Karnataka High Court
M/S Sky Gourmet Catering Pvt Ltd vs Assistant Commissioner Of on 27 January, 2011
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
IN THE HIGH COURT OF KARNATAKA AT BANGALORE. Dated this the 27" day of January, 2011 - . Before THE HON'BLE MR JUSTICE AULL IVADE G R. AMESH Writ Petitions 33/138 -~ 2193, / 2010 ( T Res) yi Between: M/s Sky Gourmet Catering Pvt Lid Bovipalya Village, Navarathnic. Ag, raha APA: Near M S Engineering College Sadhihalli Post, Bangalore 562 | LQ By 1s Authorised signatory Sri V Arunachalam. 55 yis oo S/o Vishwanathan byer oe Petitioner (By Sri K S Ramubhiadran: Adv.) ~ And: | Asst. Commissioner of Corimercial Taxes (Enforcement) ~ $3, South -- VEK 2, Near National Games Village Rajendrane agar, Koramangala Oo, Bangalore 47 Cc 'ommissio het cof Commercial Taxes Venijya Terige Karyalaya Gandhinagar, Bangalore 9 bo 3.) State of Karnataka -- by its Secretary », Department of Finance 'Ambedkar Veedhi, Vidhana Soudha Bangalore | ' tae u bea f Commissioner of Income Tax Division 30. SP Compicx O/o Service Tax Commissionerate 7 oe Lalbagh Road, Bangalore 27 Respondents
(By Sri K M Shivayogiswamy, GP) Petitions are filed under Art.226/227 of the Constitution. praying. to set aside the reassessment order dated & AQ, 2010 - annexure Pp by the 1 respondent, ete. :
The Petitions coming on for Preliminary He raring this day, Court made the following:
\ ORDER In hese pets, psitione is praying for quashing annexure P -- reassessment orde F dail 8. 10: 2910 foi the period November 2005 to June 2010 sn ra issue a mand wis declan g the levy of VAT by the 1" respondent on the gross amount received towards supply, handling, high lifting, transportation and loading are taxable under $.65(105)(zzt) of the Service Fax Act, as Ultravires.
Petitioner is a caterer/supphier of food items and has undertaken to , supply food through M/s Tay Sats Air Catering Lid within the Bangalore international Airport area. By the re-assessment order, the respondent ae afi 'aed authority has imposed tax on transportation also for the supply of ready made food stating that it also forms part of VAT. Being aggrieved by the said order of re-assessment. petitioner has disectly anpeoached this: Court on the ground that the reassessing authori ty ought to have split the : issue with respect to the manufacture of food. andl sale os. sales and, transfer of goods from the point of manufactoring tilt the end point Le. airport as service and exempt the: imposing of sales tax. "Accordingly. these writ petitions are fied. | earned counsel has retied upon several decisions im support of his argument and al so arid accordingly.
Government Piealer relying oo ihe Division Bench of this Court m STA 84/2009 decided ci 87.2010 (M/s Apco Concrete Block & Allied Products Vs "Dy. Commissioner of Commercial Taxes) | submitted: as per the definition under 8.2 (34) to 2(36) and also $.2(29) of thie VAT Act cand also the clarification therein that is issued by the government he. if the freight/transportation charges are paid by the : 'seller prior to the delivery of goods and ownership and risk remains with the | seller then such transportation charges are part of the sale .eonsideration and liable to tax. Hf the freight/transporiation charges wer collected are post-sale expenditure, then such charges do net form. part of this transportation is only incidental to the sale of goods to deliver rhe Z goods to a particular destination as such, mt will come within-the purview ob VAT Act.
However, counsel rejresentin e the ~ 4" respondent -- ~ Commissioner of Service Tax, relying upon 'he iiseision of the Apex Court in the case of Pamil Nadu Kalyan Mandapam Association Vs Union of India ~ 200613) sr R260. tried to: contend that the delivery of article from the manefactorin f point to. the destination is in the form of outdoor service. and it is liabie. to be covered under the Service Tax and not under the. VAT Act. --
©. Government Pleader also, in the context, relied upon the Apex Court dectsion tr Gujarat Ambuja Cements Ltd & Anr Vs Union of ~ Fiadut & Anr~ (2005) 4 SCC 214, particularly para 23 regarding levy of service lax on carriage of goods by transport operators. However, to counter this. petitioner's counsel submitted that this aspect has already uu be us been explained by a larger Bench of the Apex Court in the case of BSNL & Anr Vs Union of India & Ors -- 2006 STC VIS PgPl cand. transportation has to be treated as independent manufacture and sale. oF goods as such, service (ax cannot be imposed on it.
In the case on hand. although in view of the civcular issued by the Department which ts referred to in the fadginent of the Division Bench noted supra and the clarification issued therein, the appellate authority my not be in a position lo tae a cifterent view in the matter to distinguish and interpret the same. In the circumstances, it is advisable tor the petitioner to approach the Kamataka Appettate Tribunal in the' matter as it involves disputed question of fact and law and whether it falls within the purview of Service Tax Act or VAT Act.
While keeping open all the contentions urged, it is for the peiioncr (o.approach the appellate authority but. having regard to the "complicated question of law involved and since the Joint Commissioner is the person who represents the Department, he may not be in a position io take a different view.6
To overcome the inordinate delay in arriving at a decision. and also to enable the matter to be expedited, these petitions are dispesed-of with a direction to the petitioner to approach the Kariatak a Appellate"
Tribunal so that the matter could be disposed-.of expeditious!y,. YAH contentions are felt open to be urged.
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