TMI Blog2009 (3) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... they can now avail of by filing appeals before the appellate authority within four weeks from today. It is open to the petitioner to explain the delay in preferring the appeals by pointing out the pendency of these matters before this court. It is open to the other petitioners to take benefit of this order or to move the appellate authority for any conditional interim order.If the petitioners file the appeal within four weeks, the authorities may examine the appeal on merits and accept any explanation for condoning the delay, taking note of the pendency of these writ petitions till now before this court. - - - - - Dated:- 6-3-2009 - SHYLENDRA KUMAR D.V. , J. ORDER:- D.V. SHYLENDRA KUMAR J. All these writ petitions are by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94, had already identified the activity as in the nature of a service and had subjected that activity to levy of tax under the Finance Act, 1994, there cannot be a further levy under the respective sales tax enactment by the State legislators and the assessment order is bad in law and has to be set aside. The petitioners have also contended that the petitioners have approached this court invoking the writ jurisdiction and by-passing the statutory remedy for the reason that the law is well-settled on the questions arising in these writ petitions. In so far as W.P. Nos. 2647 to 2650 of 2009 are concerned, the petitioner is actually owned by the Government of India and it is contended on the strength of the law laid down and declared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction and therefore availability of statutory remedies cannot come in the way of petitioners seeking relief in writ jurisdiction; that the rule of writ court not interfering when statutory remedies are available is not a strict or straitjacket rule and it is therefore submitted that the present cases must be examined by the High Court on the strength of the authority of law as declared by the Supreme Court in the case of Bharat Sanchar Nigam Ltd. v. Union of India reported in [2006] 145 STC 91; [2006] 3 VST 95; [2006] 2 STR 161. Notices had been issued to the respondents and the respondents-State and its officials are represented by Mr. Ashok Haranahalli, learned Additional Advocate-General along with Mr. Shivayogiswamy, learned HCGP. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise liable to tax under the provisions of the Finance Act, 1994. But have levied tax only on such part of the activity, which constitutes a sale of goods as is under the definition and within the scope of articles 366, 245 and 246 of the Constitution of India and therefore the goods do not necessarily involve the question of jurisdiction and it is not as though the statutory authorities are incompetent to examine such question and observation of the Supreme Court in the case of Bharat Sanchar Nigam Ltd. v. Union of India [2006] 145 STC 91; [2006] 3 VST 95; [2006] 2 STR 161, may not be applicable to the present cases. In this regard, learned Additional Advocate-General would also draw my attention to the order of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, are all matters which are to be essentially examined by the authorities in the first instance, that such matters are required to be gone through the hierarchy of the various authorities provided under the respective enactment and can reach this court in a manner provided under the respective enactment. An examination of such question even at the threshold by this court bypassing the statutory authorities, in my view will not be a satisfactory examination of the questions involved and it may result in an inadequate examination. An examination on assuming certain facts even before it is fully settled or finalised could also lead to the possibility of law being not developed in a satisfactory manner. When the statutory provisions pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel that as had been laid down by the Supreme Court in one earlier situation, the authorities under the Karnataka Value Added Tax Act, may issue notices and keep the matter pending or even if they have to finalise assessment they be directed not to enforce the demand that would be a satisfactory arrangement when the matters can be examined by the appellate authorities. Sri Ashok Haranahalli, learned Additional Advocate-General, would respond to the point, the State authorities have been levying tax only in respect of the liability that arises under the State Act and on an activity which can be levied tax under the Act and it is not as though the State authorities are trying to subject to tax, an activity, which is in the nature of servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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