Madras High Court
Tvl.Murthy Polymers vs The State Of Tamil Nadu on 9 May, 2017
Bench: T.S.Sivagnanam, P.Velmurugan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.05.2017
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
T.C(Appeal)(MD)No.78 of 2009
Tvl.Murthy Polymers,
G.R.T. Bus Stand,
Palani. ...Appellant
Vs.
The State of Tamil Nadu, rep.by
The Commercial Tax Officer -II, (FAC)
Palani. ...Respondent
PRAYER: Tax Case Appeal Petition is filed under Section 37 of the TNGST Act,
1959, against the order of the Joint Commissioner-III (SMR) of Commercial
Taxes, Office of the Commissioner of Commercial Taxes, Chepauk, Chennai-5, in
Ref.M3/103005/96; SMR.No.364/97, dated 12.12.2005.
!For Appellant : Mr.P.Radhakrishnan
^For Respondent : Mr.R.Karthikeyan
Additional Government Pleader
:ORDER
[Order of the Court was made by T.S.SIVAGNANAM, J.] Heard Mr.P.Radhakrishnan, learned counsel appearing for the appellant and Mr.R.Karthikeyan, learned Additional Government Pleader appearing for the respondent.
2. This Tax Case appeal by the dealer is directed against the order passed by the Joint Commissioner-III (SMR) of Commercial Taxes Department, Chennai, in exercise of his suo-moto powers under section 34 of the Tamil Nadu General Sales Tax Act, 1959.
3.The petitioner was assessed to tax for the assessment year 1994-95 primarily based on two factors namely, the power consumption in the unit and based on a single survey conducted in the place of business of the petitioner.
4. Thus, the questions of law which arise for consideration in this appeal are, ?(i)Whether the total and taxable turn over for the relevant year could have been assessed based on the electricity consumption charges?; and
(ii) Whether the total and taxable turn over could have been assessed based on a single survey conducted??
5. both the issues have been answered in favour of the dealer and against the revenue in T.C.No.14 of 2009, where in we have held as follows :
4. The question which arises for consideration in the instant case is whether the appellate Tribunal is right in deleting the estimation based on the electricity consumption in the respondents' Stone Crush Unit. The order passed by the Assessing Officer is solely based upon the electricity consumption charges. Admittedly, the Assessing Officer did not embark upon any independent exercise except to arrive at the turnover based on the presumed value of the number of units consumed by the respondents. This order was affirmed by the Appellate Assistant Commissioner and the respondents/assessees filed appeal before the Tribunal. The Tribunal after taking into consideration the facts and circumstances of the case, has rendered a specific finding that the electricity consumption alone has been the basis for estimating the sale value in respect of the blue metal and other goods. Further investigation was done by the Assessing Officer to ascertain whether there is any unaccounted sales by way of cross verification and no instances have been noticed that the assessees had transported the goods without valid records. Further, after taking note of the fact that there is no transaction outside the account, which were established by the Department, making the assessment solely based on the disparity in the electricity consumption was held to be not sustainable.
5. The question arises for consideration in these revisions have been considered in the cases of C.Sivasamy Firm v. Deputy Commercial Tax Officer, Thiruverambur Circle reported in (2012) 47 VST 12 (Mad) and State of Tamil Nadu vs. V.S.S. And Company reported in (2013) 60 VST 289(mad).
6. Thus, the Assessing Officer having not made any independent investigation and completed the assessment solely based upon the disparity in the electricity consumption, has been held to be not tenable in the aforementioned decisions.
7. Thus, the question of law raised in these revision cases is answered in favour of the assessee and as against the Revenue. Accordingly, these Tax Case Revisions are dismissed. No Costs.?
6. It is settled legal position that based on a single case study of statistical survey in a year, the same cannot be applied through out the year. Equally, the turn over could not have been assessed solely based upon the current consumption charges paid by the dealer.
7. Thus, both the questions of law have already been answered in favour of the assessed dealer and against the Revenue, following the same, this Tax Case appeal is allowed. No Costs.
To
1.The Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench) Madurai.
2.The Commercial Tax Officer -II, (FAC) Palani..