JOINT COMMISSIONER (CT)-III Vs. MKS INDUSTRIES

JUDGEMENT

(1.) CHALLENGE in this writ appeal is to the order dated September 17, 2008 passed in W.P. (MD) No. 786 of 2005. The respondent/petitioner is a registered dealer under the Tamil Nadu General Sales Tax Act 1959 and its duty is to purchase materials such as, steel rods and base materials from local markets and utilise the same for the purpose of making rolling shutters. Under the said circumstances, the assessing authority (Deputy Commercial Tax Officer -II), Rajapalayam, who has been arrayed as second appellant/second respondent has directed the respondent/petitioner to pay the tax in terms of section 3(2) of the Tamil Nadu General Sales Tax Act, 1959 and the same has been challenged before the first appellate authority (Appellate Assistant Commissioner (CT)), Virudhunagar. The appellate authority (Appellate Assistant Commissioner (CT)), Virudhunagar has partly allowed the appeal and given a specific finding to the effect that the respondent/petitioner is entitled to get deduction as per section 3B(2)(b) and the first appellant herein/first respondent, Joint Commissioner (CT) -III (SMR) has taken suo motu revision and set aside the order passed by the appellate authority and restored the order passed by the second appellant/second respondent. The order passed by the first appellant herein/first respondent has been challenged by way of filing W.P. (MD) No. 786 of 2005 under article 226 of the Constitution of India.

(2.) THE learned single judge after considering the factual situation and also manner of demand made by the second appellant/second respondent has allowed W.P. (MD) No. 786 of 2005 and thereby set aside the order passed by the first appellant/first respondent. Against the order passed by the learned single judge, the present writ appeal has been preferred at the instance of the respondents as appellants.

(3.) THE learned counsel appearing for the respondent/petitioner has sparingly contended that in the instant case, the primary work of the respondent/petitioner is to purchase raw materials in the form of steel rods and base materials and on the basis of contract given to it, the same have been converted into rolling shutters and therefore, the entire work of the respondent/petitioner is based upon works contract and the respondent/petitioner is not entitled to pay tax under section 3(2) of the Tamil Nadu General Sales Tax Act, 1959. Under the said circumstances, the order passed by the first respondent/first appellant herein is erroneous and the same is challenged by way of filing W.P. (MD) No. 786 of 2005 and the learned single judge after considering the nature of work done by the respondent/petitioner has rightly allowed the same and therefore, the order passed by the learned single judge does not require any interference.