VISHAL AGENCIES Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) THESE writ petitions are filed originally as Original Petitions before the Tamil Nadu Taxation Special Tribunal assailing the correctness of the common order made in review applications in MTRA Nos. 53 and 54 of 2002 pending appeal before the Tamil Nadu Sales Tax Appellate Tribunal. After abolition of the Tribunal, the OPs were transferred and numbered as writ petitions and have come up for hearing for orders today.

(2.) THE prayer in the writ petition is to call for the records relating to the order impugned in MTRA Nos. 53 and 54 of 2002 dated 04. 04. 2003 passed by the fourth respondent Tamil Nadu Taxation Appellate Tribunal (Additional Bench), Madurai and set aside the same and direct the respondent to furnish the xerox copy of D7 records without insisting on the petitioner to produce the accounts.

(3.) THE facts as culled out from the affidavit filed in support of the writ petition is as follows : The petitioner was doing business in the name and style of Vishal Agencies, Madurai. The activities of the petitioner are bringing the ready-made garment sellers at Bombay and by other up-countries and the purchasers in Tamilnadu together. The respective parties negotiated themselves for purchase of goods, i. e. , ready made garments and the mode and time of making payment for the purchases so made. The only part played by the petitioner in these transactions apart from making the parties to meet together, was to stand as a guarantor for the payment to be made by the Tamilnadu purchasers. Thus, according to the petitioner the petitioner cannot be regarded as a dealer as defined in the Tamil Nadu General Sales Tax Act. In view of the petitioner's peculiar trading activities and on the bona fide impression that the petitioner is not a dealer, the petitioner has not registered himself as a dealer under the provisions of the Tamil Nadu General Sales Tax Act, 1959 or under the Central Sales Tax Act, 1956. While that being so, one of the dealers in Tamil Nadu M/s Mastex, Sundaram Arcade of Trichy, not satisfied with the quality of the goods purchased from the Bombay dealer, M/s Female Fashion at Bombay, returned the goods under the cover of Form XX delivery note No. 043868 dated 07. 02. 1997 to the petitioner, being the guarantor for the transaction and introducer of the party. The goods were detained at Melur check post near Madurai and subsequently, the goods got released. Based on the report of the check post officer that the goods were returned to the petitioner at Madurai, the Enforcement Wing officers made an inspection of the petitioner's premises at No. 37, Mahal 4th street, Madurai and unearthed certain incriminating documents which are 191 in number under cover of D7 receipt on 12. 03. 1997. It appears that the Enforcement Wing officers after scrutinising the incriminating documents transferred the file to the jurisdictional assessing officer, the first respondent herein. The first respondent on the basis of the report submitted by the Enforcement Wing Officers sent summons requesting the petitioner to appear before him along with the relevant records, i. e. , books of accounts maintained by the petitioner for the assessment years 1995-96 and 1996-97. As there was no response from the petitioner finally the first respondent issued pre-assessment notice. According to the petitioner, the petitioner being intermediary of the purchaser of Tamilnadu and seller of other States and up-countries, it is his obligation to collect the invoice amount from the purchaser of Tamilnadu and other States and remit the same to the sellers at Bombay. He was always touring from place to place to collect the sale consideration from the purchasers and to remit the same to sellers and hence, the petitioner was not able to heed to the calls from the first respondent. That made the first respondent to pass a best judgment assessment based on the incriminating documents recovered from the premises of the petitioner, by assessment order dated 20. 10. 1999. According to the petitioner the slips seized and secured from the petitioner's premises pertain to the correspondence between the petitioner and the sellers at Bombay in respect of the arrears to be collected as per the invoices raised by the Bombay sellers. Aggrieved against the two assessment orders, the petitioner filed two appeals before the Appellate Assistant Commissioner in A. Ps. Nos. 393 and 394 of 1999, Madurai which appeals came to be dismissed on 01. 03. 2000. The petitioner preferred second appeals before the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Madurai in M. T. As. Nos. 292 and 293 of 2000. In order to put-forth its case the petitioner filed a petition before the Tribunal seeking for a direction directing the first respondent, the assessing officer to furnish the petitioner the copies of D7 records seized from the petitioner's premises which formed the basis for assessment. The Tribunal by its order dated 23. 07. 2001 passed an order directing to furnish copy of D7 records at the cost of the petitioner. The respondent revenue filed review applications before the Tribunal in MTRA Nos. 53 and 54 of 2002 and got the order of the Tribunal dated 23. 07. 2001 modified to the effect that the copies of D7 records shall be issued to the respondent on the respondent producing the relevant accounts. The correctness of the said order made in the review applications is canvassed before this Court by relying on a judgment of the Division Bench of this Court dated 26. 08. 2002 made in writ petition No. 22433 and 22434 of 2002 in the case of Vijaya Oil Mills v. DCTO, Madurai.