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2023 (6) TMI 780 - HC - VAT and Sales TaxForbearance from assessing or recovering any sums under Section 13 of the Tamil Nadu Value Added Tax, Act, 2006 from members - HELD THAT:- The writ petition is maintainable. As pointed out, not just a common, but identical cause of action has been espoused by 1087 assesses. Though, it is added that their status i.e., whether they are proprietorship concerns, partnership firms or HUF constitutes a question of fact that this Court would not touch upon, their prayer in common is based upon a circular issued by R2 and hence nothing found untoward in they having filed a single writ petition. It is an admitted position that 1087 members who have filed this writ petition form a significant majority of all the association members and it is only 10, who would stand distanced from this cause of action. In the present case as well, the petitioner association is registered under the provisions of the 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 present case, the petitioner states that 1087 members whose cause it espouses are proprietary concerns, partnership firms or HUF. This is question of fact. That apart, individual assessee / members have received notices from the respondents and it is for them to respond to those notices clarifying and establishing their status, as to whether they are indeed proprietary concerns, partnership firms or HUF. Failure to do so will entail consequences that they must suffer. Likewise, adverse orders of assessment could also be challenged relying upon the relevant provisions of law. This writ petition is disposed permitting those assessees who are in receipt of notices to file replies before the authority establishing their status. If they do establish their status to be either proprietary concerns, partnership firms or HUF, then evidently they would be protected by virtue of the statutory exclusion in the explanation to Section 13(1) of 2006 Act.
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