TMI Blog2016 (8) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 11.02.2013, by which, the writ court, declined to issue a Certiorari, and to quash the proceedings of the Assistant Commissioner (Commercial Taxes), Coimbatore dated 14.12.2010, as illegal and contrary to the clarifications issued by the Commissioner of Commercial Taxes in D.Dis.Acts Cell-II/56922/2000, dated 25.9.2000 and Lr.No.L.Dis.Acts Cell-IV/80171/2002, dated 22.1.2003, binding upon him, as per Section 28-A(3) of the TNGST Act, 1959 insofar as assessment year TNGST 2004-2005 is concerned. 2. Facts as deduced from the material on record are that the appellant is a dealer registered under the erstwhile Tamil Nadu General Sales Tax Act, 1959, on the file of the respondent. The appellant is a contractor for windows and doors and mainly engaged in the nature of 'works contract', at the premises of their customers, and according to the specifications, provided by them. In the course of their regular business, the appellant purchased raw materials or other goods in the nature of Aluminium channels, mainly used in Aluminium partition works or erection of Aluminium doors, at the place of the customers situated, inside the State of Tamil Nadu. Goods purchased from local ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been objected to by the appellant vide letter dated 02.12.2010 inter alia contending that the doors/windows cannot be pre-fabricated, and fixed as such, at the customer site, and it involves, varying sizes in accordance with actual requirements, at the place of the customer. Further, it has been contended that both the customer and the appellant have been raising quotations/bills describing the nature of work carried out, as supplying, fabrication and fixing, at the site. The appellant has further contended that perusal of the work orders, would reveal the fact that the intention between the parties was to execute the works contract, based on the specification provided, and that it was not a ready made or a product that could be brought, under the definition of sale. It is also the contention of the appellant that they were also registered with the file of the Central Excise Department, as works contractors, and been regularly, paying service tax on the nature of activity carried on by them. Despite the above, the Assistant Commissioner (Commercial Taxes)/respondent, vide order dated 14.12.2010 has mulcked the appellant with tax liability, at the rate of 12%, on the entire turno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fixing iron shutters, the predominant element of 'sale' would be present, and whereas, the case of the appellant of entering into a works contract, for Aluminium partition works, the same cannot be compared with erection and installation of lifts, at the customers place, which is dealt with in State of Andhra Pradesh vs. Kone Elevators (India) Limited reported in (2005) 140 STC 22. He further submitted that section 7-C of the Tamil Nadu General Sales Act, 1959 provides a facility, for an assessee engaged in works contract, within the State of Tamil Nadu, to opt for payment, at a concessional rate of 4% on the entire works contract receipts, for the year and thus, the appellant has rightly filed the same for the assessment year 2004-2005 and that the original assessment was completed on 29.12.2004. However, after five years, and by change of opinion, the respondent has revised the assessment, under a different head, section 3(2) of the Tamil Nadu General Sales Tax Act, 1959, by levying tax, at the rate of 12%, as per first schedule of Part B of TNGST Act, on the entire works contract receipts of ₹ 70,59,413/- for the Assessment year 2004-2005, which is erroneous. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of each works contract or on the total value of all works contract, executed by him in a year, tax calculated at the following rate, namely;- (i) Civil Works contract. Two percent of the total contract value of the civil words executed; (ii) All other works Contracts. Four percent of the total contract value of the works executed. 16. Perusal of the copies of the works contract dated 15.05.2004 and 28.05.2004 respectively, for the Assessment Year 2004-05 executed, in favour of the appellant shows that the works to be done, are fabrication, supplying and fixing of anodised Aluminium sections, as per the annexure to the contract, at the site. Perusal of the revised Assessment Order shows that the assessee, in reply to the notice dated 18.11.2010, has categorically replied that the activity to supply aluminium sections, hardware locks and beading etc, at different sites and fabrication of the same, to suit different sizes, at the site and that the doors and windows, cannot be said to be pre-fabricated. It is the further contention of the appellant that after the works contract was received, fabri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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