DR. JUSTICE ANITA SUMANTH W.P. No.2451 of 2020 and WMP. No.2845 of 2020 State Bank of India Officers Association (CC)-

[10/16, 08:08] Sekarreporter 1: W.P. No.2451 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.08.2020
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. No.2451 of 2020
and
WMP. No.2845 of 2020
State Bank of India Officers Association (CC)-
SBIOA Represented by its
General Secretary Mr.R.Balaji,
SBIOA (CC) No.86 Fourth Floor,
Rajaji Salai, Chennai 600 001 .. Petitioner
Vs.
1 The Assistant Commissioner (ST),
Muthialpet Assessment Circle,
Room No.319, III Floor,
Integrated Commercial Taxes Office Complex,
Vepery, Chennai -600 003.
2 Assistant Commissioner of Commercial Taxes,
Egmore Assessment Circle,
No.88 V.R.Ramanathan Road,
Chetpet Chennai- 31.
3 Simplex Infrastructures Limited,
48 Casa Major Road Egmore,
Chennai- 600008. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to Writ of Certiorari to call for the records in the proceedings in
Reply Letter Rc.No.1/2017/A4/2016-17 dated 23.01.2020 issued by the
Respondent and quash the same as arbitrary and illegal.
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[10/16, 08:08] Sekarreporter 1: W.P. No.2451 of 2020
For Petitioner: Mr.Joseph Prabakar

For Respondent: Mr.Mohammed Shaffiq, Spl.G.P.
– R1 & R2
Mr.K.A. Parthasarathi – R3
O R D E R
The petitioner is a Trade Union, the State Bank of India Officers
Association, Chennai Circle, formed under the Indian Trade Union Act 1926
with its primary object being the organization, welfare and unity of members of
the State Bank of India and the regulation of their relations.
2. The petitioner had developed a residential project called SBIOA Unity
Enclave exclusively for members of the Union at Kancheepuram. It had, for
this purpose, engaged Simplex Infrastructure Limited/R3 (suo motu impleaded
by me on 03.02.2020) for construction of the project. There was no profit
motive and the project was undertaken on cost basis wherein the cost of the
residential unit purchased by a member would be borne in full by that member.
The documentation entered into by the petitioner with R3 provided for the
terms of payment which, as per the prevailing norms in the industry, were to be
made slab-wise, based upon the progress of the contract.
3. The provisions of the Tamil Nadu Value Added Tax Act, 2006 (in
short ‘TNVAT Act’) provide for the deduction of tax at source on remittances
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[10/16, 08:09] Sekarreporter 1: W.P. No.2451 of 2020
deduction at source under Section 13 would be amenable only to revision and
not appeal. The Division Bench accepted the argument of the revenue holding
at paragraph 13 as follows:
’13. There is a clear finding in the order passed by the second
respondent that the proceedings under Sections 22, 24, 26, 27, 28, 29, 34 and
40(2) alone are appealable under Section 51 of the TNVAT Act, 2006 and the
challenge regarding wrong deduction of TDS and the deduction of TDS
under Section 13 of the TNVAT Act 2006 cannot from part of the assessment
under Section 27 of the Act and therefore the appeal is not entertainable. The
decision was not on the merits of the subject matter but on the
entertainability of the subject matter itself. This finding is clearly on the
jurisdiction of the second respondent and when the second respondent held
that there is no jurisdiction to entertain the appeal itself, then
contemporaneously the Appellate Authority should have ordered return of
the amount paid under the orders of the Second respondent.’
A contrary stand is taken by the revenue in the matter before me now.
44. In conclusion and to summarize, while issues on tax deduction would
form part of an order of assessment and the computation thereof, as applicable
to assessees/dealers under Sections 22 to 27 and amenable to appeal under
Section 51 and 52, issues of non-deduction in the case of a non-dealer/non-
assessee under the provisions of the Act would form part of an order under
Section 13(4) amenable to revision under Section 54. This issue is answered in
favour of the petitioner. I may at this juncture point out that this issue has not
been decided by the learned single Judge or by the Division Bench and hence
there is no conflict by my having dealt with the same in this round of litigation.
45. In the facts and circumstances as discussed above in detail, the relief
sought for by the petitioner is moulded, and both the impugned order dated
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[10/16, 08:09] Sekarreporter 1: W.P. No.2451 of 2020
23.01.2020 under Section 84 of the TNVAT Act and order of assessment dated
28.05.2019 are quashed. The Writ Petition is allowed. No costs. Connected
Miscellaneous Petition is closed.
18.08.2020
sl/vs
Index : Yes/No
Internet :Yes/No
Speaking Order/Non Speaking Order
To
1 The Assistant Commissioner (ST),
Muthialpet Assessment Circle,
Room No.319, III Floor,
Integrated Commercial Taxes Office Complex,
Vepery, Chennai -600 003.
2 Assistant Commissioner of Commercial Taxes,
Egmore Assessment Circle,
No.88 V.R.Ramanathan Road,
Chetpet Chennai- 31.
Dr.ANITA SUMANTH, J.
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