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2016 (7) TMI 368 - KARNATAKA HIGH COURT

2016 (7) TMI 368 - KARNATAKA HIGH COURT - TMI - Levy of VAT where service tax has been charged - erection of power switchyards - whether movable or not - Maintainability of writ petition - an alternative and efficacious remedy to prefer an appeal under Section 62 of the Karnataka Value Added Tax Act, 2003 was available - The contention raised on behalf of the appellant was that the property in question cannot be termed as movable property and further on the entire construction, service tax is be .....

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f 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 made out. - Petition dismissed. - WRIT APPEAL No. 2524/2015 (T-Res) - Dated: .....

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003 (hereinafter referred to as the Act ) and the petition was not entertained and the petitioner was relegate d to exercise the remedy of statutory appeal. 2. We have heard Mr. Shivadass G, learned counsel appearing for appellant and Mr. T.K.Vedamurthy, learned Government Pleader, appearing for respondents. 3. The contention raised on behalf of the appellant was that the property in question cannot be termed as movable property and further on the entire construction, ser .....

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urt 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 re .....

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by way of imposing restriction would exercise the discretion to relegate the party to seek an alternative remedy unless as observed earlier a strong and exceptional case is made to make a departure therefrom. 6. If the matter is examined in light of the aforesaid legal position, it is noted that the case of the petitioner/appellant is that since there is no movable property, sales tax cannot be charged and it is also noted that the case of the petitioner/appellant is that if service .....

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to endorsement, the dealer has filed his reply on 07/09/2013 wherein he has stated that he is constructing power evacuation sub-stations for receipt of power generated through wind energy generators and connecting it to utility 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 receive .....

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aking shelter under the said judgments, the dealer has defended that the sub-stations are immovable goods and not liable to tax. The contention of the dealer is found to be no tenable, because, as per agreements, he has to construct and lease out power-switchyards . The power-switch yards are made up of power transformers, current transformers, potential transformers, isolators, control and relay panels, circuit breakers, insulators, steel towers etc., and the said goods assembled as .....

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visions of the Act, the dealer is liable to pay tax along with applicable penalty U/s.72(2) and interest U/s.36 of the Act. The aforesaid shows that, as per the taxing authority, the power switchyards are made up of power transformers, current transformers, potential transformers, isolators, control and relay panels, circuit breakers, insulators, steel towers etc., an d the said goods assembled as switchyards can be installed, re-installed, dis-assembled, re-assembled, re-used and ca .....

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le 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 where as per the taxing authority the property is found to be having character of movable property and if the contention of the appellant is that it is immovable property, such would essentially require undergoing of a fact finding enquiry which can be undertaken by the .....

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red, it would be more appropriate to relegate the assessee to resort to the alternative remedy by way of statutory appeal instead of direct ly entertaining the petition under Article 226 of the Constitution. 9. Considering the facts and circumstances herein narrated above, we do not find that any extraordinary case is made out to make a departure from the normal principles of self-imposed restrict ion in exercise of power under Article 226 of the Constitution. 10. The dec .....

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. 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 alt .....

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ate Legislature to levy tax and as to whether exercise of power by State authorities was in violation of Article 14 of the Constitution or not and therefore, found writ petition maintainable. Hence, the facts of the present case cannot be equated with the said case. 13. In another decision of the Apex Court in the case of Union of India (UOI) & another v. State of Haryana & another [(2000) 10 SCC 482] , the Apex Court found that the question raised was pristinely legal, which .....

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