9911796707
TMI Blog2005 (2) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... The proposition notices indicate that insofar as the levy of turnover tax relating to computer, computer parts and computer peripherals is concerned, there was some escapement from the turnover that was subject to levy; that it was required to be brought to tax by reopening the assessment and has indicated the proposed amount of tax after such reopening, etc. Petitioners have approached this court being perturbed by these notices, whereunder the assessments that had been concluded for the respective years are sought to be reopened. The reopening of the assessments in terms of the notices issued during January 2005 is said to be on the basis of a circular No. CLR.CR.157/20042005 dated December 31, 2004 issued by the Commissioner of Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... periods, ever since the entry at item 20 of Part C was introduced in the Second Schedule to the Act, subjecting to tax the sales of the computer and computer peripherals and their parts. Submission of the learned Senior Counsel is that while the exemption notification makes a specific reference to the item or the subject-matter of exemption, viz., computer, computer peripherals, etc., falling under entry at item 20 of Part C of the Second Schedule, under the circular the benefit and exemption given under the exemption notification is sought to be curtailed; that the circular is at variance with the notification and if such is the basis, the circular itself is contrary to the statutory provisions and reopening of assessment on such erroneou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Computers, micro-computers, micro-processors, computer peripherals, and parts and accessories thereof: April 1, 1996 to March 31, 1998: 4 per cent, (ii) Computer stationery: April 1, 1996 to March 31, 1998: 4 per cent. With effect from April 1, 1998 the said entry was amended to read as follows: "20 (i) Computers of all kinds namely: Mainframe, mini, personal, micro computers and the like and their parts: (ii) Peripherals, that is to say: (a) all kinds of printers and their parts, namely dot matrix, ink jet, laser line, line matrix and the like: (b) Terminals, scanners, multi media kits, plotters, modem and their parts: (iii) Computer consumables, viz., stationery, floppy disks, CD ROMs, DAT tapes, printer ribbons, prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rals and computer parts, etc., there is no ambiguity with regard to this aspect; that it can be taken as word "computer" includes computer parts and if the charge is on computer inclusive of the parts and if the computer includes computer parts, then the exemption notification even by merely mentioning the word computer is sufficient to grant exemption in respect of other phrases used in the entry. Learned Senior Counsel for the petitioners further submits that assuming that there is scope for some debate, it is necessary for this court to clarify this aspect of the legal position rather than relegating the petitioners to show cause or file a revised return and pursue the matter through the hierarchy of remedial measures provided under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opinion that it is not necessary for this court to indulge in this exercise at this stage in a writ petition. Ultimately independent of the fact situation, viz., the actual goods that were the subject-matter of transactions by the petitioners, all other debate will be more academic. The proposition notice, prima facie indicates that the issue of notices is because of particular understanding of the scope of the exemption notification earlier and a rethinking of the understanding of the provisions and the exemption notification as it was realised that certain part of the turnover, though not covered under the exemption notification had nevertheless been not brought to tax. Such understanding and the reason for reopening being general in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices if are adjudicated and if it is found that actually certain turnover which should have been otherwise subjected to tax has not been so done may result in additional liability on the petitioner to that extent. Levy of tax in terms of the provisions of the Act can never be characterised as an action either curtailing or denying the freedom of trade and business guaranteed to the petitioners under article 19(1)(g), Constitution of India. Assuming that there are possibilities of an erroneous order being passed, the Act itself provides for remedial measures in such situations through an hierarchy of appeals and revisions. Even an erroneous order by itself does not amount to denial of right under article 19(1)(g), Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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