TMI Blog2018 (1) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the first question is answered in favor of the petitioner and against the revenue. Whether the respondent can re-open the assessment without there being a prior order from the Commissioner in accordance with Rule 15(5-B) of the TNGST Rules? - Held that: - on perusal of the original assessment order dated 29.05.2003, the respondent has clearly stated that such order is subject to random selection for detailed scrutiny under Section 12(1-A) of the TNGST Act. Thus, the respondent was fully aware that the assessment can be revised only subject to random selection under Section 12(1-A) of the TNGST Act. In order to effect such revision, the procedure under Rule 15(5-B) of the TNGST Rules have to be followed - decided against Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner filed applications under Section 55 of the TNGST Act for revision of assessment, since they had, by then, procured TDS certificates and those TDS certificates were given due consideration and the assessments were accordingly revised by orders dated 26.09.2003 and 29.10.2003. Thus, at no point of time, the respondent treated the petitioner s return as return other than what was presented under Section 7-C of the TNGST Act. However, for the first time in the impugned order, a stand has been taken by the respondent stating that the petitioner has not opted to pay tax under Section 7-C of the TNGST Act. This finding is clearly contrary to the factual position. Thus, on fact, it has been established by the petitioner that he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 139 of the Income Tax Act. According to the Revenue, each one of the assessee should file a separate application or a letter indicating their intention to avail depreciation in terms of Section 32 read with Rule 5(1) of the Income Tax Rules and since the assessee in each case has not exercised such an option before the due date for furnishing the return of income, they will not be entitled to the benefit of Rule 5(1) Appendix I, but depreciation only under Rule 5(1A) Appendix 1A. 17. It is relevant to note that while filing the return of income, a procedure has been prescribed for claiming depreciation as pointed out above. The assessee has to set out the manner in which depreciation is claimed for the assessment years in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n should be exercised separately would make the returns filed meaningless. 6.The above referred decision can very well be applied to the facts of the present case, as under the TNGST Act or the Rules framed thereunder, there is no separate form provided or any separate method provided for exercising the option to pay tax under Section 7-C of the TNGST Act. Therefore, it can be safely concluded that the assessee by filing a return and paying tax under Section 7-C of the TNGST Act amounts to exercising option under the said provision. Thus, the respondent committed an error in holding that the petitioner did not exercise his option. Therefore, the first question is answered in favour of the petitioner and against the revenue. 7.So fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, only if part of the turnover of business of a dealer, who has been permitted to pay tax under Section 7-C of the TNGST Act has escaped assessment from the tax, the assessing officer is entitled to invoke the power conferred under Section 16-AA of the TNGST Act, in terms of the conditions contained therein and within the time permitted. However, the case on hand is a case where the assessing officer holds that the petitioner has not exercised option under Section 7-C of the TNGST Act and he has to be assessed under Section 3-B of the TNGST Act, that being a regular assessment in respect of levy of tax on the transfer of goods involved in 'works contract'. Thus, the respondent cannot trace his power to Section 16-AA of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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