TaxTMI 
TaxTMI 
2016 (7) TMI 368
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....03 (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, service tax is being charged by the Union Government. Therefore, no sales tax can be charged under KVAT Act for the very transaction in question. It was submitted that under such peculiar circumstance, the remedy of statutory appeal would be illusory or the appellant oug....
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.... 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 tax is charged on the entire construction by the Union Government, State Government cannot change sales tax on the same transaction. 7. Prima facie, the contentions appear to be attractive, but the same have to be considered and examined in light of the view taken by the Assessing Officer in the impugned assessment order. In the impugned assessment order, while considering the aspects of taxable liability, it has been recorded as under at page Nos.98 and 99: "In response to endorsement, the dealer has filed his reply on 07/09/2013 w....
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....-used and can be shifted from one place to other. Such being their character, they have to be considered as 'movable goods' and cannot be considered as immovable goods as they are neither land nor building. In view of arriving to the conclusion that the power switchyards are movable goods in nature and the consideration received towards transfer of right to use of the said goods is liable to tax as per the provisions 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 bre....
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....ace of it, one can say that it is immovable property like that of the land or building. 8. As such, where a detailed fact finding enquiry is required, 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 decision of this court in the case of Bharti Airtel v. State of Karnataka [(2011)44 VST 486 (Kar)] and more particularly, ....
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....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 required determination as to whether, provision of telephone connections and instruments amounted to sale and even so, as to why the Union of India was not exempt from payment of sales tax under the respective statutes. Therefore, the Apex Court did not accept the decision of the High Court to relegate the parties to alternative statutory remedy. No such fact situation arises in the present case. ....