Madras High Court
Tvl.Lakshmi Agencies vs The Secretary To The Government Of Tamil ... on 10 April, 2024
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P(MD)Nos.247 and 248 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.04.2024
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
and
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.P(MD)Nos.247 and 248 of 2010
and
M.P(MD)Nos.2 and 2 of 2010 & WMP(MD)No.4671 of 2024
Tvl.Lakshmi Agencies,
No.2/13, Vatti Pillar Koil Street,
Kumbakonam,
Tanjore District. ... Petitioner in both WPs
vs.
1. The Secretary to the Government of Tamil Nadu,
Fort St. George,
Chennai - 600 009.
2. The Chairman,
Tamil Nadu Sale Tax Tribunal (Main Branch),
Chennai-600 104.
3. The Appellate Assistant Commissioner (CT),
Tanjore, Tanjore District.
4. The Deputy Commercial Tax Officer III,
Kumbakonam,
Tanjore District.
5. The Deputy Commissioner,
Commercial Taxes,
Trichy Division,
Trichy. ... Respondents in both appeals
https://www.mhc.tn.gov.in/judis
Page No.1 of 10
W.P(MD)Nos.247 and 248 of 2010
Prayer in W.P(MD)No.247 of 2010 : Petition filed under Article 226 of
the Constitution of India, to issue a Writ of Certiorari, calling for the records
pertaining to the order of the 2nd respondent in STA No.296 of 2005 dated
12.11.2009 confirming the Revisional Assessment order of 4th Respondent in
TNGST 3980504/98-99, dated 06.05.2002, and quash the same.
Prayer in W.P(MD)No.248 of 2010 : Petition filed under Article 226 of
the Constitution of India, to issue a Writ of Certiorari, calling for the records
pertaining to the order of the 2nd respondent in STA No.295 of 2005 dated
12.11.2009 confirming the Revisional Assessment order of 4th Respondent in
TNGST 3980504/97-98, dated 06.05.2002, and quash the same.
For Petitioner : Mr.C.K.M.Appaji
For Respondents : Mr.R.Suresh Kumar
Additional Government Pleader
COMMON ORDER
(Order of the Court was made by R.SURESH KUMAR, J.)
The writ petitioner is an Agency/Dealer in Kadappa, Granite and
Glazed Tiles, having business at Kumbakonam, which was assessed for the
years 1997-98 and 1998-99. Originally, the taxable turnover was Rs.7,63,869/-
and Rs.7,36,394/-, under the Tamil Nadu General Sales Tax Act, 1959.
Thereafter, a show cause notice was issued by the respondent / revenue, on the
ground that they have received some report from their counterpart at Rajasthan,
from where, under two such transactions, the materials had been purchased and
the 'C' Form produced by the petitioner/dealer in respect of two such
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W.P(MD)Nos.247 and 248 of 2010
transactions during the relevant year differs with the 'C' Form produced by the
seller at Rajasthan, which since has been revealed by the team of Rajasthan,
based on which, the said show cause notice had been issued, whereby, the
following has been stated:-
''In the reference second cited, certain extracts gathered from
the counterpart Department of State of Rajasthan by the officials of
InterState Investigation Cell, Chennai were received in this office for
cross check and the transactions are as below.
1. Name of the consignor i.e., Seller at Rajasthan Tvl. Mithralal
Granite Jalore, Bill. No/ Dated: 004/ 15.5.98. Value Rs.84,188.00
Commodity – Marbles. Against the above purchase you have issued
your 'C' form bearing No.695092.
2. Name of the consignor: Tvl. Mithralal Granite, Jalore, Bill No /
Date/ 21/8.2.1999. Value Rs.1,24,310.00 Commodity : Marble.
Against the above purchase you have produced your 'C' form
bearing No.566980, as evident from the extracts received.
Accordingly your accounts ware rechecked with reference to the
above two 'C' forms and the results are as follows.
TRANSACTION:
You have purchased caddppa Stones from Tvl. Shanthi,
menerals, Kodur, Andhrpradesh in Bill No.2, Dated: 7.4.1998 and the
value of purchase including 4% CST is Rs.8,736.00. Against this
purchase you have issued your 'C' form in question i.e. Sl.No. 695092.
Hence the transaction differs in all aspects.
Transaction No.2
You have purchased granite from Tvl. Mahadev Granite
Industries, Jalore, in Bill No.21/Dated:8.2.99 and the bill value including
4 % CST is Rs.1,29,282.00. Against this purchase 'C' form bearing No.
566980 has been issued by you. In this transaction, the name of the
consignor fully differs.
As the above two transaction of purchases are totally different
from what has been reported in you regular books of accounts. I am of
the opinion that the counterfoil of 'C' form retained by you has to be
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W.P(MD)Nos.247 and 248 of 2010
ignored and your assessment for the year 1998-99 has to be revised
under Section 16(1)(a) of TNGST Act' 59 for assessment of escaped
turnover on Best Judgment Basis as proposed below.''
2. Even though reply had been given which had not been accepted by
the revenue. Therefore, the Deputy Commercial Tax Officer, i.e., the Assessing
Authority, by orders dated 06.05.2002, confirmed the proposed revision notice
under Section 16(1)(a) of the Act and penalty under Section 16(2) of the
TNGST Act, 1959.
3. As against the said assessment orders, the
petitioner/dealer/assessee had filed appeals before the Appellate Assistant
Commissioner, who allowed the same by orders dated 05.03.2003.
4. As against the said order passed by the Appellate Assistant
Commissioner, the State/revenue filed STA.Nos.295 and 296 of 2005, before
the Tamil Nadu Sales Tax Appellate Tribual, Main Bench at Chennai, which
was decided by orders dated 12.11.2009, under which, the Tribunal has
reversed the orders passed by the Appellate Assistant Commissioner and
allowed the said appeals filed by the State/revenue. Aggrieved over the said
orders passed by the Appellate Assistant Commissioner, the assessee/dealer has
preferred these writ petitions.
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W.P(MD)Nos.247 and 248 of 2010
5. Heard Mr.C.K.M.Appaji, learned counsel appearing for the
petitioner and Mr.R.Suresh Kumar, learned Additional Government Pleader
appearing for the respondents.
6. It is the definite case of the writ petitioner/dealer that, insofar as
the claim that has been made by producing the 'C' Form in respect of the two
transactions is concerned, it is the genuine transaction, where original 'C' Form
had been produced by the petitioner/dealer.
7. However, if at all any agency or a seller in Rajasthan, claimed tax
concession by way of producing the 'C' Form in duplicate, which is the 'C' Form
of the petitioner, in no way, the petitioner would be responsible for making
such a claim, as he has never involved in any such transaction of purchasing the
goods from the Rajasthan dealer and therefore, their claim cannot be put against
the writ petitioner.
8. In this context, the finding given by the Tribunal reads thus:-
''The main ground on which Appellate Assistant Commissioner
has set aside the assessment was that the Assessing Officer had not
mentioned the details of the sale bill of Tvl.Mithralal Granite, Jalore and
also the details of mode of transport, including lorry number etc in the
order and by relying only on the extract of ISIC, the assessment was
revised and a turnover of Rs.5,09,612/- was assessed as suppression.
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W.P(MD)Nos.247 and 248 of 2010
Therefore, the learned Appellate Assistant Commissioner had set aside
the assessment on the turnover of Rs.5,09,612/-. It is very clear from
the extract received from ISIC that two purchases were effected by
using a single C form (i.e) by using the duplicate of C Form for one
purchae and by using the original of C form for another purchase. This
could not be possible without the knowledge of the
respondent/assessee. Taking into account the facts of the issue and
considering the investigation done by the ISIC, we are of the considered
view that the stand taken by the learned first appellate authority is not
a sustainable one. Hence, we set aside the order of the Appellate
Assistant Commissioner for the assessment year 1998-99 and restore
the order of the Assessing Officer in its entirety.
14) As regards penalty, the Assessing Officer had levied a
penalty of Rs.1,52,883/- under Section 16(2) of the Tamil Nadu General
Sales Tax Act, 1959 at 150% of the tax due by holding that the
respondent had wilfully not disclosed the purchases effected from
Tvl.Mithralal Graite, Jalore. However, the learned Appellate Assistant
Commissioner had deleted the entire penalty on the ground that the
suppression was not proved by the Assessing Officer. We have held
above to restore the assessment on the turnover of Rs.5,09,612/- and
the respondent/assessee in this case had wilfully not disclosed the
assessable turnover which warrants penalty. Therefore, we are of the
view that the order of the learned Appellate Assistant Commissioner in
deleting the penalty is not in order. Hence, we restore the penalty
levied by the Assessing Officer. Accordingly, the points are answered
against the respondent/assessee.''
9. If we look at the finding given by the Tribunal, the Tribunal has
come to such a conclusion to reverse the orders passed by the Appellate
Assistant Commissioner, by giving a finding that, it is very clear from the
extract received from ISIC that, two purchases were effected by using a single
'C' Form i.e., by using the duplicate of 'C' Form for one purchase and by using
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W.P(MD)Nos.247 and 248 of 2010
the original of 'C' Form for another purchase. This could not be possible
without the knowledge of the petitioner/assessee.
10. In order to verify the same, we called for the records from the
revenue and in the records also after having been perused, we find that there
has been no basis to make a claim that the duplicate 'C' Form has been used for
making any such claim on behalf of the writ petitioner or by the writ petitioner.
11. Merely because some dealer at the other end i.e., at Rajasthan,
made such a claim by using any duplicate 'C' Form, without verifying the same
of the books of accounts and the records of the present assessee/dealer, the
revenue could not have come to such a conclusion by merely accepting the
report received from the counterpart at Rajasthan.
12. When it is the specific case of the writ petitioner/dealer that, except
the two transactions, for which, the original 'C' Form had been produced and it
was claimed by the petitioner/dealer, no other transaction had ever been
effected in the said two names from Rajasthan as has been claimed by the said
seller, that issue should have been considered and to be verified as to whether
the duplicate 'C' Form having been shown for gaining any thing on the part of
the petitioner.
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W.P(MD)Nos.247 and 248 of 2010
13. In the absence of any such transaction and in the absence of any
such claim that has been made either directly by the petitioner or on behalf of
the petitioner, merely based on the report that has been received from the
Rajasthan counterpart, the revenue since has come forward to re-assess the
same by way of review under Section 16 of the Act and imposed the penalty
through the order passed by the assessing authority, is without any basis.
14. This, in fact, has been considered by the Appellate Assistant
Commissioner and he had set aside the assessment on the ground that the
Assessing Officer had not mentioned the details of the sale bill of the particular
sale and also the details of the mode of transport, including the Lorry number
etc., in the order and by relying only on the extract of ISIC since the assessment
was revised to the turnover as has been indicated, was assessed as a
suppression. Therefore, the Appellate Assistant Commissioner has set aside the
same, of course, rightly.
15. However, the Tribunal in its order, has simply made an observation
saying that it is very clear from the extract received from the ISIC that, two
purchases were effected by using the single 'C' Form one by using duplicate and
one by the original.
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W.P(MD)Nos.247 and 248 of 2010
16. For giving such a finding by the Tribunal, no materials are
available in the files of the revenue. When that being so, such a finding given
by the Tribunal is liable to be interefered with.
17. Resultantly, the order passed by the Tribunal is to be set aside and
accordingly, set aside, by restoring the order passed by the Appellate Assistant
Commissioner. Hence, these writ petitions are allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
(R.S.K., J.) (G.A.M., J.)
Index : Yes / No 10.04.2024
Neutral Citation : Yes / No
bala
To
1. The District Collector,
Madurai, Madurai District.
2. The Tahsildar,
Vadipatti Taluk,
Madurai District.
3. The Taluk Surveyor,
Vadipatti Taluk,
Madurai District.
4. The Village Administrative Officer,
Kallanai Village, Vadipatti Taluk,
Madurai District.
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.247 and 248 of 2010
R.SURESH KUMAR, J.
and
G.ARUL MURUGAN, J.
bala
W.P(MD)Nos.247 and 248 of 2010
10.04.2024
https://www.mhc.tn.gov.in/judis
