Point of Law: It is trite that even though all statutory remedies are exhausted and held against petitioner, it is legal to invoke powers under Article 226 to challenge same as it vitiates old law.

JUDGMENT :

1. The petitioner has filed this writ petition with the following prayers;

“A. Issue a writ of certiorari quashing all attempts to collect the alleged arrears of tax for the year 2011-12 demanded as per Ext.P1 assessment order and Ext.P4 RR notice.

And

B. To grant such other reliefs as this Honourable Court may deem fit and proper to grand in the circumstances of the case.”

The brief facts of the writ petition are as follows:

2. The petitioner, a dealer in Ujala Supreme and Ujala Stiff & Shine, is an assessee under the Kerala Value Added Tax Act, 2003, (for short 'KVAT Act') on the rolls of the 1st respondent, Commercial Tax Officer, Ettumanoor and is aggrieved by the revenue recovery steps initiated by the 2nd respondent for collection of arrears due for the year 2011-12.

3. The assessment for the year 2011-12, in respect of the petitioner under Section 25(1) of the KVAT Act, was completed as per Ext.P1 order, applying the rate of tax at 12.5% against the conceded rate of 4%.

4. The petitioner took Ext.P1 order before the First Appellate Authority as well as before the Tribunal, which resulted in dismissal. Thereafter, the petitioner filed O.T.Rev.No.231/2014 before this court, which was also dismissed. The dispute regarding the correct rate of tax applicable to 'Ujala Supreme' and 'Ujala Stiff & Shine' existed with the manufacturers as well as the dealers. According to the dealers, the rate of tax applicable was 4% / 5% and according to the assessing Authority, the rate of tax applicable is 12.5%/ 13.5% / 14.5%. Several assessees including the manufacturers challenged the assessments through various forums and finally it was held by the the Apex Court in MP Agencies v. State of Kerala [2015] 23 KTR 367 [SC] that the correct rate of tax on the sale of ujala is only 4%/5%. However it was made clear that the persons, who remitted tax more than 4%/5%, are not entitled to refund the excess tax paid.

5. The petitioner did not pursue the matter further before the Hon'ble Supreme Court. Since an amount of Rs.4,18,645/-was remaining unpaid, the second respondent initiated the revenue recovery steps as per Exts. P3 and P4 notices, on the advice of the first respondent for recovery of the above amount along with penal interest. Aggrieved by Exts.P3 and P4, the petitioner has filed this writ petition.

6. I have heard the learned counsel for the petitioner as well as the learned Government Pleader.

7. The learned counsel for the petitioner submits that the conceded rate of tax of 4% was remitted by the petitioner and it was further submitted that the Apex Court in MP Agencies (supra) has declared the rate of tax as 4% / 5%, observing thus:

“Consequently, the appeals are allowed and the judgment and orders are set aside with the stipulation that none of the assessee/appellant would be entitled to refund........”

8. The learned counsel for the petitioner further submits that in Article 265 of the Constitution of India, it is stated that no tax shall be levied or collected except by authority of law and it was thus held in Delta Paper Mills Ltd. v. Collector of Central Excise, Guntur [1995 (77) E.L.T. 544 (A.P)]. In short, Article 265 comprehends the levy of tax, quantification of tax and collection of tax. For a tax to be imposed, it requires the concurrence of taxable event to trigger the levy and a taxable person to discharge it. The learned counsel for the petitioner submits that since the Law of the Land has been declared by the Hon'ble Supreme Court holding that the rate of tax of Ujala Supreme and Ujala Stiff & Shine is 4% / 5% instead of 12.5% demanded by the assessing Authority, the assessing Authority is estopped from demanding the amount due as per Ext.P1 Assessment Order. The petitioner had already remitted admitted amount of 4% and the demand raised in Exts. P3 and P4 is only the amount over and above 4% tax, which the petitioner is not legally liable to pay. The respondent has no authority of law to demand th