Madras High Court
M/S.Tamil Nadu State Marketing ... vs Assessment Unit on 24 January, 2023
W.P.No.1807 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.01.2023
CORAM :
The Hon'ble MR.JUSTICE ABDUL QUDDHOSE
W.P. No.1807 of 2023
and W.M.P.Nos.1923 and 1925 of 2023
M/s.Tamil Nadu State Marketing Corporation
Ltd., 4th Floor, CMDA Tower-II,
Gandhi Irwin Bridge Road, Egmore,
Chennai 600 008, Rep. by its Managing
Director, Shri.Dr.L.Subramanian. .. Petitioner
-vs-
1. Assessment Unit,
Income Tax Department.
2. The Deputy Commissioner of Income Tax,
Corporate Circle-3(1),
121, Mahatma Gandhi Road,
Chennai 600 034. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for issue of Writ of Certiorari to call for the records of the
petitioner on the file of the 1st respondent and quash the impugned
Assessment Order in DIN: ITBA/AST/S/143(3)/2022-
23/1048249481(1) dated 26.12.2022 for the assessment year 2021-
22 in PAN: AAACT2964P passed by the 1st respondent.
Page 1 of 6
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W.P.No.1807 of 2023
For Petitioner : Mr.R.Vijaya Raghavan
for M/s.Subbraya Aiyar
Padmanabhan
For Respondents : Mr.D.Prabhu Mukunth Arun Kumar
Jr. Stdg. Counsel
*****
ORDER
The petitioner has challenged the impugned assessment order
dated 26.12.2022 passed under Section 143(3) read with Section
144B of the Income Tax Act, 1961, in this writ petition.
2. The main contention of the petitioner in this writ petition is
that the Value Added Tax will not fall under Section 40(a)(iib) of the
Income Tax Act, as it cannot be equated to royalty, licence fee, service
fee, previlege fee, service charge or any other fee or charge by
whatever name called.
3. The learned counsel for the petitioner/TASMAC also drew the
attention of this Court to a judgment of the Hon'ble Supreme Court in
the case of Kerala State Beverages Manufacturing & Marketing
Corporation Ltd. vs. The Assistant Commissioner of Income
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W.P.No.1807 of 2023
Tax, Circle 1(1) passed in Civil Appeal No.11 of 2022 on
03.01.2022. In the aforesaid decision, while dealing with sales tax
and considering the scope of Section 40(a)(iib) of the Income Tax Act,
the Hon'ble Supreme Court has held that the fee or charge as
mentioned in Section 40(a)(iib) is clear in terms and that will take in
only the fee or charge as mentioned therein or any fee or charge by
whatever name called, but cannot cover the tax or surcharge on tax
and such taxes are outside the ambit and scope of Section 40(a)(iib) of
the Act.
4. Since the Hon'ble Supreme Court in the aforesaid decision has
held that taxes will not come within the purview of Section 40(a)(iib)
of the Income Tax Act, the petitioner has challenged the impugned
assessment order on the ground that by total non-application of mind
to the settled law, the Department has disallowed the deductions
claimed towards VAT by erroneously applying Section 40(a)(iib) of the
Income Tax Act.
5. However, as seen from the averments contained in the
affidavit filed in support of the writ petition, there is an impediment for
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W.P.No.1807 of 2023
this Court to entertain this writ petition in view of the following
reasons:
a) The petitioner, for a different assessment order, had raised
the very same issue before this Court by filing a writ petition
in W.P.No.10123 of 2022. A learned Single Judge of this
Court dismissed the said writ petition as not maintainable by
his order dated 26.04.2022 on the ground that the petitioner
ought to have exercised the alternate statutory appellate
remedy as against the assessment order and without
exercising the same, the petitioner has directly approached
this Court under Article 226 of the Constitution of India.
b) Aggrieved by the aforesaid order of the learned Single Judge,
the petitioner had filed a writ appeal before a Division Bench
of this Court in W.A.No.1879 of 2022. By an interim order
dated 22.09.2022 in W.A.No.1879 of 2022 and
C.M.P.No.13782 of 2022, the Division Bench had granted
interim stay of all further proceedings with regard to the
assessment order till 31.10.2022, which was extended until
further orders by order dated 05.12.2022.
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W.P.No.1807 of 2023
6. In view of the fact that the petitioner is one and the same and
the very same issue was raised in respect to another assessment year,
as is being raised in this writ petition, this Court is of the considered
view that the petitioner will have to necessarily approach the Division
Bench for obtaining suitable orders in its favour and this Court does
not have the power to entertain this writ petition.
7. Only on the aforesaid ground, without going into the merits of
the petitioner's contentions, this Court is of the considered view that
the present writ petition is not maintainable. Accordingly, this writ
petition is dismissed. No costs. Consequently, W.M.P.Nos.1923 and
1925 of 2023 are also dismissed.
24.01.2023
Index : Yes/No
Speaking/non-speaking order
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Issue order copy on 24.01.2023
sra
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W.P.No.1807 of 2023
Abdul Quddhose, J.
(sra)
To
1. Assessment Unit,
Income Tax Department.
2. The Deputy Commissioner of Income Tax,
Corporate Circle-3(1),
121, Mahatma Gandhi Road,
Chennai 600 034.
W.P.No.1807 of 2023
24.01.2023
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