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M/S SRI BALAJI OFFSET versus THE REGISTRAR

High Court of Madras

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M/s Sri Balaji Offset v. The Registrar - W.P.NO.2186 OF 2001 [2002] RD-TN 973 (11 December 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 11/12/2002

CORAM

THE HONOURABLE MR. JUSTICE N.V.BALASUBRAMANIAN

and

THE HONOURABLE MR. JUSTICE K.RAVIRAJA PANDIAN

W.P.NO.2186 OF 2001

M/s Sri Balaji Offset

No.153,C.V.Muthulakshmi Road

Madras 600 041 ..Petitioner -Vs-

1.The Registrar

The Tamil Nadu Taxation Special Tribunal

Singaravelar Maligai 2nd Floor

Chennai 600 001

2.The State of Tamil Nadu represented by

The Deputy Commercial Tax Officer

Tiruvanmiyur Assessment Circle

No.11 Temple Avenue, T.Nagar Colony

Saidapet, Chennai 600 015 ..Respodents Petition filed under Article 226 of The Constitution of India for the issue of a writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.V.Sundareswaran

For respondents: Mr. T.Ayyaswamy, Spl.G.P.(Taxes) :ORDER



(Order of the Court was made by K.RAVIRAJA PANDIAN,J.) The writ petition is filed against the order of the Tamilnadu Taxation Special Tribunal dated 19.10.2000 made in Tax Case Revision No.274 4 of 1997 whereby the Special Tribunal has held that the petitioner is liable to pay tax in respect of turn over of Rs.2,39,401.96 on the ground that the goods sold by the petitioner is a photographic film coming within the purview of Entry 7 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959.

2.We have seen the relevant entry at the relevant point of time which reads as follows:

"7. Photographic and other cameras, and enlargers, lenses, films, plates, paper, cloth and other parts and accessories required for use therewith." Such goods are taxable at the point of first sale in the State at 15 .

3.The learned counsel for the petitioner submitted that what the petitioner purchased and transacted to the abovesaid turnover was only exposed film which can be used for off-set printing purpose only and not photographic film as concluded by the authorities. He further contended that none of the authorities have gone into the fact as to what was the material the petitioner handled. The authorities, on the basis of the sale bills and also on the basis of the bill of entry said to have been verified by them, have come to the conclusion that the petitioner has dealt with only films which come within the purview of photography films. The learned counsel further contended that the objections raised by the petitioner to the effect that the petitioner never dealt with the photographic film and what was handled by the petitioner was only exposed film which could be used for off-set printing purpose has not been taken into consideration. He also pointed out the objections submitted by the petitioner to the pre-assessment notice issued to the petitioner, wherein he has stated that the goods dealt with by the petitioner was only an exposed film and as such it would not come within the purview of Entry 7 of the First Schedule to the Tamil Nadu General Sales Tax Act,1959.

4.On the other hand, the learned Special Government Pleader argued for sustaining the order of the Special Tribunal on the ground that the petitioner has handled with the photographic film only as stated in the assessment order as well as appellate orders which culminated in the order of the Special Tribunal.

5.In view of the dispute between the parties, we directed the learned Special Government Pleader (Taxes) to produce the relevant file so as to find out whether there is any material available in the records to come to the conclusion that the goods transacted by the petitioner was only photographic film. The learned Special Government Pleader as directed by us produced the file in respect of the relevant assessment year. In the pre-assessment notice dated 23.12.89, which is available at page 117 of the file, it is stated as item No. 3 (b) that on the basis of the sale bills verified by the assessing officer, it was found that the petitioner has sold of Agfa Gevaert Photographic films made in Belgium to Tvl.Nagaraj & Co and other for a sum of Rs. 2,39.401.96. The reply sent by the petitioner to the pre-assessment notice is made available at page No.121 of the assessment file which is dated 16.1.90, wherein in paragraph 2, it was stated by the petitioner herein, 'regarding sub item (b) of item 3 the petitioner objected to the proposal to levy 15 sales tax treating it as sale of imported films. Actually, the petitioner did not sell any imported film but sold exposed film and did not sell any raw film as erroneously assumed by the assessing officer. In spite of the said objection an assessment order has been passed. In the assessment order, it was stated that on verification of the sale bills in favour of one Nagaraj&Co., which is available at page No.127 of the file produced before us and also the bill of entry verified by the assessing officer, it was found that the petitioner had imported and dealt with '4 Cartons: Made in Belgium Agfa Gevaert Agfa Gevaert Graphic Arts Film:'. Though, in the assessment order the assessing authority has stated so, ultimately, has levied tax at the rate of 15 treating the product as a photographic film coming within the purview of Entry 7 of the First Schedule to the Tamil Nadu General Sales Tax Act,1959. On appeal also, the appellate authority and the Special Tribunal have treated the goods as photographic films without any discussion as to the nature and character of the goods.

6.The learned Special Government Pleader has also accepted that except the passing reference by the Special Tribunal that the goods dealt with by the petitioner was only a photographic film which comes within the purview of Entry 7 of the First Schedule to the Tamil Nadu General Sales Tax Act,1959 none of the authorities have given a positive finding as to what was the goods dealt with by the petitioner.

7.We have also satisfied on going through the file none of the authorities including the Special Tribunal has approached the point in this aspect of the matter to find out the goods dealt with by the petitioner. The reasoning given by the assessing authority, on verification of the sale bill and also the bill of entry, it was found that the goods dealt with by the petitioner was photographic film is not correct. As stated above, there is no indication either in the sale bills in favour of Nataraj & Co., or in the bill of entry that the goods transacted by the petitioner was photographic film only. There is no other material, whatsoever available so as to come to the conclusion that the goods dealt with by the petitioner come within the purview of Entry 7 of the First Schedule to the Tamil Nadu General Sales Tax Act. As rightly submitted by the counsel none of the authorities has given a positive finding as to the nature of the goods dealt with by the petitioner. In the absence of any finding, it is not possible for us to accept the ultimate conclusion reached by the authorities.

8.Hence, we are of the view, it would be appropriate to set aside the order of all the authorities culminating the order of the Special Tribunal and remit the matter to the assessing authority with a direction to consider the matter afresh and give a positive finding as to what is the nature of the goods with which the petitioner has transacted in respect of the turn over of Rs. 2,39,401.96, that is, as to whether the said transaction would refer to photographic film and would come within the purview of Entry 7 of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959 or not and pass appropriate orders thereon.

9.It is open to the petitioner to produce any material before the assessing officer so as to sustain his case within four weeks from the date of receipt of the copy of the order. On such production, the assessing officer is directed to take into consideration and give a positive finding on the basis of the materials adduced before him and pass appropriate orders as per law.

10.With this observation the writ petition is allowed. No costs. index:Yes

internet:Yes

sal

To

1.The Registrar

The Tamil Nadu Taxation Special Tribunal

Singaravelar Maligai 2nd Floor

Chennai 600 001

2.The Deputy Commercial Tax Officer

State of Tamil Nadu

Tiruvanmiyur Assessment Circle

No.11 Temple Avenue, T.Nagar Colony

Saidapet, Chennai 600 015




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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