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R.BANUMATHI, J. & T.S.SIVAGNANAM, J.

These writ petitions arise under the Tamil Nadu Value Added Tax, 2006 (TN Act 31 of 2006) (hereinafter referred to as the VAT Act).

2. Broadly, there are two category of cases, one set of writ petitions filed for issuance of writ of Declaration that Section 19(1) of the VAT Act prescribing the period for claim of Input Tax Credit (ITC) is inconsistent with the charging Section 3(2) and Section 3(3) and the general scheme of the Act for filing return and annual assessment and reassessment embodied such as Section 22, 27(b), Section 29, the revisional power under Section 53 and to be declared unenforceable and irrational infringing Article 14 and 19(1) (g) of the Constitution of India insofar as setting out a condition as to time.

3. In the other set of writ petitions prayer has been made for issuance of writ of Mandamus to forbear the State of Tamil Nadu from recovering tax in excess of 4% in disregard of item 24 of G.O.Ms.No.3, CT & R (B1) department, dated 01.01.2007, notified under serial No.68 of Part B of the First Schedule to the VAT Act, by resorting to levy at 12.5% under the residuary classification of Part C of the First Schedule to the VAT Act by giving effect to the order passed by the Commissioner of Commercial Tax, dated 18.04.2007.

Question No.(ii)

24. Having held that the writ petitions are maintainable, it has to be decided as to what would be the appropriate entry under which ink jet cartridges and toner cartridges are to be classified.

25. The petitioner in the lead case before us had been confronted with an identical problem under the Delhi Value Added Tax Act and the question of taxability of ink cartridges and toner cartridges used in ink jet printers and laser jet printers was subject matter in issue. The petitioner/assessee subjected themselves to the proceedings under the Delhi VAT Act and the goods were charged to tax at the rate of 12.5% treating the cartridges as unsettled goods, neither parts nor accessories to printers. The petitioner/assessee approached the Commissioner (Appeals) who confirmed the finding of the assessing authority, feeling aggrieved, they approached the High Court by filing a writ petition, which was allowed and the matter was remanded to the Commissioner. Once again the Commissioner held that the cartridges attract tax at 12.5% under the Delhi VAT Act. This was challenged before the Appellate Tribunal for Value Added Taxes, Delhi. The Tribunal accepted the case of the petitioner/assessee and observed that laser jet printers and ink jet printers are covered under chapter heading HSN 84.71, which finds place in entry No.41-A (xxv), which reads as parts and accessories of HSN 84.69, 84.70 & 84.71. The Tribunal went on to examine the meaning of the words "parts and accessories", which have not been specifically defined under the Delhi VAT Act. After considering the definition given in the dictionaries and examining the various decisions of the Hon'ble Supreme Court as to how entries in taxing statute are understood in common parlance especially in commercial circle held that the petitioner/assessee have proved that ink cartridges and toner cartridges are parts/accessories, rather essential parts of the respective printers and the printers become incomplete and incapable of functioning without the ink/toner cartridges and this is sufficient guide to show that ink cartridges and toner cartridges are parts of ink jet and laser jet printers. Accordingly, the appeal was allowed and the rate of tax was at fixed 4%. The revenue preferred appeal to the Delhi High Court, which was dismissed (in 2007 INDLAW, Delhi 1301) holding that toner and cartridges do not fall under entry 54 of the Third Schedule of Delhi VAT Act, as they are parts and accessories and the order of the appellate tribunal was confirmed.

30. While, we are entirely in agreement with the decisions of the Delhi High Court and the Gauhati High Court referred above, we shall assign independent reasons with specific reference to the provisions in the Tamil Nadu VAT Act.

31. Section 3 of the Act deals with 'Levy of taxes on sales of goods'. Sub-section (1) of Section 3 casts a mandate on every dealer, other than a casual trader or agent of a non-resident dealer, whose total turnover for a year is not less than rupees five lakhs and every casual trader or agent of a non-resident dealer, whatever be his total turnover, for a year, shall pay tax under the VAT Act. Sub-Section (2) of Section 3 states that subject to the provisions of sub-section (1), in the case of goods specified in Part B or Part C of the First Schedule, the tax under the VAT Act shall be payable by a dealer on every sale made by him within the state at the rates specified therein. Proviso to sub-section (2) provides that all spare parts, components and accessories of such goods shall also be taxed at the same rate as that of the goods if such spare parts, components and accessories are not specifically enumerated in the First Schedule and made liable to tax under that schedule. Sub-section 3 of Section 3 states that the tax payable under sub-section (2) by a registered dealer shall be reduced, in the manner prescribed, to the extent of tax paid on his purchase of goods specified in Part-B or Part-C of the First Schedule, inside the state, to the registered dealer, who sold the goods to him. Thus, sub-section (1) and (2) of Section 3 are the charging provisions.