N. JAYAMURUGAN Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THE writ petition is filed seeking for the relief of issuance of a writ of certiorarified mandamus to call for the records of the first respondent in Rc. 1668/2004/A3 dated July 8, 2004 and quash the same as illegal, unlawful and unconstitutional and direct the second respondent to fix the tax liability on a right person after conducting necessary enquiry and ascertaining the facts.

(2.) THE facts of the case are: The Himalayan Lottery Centre has been inspected by the Enforcement Wing Officials, Chennai on September 8, 1986 at No. 206, Triplicane High Road, Chennai -5 and found that the said company being a dealer in the lottery tickets had not registered themselves under the Tamil Nadu General Sales Tax Act, 1959. No day to day accounts were maintained. No stock books have been maintained for the lottery tickets available. No purchase bills have been produced for the goods worth Rs. 49,541 available at the time of inspection. On the basis of the inspection report, the assessing officer seems to have been framed assessment for the assessment years 1984 -85, 1985 -86 and 1986 -87, as seen from the letter of the second respondent -Commercial Tax Officer, Ice House Assessment Circle dated May 8, 2001, which is made available at page No. 11 of the typed set of papers. Thereupon there is a series of correspondence between the petitioner Jayamurugan disowning the Himalayan Lottery Centre. The petitioner's representative seems to have met the Commercial Tax Officer on March 1, 2001 and explained that the petitioner had no connection with the Himalayan Lottery Centre. Thereupon the petitioner by their letter dated July 14, 2001 requested the second respondent to furnish the assessment order copy for the said assessment years for which the second respondent replied that the assessment for the assessment years 1984 -85 to 1986 -87 were finalised on July 31, 2001 and served on the dealer on August 24, 2001. Thereafter, there is several correspondence between the petitioner and the second respondent. Ultimately, the Commercial Tax Officer, T. Nagar (East) Assessment Circle issued a notice on July 8, 2004 directing the petitioner to pay tax on sale of lottery tickets for the assessment years 1984 -85 to 1986 -87 within three days failing which the petitioner was informed that the petitioner's bank account would be attached and movable and immovable properties would be distrained and penal action would be taken against the petitioner.

(3.) WHILE that being so, a Constitution Bench of the Supreme Court in the case of Sunrise Associates v. Government of NCT of Delhi reported in : AIR2006SC1908 overruled prospectively, the earlier judgment of H. Anraj v. Government of Tamil Nadu reported in : AIR1986SC63 which held that the lottery tickets were goods and liable to be taxed by holding that two distinct rights were transferred to the purchaser of lottery ticket, i.e., right to participate in the draw and chance to win. It was held that tax could be levied on the right to participate in the draw which was held to be the goods but not on the chance to win which was held to be actionable claim.