LIVE TONE Vs. STATE OF TRIPURA

JUDGEMENT

(1.) M/s. Live Tone through its proprietor Shri Shyamal Kumar Banik has filed the present writ petition for cancelling the impugned orders dated 26.8.1997 passed in Revision Case No. 5/CH- V/97 and 23.9.1997 passed in Revision /Misc. Case No. 5/CH-V/97 by the Commissioner of Taxes, Government of Tripura, Agartala, Annexure - B & D respectively and also prayed for a direction not to give effect to the aforesaid orders.

(2.) The petitioner is a registered dealer under the Tripura Sales Tax Act, 1976 and carrying on business in the purchase and developing and printing of photographs etc. The petitioner firm maintains the books of accounts and has furnished Sales Tax return showing turn over as Nil for the assessment years 1988-89 to 1994-95. The Superintendent of Taxes, Charge- V, Government of Tripura issued notice for production of books of accounts and records for the aforesaid assessment years and accordingly, the petitioner firm produced the books of accounts for verification and examination by the Superintendent of Taxes. After examination of the books of accounts, the Superintendent of Taxes accepted the return of the petitioner firm and no tax was imposed on the petitioner firm. The order passed by the Superintendent of Taxes dated 20.9.95 has been annexed with the petition as Annexure-A. Thereafter the petitioner received an order on 26.8.1997 passed by the Commissioner of Taxes wherein the Commissioner of Taxes re- opened the assessment by registering a Revision Case under Section 21(1) of the Tripura Sales Tax Act, 1976. The Commissioner of Taxes while re-opsning the Revision Case formed an opinion that the Superintendent of Taxes committed an error in accepting the return of the petitioner firm as the business of the petitioner firm falls under the works contract. Accordingly, the Commissioner of Taxes directed the: petitioner to produce all books of accounts and also for personal hearing. The petitioner filed an application before the Commissioner of Taxes stating that the business of the petitioner firm do not fall under works contract and consequently the petitioner filed a petition to the Commissioner of Taxes seeking adjournment of hearing on the ground that the petitioner will file a writ petition before the High Court for interpretation of the statutory provisions of the Tripura Sales Tax Act. The Commissioner of Taxes by his order dated 23.9.97, Annexure-D granted adjournment, but he observed that if the petitioner is aggrieved by any order of the Commissioner of Taxes, he may move the higher authority including the Hon'ble High Court. Having felt aggrieved by the said order of the Commissioner of Taxes, the petitioner firm has filed the present writ petition.

(3.) A counter-affidavit has been filed on behalf of respondents Nos.1 and 2, that is the State of Tripura and Commissioner of Taxes. But the counter-affidavit has been signed on behalf of Government of Tripura and not by the Commissioner of Taxes, respondent No.2. Therefore, I am of the view that though it has been stated in the counter-affidavit that the reply is on behalf of respondents Nos.1 and 2, the counter-affidavit can be treated as a counter- affidavit on behalf of State respondent only. The Commissioner of Taxes, respondent No.2, neither appeared in the case in his capacity as Commissioner of Taxes nor he has filed any counter-affidavit.