2008 (2) TMI 832 - HC - VAT and Sales Tax

Notice for the revised assessment issued under section 16 of the Tamil Nadu General Sales Tax Act, 1959 challenged - Held that - The question of revising the compounding order does not arise especially when a dealer is exercising option in payment of tax at compounded rate and the petitioner was also made to pay tax at four per cent on the entire contract value. Section 16 of the TNGST Act is not intended to withdraw the said option exercised by the petitioner-dealer. In the light of the above and in view of the judgment of the Supreme Court in Devendran & Company case 1996 (8) TMI 430 - SUPREME COURT OF INDIA the writ petition will stand allowed. The impugned order dated July 13, 2007, will stand set aside.

Summary

Issues:
Challenge to notice for revised assessment under section 16 of TNGST Act for assessment year 2004-05 based on compounding option exercised by the petitioner.

Analysis:
The petitioner contested the notice for revised assessment issued under section 16 of the TNGST Act, arguing that the compounding rate option was exercised for the assessment year 2004-05, supported by filing the return in form A1 and a compounding order by the department. Thus, the transactions should not be categorized as "works contract," negating the jurisdiction of the respondent to revise the assessment and levy tax as an ordinary sale. The petitioner cited a Supreme Court judgment [1996] 103 STC 95, which upheld a Division Bench judgment, emphasizing that the compounding option should be respected.

The respondent, through a counter-affidavit, clarified that the reassessment was not proposed under a different head but at a lower rate than assessable. The respondent argued that the notice was a show-cause notice, allowing the petitioner to respond and approach the appropriate forum if an adverse order is passed.

The petitioner highlighted section 7C(4) of the TNGST Act, which exempts a dealer opting for compounding from maintaining business accounts, except for records related to works contracts. Referring to a Division Bench judgment [1981] 47 STC 264, it was established that reopening an assessment to alter the sales turnover percentage was impermissible if the turnover had been assessed correctly previously. This principle was affirmed by the Supreme Court in [1996] 103 STC 95.

The petitioner further presented a work order from Indian Oil Corporation, reinforcing the compounding arrangement. The court concluded that the respondent lacked the power under section 16 of the TNGST Act to revisit the assessment based on a different judgment, as the petitioner had adhered to the compounding option and paid tax accordingly. Consequently, the writ petition was allowed, setting aside the impugned order dated July 13, 2007, with no costs incurred.