TMI Blog2016 (7) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... er transformers, current transformers, potential transformers, isolators, control and relay panels, circuit breakers, insulators, steel towers etc., and ‘the said goods assembled as switchyards’ can be installed, re-installed, dis- assembled, re-assembled, re-used and can be shifted from one place to other. Held that:- if the learned single Judge is gone by the well settled principles of law for exercise of the power under Article 226 of the Constitution by way of self- imposed restriction and has relegated the appellant to the alternative remedy, it cannot be said that exercise of power is perverse or that any error is committed which may call for interference by this Court in an intra court appeal. Under the circumstances, no case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant did rely upon various decisions of this court as well as of the Apex Court to which we shall refer to at a later stage. It was submitted that under the circumstances, as the learned single Judge has not properly considered the matter under Article 226 of the Constitution, it may be considered in the present appeal. 4. We may record that, by now it is well settled that existence of an alternative remedy is no bar to the exercise of power of this Court under Article 226 of the Constitution. But it is by way of self- imposed restriction in exercise of the power, the High Court would relegate the party to an alternative, statutory remedy unless a very strong and exceptional case is made out to make departure either on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity grid and the power station is made up of power transformers, current transformers, potential transformers, isolators, control and relay panels, circuit breakers and the said stations are immovable goods as specified U/s.2(31) of the Act and hence any consideration received towards leasing of immovable goods is not liable to tax. The dealer has relied upon the judgments delivered by the High Court of Bombay in the case of M/s.Bombay Sound Service Vs. Commissioner of Sales Tax and by the High Court of Patna in the case of M/s.Hemendralal Roy Vs. Indo Swiss Trading Co. Ltd. The judgments given by the Honourable Courts are found to be pertaining to different nature of activities of sub-stations and not similar to the activity car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, re-used and can be shifted from one place to another. They can be considered as having considered the characteristics of movable goods and not as immovable goods as they are neither land nor building. Service tax is chargeable not on the bas is of nature of goods - immovable goods or movable goods, but it would vary from service to service. Whether a particular goods is movable or immovable is an aspect germane to taxable liability under the KVAT Act. Had the authority accepted the property as that of immovable and inspite of the same, the tax was charged under the KVAT Act, one might say that the larger question may arise about the power to charge tax upon immovable property under the KVAT Act by the State Legislature. But in a case wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter detailed examination of the subject found that an extraordinary case was made out to make a departure from the normal rule of relegating the party to the statutory remedy and such observations can be traced from paragraph No.140 of the said decision. 11. In another decision of this Court in the case of Sasken Communication Technologies Ltd. v. Joint Commissioner of Commercial Taxes (Appeals)-3, Bangalore and another [(2012) 55 VST 89 (Kar)], this court found that whether the contract in question is an indivisible contract or a composite contract and even if it is a composite contract, what is the dominant nature of the contract and various questions of interpretation were involved and therefore, instead of relegating to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs [AIR 1999 SC 552] , the Apex Court found that the question involved in the writ petition was relating to sub-clause (d) of Clause 29-A of Article 366 of the Constitution of India and therefore, the High Court should have entertained the petition. Such a question does not arise for consideration in the present appeal. In view of the above, we do not find that any of the decision is of help to the appellant. 15. In view of the aforesaid observations and discussions, if the learned single Judge is gone by the well settled principles of law for exercise of the power under Article 226 of the Constitution by way of self- imposed restriction and has relegated the appellant to the alternative remedy, it cannot be said that exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
