9911796707
TMI Blog2014 (5) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... who are engaged in the business of manufacture and sale of an item called "Aluminum conductors "(AAAC /ACSR). The question arose as to at what rate the item "Aluminum conductors" was liable to be taxed under the provisions of The Assam Value Added tax Act 2003 (for short hereinafter for brevity called "The Act"). In other words, there arose a dispute between the manufacturer of Aluminum conductors and taxing authority as to under which entry in the schedule appended to the Act, "Aluminum conductors" was liable to be taxed for payment of value added tax (VAT) and if so, at what rate. In order to determine this question, the petitioner filed an application on 23.8.2005 (Annexure-A) under Section 105 of the Act to the Commissioner and sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssam Value Added Tax Act, 2003 and the rules framed thereunder and the ruling is given as under: "Aluminum Conductor" is an unspecified item and cannot be treated as extrusion of Aluminum. Hence it is covered by entry at Sl. No.1 of Fifth Schedule appended to the Assam Value Added Tax Act, 2003. Accordingly, it is taxable at the rate of 12.5%. Sd/- B. Kalyan Chakraborty Commissioner of Taxes, Assam, Guwahati." It is against this order; the petitioner has felt aggrieved and filed this writ petition. Notice was served on the respondents. They are also represented. Heard Dr.Ashok Saraf, learned senior counsel assisted by Ms. ML Gope, learned counsel for the petitioner and Mr. R Dubey, learned Standing Counsel, Finance for respondents. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks contract or an operating lease; or (i) any particular thing done to any goods amounts to or results in the manufacture of goods within the meaning of that terms; or (j) any set-off can be claimed on any particular transaction of purchase and if it can be claimed, what are the conditions and restrictions subject to which such set-off can be claimed;the Commissioner shall make an order determining such question: Provided that, before giving such decision, the Commissioner may, in his discretion, ask an officer appointed to assist him to make such inquiries as he considers necessary for the decision of the question. (2) Any registered dealer or any association of trade, commerce, industry may apply in the prescribed form and manner to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiating any action under this sub-section, the Commissioner shall obtain prior permission of the Government." Mere perusal of section 105 and specially sub section 2 read with proviso to sub section (1) would indicate that Commissioner is invested with quasi judicial powers to determine the question/s specified in sub section (a) to (j). A right to raise the questions for its determination is given to those specified in Sub Section (2). This sub-section equally cast a duty on the Commissioner to afford a reasonable opportunity of hearing to the person who has applied for determination. Similarly, proviso to sub section (1) empowers the Commissioner to hold an inquiry at his discretion and while holding such inquiry, he is empowered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Aluminum Conductor" was taxable at the rate of 12%. The so-called reason assigned cannot be said to be reasons much less justifiable to sustain the order. We cannot uphold the impugned order. In the light of foregoing discussion, the writ petition succeeds and is allowed. The impugned order dated 5.1.2006 passed by the Commissioner of Taxes, Assam, Guwahati is quashed by issuance of writ of certiorari. The case is remanded to the Commissioner for deciding the application filed by the writ petitioner afresh on merits in accordance with law keeping in mind our observations. Needless to observe, the Commissioner will afford opportunity to petitioner to file material in support of their case and would also hear them in the inquiry. We, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
