Heard Mr. N.Murali kumaran, learned counsel for M/s.MCGAN Law Firm, counsel for the petitioner and Mr.K.Venkatesh, learned Government Advocate for the respondent.
2. The petitioner is a registered dealer on the file of the respondent under the provisions of the Tamil Nadu General Sales Tax Act, 1959, (hereinafter referred to as TNGST Act).
3. In this writ petition, the petitioner seeks for issuance of a writ of prohibition, prohibiting the respondent from proceeding further, pursuant to his notice dated 11.04.2005. The said notice proposes to revise the assessment under the TNGST Act, for the Assessment year 2002-03.
4. The petitioner filed the returns for the relevant year, which were called for and checked by the Assessing Officer. The petitioner claimed exemption as second and subsequent sales of Generator spares and labour charges. The purchase bills produced by the petitioner to substantiate the claim was verified by the Assessing Officer and it was found that the goods have suffered tax at an earlier stage. Thus, the Assessing Officer, being satisfied with regard to the claim for exemption, allowed the same. With regard to the turnover, the Assessing Officer verified the books and found that the turnover reported agreed with the turnover in books and all the sales and purchase were covered by bills and therefore, the respondent accepted the accounts of the petitioner as correct and determined the total and taxable turnover for the assessment year. This order of assessment was passed on 31.12.2004.
5. Subsequently, by notice dated 11.04.2005, the respondent stated that the petitioner has effected branch transfer from Domain, but no first sales of Genset have been brought through to that extent. Hence, the first sale of Genset was estimated and proposed to be taxed at 16%. The notice further stated that the petitioner claims that works contract are taxable at 4%, but the respondent proposed that the same is not admissible, as no supply of Gensets has been made to the customers, hence, proposed to assess the turnover at 16%. Accordingly, the petitioner was called upon to submit their objections within a period of 15 days. The petitioner has filed this writ petition to prohibit the respondent from proceeding further pursuant to the notice dated 11.04.2015.
6. It is the case of the petitioner that the exercise of option under Section 7(C) of the Act is at the discretion of the assessee and the Assessing Officer does not have any jurisdiction or power to refuse such an option exercised by the assessee and more so, when the assessment has already become final. Further, it is contended that Section 7 (C) of the Act is in supersession of Section 3B of the Act and the Assessing Officer has no discretion to refuse the option exercised by the dealer.
7. Further, it is contended that the works contract turn over, even according to the Assessing Officer, is an interstate works contract and the movement of the goods commenced from Domain, after 01.04.2002, such a turn over cannot be brought into the net of the State Commercial Tax Laws, as the same is subject to be assessed under the Central Sales Tax Act. On the above grounds, the petitioner seeks for a writ of prohibition.
8. Learned Government Advocate submitted that the impugned proceedings is only a notice and the petitioner should be directed to submit objections to the notice with a direction to the Assessing Officer to take a decision on merits.
9. After hearing the learned counsel for the parties and perusing the materials placed on record, it is seen that the petitioner seeks for a writ of prohibition, to prohibit the respondent from proceeding further pursuant to his notice dated 11.04.2005. Admittedly, the respondent has power and jurisdiction to issue notice to revise a completed assessment. Therefore, it cannot be stated that the impugned notice is without jurisdiction. The point that the petitioner seeks to canvass is on the ground that the Assessing Officer has no discretion, but to accept the option exercised by the dealer under Section 7 (C) of the Act. Apart from other contentions these aspects involves adjudication into facts. Equally, the issue relating to works contract is also a factual matter. Thus, the petitioner has to necessarily submit themselves to the jurisdiction of the respondent and file their objections to the notice dated 11.04.2005.
10. For the above reasons, while declining to grant the prayer sought for, liberty is granted to the petitioner to submit their objections to the notice dated 11.04.2005, within a period of 30 days from the date of receipt of a copy of this order. On such objections being given, the respondent shall consider the same after affording an opportunity of personal hearing to the petitioner and complete the assessment in accordance with law.
11. Accordingly, the writ petition is disposed of. No costs.
21.09.2017 sli Index: Yes/No Internet: Yes/No Speaking Order/Non-Speaking Order To THE COMMERCIAL TAX OFFICER, GANDHIPURAM CIRCLE, COIMBATORE, COIMBATORE DISTRICT.
T.S.SIVAGNANAM,J.
sli W.P. No.33587 of 2005 21.09.2017