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Judgment
M.M. Kumar, J.—The petitioner has approached this Court with a prayer for quashing notice dated 23.12.2011 (P-1) regarding assessment under Sections 29, 32, 46 and 56 of the Punjab Value Added Tax Act, 2005 (for brevity ''the Act'') read with Section 9(2) of the Central Sales Tax Act, 1956 (for brevity ''the 1956 Act''). According to notice, the petitioner has calculated and paid tax on the manufacturing of photo albums @ 4% whereas the Assessing Officer has expressed his opinion that it ought to have been assessed @ 12.50%.
The petitioner has filed the reply on 07.01.2012 as well as on 11.01.2012 taking the plea that a circular dated 23.08.2005 clarifies that taxability on photo albums would be covered by Entry 86 of Schedule B of the Act and therefore, the calculation and payment of tax @ 4% is in order. The Assessing Officer has not yet passed any order on the view point expressed by the petitioner and the matter is fixed for today before him.
Notice of motion.
Ms. Sudeepti Sharma, DAG, Punjab who is present in the Court accepts notice on behalf of the respondent-State. Two copies of the paper book have been handed over to her by the learned counsel for the petitioner.
Keeping in view the nature of controversy raised and with the consent of the parties we proceed to dispose of the petition.
The issue whether the photo albums are covered by Entry 86 of Schedule B of the Act, is pending before the Assessing Authority. There is some clarification available in form of circular dated 23.08.2005 (P-2), which has been issued by the Office of Excise and Taxation Commissioner, Punjab. The petitioner has also placed reliance on a judgment of Hon''ble the Supreme Court rendered in the case of Commissioner of Customs v. Indian Oil Corporation Ltd. (2002) 144 STC 146 to argue that the circular issued by the Department are binding therefore, the matter is wide open before the Assessing Authority.
After hearing learned counsel for the parties, we are of the considered view that the issue needs to be first decided by the Assessing Authority before framing the assessment. Accordingly, the writ petition is disposed of by directing the Assessing Officer to first examine the issue with regard to application of circular dated 23.08.2005 and then frame the assessment, if such a necessity arises. However, before framing the assessment, a copy of the order shall be furnished to the petitioner and one week''s time shall be granted to him before the final assessment is framed. However, we make it clear that any observation made in this order shall not be considered as an expression of opinion on the merit of the controversy and the assessing authority should proceed to decide in accordance with law without being influenced by any observation.
Accordingly, the writ petition stands disposed of in the above terms.
A copy of the order be given to learned counsel for the petitioner under the signatures of the Bench Secretary today itself.