9911796707
TMI Blog2004 (7) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... d notice, the petitioner was directed either to apply or to show cause in writing as to why it would not be registered compulsorily in addition to taking other actions as per the provision of the Act. 4.. The petitioner in response to the said notice submitted its show cause reply urging various grounds against the opinion for compulsory registration. The petitioner, inter alia, pleaded in its show cause reply that its activities do not constitute a works contract and thus is not liable to pay tax under the aforesaid Act and accordingly not liable for registration. The show cause reply was followed by another communication dated February 24, 2000 submitted by the petitioner to the Commissioner of Taxes detailing its position that the activities carried out by it, viz., X-ray, CT scan and MRI, etc., do not come under the purview of works contract as defined in section 8(1)(e), Schedule VI, entry 24 in Assam General Sales Tax Act, 1993. By the said communication, the petitioner requested the respondent-authority to consider the whole matter as stated in the communication. 5.. By the impugned certificate of registration dated May 6, 2000, the petitioner was registered as a dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of section 12(1) of the aforesaid Act. According to him entry 24 of the Sixth Schedule under the Act [section 8(1)(e)] does not cover the activities of the petitioner so as to term them as involving works contract. Consequently, the petitioner is not liable for registration as dealer under section 12 of the said Act making the petitioner liable to pay tax as has been done by the impugned certificate of registration dated May 6, 2000, he submitted. Mr. S. Dutta, learned counsel for the petitioner, in the second writ petition submitted that the impugned show cause notice is without jurisdiction. In a nutshell, the learned counsel for the petitioner in both the writ petitions submitted that the petitioners are not liable for payment of tax, their activities not involving any works contract as envisaged in entry 24 of the Sixth Schedule to the Act [section 8(1)(e)]. Learned counsel for the petitioner in support of their arguments referred to the provisions of section 2(33) and section 2(38) of the Act to bring home their points of arguments. 9.. Mr. B.J. Talukdar, learned Junior Government Advocate, on the other hand submitted that there was nothing wrong in issuing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the Indian Radiological and Imaging Association, Assam Branch of which he is a member has been agitating the matter before the honourable High Court of Guwahati. He had not been able to produce any stay order against our proceedings or any pronouncement of the honourable Court in support of his contention for liability. Therefore, in order to facilitate assignment and realisation of Taxes, etc., the dealer is hereby compulsorily registered under section 12 of the Act with effect from April 1, 1999. The assessable turnovers if any of earlier years/periods from the date of registration will be brought to assess under section 17(6) of the Act. Issue R/C. Sd./- Superintendent of Taxes." 12.. The aforesaid note dated July 14, 1999 based on which the impugned certificate of registration has been issued does not even refer to the show cause reply submitted by the petitioner. The only ground assigned for issuance of the impugned certificate of registration is that the petitioner had not been able to produce any stay order against the proceedings or any pronouncement of the court in support of the contention for non-liability. It is on that basis the petitioner has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ petition at the show cause notice stage. In the case of Special Director v. Mohd. Ghulam Ghouse as reported in (2004) AIR SCW 416, the apex Court observed as follows: "This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of the provision of the Act and the materials available on records not to proceed with the matter any further. Prescribed authority is conferred with the discretion to dispense with the same upon acceptance of the pleas raised on behalf of the writ petitioners. Such discretion is governed by the maxim "discrertio est discernere per legem quid sit justum" (discretion consists a knowing what is just in law). Needless to say that the discretion in general is the discernment what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution, to discern between falsity and truth, between shadow and substance, between equity and colorable glosses and pretences and not to do according to the will and private affections and ill will. It has to be done according to rules of reasons and justice, not according to the private opinion. It has to be done according to law and not humor. It is not arbitrary, vague and fanciful but legal and regular. 18.. Subject to the observations made above, the writ petition in W.P. (C) No. 2392 of 2000 stands allowed to the extent indicated abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
