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TMI Blog1998 (2) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... rintendent of Taxes. After examination of the books of accounts, the Superintendent of Taxes accepted the return of the petitioner-firm and no tax was imposed on the petitioner-firm. The order passed by the Superintendent of Taxes dated September 20, 1995 has been annexed with the petition as annexure A. Thereafter the petitioner received an order on August 26, 1997 passed by the Commissioner of Taxes wherein the Commissioner of Taxes reopened the assessment by registering a revision case under section 21(1) of the Tripura Sales Tax Act, 1976. The Commissioner of Taxes while reopening the revision case formed an opinion that the Superintendent of Taxes committed an error in accepting the return of the petitioner-firm as the business of the petitioner-firm falls under the works contract. Accordingly, the Commissioner of Taxes directed the petitioner to produce all books of accounts and also for personal hearing. The petitioner filed an application before the Commissioner of Taxes stating that the business of the petitioner-firm do not fall under works contract and consequently the petitioner filed a petition to the Commissioner of Taxes seeking adjournment of hearing on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment prior to the 46th Amendment of the Constitution and subsequent amendments to the Tripura Sales Tax Act; AND 4.. Whereas the period assessed is after the 46th Amendment of the Constitution and subsequent amendments of Tripura Sales Tax Act by which the photographic work comes under the works contract. The honourable Gauhati High Court in his judgment in Studio Sen Sen v. State of Tripura [1990] 79 STC 168 has quoted, it may, however, be apposite to mention here that after the Fortysixth Amendment of the Constitution, the Act has been amended and by the Tripura Sales Tax (Third amendment) Act, 1984, a new section, namely, section 3A has been inserted to provide for imposition of tax on transfer of property in goods involved in the execution of works contract. However, as the case in hand relates to the periods prior to the coming into force of the said amendment, it is not necessary to go into the effect of the same. (173-79 STC) . AND 5.. Whereas, I am of the opinion that the assessment was made erroneously and the case is fit for being taken up for revision under section 21(1) of the Tripura Sales Tax Act, 1976 in the interest of the revenue. 6. You are hereby g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Senior Counsel for the petitioner relying on the decision reported in [1977] 39 STC 237 (SC) (Assistant Sales Tax Officer v. B.C. Kame) submitted that when a photographer undertakes to take a photograph, develop the negative, or do other photographic work and thereafter supply the prints to his client, he cannot be said to enter into a contract for sale of goods. The contract on the contrary is for use of skill and labour by the photographer to bring about a desired result. The occupation of a photographer, except in so far as he sells the goods purchased by him, is essentially one of skill and labour. Therefore, sales tax is not payable by a photographer, when the photographer takes photographs or does other photographic work and thereafter supplies the photographic prints to his client or customer. 7.. Mr. Deb also relied on a decision reported in [1993] 89 STC 307 (WBTT) (Studio Kamalalaya v. Commercial Tax Officer), annexure E, and submitted that in a works contract there will be at least two parties, the contractee and the contractor. The contractee is the person, who is the owner of the immovable or movable property with reference to which the works have to be execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-firm to present its case on September 9, 1997 at 12.00 a.m. After receipt of the order the petitioner filed an objection before the Commissioner of Taxes stating that the business of the petitioner-firm does not fall under works contract and therefore, he is not liable to pay sales tax. On the basis of the objection filed by the petitioner-firm the Commissioner of Taxes proceeded with the hearing of the case, but the petitioner filed an application for adjournment on the ground that the case involves complicated questions of law and the petitioner wants a decision from the honourable Gauhati High Court. The Commissioner of Taxes by his order dated September 23, 1997, annexure D, allowed the adjournment, but he rejected the prayer of the petitioner to move the High Court as the Commissioner of Taxes is of the view that if the petitioner is aggrieved by the order of the Commissioner of Taxes, he will have the opportunity to move the appropriate court. 10.. After going through the orders passed by the Commissioner of Taxes dated August 26, 1997 and September 23, 1997, annexures B and D respectively, two questions arise for decision, namely, (a) whether the Commissioner of Taxes h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he is of the opinion that the assessment was made erroneously and consequently he has given an opportunity to the petitioner to present his case. 13. After going through the order dated August 26, 1997, annexure-B, I am of the view that for reopening the assessment of sales tax of the petitionerfirm in the revision case, the Commissioner of Taxes has formed an opinion that the petitioner-firm may be liable to pay sales tax under section 3A of the Tripura Sales Tax Act, 1976 and this is not his final decision that the petitioner-firm is liable to pay sales tax. Before opening a revision case the Commissioner of Taxes is to be satisfied and he can only be satisfied if he forms certain opinion that the order passed by the Superintendent of Taxes is erroneous. In the instant case I am also of the view that the Commissioner of Taxes has only formed an opinion which he has expressed in the preamble of his order in paragraphs 1 to 4 and this is not his final decision that the petitioner-firm is liable to pay sales tax under section 3A of the Tripura Sales Tax Act, 1976. Further, I am of the view that paragraphs 5 to 7 of the order dated August 26, 1997, annexure B is the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axes to reopen an assessment in a revision case under section 21(1) of the Tripura Sales Tax Act, 1976. The petitioner has not allowed the Commissioner of Taxes to decide his case on merit and before any decision by the Commissioner of Taxes, the petitioner has filed the present writ petition. 15.. Mr. U.B. Saha, learned Government Advocate appearing on behalf of the State respondent submitted that the Tripura Sales Tax Act, 1976 provides for a complete machinery to challenge an order of assessment and the order passed under the Act can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution. Learned Government Advocate further submitted that it is now well-recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. It is argued by Mr. Saha, learned Government Advocate that the Commissioner of Taxes has not yet assessed any tax on the petitioner-firm and even if any tax is assessed and the petitioner is aggrieved by the order of the Commissioner, then the petitioner has a remedy by filing an appeal to the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndently according to his best judgment. Since the revision petition is still pending before the Commissioner of Taxes and since he has not given any decision in the revision case whether the petitioner is liable to pay sales tax, I am of the view that no decision should be given by me on the merits of the case whether the petitioner-firm is liable to pay sales tax under section 3A of the Tripura Sales Tax Act or not as that may influence the mind of the Commissioner of Taxes. 17.. Consequently I am not inclined to give any decision whether in the present case the petitioner-firm is liable to pay sales tax under section 3A of the Tripura Sales Tax Act and this matter is kept open for decision by the Commissioner of Taxes. Since the Tripura Sales Tax Act, 1976 provides for adequate authorities against the wrongful acts complained of, I am of the view that the petitioner can move the prescribed authorities if he is aggrieved by the order of the Commissioner of Taxes. Tripura Sales Tax Act, 1976 provides for a complete machinery to challenge an order of assessment and I am of the view that if any party is aggrieved by any order, he can challenge the same by the mode prescribed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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