Tvl.Colour Sense v. The Commercial Tax Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.6.2007CORAMTHE HON'BLE MR. JUSTICE S.MANIKUMARW.P.No.21736 of 2007 andM.P.No.1 of 2007Tvl.Colour Sense,Rep. By its partner,C.N.Satish Kumar,No.59/32, Rama Street,Nungambakkam, Chennai-600 034.... Petitioner vsThe Commercial Tax Officer,Valluvar Kottam Assessment Circle,621, Anna Salai,Chennai-600 006.... RespondentPetition filed under Article 226 of the constitution of India toissue a writ of certiorari calling for the records on the file of therespondent pursuant to his proceedings in TNGST/1502559/2005-06 dated30.3.2007 received on 24.5.2007 and quash the same.For Petitioner ... Mr. S.MohanFor Respondent ... Mr.R.Mahadevan AGP ORDERThe petitioner has challenged the order of assessment order 2005-2006. The firm reported a total turn over of Rs.21,34,430.80taxable at 3% and the assesse produced several records in support ofthe returns and requested the respondent to accept the same andfinalize the assessment for 2005-2006. 2. The petitioner has further submitted that since they are inthe business of printing, they exercised their option under Sec.3-Gof the TNGST Act 1959 for compounded rate of tax at 3% and submitteda letter to the Assistant Commercial Tax Officer on 10.1.2005. It isthe further case of the petitioner that for assessment year 2005-2006, they have submitted monthly returns before the respondent by https://hcservices.ecourts.gov.in/hcservices/ giving details of turn over, with the payment of Sales-tax at 3%compounded for the entire sale value and the same was acknowledgedby the respondent. Inspite of the option under section 3-G of theTNGST Act 1959, on the monthly returns submitted by the assesse, therespondent issued a pre-assessment notice and unilaterally proposedto assess the entire turnover relating to the sale of printedmaterials under section 3(1) of the TNGST Act instead of 3-G of theTNGST Act at the rate of 10% instead of compounded rate of 3% on aturn over of Rs.14,26,163/-. They further submitted that thepetitioners are eligible for exemption in respect of turnover ofRs.6.06.205/- being sale of reading materials.3. In reply to the above said notice, the petitioners havesubmitted their objections stating that they are in printing businessand therefore, they have legal right to exercise option under section3-G of the TNGST for payment of 3% compounded tax. The petitionershave further submitted that they bonafidely believed that theAssessing officer would have dropped the proceedings or in thealternative, would summon the petitioner, to clear all the misgivingsin order to enable him to pass appropriate orders.4. The petitioner has further submitted that without consideringthe reply in proper perspective, the respondent has simply rejectedthe contention of the petitioner giving a wrong interpretation toSec.3-G of the TNGST Act 1959 and levied huge amount of tax andsurcharge on the turnover of sale of printed materials and alsoimposed penalty.5. Learned counsel for the petitioner submitted that theassessment order dated 30.3.2007 is contrary to the provisions ofSec.3-G of the TNGST Act 1959 and that the respondent has failed toconsider that the petitioner is engaged in printing business.6. Learned counsel for the petitioner further submitted that theimpugned proceedings of the respondent was passed mechanicallywithout reference to the meaning imparted in Sec.3-G of the TNGSTAct. He further submitted that the dealer is engaged only inprinting materials and therefore, the respondent is estopped ininvoking some other provision to levy higher rate of tax. 7. Mr.R.Mahadevan, Learned Additional Government Pleader for thestate was put on notice and heard. He submitted that as against theorder of assessment, there is a remedy of filing a statutory appealto the Appellate Assistant Commissioner, Commercial taxes,III,Chennai-108 and there are no extraordinary circumstances to invokethe jurisdiction of this Court. He further submitted that theAssessing Officer has rightly interpreted the words employed inSec.3-G of TNGST Act and found that the petitioner is not entitledto pay tax at the compounded rate under Sec-3-G of TNGST Act. https://hcservices.ecourts.gov.in/hcservices/

8. Heard the counsel appearing for the parties and perused thematerials available on record. Section 3-G reads as follows:"Payment of tax at compounded rate by printers(1) Notwithstandinganything contained in sub-sec.(2) of Section 3 of Section 3-B, everydealer who carries on the business of printing may, at his option,instead of paying tax in accordance with sub-section (2) of Section 3or Section 3-B pay tax at the rate of three per cent on the totalturnover; (2) Every dealer who opts for payment of tax under sub-section(1),shall apply to the assessing authority in such form as may beprescribed on or before the 30th day of April of the year or withinthirty days of commencement of business, as the case may be and shallpay tax along with such return, within such period and in suchmanner, as may be prescribed. Provided that the option under thissub-section for the year commencing on the 1st day of April 2002 shallbe exercised on or before the 31st day of July 2002(3) The option so exercised under sub-section (2) shall be final forthat year and shall continue for subsequent years and shall continuefor subsequent years until the dealer withdraw his option in writingon or before the 30th day of April of the subsequent year"9. As per 3-G of the TNGST Act, every dealer who carries onbusiness of printing may at his option, instead of paying tax inaccordance with sub section (2) of section 3 or section 3-B to paytax at the rate of 3% on the total turn over. It is the case of thepetitioner that they get raw materials for printing on 'job workbasis' and sell this printed materials both within the State andinterstate. On the basis of available materials, the AssessingOfficer has found that the assesse does not own any printing pressfor printing the goods which were sold in the year 2005-2006, andthat they are not engaged in printing business, but they are in thebusiness of only selling printed materials. The Assessing Officerhas also observed that the assessees, who themselves carry on thebusiness of printing alone are eligible to claim the benefit ofSec.3-G of the TNGST Act. 10. There is certainly a lot of difference in Business ofprinting and selling printed materials. If the contention of thepetitioner is to be accepted, then all the dealers dealing withprinted materials, would have the benefit under Section 3-G of theAct. When the language of the legislation is clear, it is notpermissible to give a different meaning and interpretation. Writjurisdiction cannot be invoked to adjudicate the questions of fact as https://hcservices.ecourts.gov.in/hcservices/ to whether the assesse was engaged in the business of printing toavail the benefit under sec 3-G of the TNGST Act. Further, if thepetitioner is aggrieved by the finding of fact, statutory remedy isavailable under section 31 of the TNGST Act to the AppellateAssistant Commissioner, Commercial taxes III, Chennai-108. Writremedy is not to bye pass the statutory remedy, unless it is shownthat the impugned order is per se without jurisdiction and patentlyillegal, Writ Petition is not maintainable. In the instant case, theAssessing Officer has passed the impugned order, based on thematerials and, levied a higher rate of tax and penalty. The saidorder cannot be termed as without jurisdiction. Inview of the above,this Court is of the considered view that the petitioner has not madeout any strong case for entertaining the writ petition under Article226 of the Constitution of India. In the result, the writ petition is dismissed. Consequently,connected miscellaneous petition is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.kuaToThe Commercial Tax Officer,Valluvar Kottam Assessment Circle,621, Anna Salai,Chennai-600 006.W.P.No.21736 of 2007BVN {CO}TP/1.8.08