Judgment · High Court

Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Mr. P. Deka , learned counsel appearing for the petitioner as well as Mr. K.N. Choudhury, l earned Addl. Advocate General, Assam assisted by Mr. R. Dubey, learned Standing Counsel, Finance Department. By means of this writ petition, the petitioner has impugned the Annexure s-I, III, V and VII dated 31.7.2010, 9.9.2010, 8.10.2010 and 27.10.2010 respecti vely. While by the first communication, the petitioner was directed to produce t he records of purchase of P.P. Granules and Master Batch for the years 2005-2006 to 2009-2010, by the second communication, the petitioner was once again direct ed to produce the figures of P.P. Granules, Master Batch etc. imported by it for the said assessment years. By the said communication, the petitioner was infor med that the said articles are chemicals within the meaning of Entry No.51 of th e Assam Entry Tax Act, 2008. By Annexure-V letter dated 8.10.2010, the petition er was communicated about the ascertainment of the Annual Financial Statement. By the said communication, it was conveyed that it was necessary to complete the best judgment assessment under Section 37 of the AVAT Act, 2003 read with Secti on 8 of the Assam Entry Tax Act, 2008 taking import value of specified goods in the letter. The petitioner was directed to appear before the Assistant Tax Commi ssioner, Jorhat on 28.10.2010 to produce the books of accounts for the aforesaid years. By Annexure-VII letter dated 26.11.2010, the petitioner was intimated a bout the date of hearing fixed on 5.12.2010. Mr. Sahewalla, learned counsel for the petitioner submits that the heari ng-decision of the authority communicated vide Annexure-III letter dated 9.9.201 0 that the items P.P. Granules, Master Batch etc. are covered by description (cid:28)Ch emicals (cid:29) as appended to the Schedule attached to the Act of 2008 is wrong on the face of the Entry Tax Act, 2008 and the Schedule to the Act. He submits that t he decision of the Commissioner on which the authority has placed reliance is n on est in the eye of law in view of the Apex Court decision reported in (1997) 2 SCC 664(Chemical and Fibres of India Ltd. v. Union of India & Ors). According t o Mr. Sahewalla, learned counsel for the petitioner, the Apex Court, by the said judgment, has reversed the decision of the Bombay & Gujrat High Court following which the Commissioner had passed the order. Mr. K.N. Choudhury, learned Addl. Advocate General appearing for the Sta te respondents, on the other hand, submits that the issue involved being at the stage of show cause notice pending reply of the petitioner, the writ Court exerc ising its power of judicial review under Article 226 of the Constitution of Indi a would be reluctant to entertain the writ petition at this stage. He submits th at the petitioner having submitted to the jurisdiction of the authority which ha s issued the impugned letters, instead of approaching this Court ought to have a waited for the decision of the said authority. Mr. Sahewalla, learned counsel for the petitioner, on the other hand, su bmits that the petitioner having furnished a detailed reply on 28.8.2010 to the Annexure-I notice dated 31.7.2010, it was incumbent on the part of the Assistant Commissioner of Taxes to deal with the contentions raised in the said reply ins tead of coming to the conclusion that the P.P. Granules, Master Batch etc. are i ncluded in the description of (cid:28)Chemicals (cid:29) at Sl. No.51 of the Schedule attached to the Assam Entry Tax Act, 2008. In the Annexure-III letter dated 9.9.201‘0, although it has been stated that the PP Granules, Master Batch etc. are included in the description (cid:28)Chemica ls (cid:29) at Sl. No.51, but the said letter does not contend any reason. It is in this context, Mr. Sahewalla, learned counsel for the petitioner has submitted that t he plea of the petitioner that PP Granules, Master Batch etc. are not within the definition of (cid:28)Chemicals (cid:29) will have to be dealt with and decided by the authori ty by a speaking order before coming to the impugned conclusion. In view of the aforesaid submissions advanced by the learned counsel for the parties, considering the matter in its entirety and as agreed to by the lea rned counsel for the parties, this writ petition is disposed of providing that t he Assistant Commissioner of Taxes, Jorhat (the Respondent No.3) shall by a spea king order deal with the plea of the petitioner raised in the Annexure-II repres entation dated 20.8.2010 or any other representation which the petitioner may ma ke to the said authority. Let the speaking order be passed as expeditiously as p ossible preferably within 15 days from today. Till then, the interim order passed earlier shall continue. If the repre sentative of the petitioner wishes to make any further representation, they may do so within one week from today.