M/S.Lee Tech, v. The Deputy Commercial Tax

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 07.07.2017

CORAM

THE HONOURABLE Mr. JUSTICE T.S.SIVAGNANAM W.P.Nos.17327 to 17331 of 2017 and W.M.P.Nos.18835 to 18839 of 2017 M/s.Lee Tech, No.119/58, Lingi Chetty Street Mannady, Chennai - 600 001 Represented herein by its Proprietor Mr.Gokula Kannan ... Petitioner in all W.Ps.

..Vs..

The Deputy Commercial Tax Officer, Muthialpet Assessment Circle, No.270, Thambu Chetty Street, Chennai - 600 001.

... Respondent in all W.Ps.

Prayer in W.P.No.17327/2017: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondent in the impugned order in TIN No.33031243421/2011-12 dated 12.05.2017 and quash the same and further direct the respondent to pass a fresh order after understanding the commodity properly and accepting all the descriptive documents about the same, including EOU documents in the possession of the petitioner and providing a personal hearing opportunity. Prayer in W.P.No.17328/2017: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondent in the impugned order in TIN No.33031243421/2012-13 dated 12.05.

2017 and quash the same and further direct the respondent to pass a fresh order after understanding the commodity properly and accepting all the descriptive documents about the same, including EOU documents in the possession of the petitioner and providing a personal hearing opportunity. Prayer in W.P.No.17329/2017: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondent in the impugned order in TIN No.

dated 12.05.2017 and quash the same and further direct the respondent to pass a fresh order after understanding the commodity properly and accepting all the descriptive documents about the same, including EOU documents in the possession of the petitioner and providing a personal hearing opportunity. Prayer in W.P.No.17330/2017: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondent in the impugned order in TIN No.33031243421/2014-15 dated 15.05.2017 and quash the same and further direct the respondent to pass a fresh order after understanding the commodity properly and accepting all the descriptive documents about the same, including EOU documents in the possession of the petitioner and providing a personal hearing opportunity.

Prayer in W.P.No.17331/2017: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the respondent in the impugned order in TIN No.33031243421/2015-16 dated 15.05.2017 and quash the same and further direct the respondent to pass a fresh order after understanding the commodity properly and accepting all the descriptive documents about the same, including EOU documents in the possession of the petitioner and providing a personal hearing opportunity. For Petitioner in all W.Ps. : Mr.R.Sridhar For Respondent in all W.Ps.

: Mr.K.Venkatesh Government Advocate COMMON ORDER Heard Mr.R.Sridhar, learned counsel appearing for the petitioner and Mr.K.Venkatesh, learned Government Advocate accepting notice on behalf of the respondent. With the consent on either side, these writ petitions were taken up for disposal. 2.These writ petitions have been filed by the petitioner challenging the orders of assessment passed by the respondent dated 12.05.2017 and 15.05.2017 respectively for the assessment years 2011-12, 2012-13, 2013-14, 2014-15 and 2015-16. 3.On a reading of the impugned order, it is seen that the Assessing Officer came to the conclusion that the commodity dealt with by the petitioner is a PIN Marking Systems is marking/stamping only and helps to be readable after painting or galvanizing and it does not bear the eligibility to be treated as 'Capital Goods' liable to VAT at the rate of 5% within the

meaning and scope of Entry 25 of Part-B of First Schedule read with Section 2(11) of Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act).

4.The learned counsel appearing for the petitioner submitted that the Assessing Officer was under the misconception about the product and the machine does not carry out any painting or galvanizing work and this aspect was not properly appreciated by the Assessing Officer.

5.The issue raised by the petitioner is fully factual and in such circumstances, the petitioner dealer should not be permitted to bypass the appeal remedy available to the petitioner under the provisions of the TNVAT Act, 2006. Therefore, these writ petitions challenging the assessment orders have to be necessarily held to be not maintainable. 6.Accordingly, these writ petitions are dismissed as not maintainable giving liberty to the petitioner to file an appeal before the Appellate Authority. It is submitted by the learned counsel appearing for the petitioner that the time for filing a statutory appeal is yet to be over and in the meantime, the assessment and demand in Form O has been issued and there is also a threat of bank attachment. It is needless to state that if the appeal time is yet to be over, then the respondent cannot initiate any coercive action for recovering the tax and penalty. 7.With the above observations, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar cse To The Deputy Commercial Tax Officer, Muthialpet Assessment Circle, No.270, Thambu Chetty Street, Chennai - 600 001.

+5ccs to M/S.R.Sridhar, Advocate Sr.

47197,47193,47194,47195,47196 +1cc to the Special Government Pleader (Taxes) Sr.47554 W.P.Nos.17327 to 17331 of 2017 and W.M.P.Nos.18835 to 18839 of 2017 PPA(CO) VR(07/07/2017)