to pay a sum of Rs. 94,47,534/being a demand for payment of tax on electricity consumed by the petitioner is a subject matter of this writ petition.

2. Petitioner contends that apart from electricity supplied by the licensee i.e., Hubli Electricity Supply Company Limited (hereinafter referred to as ‘HESCOM’, for short), it is also supplying energy from the energy exchange every month which is called as purchase of electricity from Open Access Source. Petitioner contends that the price paid for purchase of electricity through Open Access Source is different than the price paid by it for the electricity sold to it by the licensee – HESCOM. Petitioner admits that it is liable to pay tax on the electricity consumed by it whether it is purchased from the HESCOM or purchased from Open Access Source. Petitioner, however, contends that the electricity tax i.e., to be paid should be levied on the price at which it purchases, be it from the licensee or from the Open Access Source.

3. It is stated that for the electricity purchased from HESCOM, it is liable to pay tax at the rate of 6% on the procurement price. It is stated that similarly in respect of electricity purchased from Open Access Source, electricity tax would have to be levied at the rate of 6% on the price at which the electricity was procured from the Open Access Source. But, however, HESCOM had issued a demand calling upon the petitioner to pay tax on electricity consumed at the rate of 6% on the charges that HESCOM had fixed for the sale of the units. It is submitted that since the petitioner had procured electricity at a lower rate from the Open Access Source, HESCOM could not demand tax at the rates at which it supplied. Petitioner, therefore, contends that the demand made by computing tax for electricity consumed at the rates prescribed by HESCOM would be illegal and would be liable to be quashed.

4. Learned Additional Advocate General Smt.K.Vidyawati firstly submitted that the present writ petition is not maintainable since the petitioner had admittedly submitted a representation to the State Government requesting grant of 24 monthly installments for payment of arrears of tax on electricity and having made such a request, it was impermissible for the petitioner to file a writ petition. On merits, she contended that it is now a settled law that irrespective of source of electricity, every consumer is liable to pay tax on the electricity consumed within the State and since, admittedly, petitioner had consumed the electricity within the State of Karnataka, it was bound to pay electricity tax on the rates at which electricity had been supplied by HESCOM. She also placed reliance on the fact that the statute made it clear that whenever a consumer consumed electricity at a concessional rate or free of charge, the consumer would, nevertheless, be liable to pay electricity tax on the charges of electricity levied by the licensee to other consumers. This, according to her, indicated that for the purpose of calculating electricity tax, the rate at which the electricity supplied by the licensee should be taken into consideration and not at the rate at which the consumer had purchased electricity from the Open Access Source. She submitted that since the demand was made by considering the rate at which electricity was supplied by the licensee, there was no illegality warranting interference under Article 226 of the Constitution of India.

5. Having heard the respective submissions of both sides, the question that arises for consideration in this writ petition is:

Whether the consumer is liable to pay electricity tax on the electricity procured by him through Open Access Source at the rate of 6% on the rate at which he purchased from the Open Access Source or at the rate at which the licensee was selling electricity to him?

6. In order to answer this question, a brief overview of the statute which bounds the electricity tax would be necessary.

7. The Karnataka Electrici