Madras High Court
M/S.Gem Edible Oils Private Limited vs The Assistant Commissioner on 28 June, 2016
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 28.06.2016 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.Nos.40266 to 40268 of 2015 & M.P.Nos.1 to 1 of 2015 M/s.Gem Edible Oils Private Limited Represented by its Director 5/221, Kovai Road Karegoundampalayam Post Annur 641 653 .. Petitioner in all W.Ps Vs. The Assistant Commissioner Avinashi Assessment Circle Avinashi .. Respondent in all W.Ps Prayer: This Writ Petitions are filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorari to call for the records of the respondent in his impugned proceedings in TIN:33172082879/2008-09, TIN:33172082879/2009-10 and TIN:33172082879/2010-11 and quash the orders dated 09.12.2015. For Petitioner : Mr.R.L.Ramani Senior Counsel for Mr.B.Raveendran For Respondents : Mr.S.Kanmani Annamalai Additional Government Pleader O R D E R
Heard Mr.R.L.Ramani, learned senior counsel assisted by Mr.B.Raveendran, learned counsel for the petitioner and Mr.S.Kanmani Annamalai, learned Additional Government Pleader appearing for the respondent. With the consent of learned counsel appearing on either side, the writ petition itself is taken up for final disposal.
2. The petitioner, who is a registered dealer under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act) as well as Central Sales Tax Act, 1956, is engaged in local as well as interstate purchases of raw sunflower oil and also by means of import and the same is refined in their unit. The refined sunflower oil is sold locally, inter-state and also transferred to consignment agents and branches located in other States otherwise than by way of sale. The petitioner's case is that sale of vegetable oils including raw and refined sunflower oil is exempted upto a turnover of Rs. 300 Crores under Entry 65 of the fourth schedule to the TNVAT Act and this limit has been subsequently increased to Rs.500 Crores. This aspect of the matter is not disputed by the respondent. However, the respondent Assessing Officer issued notices dated 13.11.2015 stating that the petitioner is liable to tax under Sections 12(1)(a) and 12 (1)(c) of the TNVAT Act and objections were called for. The petitioner submitted their objections pointing out that Section 12 of the TNVAT Act would have no application to their case and referred to the relevant entry, namely Entry No.65 and stated that sale of the vegetable oils, such as Coconut Oil, Gingelly Oil, Groundnut oil, Sunflower Oil, Cotton seed Oil, Rice Bran Oil, all refined oils of the above 1 to 6 and Refined Palm Oil, by any other dealer, whose total turnover on the sale of those goods does not exceed Rs.300 Crores per annum is entitled for exemption. Therefore, it was pointed out that Sunflower Oil falls in Entry No.4 and also attention of the Assessing Officer was drawn to Entry No.7. That apart, it was pointed that in a recent decision of this Court in the case of M/s.Sri Krishna Oil Stores Vs. The Commercial Tax Officer in W.P.No.11517 of 2015, the identical issue was considered by this Court with regard to Soya Been Oil and orders were passed by this Court on 25.08.2015. Inspite of the petitioner having pointed out all the details, the respondent, after extracting the objections given by the dealer, has confirmed the proposal once again by referring to Section 12 of the TNVAT Act and also confirmed the penalty.
3. The learned Additional Government Pleader, appearing for the respondent, does not dispute the fact that the similar issue was considered by this Court and the only difference is, in the said case, it is Soya Been Oil. At this stage, it will be beneficial to refer to operative portion of the said order:
5. The petitioner's claim of exemption on the sale of Refined Soyabean oil was negatived by the respondent on the ground that soyabean oil and refined soyabean oil are liable to tax at 4% as per the entry under item 145 of Part B of I Schedule to the TNVAT Act upto 31.03.2008. According to the respondent, soya oil was included under Entry 65 of Part B of IV Schedule as Sl.No.9 with effect from 01.04.2008 by Article No.32 of 2008 and therefore, exemption is not eligible on the sale of soya oil before 01.04.2008. However, a perusal of item 65 of Part B of IV Schedule reveals that all refined oils (item No.8) came into force with effect from 01.01.2007 and Soya Oil was added (item No.9) with effect from 01.04.2008. The intention of the legislature to grant exemption for all refined oils with effect from 01.01.2007 is apparent to the naked eye on perusing Entry No.8 of item 65 of the IV Schedule of TNVAT Act. Therefore, the contention of the respondent that the refined soya bean oil has been substituted as Entry 9 under Item 65 of Part B of IV Schedule with effect from 01.04.2008 only is not sustainable for the reason that all refined oils includes Refined Soya Bean Oil, which was included for exemption with effect from 01.01.2007. Hence, the impugned order is liable to be set aside.
6. Accordingly, the impugned order passed by the respondent dated 26.02.2015 is set aside and the respondent is directed to pass appropriate orders afresh, bearing in mind that item 65 of Part B of IV Schedule, relates to all Refined Oils, which includes Refined Soya Bean Oil also.
4. As the respondent does not dispute the applicability of the above referred decision to the case on hand, necessarily the respondent has to redo the assessment by taking into consideration the above legal position.
Accordingly, the writ petitions are allowed and the impugned orders dated 09.12.2015 are quashed and the matter is sent back to the respondent to redo the Assessment by taking into consideration the law laid down in the aforementioned decision. No costs. Consequently, the connected miscellaneous petitions are closed.
28.06.2016 Index: yes/no Internet:yes gpa To The Assistant Commissioner Avinashi Assessment Circle Avinashi T.S.SIVAGNANAM, J., gpa W.P.Nos.40266 to 40268 of 2015 & M.P.Nos.1 to 1 of 2015 28.06.2016