9911796707
TMI Blog2023 (6) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... Tamil Nadu Societies Registration Act, 1975. Though the association is not recognized as an assessee by the Commercial Taxes Department, this would not stand in the way of the maintainability of this writ petition itself since admittedly, the cause of action espoused by all the members before the Court is identical, and relates to clarification dated 04.11.2015. Maintainability is addressed towards the prayer itself, which is for a mandamus as against the respondents - HELD THAT:- The respondents are agreed upon that the mandamus of the nature sought for is not liable to be granted. The petitioners pray for a direction that respondents must not assess or recover any sums under Section 13 of the Act. Section 13 deals with deduction of tax at source in works contract and fastens, on 'every person' responsible for paying any sum to any dealer for execution of works contract, the necessity to deduct an amount calculated at certain stipulated rates. 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. - In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nability of this writ petition pointing out that the Cloth Merchants Association cannot, by itself, be aggrieved by any action to be initiated by the respondents, as the association is not an assessee on the file of the Commercial Taxes Department. 4. The association, as a registered society cannot be said to be personally affected by the action of respondents and hence has no locus standi to have filed the present writ petition. The relief sought for by the association should thus have been pursued by the members individually and not by association itself. For this purpose, he relies on a slew of judgments that shall be discussed presently. 5. The second objection in regard to the aspect of maintainability is addressed towards the prayer itself, which is for a mandamus as against the respondents. Learned counsel urges that mandamus of this nature cannot / should not be considered or granted by the Court for the reason that it is an overarching relief sought as against the statute. Thus it would not be appropriate for the Court to consider or grant such a wide prayer that would tantamount to directing the authorities to frame assessments in a particular manner. 6. Assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 identical across all members. At paragraph 22 the Bench states as follows:- 22. We have given anxious and thoughtful consideration to the rival contentions raised by the parties. So far as the preliminary objection regarding maintainability of the petition is concerned, it may be stated that the petitioner has asserted in the petition that it is a confederation of five ex-servicemen associations formed in furtherance of a common cause. The aims and objects of the Confederation have also been annexed as set out in the MoU(Annexure P1). In the affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid, this writ petition is held to be maintainable on the first score. 17. Coming to the second argument on maintainability, I agree with the respondents that mandamus of the nature sought for is not liable to be granted. The petitioners pray for a direction that respondents must not assess or recover any sums under Section 13 of the Act. Section 13 deals with deduction of tax at source in works contract and fastens, on 'every person' responsible for paying any sum to any dealer for execution of works contract, the necessity to deduct an amount calculated at certain stipulated rates. 18. Such responsibility to deduct tax at source would not vest in those persons defined in the explanation to under Section 13(1) to be the Central or State Government, Local Authority, Corporation or Body established 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 responsi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
