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TMI Blog2005 (2) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire value of the works contract itself at 10 per cent without deducting the value of such goods which were not taxable and the value of the services. On the face of it, the assessment order is also not tenable. 4.. The stand taken on behalf of the respondents is that the authorities had not received an application in form 8-AA under rule 8-B of the Rules which is a request by the assessee opting for or indicating that the assessee had opted for payment of tax by way of composition in terms of section 17(6) of the Act. 5.. The dispute arises in the context of computation of the tax payable by the petitioner a registered dealer under the provisions of the Karnataka Sales Tax Act, 1957, particularly the tax payable in terms of section 5-B of the Act, the assessee being a contractor. In respect of such assessees, under section 17(6) of the Act, an option is given to pay tax by opting for composition in which event, the assessee has to pay tax at the rate of 4 per cent on the entire value of the contract and if not tax at 10 per cent on only such value of the goods involved and taxable in the execution of the works contract. While, the petitioner-assessee has maintained all alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on June 16, 2003. But, this attempt was stalled as the assessing officer issued an endorsement dated August 21, 2003, indicating that the request cannot be acceded as there was no application seeking payment of tax by way of composition. 8.. Though the assessee it appears had preferred an appeal under section 20 of the Act to the Joint Commissioner of Commercial Taxes, the appeal was also dismissed in terms of the order dated January 12, 2004 (copy at annexure C). The appellate authority having indicated that there was no ground to interfere with the endorsement of the assessing authority declining to rectify the assessment order, the assessee's hopes of getting the assessment order corrected appeared to have come to an end. 9.. The amending Act 26 of 2004, which came into effect from August 1, 2004 appears to have rekindled the hopes of the assessee under which a proviso was introduced to section 25-A(1) of the Act. It reads as under: "Provided further that where an application is made by an assessee for rectification of any mistake in an order, as being apparent from the record and, such application has not been rejected by the assessing authority within sixty days from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atil, learned counsel for the petitioner and Sri Kempanna, learned Government Pleader. I have also perused the records placed before me by the learned Government Pleader. The matter was heard on several occasions and was hotly contested. 12.. It was passionately urged on behalf of the petitioner that the petitioner has been subjected to untold suffering and misery; that the petitioner is subjected to liability over and above what was permitted in law and was really justified in law; that the petitioner will be left high and dry if no relief is accorded; that justice will suffer if the assessment order as originally passed by the assessing authority which is one not tenable on the face of the record is allowed to remain and tax liability enforced and recovered from the petitioner in terms of this order. 13.. Though the matter of this nature does not detain a writ court for long and such matters are rarely examined for interference in the exercise of writ jurisdiction, non-interference is not a matter of rule nor interference as a matter of course. Though in the normal course, such petitions are not dealt with, as the matter was heard at length and the contention was as to whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment order; that the record did not contain a copy of this application at any point of time earlier and the copy of the application as submitted subsequently on examination did reveal discrepancies in the signature of the assessee as found on this application and on other correspondences and documents submitted by the assessee; that the signature in the application did not appear to be genuine and that the copy of the application should be obviously a made-up or fabricated document to gain sympathy of the court; that the submission of the petitioner should be rejected and the writ petition dismissed. 17.. In fact, a perusal of form 8-AA application indicates that it had been acknowledged at the office of the Assistant Commissioner of Commercial Taxes, VI Circle, Navanagar, Hubli-25 on April 16, 1999, but this is sought to be got over by the respondents by submitting that it does not find place on the records and that it has been acknowledged only by a clerk. 18.. A perusal of the record definitely indicates that there was sufficient material with them about the receipt of the application in form No. 8-AA possibly on April 16, 1999 itself and even if not on that date, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be subjected to unnecessary harassment and an action not warranted in law, which can be of very serious consequence to the tax-payer if is allowed to remain without correction, such harassment and browbeating of an honest tax-payer will otherwise drive even such honest tax-payers to become cynical and lead to a situation where tax-payers will get a feeling that paying taxes honestly is not a worthwhile exercise; that the tax authorities are a menace to the society rather than simply being representatives of the State for enforcing the tax provisions. 22.. The present case illustrates this aspect very vividly. Here is a tax-payer who on a perusal of the record, it is clearly revealed, had opted for payment of tax by way of composition at 4 per cent of the total turnover. The total turnover is Rs. 52,66,485. The liability on such turnover as indicated in the return filed by the assessee is Rs. 2,10,659. This has been made categorically clear by the assessee even in terms of the return dated June 8, 2001 filed in form 4 for which an acknowledgement is issued. The acknowledgement indicates that the tax liability is discharged. The assessment is taken up two years thereafter. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that justice prevails and confidence of lawabiding citizens is retained than to throw out the petition on technicalities. It is for such purpose I have examined even the tenability of the very assessment order. The assessment order dated May 5, 2003 is also not that vintage in point of time as not to warrant scrutiny by this Court in a writ proceedings, the writ petition having been presented in the year 2004. 24.. Viewed from any angle, the order passed by the assessing officer is definitely not sustainable, which only indicates an accusing finger against the assessing officer that the assessing officer himself has deliberately passed such an order for ulterior purposes. The reputation of the officers in the Commercial Taxes Department being at a very low ebb and the department being legion for corruption and malpractices, such instances only sustain such a reputation and the conduct on the part of the respondent No. 2-assessing officer does not bring any credit to the reputation of the Commercial Taxes Department, but can only confirm it. 25.. In the circumstances, writ in the nature of certiorari is issued. The impugned assessment order dated May 5, 2003 (Copy at annexure B) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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