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TMI Blog2023 (6) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted. Of that number, 10 members are said to be Corporates or associations of persons and the remaining 1087 are said to be proprietorship concerns, partnership firms or Hindu Undivided Family (HUF). 2. The writ petition has been filed by the association on behalf of its members seeking a mandamus forbearing the respondents, being the, State of Tamil Nadu, represented by the Secretary to Commercial Taxes Department (in short, 'R1') and the Principal Secretary / Commissioner of Commercial Taxes (in short, 'R2') or officers working under them from assessing or recovering any sums under Section 13 of the Tamil Nadu Value Added Tax, Act, 2006 (in short, '2006 Act') from their members. They restrict their prayer only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded for under the provisions of the relevant enactment and thus while assessment or proceedings may be challenged by individual assessees, it is not for the association to seek such an omnibus prayer directing assessments be framed in a specified fashion. 7. Per contra, Mrs.Hema Murali Krishnan, learned counsel appearing for the petitioner's association would point out that the petitioner association comprises of members who are all engaged in identical kinds of businesses. The entirety of their prayer is premised upon a clarification issued by R1 to the effect that cloth manufacturers that are of the status of proprietary concerns, partnership firms or HUF are not affected by the rigour of tax deduction at source (in short, 'TDS&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le writ petition. 11. It is an admitted position that 1087 members who have filed this writ petition form a significant majority of all the association members and it is only 10, who would stand distanced from this cause of action. 12. The Hon'ble Supreme Court in the case of Confederation of Ex-Servicemen Associations (supra) was concerned with a challenge by that association to service terms and conditions. Even in that case, the Union of India had raised the objection of maintainability. The Bench considered the position that the Confederation was registered and was recognized even by the Ministry of Defence. 13. That apart, they also noted the position that the cause espoused in the writ petition by the Confederation was identica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponent ought not to have rasied the objection regarding maintainability of the petition without ascertaining full facts and particulars. We leave the matter there holding the petition maintainable" 14. They make reference to a judgment of the Hon'ble Supreme Court in the case of D.S.Nakara and others v Union of India [(1983) 1 SCC 305], wherein also a similar set of facts and legal position had been discussed and decided by the Bench in favour of those petitioners. 15. In the present case as well, the petitioner association is registered under the provisions of the Tamil Nadu Societies Registration Act, 1975. Though the association is not recognized as an assessee by the Commercial Taxes Department, in my considered view, this would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished by or under a Central or State Act, Company incorporated under the 1956 Companies Act, society including a cooperative society, educational institution or a trust. Thus the statutory position supports the position that the responsibility of tax deduction falls only upon certain specified persons and proprietorships, partnership firms and HUF stand excluded from this responsibility. 19. In the present case, the petitioner states that 1087 members whose cause it espouses are proprietary concerns, partnership firms or HUF. This is question of fact. That apart, individual assessee / members have received notices from the respondents and it is for them to respond to those notices clarifying and establishing their status, as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X
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