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2016 (4) TMI 1206 - HC - VAT and Sales TaxMaintainability of appeal - levy of tax - set top boxes - The contention of the learned Senior Counsel for the petitioner is that the Set Top Box installed by the petitioner is used to provide Digital Cable Television Services and that the Set Top Box continues to remain the property of the petitioner and is not sold/transferred - Held that - here raised is the the factual aspect as to whether the Set Top Box was actually sold or transferred to the end subscriber can be examined by the Appellate Authority - all the issues that have been raised in this petition can be examined by the Appellate Authority. Thus, when the petitioner has a statutory alternative remedy of filing an appeal u/s 55 of the Act, it would not be appropriate for the Court at this stage to examine all these issues in a writ petition - petition dismissed being not maintainable.
Issues:
Challenge to assessment under U.P. Value Added Tax Act, 2008 for the assessment year 2012-13 on Set Top Boxes. Jurisdiction of the Court under Article 226 of the Constitution of India versus statutory remedy of filing an appeal under Section 55 of the Act. Interpretation of whether Set Top Boxes were sold/transferred to end subscribers for tax imposition. Analysis: The petition challenged the assessment imposing tax on Set Top Boxes under the U.P. Value Added Tax Act, 2008 for the assessment year 2012-13. The respondents raised a preliminary objection, citing the petitioner's statutory remedy of filing an appeal under Section 55 of the Act. However, the petitioner argued that due to the order being without jurisdiction, the Court should entertain the petition under Article 226 of the Constitution of India. The petitioner relied on legal precedents to support this argument, emphasizing the lack of jurisdiction in the assessment. The petitioner, a public limited company in the Cable T.V. Channel business, procured Set Top Boxes and Smart Cards to distribute Cable T.V. Signals. The petitioner contended that the Set Top Boxes were used to provide Digital Cable Television Services, remaining the company's property without being sold or transferred. On the other hand, the Standing Counsel argued that evidence showed rent being charged from subscribers, indicating a sale and purchase of goods under Section 29A (a)(c) of the Act. The Standing Counsel referred to a judgment from the Tripura High Court to support this argument, suggesting that the issue of whether Set Top Boxes were sold or transferred could be examined by the Appellate Authority. The Court opined that all raised issues could be examined by the Appellate Authority, emphasizing the availability of a statutory alternative remedy through filing an appeal under Section 55 of the Act. Consequently, the Court dismissed the petition, clarifying that its observations did not reflect a decision on the case's merits, leaving it to the Appellate Authority to independently decide on the case's substance.
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