2007 (11) TMI 569 - HC - VAT and Sales Tax

Levy tax at the rate of eight per cent on the compact discs sold - Held that - Recourse to a remedy under article 226 of the Constitution of India is permissible, if the petitioner applies for enforcement of the fundamental rights; where there is violation of the principles of natural justice or where the orders of proceedings are wholly without jurisdiction or vires of an Act is challenged. Whether the petitioner had sold writable compact disc or video compact disk is a matter of evidence and therefore, this court would not venture to deal with the factual aspects. The order impugned in this writ petition cannot be termed as unfair or unreasonable or defies reason. Where factual adjudication of the matter is necessary, writ petition would not be the proper remedy. The petitioner has not satisfied any one of the parameters to avail the extraordinary remedy provided under writ jurisdiction. W.P. dismissed.

Issues Involved:
1. Legality of the assessment order and notice dated December 30, 2005, for the assessment years 2000-01 and 2001-02.
2. Applicability of tax rate clarifications issued by the Special Commissioner and Commissioner of Commercial Taxes, Chennai.
3. Classification of "video compact disc" and "writable compact disc" under the Tamil Nadu General Sales Tax Act, 1959 (TNGST Act).
4. Authority of the assessing officer to deviate from the clarifications issued by the Commissioner.

Detailed Analysis:

1. Legality of the Assessment Order and Notice:
The petitioner challenged the assessment order and notice dated December 30, 2005, for the assessment years 2000-01 and 2001-02. The petitioner contended that the assessing officer's decision to levy tax at the rate of 11% on the sale of "video compact disc" was illegal and contrary to the clarifications issued by the Special Commissioner and Commissioner of Commercial Taxes, Chennai.

2. Applicability of Tax Rate Clarifications:
The petitioner argued that the assessing officer was bound to follow the clarifications dated August 27, 1999, and October 12, 2000, which stated that "video compact disc" falls under the category of "compact disc" and should be taxed at 8%. The petitioner relied on the decision in UCO Bank v. Commissioner of Income-tax, which held that clarifications issued by the competent authority are binding and cannot create additional tax liability.

3. Classification of "Video Compact Disc" and "Writable Compact Disc":
The petitioner contended that "video compact disc" and "writable compact disc" should be classified under the same category and taxed at the same rate. However, the assessing officer and the first appellate authority held that "writable compact disc" is distinct from "video compact disc" and should be taxed at a higher rate. The appellate authority remanded the matter to the assessing officer for fresh consideration, who then proposed to levy tax at 11% on "writable compact disc" under the residuary entry.

4. Authority of the Assessing Officer:
The learned counsel for the petitioner argued that the assessing officer had no authority to deviate from the clarifications issued by the Commissioner. The learned Additional Government Pleader countered that the clarification issued was specific to "video compact disc" and not "writable compact disc." The assessing officer, therefore, acted within his jurisdiction by classifying "writable compact disc" differently and taxing it at 11%.

Conclusion:
The court held that the assessing officer was bound by the clarifications issued by the Commissioner but noted that the clarifications pertained specifically to "video compact disc" and not "writable compact disc." The assessing officer's classification and tax rate for "writable compact disc" were found to be appropriate based on the evidence and statutory provisions. The court dismissed the writ petitions, stating that the petitioner had not satisfied the parameters for availing the extraordinary remedy under writ jurisdiction. The factual determination of whether the petitioner sold "writable compact disc" or "video compact disc" was beyond the scope of the court's review in this context.

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