(1.) The Petitioners have raised the challenge to the reassessment orders passed by the Deputy Commissioner of Commercial Taxes under Section 39(1) of the Karnataka Value Added Tax Act (for short 'VAT Act') and/or 12A of the Karnataka Sales Tax Act, 1957 (for short 'KST Act') holding that the Artificially Created Light Energy (for short 'ACLE') is taxable at the rate of 12.5%.
(2.) Sri K.G. Raghavan, the learned Senior Counsel appearing for Sri K.J. Kamath, the Special Government Advocate appearing for the Respondents has raised the threshold bar to the maintainability of these writ petitions. He submits that these petitions are to be rejected relegating the Petitioners to the statutory appeal remedy provided by Section 62 of the VAT Act and/or by Section 20 of the KST Act.
(3.) Sri N. Venkataraman, the learned Senior Counsel appearing for M/s. Harish and Company for the Petitioners (M/s. Bharati Airtel Limited) in W.P. Nos. 35223-34/2010 and other connected petitions has strenuously argued how and why these petitions are required to be considered and disposed of on merits notwithstanding the availability of the alternative remedy. He submits that the ACLE is not goods. As it has no attributes of goods, the question of buying it and selling it would not arise at all. According to him, equating ACLE with electricity is tantamount to overlooking the subtle between ACLE and electricity. He submits that there cannot be any sale of property in goods, of whose existence the buyer is unaware. He submits that as the impugned reassessment orders are without the authority of law and without jurisdiction, the writ petitions are entertainable. He submits that the levy of tax on transactions falling outside the competence of the State Legislature is without jurisdiction. He would contend that the imposition of the sales tax is in sharp contrast to the considered view taken by the Apex Court in the case of Bharat Sanchar Nigam Ltd. and Anr. v. Union of India and Ors., 2006 3 SCC 1. He read out para 34 of the said judgment, which is extracted hereinbelow:
ABOUT US "REGENT COMPUTRONICS PVT. LTD." is a Company incorporated in 1991 under the provisions of the Companies Act, 1956. Since its inception to 1995, the Company was busy in carrying out the activities related to various Banks' Job Work..
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