@JUDGMENTTAG-ORDER
V. Gopala Gowda, J.@mdashWrit petition by an assessee who has been assessed to certain sales tax liability under the provisions of the Karnataka Sales Tax Act, 1957 (for short, hereinafter referred to as, "the Act"), and is aggrieved by the assessment order dated May 28, 2008 passed by the Assistant Commissioner of Commercial Taxes, Transition I, Bangalore, calling upon the petitioner to pay the amount of Rs. 4,20,70,900 purporting to be the liability relating to the accounting period August, 2004 to March, 2005.
2. The assessing authority has called upon the assessee to pay this tax after determining the liability by rejecting the claim of the petitioner-assessee that the entire turnover is relatable to sales in the course of import or export and therefore, entitled for exemption u/s 5(2) of the Central Sales Tax Act, 1956. The petitioner though has statutory remedy of appeal u/s 20 of the Act has chosen to approach this Court to question the legality of the assessment order on the premise that the statutory appeal is not an efficacious remedy and the subject-matter of the order involving a pure question of law, it has become necessary for the petitioner to approach this Court even under Articles 226 and 227 of the Constitution of India and has sought for the following prayers:
(i) Issue an appropriate writ, order or direction declaring that the sales effected by the petitioner at the duty free shops situated at international airport, Bangalore, beyond the customs frontiers of India, i.e., the customs stations where imported are ordinarily kept before customs clearance are sales in the course of import/export of goods as laid down in Section 5 of the Central Act and therefore, are not liable to sales tax;
(ii) Issue an appropriate writ, order or direction quashing the assessment order and notice of demand dated May 28, 2008, annexure-B, levy of tax imposed upon sales effected at the duty-free shops situated at arrival/ departure lounges of the international airport at Bangalore, admittedly located beyond the customs frontiers of India on the ground that the levy contravenes Article 286 of the Constitution of India and read with Section 5(2) of the Central Act.
(iii) Issue a writ of certiorari or any other writ, order or direction quashing the assessment order and demand notice both dated May 28, 2008 (annexure B) levying tax on sales in the course of import/export on the ground that there is lack of jurisdiction.
(iv) Issue a writ of mandamus or any other writ, interim order or direction to the respondents restraining them from recovering the impugned disputed demand of tax till the final disposal of this petition.
(v) Issue any other writ or relief as this honourable court deems to fit under the facts and circumstance of the case and is the interest of justice.
3. Government advocate has been directed to take notice for the respondents and time was granted to him to file objection statement.
4. Matter had come up for preliminary hearing in "B" group on February 9, 2009 and has been relisted today at the request of the learned Counsel for the petitioner.
5. Sri Randhir Chawla, learned Counsel appearing on behalf of Sri Shankare Gowda, learned Counsel for the petitioner, would vehemently urge that the matter involved in the present writ petition is a pure question of law particularly one of the liability that can be said to arise under the provisions of the Karnataka Sales Tax Act in the wake of the legal position as it emerges from the provisions of Section 5 of the Central Sales Tax Act that the assessing authority has gone very wrong in fastening the liability on the petitioner under the provisions of the Karnataka Sales Tax Act, that even on the admitted undisputed facts, the question of the petitioner''s liability can be examined and answered and therefore, the petitioner need not be relegated to the alternative statutory remedy of appeal, but the question should be resolved in the petitioner itself and necessary relief extended to the petitioner.
6. Mr. Chawla would also submit that availing of the alternative remedy is not a matter of rule always. This Court in exercise of its discretion can examine such matters also in writ jurisdiction, and this legal position is well established by a series of judgments rendered not only by the Supreme Court, but also by this very court. In support of his proposition, the learned Counsel has placed before the court the following judgments:
(i)
(ii)
(iii)
(iv)
(v) Unique Creations (Bangalore) Ltd. v. State of Karnataka [2004] 135 STC 213 (Karn)
(vi)
(vii)
(viii) Motor Industries Company Limited v. Assistant Commissioner of Commercial Taxes (Asst. I), Bangalore City Division, Bangalore [1983] 52 STC 206 (Karn)
(ix)
(x) Dredging Corporation of India Ltd. v. State of Orissa [1991] 82 STC 235 (Orissa)
(xi)
(xii)
(xiii)
(xiv)
(xv) Indian Tourism Development Corporation Ltd. v. Assistant Commissioner of Commercial Taxes (CWP No. 5963 of 2008-Andhra Pradesh High Court)
(xvi) Registrar, High Court of Delhi, New Delhi v. Sales Tax Officer (CWP No. 4472 of 1997-Delhi High Court)
(xvii)
7. The further submission of Sri Chawla is that as there is no disputed fact involved in this writ petition, there is no need for relegating the petitioner to the ordeal of appeal particularly when the respondents even after issue of notice having not filed any counter. Despite such fact and the legal position, driving the petitioner to go before the appellate authority, who is only a creature of the statute and functioning under the second respondent the State Government, that it is of the use for the petitioner to approach the appellate authority for relief as if the State Government itself is not responding to the notice and even to the notice issued by this Court, there is no guarantee for the petitioner that he can get any relief before the appellate authority and therefore, the only efficacious legal remedy being a writ petition, the present petition should be examined on merits, and the questions arising in this case have to be answered.
8. Learned Counsel for the petitioner has taken me through parts of the impugned order, passed by the assessing authority.
9. The basic dispute appears to be whether the sale was actually in the course of import or export or otherwise. This is obvious from the observation of the assessing authority in the order which reads as under:
As per the provisions of Section 5(2) of the CST Act if the transaction does fit into the provision of Section 5(2) of the CST Act, i.e., sales in the course of import the goods should be delivered directly to the passenger by the customs warehouse by transferring the documents of title to goods or endorsing the documents in the name of buyer without taking delivery of the goods. But here the assessee have taken delivery of the goods from the customs authority and kept the same in their shop which is situated in air port at the arrival and dispatcher gate and sold the goods from the shop to the passenger by raising cash memo. From the above evidence it is evident that the movement of goods ended at the time of taking delivery by the assessee. The goods have not been sold in the course of movement. The movement of the goods is terminated when the assessee has taken delivery of the goods from customs authority. Hence, the transaction made by the assessee is not a sale in the course of import and does not fit into the provisions of Section 5(2) of the CST Act.
10. Examination of a question of this nature and to opine as to whether it is right or wrong calls for examination of further facts. It is not desirable for this Court to venture into and examine all such questions in writ jurisdiction though ultimately the matter may involve a definite question of law and may be the assessee could succeed, but it is not necessary for this Court to express any opinion on this question at this stage particularly in writ jurisdiction.
11. An exercise of this nature if at all may be to the detriment or to the disadvantage of the petitioner who will have to accept the question of law as determined by this Court on the basis of the findings of facts given by the assessing authority, even if it is not satisfactorily resolved in the wake of want of knowledge of many relevant facts. Following the observation of the Supreme Court in the case of
This case is a good illustration of why the High Court should not intervene in revenue matters in exercise of writ jurisdiction where adequate alternative statutory remedies are available. In the instant case, complications have arisen because of the directions given by the Patna High Court on September 15, 1982 after quashing the various notices and orders in course of proceedings under the Central Excises and Salt Act.
12. It is not as though the assessing authority lacks jurisdiction to pass an order if the sale, in fact, is not a sale in the course of import or export. That precisely being the question, it is proper that the appellate authority examines all aspects of the matter before opining on the correctness or otherwise of the impugned order.
13. It is for this reason I am not inclined to interfere in a writ petition. It is not necessary for this Court to express any opinion on the merits of the matter, but reserving liberty to the petitioner to avail of the statutory remedy of appeal, this writ petition is dismissed. It is open to the petitioner to urge all grounds including the questions of law which is sought to be urged before this Court even before the appellate authority and invite a suitable answer on all such questions.
