O.M.Chandrasekar, Judicial Member - (1.) THE prayer in the original petition is to quash the attachment order issued in TNGST No. 0441684/2003/A3 dated April 28, 2003, along with the B6 notice issued in TNGST No. 0441684/2000 -2001 and 2001 -02 dated April 28, 2003 by the first respondent and to direct the first respondent to proceed against the second respondent to recover the tax amount.
(2.) THE petitioner states that he is a registered dealer on the file of the first respondent. The petitioner undertook sub -contract work of construction of factory building for M/s. Hyundai Project at Sriperumbudur comprising roofing and wall cladding works from the principal contractor, M/s. Dual Structurals and Industries Ltd./the second respondent herein. In accordance with the terms and conditions of the work order and in accordance with the provisions of Section 7 -F, the principal contractor/second respondent was deducting two per cent tax amount from the amount payable to the sub -contractor/petitioner herein. Accordingly, a tax amount of Rs. 2,11,389 (Rs. 1,92,473 for the year 2000 -2001 and Rs. 18,916 for the year 2001 -2002) was deducted by the second respondent from the amount payable to the petitioner as per Section 7 -F(1) of the Tamil Nadu General Sales Tax Act, 1959. This deduction was also confirmed by the second respondent in the statements dated February 26, 2001 and April 26, 2001 of the petitioner to the second respondent. The above tax deductions were duly shown in the returns filed before the first respondent for the years 2000 -2001 and 2001 -2002. The petitioner was requesting the second respondent to issue TDS certificate along with form XXXVII for the tax deducted from the payment due to the petitioner through various registered letters dated March 16, 2002, April 18, 2002 and August 3, 2002. Since there was no response from the second respondent, the fact was also brought to the notice of the first respondent and a requisition was made to recover the tax amount from the second respondent in accordance with the provisions of the Act. But, the first respondent has issued the impugned attachment order dated April 28, 2003 along with B6 notice to petitioner's Banker at Mumbai. Hence, the present original petition. On the instructions of the first respondent, Mr. M.C. Govindan, learned Senior Standing Counsel, argued that the petitioner undertook sub -contract work from the second respondent for Hyundai project at Sriperumbudur. As per Section 7 -F(4) of the Act, the burden of proving that the contract work had already suffered tax and that the tax due has been recovered and deposited with department lies on the dealer who claims exemption. Since the petitioner has not produced form XXXVII certificate issued by the principal contractor/ second respondent to prove tax deducted at source, the respondent has issued the impugned attachment order dated April 28, 2003 along with B6 notice, so as to recover the tax dues. In the absence of proof as to the tax deducted at source, the respondent is perfectly correct in issuing the impugned order. Therefore, no interference is called for.
(3.) THE learned counsel for the second respondent appeared before me and argued in support of the second respondent and he has filed counter in this case.;