TaxTMI 
TaxTMI 
2009 (3) TMI 920
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....sment orders and consequential demands on several grounds. In the case of writ petitioners in W.P. Nos. 1984 of 2008, 7622 of 2008, 727 to 732 of 2009 and 746 to 814 of 2009, it is contended that the assessing authorities have in effect subjected to tax the transaction which is more in the nature of a service transaction, that in respect of the very transaction the authorities under the Finance Act, 1994, have assessed the petitioners to service tax under the provisions of this Act; that it is settled law, when once the particular activity is identified as a service activity, it is not an activity attracting the provisions of the State sales tax enactment, that there is no element of sale involved in respect of the very activity of service ....
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....ed by this petitioner and therefore no part of their activity, attracts the provisions of the Karnataka Value Added Tax Act and therefore the assessment order passed in respect of this petitioner is an order not sustainable in law. It is contended that for resolving such questions, as is pointed out by the Supreme Court in the very decision, are questions which are required to be examined by the High Court; that such questions cannot be relegated to the assessment authorities and the statutory authorities. Therefore, this is a fit case for examination in writ jurisdiction. Such are the submissions advanced on behalf of the petitioner by Sri Darius B Shroff, learned Senior Counsel appearing for the petitioner in Writ Petition Nos. 727 to 73....
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....ssessed under the impugned assessment order; as to whether the activity attracts liability for payment of tax under the provisions of the Karnataka Value Added Tax Act is a matter, which is required to be examined on facts and by applying the relevant law; that the law declared in the case of Bharat Sanchar Nigam Ltd. v. Union of India [2006] 145 STC 91 (SC); [2006] 3 VST 95 (SC); [2006] 2 STR 161 (SC), does not necessarily apply and cover the case of the petitioner, etc. It is also submitted that having regard to the nature of the factually disputed aspects, even assuming that the petitioners have any merit in these cases it is necessary that the petitioners should avail of the statutory appeal remedy; that examination of all such question....
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....statutory remedies available under the Act itself. While it may be true that all these writ petitions may involve even complicated questions of law for a satisfactory resolve of all such questions of law, factual matrix of the cases will have to be examined whether by this court or by the authorities. Particularly, the law on this aspect being in a formative stage and in respect of new activities, as a result of advancement and developments in science and technology and their applications in the commercial field, for resolving questions of law arising in such context and even questions arising in the context of taxation statute, it will be very (sic) to avail the appeal remedies and necessary all aspects of their development in the filed o....
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....ers in writ jurisdiction, but would relegate the petitioners to avail of the statutory remedies and pursue their relief before the statutory authorities. Sri Shroff, learned Senior Counsel, would submit that even when this court would relegate the petitioner to avail of the statutory remedy, which the petitioners would definitely avail of, nevertheless some safeguards have to be provided in respect of the liability arising and foisted on them under the provisions of the State Act and by the State authorities particularly as the petitioners are facing the unpleasant prospect of being taxed both by the Central Act, Finance Act of 1994 as the service provider and also being subjected to tax by the State sales tax authorities and when the liab....
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.... put on like terms regarding payment of tax liability during the pendency of the appeal. Learned Additional Advocate-General would submit that if the petitioners have already deposited 50 per cent of the disputed amount, subject to the order, they may be directed to deposit another 50 per cent of the balance and for the remaining portion security to the satisfaction of the authorities may be provided. This request is opposed by Sri Shroff, learned Senior Counsel. The condition to be imposed on the writ petitioners cannot be uniform in all situations. Even the Supreme Court has observed that the condition should be in the interest of larger public revenue and to safeguard the interest of the petitioners also. So far as W.P. Nos. 727 to 73....