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TMI Blog2009 (2) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... ason 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. - Writ Petition No. 10989 of 2008 - - - Dated:- 11-2-2009 - SHYLENDRA KUMAR D.V. , J. ORDER:- D.V. SHYLENDRA KUMAR J. Writ petition by an assessee who has been assessed to certain sales tax liability under the provisions of the Karnataka Sales Tax Act, 1957 (for sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive statutory remedy of appeal, but the question should be resolved in the petitioner itself and necessary relief extended to the petitioner. 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) Ramky Infrastructure Ltd. v. Deputy Commissioner of Commercial Tax (Intelligence I) [2008] 11 VST 143 (Karn) (ii) Malayala Manorama Company Ltd. v. Assistant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nataka [2010] 33 VST 30 (Karn) 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity. 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. 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. An exercise of this nature if at all may be to the detriment or to the disadvantage of the petitioner who will have to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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