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2021 (1) TMI 1240 - HC - VAT and Sales TaxWorks contract or not - activity carried on by the assessee, would be amenable to tax or not, as against the works contract - HELD THAT - In matters pertaining to tax, the court will have to be very slow in exercising the power under article 226 of the Constitution of India. Perhaps, the learned single judge in TVL. UNIQUE TRADERS, VERSUS COMMERCIAL TAX OFFICER 1, VIRUTHUNAGAR. 2020 (6) TMI 328 - MADRAS HIGH COURT entertained the writ petition and allowed it in view of the law governing at the relevant point of time. Be that as it may, in view of the judgment of the Full Bench of this court in Unique Traders, there is no controversy over the legal issue and the learned single judge has not gone into the factual issues involved. The assessee was pursuing the remedy before this court. Therefore, it would only be appropriate to permit the assessee to file a statutory appeal, particularly, when there is a change of law, which has arisen subsequently resolving the conflicting decisions rendered by this court. The assessee is permitted to file a statutory appeal, within a period of four weeks from the date of receipt of a copy of this order - appeal disposed off.
Issues:
1. Appeal by Revenue against the order of the learned single judge setting aside the assessing officer's order. 2. Disagreement over the reliance on previous judgments and the availability of alternative remedies. 3. Consideration of assessment under section 3(3)(b) of the TNGST Act 1959. 4. Exercise of power under article 226 of the Constitution of India in tax matters. 5. Permission for the assessee to file a statutory appeal due to a change in law and conflicting decisions. 6. Directions for the assessee to file a statutory appeal and for the appellate authority to decide on all issues within a specified timeframe. Analysis: 1. The appeal was filed by the Revenue challenging the order of the learned single judge that set aside the assessing officer's order. The Revenue argued that the single judge made a wrong reliance without considering the factual issues determined by the assessing officer. They highlighted the availability of an alternative remedy and the final conclusion on the taxability of the activity by the Full Bench of the court. The Revenue sought for the appeal to be allowed based on these grounds. 2. The respondent's counsel contended that although the Full Bench had provided clarity on the issue, there was still a need to consider the assessment under section 3(3)(b) of the TNGST Act 1959. The respondent proposed a remittance of the matter for fresh consideration of the consequential penalty issue. This argument indicated a disagreement over the assessment under a specific section of the Act. 3. The court emphasized the cautious approach required when exercising power under article 226 of the Constitution of India in tax matters. It acknowledged that the single judge had entertained the writ petition based on the law prevailing at that time. However, in light of the Full Bench judgment resolving the legal issue and the lack of examination of factual issues by the single judge, the court decided not to delve into the merits of the case. 4. Given the circumstances and the fact that the assessee was pursuing a remedy before the court, the court deemed it appropriate to allow the assessee to file a statutory appeal. This decision was influenced by the change in law and the resolution of conflicting decisions by the court. The court directed the assessee to file the appeal within a specified timeframe and instructed the appellate authority to decide on all issues within twelve weeks without rejecting it on the ground of limitation. 5. Consequently, the court set aside the order of the single judge and permitted the assessee to file a statutory appeal. The court also clarified that the appeal should be entertained without requiring any pre-deposit and should be decided on its merits. The judgment concluded by disposing of the writ appeal without costs and closing the connected miscellaneous petition.
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