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2007 DIGILAW 124 (KAR)

FLEMINGO DUTY FREE SHOPS PVT. LTD. v. STATE OF KARNATAKA

2007-02-21

D.V.SHYLENDRA KUMAR

body2007
ORDER D. V. Shylendra Kumar, J. - Writ petition by a person who claims to be having a licence to run what is known as duty-free shop in the Bangalore International Airport premises under a licence granted to this effect by the Government of India, Department of Customs in terms of annexure C to the writ petition. It appears the authorities under the provisions of the Karnataka Value Added Tax Act, 2003 (for short, "the Act") have become inquisitive about the transactions that take place in the shop particularly the sale transactions that take place in this shop and had called for certain information and particulars from the petitioner. The petitioner while was reluctant to part with the information but had provided part of the information and also raised a preliminary objection that the location of the shop of the petitioner being in an area of the nature of a "private bonded customs warehouse" under section 58(1) of the Customs Act, 1962 and beyond the customs barrier, the transaction of sale if at all to an outgoing passenger will be in the nature of export and to an incoming passenger will be in the nature of import and therefore none of the transactions in terms of the licence being in the nature of a local sale which alone can be subjected to tax under the Act, the authority has no jurisdiction in the matter. Sri K. G. Raghavan, learned senior counsel appearing for the petitioner, draws attention of the court to the provisions of article 286(1)(b) of the Constitution of India, and submits that in respect of an export or import sale taking place in the course of export or import, sales tax cannot be levied by the State, and therefore the transaction does not attract the liability for payment of any tax under the Act. It is also the submission of the learned senior counsel that notwithstanding such aspect having been clarified, the officer concerned has called upon the petitioner to produce books of account maintained by the petitioner for further verification, etc., and it is at this stage the petitioner has approached this court. The learned senior counsel submits that a direction may be issued to the authority concerned to decide the question as to whether the transactions of the petitioner come within the jurisdiction of the authority under the Act or not as a preliminary issue. The learned senior counsel submits that a direction may be issued to the authority concerned to decide the question as to whether the transactions of the petitioner come within the jurisdiction of the authority under the Act or not as a preliminary issue. I am not impressed by the submissions made by the learned senior counsel appearing for the petitioner. If the transaction takes place within the State of Karnataka whether it amounts to a transaction of sale or not, is a matter within the jurisdiction of the State authorities to scrutinize the transaction. At the stage of scrutiny, there cannot be any pre-emptive or predetermined orders. It is open to the petitioner to pursue its stand before the authority and comply with the requirements. A direction for production of certain documents, etc., cannot by itself be characterized as an act without jurisdiction on the part of the authority functioning under the Act, as for the purpose of verifying as to whether any liability under the Act is being avoided in the guise of any other transactions, the authority has jurisdiction to scrutinize the transaction. Ultimately it is only if the liability is fastened and the transaction is held to be in the nature of sale, the petitioner can be aggrieved. The petitioner cannot object even for a preliminary enquiry or scrutiny into the transactions. Though many other submissions are made by the learned senior counsel appearing for the petitioner, I think the matter does not warrant interference at this stage. Accordingly, this writ petition is dismissed, reserving liberty to the petitioner to pursue the matter before the authority concerned.