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The Commissioner of Commercial Taxes, The Commercial Tax Officer Versus M/s. Sundek India Ltd.

2015 (9) TMI 45 - MADRAS HIGH COURT

Re-opening of Assessment – Fixation of tax rate at 16% against 10% – Writ court while deciding issue relating to issuance of show cause notice to re-open assessment held that revenue was not justified in reopening assessment as assessments were complete and tax was paid by assessee – Held that:- Supreme Court in Mathuram Agrawal vs. State of Madhya Pradesh [1999 (10) TMI 125 - Supreme Court of India] and Manish Maheshwari vs. Assistant Commissioner of Income-tax and Another [2007 (2) TMI 148 - S .....

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issuing clarification – No ground to interfere with impugned order passed in writ petition – Decided against revenue. - W. A. No. 1181 of 2011 - Dated:- 5-8-2015 - Sanjay Kaul, CJ And T. S. Sivagnanam, JJ. For the Appellant : Mr. V Haribabu Addl. Govt. Pleader. For the Respondent : No appearance JUDGMENT (Judgment of the Court was delivered by T. S. Sivagnanam, J.) This appeal by the Commercial Taxes Department is directed against the common order dated 17.07.2009 in a batch of writ petitions. H .....

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clude that the order passed in the other writ petitions which are covered in the common order dated 17.07.2009 would bind the department, as a consequence of which, the appellants would not be justified in prosecuting this appeal. 2. That apart, though the Division Bench ordered notice to the respondent / assessee in this appeal by order dated 17.08.2011, till date no steps have been taken by the appellants to serve the respondent / assessee and the office report states that batta with petition .....

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a dealer in paper based decorative laminated sheets, which are received from other States and subjected to payment of tax at the point of first sale in the State. The product dealt with by the assessee is made up of paper and was being treated as paper based products. The first appellant issued a clarification under Section 28A of the TNGST Act with regard to rate of tax on paper based decorative laminated sheets clarifying that the product are taxable at 16% under Entry 8 (ii), Part-E of the F .....

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Tribunal in O.P.No.120 of 2006 dated 12.04.1996. Based on the said decision of the Tribunal, the assessments were made by the Assessing Officers for all the years and they had collected the tax at 10%. 4. While so, the respondent / assessee received a notice from the Assessing Officer proposing to reopen the completed assessment and to re-assess the sales turnover on paper based decorative laminated sheets at 16%. The respondent / assessee approached the Court on receipt of such notice. There w .....

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eals in cases where revised assessment orders were passed, since the reason for reopening the assessment by the Assessing Officer was based on the clarification issued by the first appellant, which is binding on the Assessing Officer. Thus, they contended that no useful purpose would be served by submitting a reply to the show cause notice proposing reopening of the assessment, since the clarification being issued by the Head of Department would undoubtedly bind the Assessing Officer, an officer .....

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essee. Further, it was contended that even assuming the clarification issued by the first appellant is valid, the same cannot be applied retrospectively. 7. The appellants resisted the contention raised by the respondent / assessee by contending that the Hon'ble Supreme Court having declared the law on the subject giving interpretation with regard to paper based laminated sheet, though under the entries contained in the Central Excise Tariff, 1985, the product being the same, the clarificati .....

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was issued to the assessees and a writ petition was filed in W.P.No.16867 of 2007 contending that when the earlier clarification directing the payment of tax at 16% was cancelled, opportunity of hearing was given to the assessee and while cancelling the same and enhancing the rate of tax to 16%, no notice was issued. This submission was accepted and the said writ petition was allowed and the clarification dated 07.04.2007 was set aside by order dated 29.01.2008. It is, thereafter, the second cl .....

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ative laminated sheets can be relied on by the first appellant to levy and collect tax under the TNGST Act, which is a separate enactment passed by the State legislature. The Writ Court took note of a decision of the Division Bench of this Court in the case of Associated Agencies vs. State of Tamil Nadu, reported in (1993) 89 STC 447, wherein a similar issue was considered with regard to 'Pesticides' and 'Insecticides', which were defined under Section 3(e) of the Insecticides Ac .....

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spect of those commodities. 10. The Writ Court also took note of the decision of the Bombay High Court in the case of Neoluxe India Private Limited and Anr. vs. Commissioner of Sales Tax, Vikrikar Bhavan, Bombay and Anr., reported in (2008) 13 VST 157 (Bom) wherein the issue which was considered was whether the decision rendered under the Central Excise Act and Central Excise Tariff has relevance in interpreting the entry relating to plastic laminates under the Bombay Sales Tax Act and it was he .....

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ST Act and it was held that it is not only all comprehensive, but includes paper of all sorts and all kinds of paper even other than those illustrated or enumerated in the entry. 11. Further, the contention of the respondent / assessee was that the Tamil Nadu Taxation Special Tribunal having considered the issue with regard to taxability of paper based laminated sheets and the assessment having been completed and the tax at 10% was collected, based on the decision of the Special Tribunal, the qu .....

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