Rajasthan High Court - Jaipur
Best It World (India)Pvt Ltd vs Assi Commi Anti Evasion And Anr on 8 October, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. S.B. CIVIL WRIT PETITION NO.9945/2012 Best IT World (India) Pvt. Ltd., Jaipur vs. Assistant Commissioner Anti Evasion & Anr. 2. S.B. CIVIL WRIT PETITION NO.9946/2012 Best IT World (India) Pvt. Ltd., Jaipur vs. Assistant Commissioner Anti Evasion & Anr. 3. S.B. CIVIL WRIT PETITION NO.9947/2012 Best IT World (India) Pvt. Ltd., Jaipur vs. Assistant Commissioner Anti Evasion & Anr. 4. S.B. CIVIL WRIT PETITION NO.9948/2012 Best IT World (India) Pvt. Ltd., Jaipur vs. Assistant Commissioner Anti Evasion & Anr. 5. S.B. CIVIL WRIT PETITION NO.9949/2012 Best IT World (India) Pvt. Ltd., Jaipur vs. Assistant Commissioner Anti Evasion & Anr. Date of order : 08/10/2012. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri J.K. Ranka for the petitioner. Shri R.B. Mathur for the respondents.
****** These petitions are directed against the show cause notice issued by the Assistant Commissioner, Anti Evasion, Zone-1, Commercial Taxes Department, Jaipur. The facts of SB CWP No.9945/2012, in which first such notice was issued is taken into consideration for deciding all the petitions. In that writ petition, the petitioner has assailed the show cause notice dated 18.6.2012. The notice has been issued to the petitioner in Form No.14, Rule 20(1) and 49 and under Section 26, 55, 61 and 64 of Rajasthan Value Added Tax Act, 2003.
Contention of learned counsel for the petitioner is that the petitioner-assessee is dealing in computers, computers hardwares, computer stationery, peripherals, computer parts peripherals and accessories, computer software, all type of Information Technology products etc. and that all these items are covered within the purview of computer peripherals and therefore would be covered by Entry-3 in Part-A of Schedule-4 appended to the Rajasthan Value Added Tax. Entry-3 read thus:
Computer system and peripherals, computer printers excluding multi functional devices and electronic diaries.
In past also the petitioner has been assessed for sale of these items at the rate of 4% which rate has now been enhanced to 5% treating them as computer peripherals.
In fact in response to a query made by one Suresh Kumar Saini under the Right to Information Act, the System Analyst (Joint Director) of the Commercial Taxes Department, Jaipur has informed that even the respondent-department has paid for purchase of these items VAT at the rate of 4%. Learned counsel has argued that the respondents in their reply to para 1.7 have referred to one M/s.Ingram Micro India contending that they are paying tax at the rate of 14% treating the aforesaid items to be covered by the residuary entry, which is factually incorrect because the petitioner procured and produced the bills issued by the said company to one of its customers showing VAT at the rate of 5%. The bill dated 7.5.2012 (Annexure-8) has been relied on.
Learned counsel has relied on the judgement of this Court in Assistant Commissioner vs. Bits and Bites-(2011 44 VST 416 (Raj.) and Reckitt Benckiser (India) Pvt. Ltd. vs. State & Ors., CWP No.3451/2010 decided on 19.03.2010 and argued that this Court in Bits and Bites, supra with regard to constant voltage transformers and uninterruptible power sources held that they are capable of use with other equipment and that they are accessories of computers and taxable as such and not under residuary entry. Learned counsel has also relied on the judgement of Delhi High Court in Richo India Ltd. vs. Commissioner-(2012) 22 Taxmann.com 104 (Delhi) in which case multifunction machines like computer printers or scanners were held to be covered by residuary entry and not by Entry 41A of the third Schedule of the VAT Act applicable there. Entry 41A was relating to IT products notified by the Ministry of I.T. as specified below:
computer systems and peripherals, Electronic diary.
Shri R.B. Mathur, learned counsel for the respondent opposed the writ petition and submitted that the judgements of this Court and Delhi High Court on which reliance has been placed by learned counsel for the petitioner, reached the High Court after the assessment orders were passed and they were subject to appeals and revisions etc. In the first case, after the advance ruling was obtained by the Commissioner and in the second case the matter reached the High Court through Tribunal. Learned counsel has relied on the judgement of this Court in Kota Box Manufacturing Co. vs. State & Ors.-(1983) 54 STC 284 (Raj.)and argued that at the stage of show cause notice, no interference can be made.
On hearing learned counsel for the petitioner and perusing the material on record, I find that even though respondents may have in the past, charged VAT at a lesser rate treating the said items to be covered by Entry no.3, but whether or not they are covered within the computer peripherals is a question of fact which the assessing authority has yet to decide. The assessing authority obviously will take into consideration the past assessments made qua the petitioner-assessee itself and also in the case of M/s. Ingram Micro India and other similarly situated parties and other examples which the petitioner may cite before it. It may also take into consideration the information produced by the petitioner obtained from the respondent-department itself under the RTI Act to show that the respondents have been paying interest at the rate of 4% in the past deeming the above referred to items to be covered by Entry-3. At this stage, there is no warrant to presume that the assessing authority will in all probabilities decide the issue against the petitioner by taking the items to be covered by residuary entry and not by Entry no.3.
I therefore see no extraordinary reason to entertain these writ petitions directly before this Court against the show cause notice. Without therefore expressing any opinion on the merits of the case, the writ petition are dismissed. However, nothing said herein would be construed to affect the merits of the case either way.
With those observations, the writ petitions are dismissed.
(MOHAMMAD RAFIQ), J.
RS/27-31 All corrections made in the judgement/order have been incorporated in the judgement/order being emailed.
(Ravi Sharma,P.A.