TaxTMI 
TaxTMI 
2018 (2) TMI 877
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....n called Tamil Nadu State Marketing Corporation Ltd., which has been given the exclusive privilege right to engage in the business of trading/retail vending in liquor within the State of Tamil Nadu. In these writ petitions, the petitioner questions the orders of reopening of assessment passed by the fourth respondent (Corporate Circle 3 (1)) for the assessment years 2007-08 and 2009-10. 3.Mr.J.Narayanaswamy, learned Senior Standing Counsel for the Revenue objected to the maintainability of these writ petitions on the ground that, if the petitioner was aggrieved, they have to file regular appeals against the assessment orders dated 19.02.2015 & 20.02.2015 and they cannot bypass the appellate remedy available under the statute. In this regar....
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.... reopening, which were furnished on 14.02.2014, for which the petitioner has submitted objections on 10.02.2015. 6.In terms of the decision of the Hon ble Supreme Court in GKN Driveshafts (India) Ltd. vs. ITO reported in [2003] 259 ITR 19, the respondent/assessing officer was expected to pass a speaking order and if aggrieved, the assessee is entitled to challenge the same. This procedure has been given a go-by. This defect committed by the assessing officer goes to the root of the matter thereby affecting the very validity of the impugned assessment order. Thus, when the Tribunal has held in favour of the petitioner in respect of the similar issue for the very same assessment year, would the present reassessment amount to a change of opin....
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....spect. That apart, it has been held that the duty of the assessee is only to disclose primary facts before the assessing officer and it is for the assessing officer to arrive at a conclusion on the facts disclosed. 9.Bearing the above legal principles in mind, if the reasons for reopening are seen, it is stated that the entire special privilege fee debited to the profit and loss account is not allowable, since it is an application of income and cannot be allowed as deduction under Section 37(1) or under any other provisions of the Act. In fact, for all the assessment years, the assessing officer himself granted partial relief to the assessee by allowing amount paid as special privilege fee as deduction under Section 37(1) of the Act, that ....
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....on Ltd., which is some what similar to the petitioner/Corporation, to the State Government would be taxable with effect from 01.04.2004 and not prior thereto. It was further held that unreasonable privilege fee payable is also not a ground to hold that it is a device by which the petitioner and the State Government are avoiding payment of tax. In this regard, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Har Shankar v. Deputy Excise and Taxation Commissioner AIR 1975 SC 1121. Ultimately, the Court set aside the assessment order in so far as it treats the privilege fee paid as being taxable income. 12.The decision in the case of Karnataka State Beverages Corporation Ltd. (supra) was noted and followed b....