2018 (12) TMI 1571 - HC - VAT and Sales Tax

Concessional rate of tax - form XVII declarations - revision of assessment for the year 2002-2003 - Held that - As the revised assessment order dated 10.03.2006 does not discusses as to how the proposals contained in notice dated03.02.3006 are sustainable, it is not sustainable. However, in the impugned order, there are some discussion by comparing few paragraphs in the M/s.Aditya Envirotech Private Ltd, that the goods will fall under the eighth schedule of the TNGST Act - the issue relating to classification of goods cannot be decided on merits under Article 226 of the Constitution of India as they relate to several disputed questions off act which has to be addressed in a proper assessment proceedings and thereafter, before in an appeal before the Appellate authority. In this case, the petitioner has not filed the second appeal before the Appellate authority against the impugned order. At the same time, it would unfair to direct the petitioner to file an appeal. It is noticed that there is no discussion on the basis on which the claim for exemption has been denied to the petitioner - The petitioner has also not clarified as to how the goods in question were assessable to tax under Section 3(5) of the Act. The petitioner has merely claimed concession based on the strength of Form 17 given by the buyer and has stated that if at all there was any tax payable, it ought to have been recovered from the buyer. The end of justice will be met if the case is remanded back for reconsideration of the issue as to whether the sewing machine sold by the petitioner during the relevant assessment year fell within the purview of Eighth Schedule for the petitioner to claim concession/exemption under Section 3 (5) of the TNGST Act - Petition allowed by way of remand.

Summary

Issues:
Challenge to impugned order of first appellate authority, Revision of assessment for the year 2002-2003, Claim for concessional rate of tax, Classification of goods under Eighth Schedule, Failure to file second appeal, Remand for reconsideration of classification.

Analysis:
The petitioner filed a writ petition challenging the impugned order passed by the first appellate authority, seeking to quash the order dated 13.02.2008 and direct the respondent to grant a concessional rate of tax at 3% on the turnover covered by Form XVII declarations. The petitioner relied on settled legal principles established by previous court cases to support their claim for the concessional rate of tax.

The impugned order confirmed the revised assessment made by the second respondent, which sought to revise the turnover at a higher tax rate. The second respondent's order was based on two notices seeking to revise the assessment for the year 2002-2003, leading to a dispute regarding the classification of goods and the denial of exemption claimed by the petitioner.

The court noted that the petitioner failed to file a second appeal against the impugned order, but also recognized the lack of discussion on the basis for denying the exemption to the petitioner. The petitioner's claim for concession under Section 3(5) was based on Form 17 issued by the buyer, without providing sufficient clarification on the classification of goods under the relevant schedule to the Act.

The court concluded that the issue of classification of goods for concessional treatment cannot be decided under Article 226 of the Constitution and should be addressed in proper assessment proceedings. Therefore, the case was remanded back to the second respondent for reconsideration of whether the goods sold by the petitioner fell within the purview of the Eighth Schedule for claiming concession/exemption under Section 3(5) of the TNGST Act.

The court directed the second respondent to pass a speaking order, allowing the petitioner to file additional representation and completing the proceedings within six weeks from the date of the order. Consequently, the writ petition was disposed of without costs, and the connected miscellaneous petition was closed.