SHREE ANNAPOORNA, SHREE GOWRISHANKAR HOTELS (P. ) LTD. v. COMMERCIAL TAX OFFICER, R. S. PURAM (EAST) CIRCLE, COIMBATORE.
2006-06-22
K.RAVIRAJA PANDIAN
body2006
DigiLaw.ai
ORDER K. RAVIRAJA PANDIAN, J. - The learned Government Advocate takes notice. The prayer in the writ petition is for the issuance of a writ of certiorarified mandamus to call for the records on the file of the respondent herein in his proceedings in TNGST No. 1941761/1999-2000 dated March 28, 2006 and quash the same and further direct the respondent not to levy purchase tax on the turmeric powder, chillies, coriander and tamarind purchased by the petitioner for own consumption inasmuch as the petitioner's total turnover is below Rs. 300 crores. What is put in issue is the notice calling upon the dealers to file objection. On a perusal of the same it is seen that for the assessment year 1999-2000, it is proposed to levy a turnover of Rs. 22,15,210 and Rs. 8,03,111 for tax under the provisions of the Tamil Nadu General Sales Tax Act, 1959. That notice is now put in issue in the present writ petition on the ground that as per section 8, the goods which are enumerated in the Third Schedule are not assessable to tax. The levy which the respondent is proposed to make is also goods enumerated under the Third Schedule and as such they are not assessable to tax. The assessing officer has stated the reason that the place of business of the petitioner was inspected on August 17, 2005 and the inspecting officer has noticed that the assessee had purchased vegetable oil for Rs. 22,15,210 and also the turmeric powder, chillies, coriander and tamarind to the turnover of Rs. 8,03,111 from the registered dealers within the State without any earlier tax sufferance. The exemption is available to the sales of the above items up to to Rs. 300 crores and such exemption is not extended to the purchasers. In view of the fact that the purchase of the above items to the aggregate turnover of Rs. 30,18,321 is assessable to tax at four per cent under section 7A of the TNGST Act, 1959, the petitioner was called upon to file its objection. The learned counsel is not able to say whether the issue is already covered by the court decision. Further, the impugned order is only a notice calling upon the petitioner to file objection.
30,18,321 is assessable to tax at four per cent under section 7A of the TNGST Act, 1959, the petitioner was called upon to file its objection. The learned counsel is not able to say whether the issue is already covered by the court decision. Further, the impugned order is only a notice calling upon the petitioner to file objection. Whatever grounds that have been taken in this writ petition can very well be taken as objection before the assessing officer and have an early adjudication. If the assessing officer has taken an erroneous view, that can very well be get it corrected by way of an appeal or further appeal. This was the dictum laid down by the Supreme Court in Union of India v. Tata Engineering & Locomotive Co. Ltd. reported in AIR 1998 SC 287 , wherein in paragraphs 4 and 5, the Supreme Court has held as follows : "4. In our view, this writ petition should not have been entertained by the High Court at all. The Assistant Collector is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. For this purpose, he can call for and examine whatever documents he considers relevant. If the Assistant Collector fails to follow any judgment of the High Court or this court, the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. The court should not try to control the mode and manner in which an assessment should be made. If the Assistant Collector is of the view that enquiries are necessary to be made as to the price at which trucks were sold at the Regional Sales Offices, the court cannot stop him from making such enquiries. 5. Mr. Sorabjee, appearing on behalf of the respondents, has complained that the assessments are going on endlessly and without due regard to an earlier judgment of the Patna High Court in respect of an earlier assessment year on the very same issues. Whether the controversy raised in this case is covered by an earlier judgment of the High Court is a matter to be decided by the Assistant Collector. He will have to decide all questions of fact and law. He has to make whatever enquiries he thinks necessary for determination of the value of excisable goods.
Whether the controversy raised in this case is covered by an earlier judgment of the High Court is a matter to be decided by the Assistant Collector. He will have to decide all questions of fact and law. He has to make whatever enquiries he thinks necessary for determination of the value of excisable goods. The High Court in exercise of its jurisdiction cannot give guidance to Assistant Collector about the manner and mode in which the assessment should be made." The Division Bench of this court in the case of Muthuraja Traders v. Deputy Commercial Tax Officer reported in [1997] 106 STC 283 wherein a notice has been put in issue on the ground of pre-conclusion, categorically rejected the submission made for challenging notice and directed the assessee to go before the assessing officer and get the final order on the materials to be produced by the authorities concerned. In fiscal statute, the court should be slow to interfere unless and otherwise the court is of the opinion that there is grave miscarriage of justice. In the said decision it has been held as follows : "Held accordingly, dismissing the appeals, on the facts, that the notice contained only proposals and the respondent - authority could not be accused of or attributed with any pre-conceived ideas or notions about the merits of the claims of the case." Useful reference can also be made on the judgment of the Supreme Court in the case of State of Goa v. Leukoplast (India) Ltd. reported in [1997] 105 STC 318, wherein it is held as follows : "... These were basically questions of fact which should have been agitated before the statutory appellate authority. There was no reason for the assessee to bypass the statutory remedy and approach the court with a writ petition and the High Court ought not to have allowed the assessee to bypass the statutory remedies where the questions could have been properly agitated and ascertained." Since I am of the view that this writ petition challenging the notice is pre-mature in nature, it is better for the assessee to have the matter agitated by filing objection as called for in the notice. The time given to the petitioner for filing objection is already over.
The time given to the petitioner for filing objection is already over. Hence, another 20 days time is hereby given to the petitioner to file its objection, if any, to the notice, which is impugned in the writ petition. With the above observation, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.