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5.In the counter affidavit filed by the respondents, a preliminary objection has been raised as regards the maintainability of the Writ Petitions, contending that the petitioners have an effective alternate remedy under the Act and without preferring statutory appeal, the petitioner cannot maintain these Writ Petitions. The contentions on the merits of the petitioner's case have also been dealt with in the counter affidavit.

6.Mr.Arvind P.Datar, learned Senior Counsel appearing for the petitioner submitted that for all the seven assessment years, three issues are raised common, viz., (i) that best judgment assessment under section 27(1)(a) of the Act is erroneous as the books of accounts of the petitioner is the basis of the impugned assessment; (ii) Imposition of huge penalty of Rs.66.02 crores under section 27(3) of the Act is not valid and (iii) Equal Time addition of probable omission and suppression of scrap sales is unwarranted. The other issues are with regard to tax on export of capital assets which is common for five years from 2007-08 to 2011-12 (W.P.Nos.22067/2014, 22068/2014, 22069/2014, 22070/2014 and 22071/2014); tax imposed on transfer of business to Nokia Siemens Networks Private Limited (hereinafter called as "NSNPL") for the year 2007-08 (W.P.No.22067/2014); tax on disallowance of sales returns, for four years from 2009-10 to 2012-13 (W.P.Nos.22069/2014, 22070/2014, 22071/2014, 22072/2014) and demand of tax on higher rate on parts and accessories for two years viz. 2011-12 & 2012-13.

8.4 Tax on export of capital assets:-
On the next issue viz. tax on export of capital assets, which issue arises in five years viz. 2007-08 to 2011-12, it is submitted that the imposition of tax on export of capital assets was wholly without jurisdiction and hit by Article 286(1)(b) of the Constitution of India. In terms of Section 18 of the TNVAT Act, export sales are zero rated for the purpose of TNVAT Act and the question of levying tax on the export of capital assets does not arise and is illegal. The respondent erroneously took the figure of sale of fixed assets from the fixed asset schedule annexed to the balance sheet and levied tax thereon treating it as local sale stating that assesee had not disclosed the same in the tax returns. It is submitted that the petitioner clarified to the Audit team about the factual position and copies of export documents for sample transactions were submitted by the petitioner. Further, it is stated that the petitioner has operations in 22 States other than Tamil Nadu and the asset disposal figures provided in the financial statement were all-India figures and bifurcation of assets disposed from Tamil Nadu and other States was also provided. However, the first respondent had stated that the petitioner was unable to present State-wise break up and corresponding sales vouchers for its claim for exports. Therefore, it is submitted that the impugned order was based on surmises and conjectures. Relying upon the assessment order for the year 2007-08, wherein the value of the capital assets transfer to Nokia Siemens Networks Private Limited (NSNPL), on which tax was demanded had been separately confirmed and has also been added in the value of export sales for the purpose of levying tax thereon. Therefore, the respondent ought to have considered that aspect in so far as export sales of capital assets.
8.5 Transfer of business to M/s.NSNPL:-
The next issue which arises for the assessment year 2007-08 (W.P.No.22067/2014) relates to transfer of business to NSNPL. It is submitted that the business was transferred as a going concern and it is a transfer of a business as a whole and clearly falls with an Explanation III to section 2(41) of TNVAT Act and that the petitioner had three business operations viz. (i) Mobile Phone Division, (ii) Network Division and (iii) Research and Development and all the three lines of business are separate and from 01.04.2007, the petitioner transferred all its assets and liabilities relating to 'Network Division' to NSNPL, which is a joint venture between Siemens, Germany and Nokia Corporation, Finland and the petitioner ceases to carry on the said business and even now the petitioner is not engaged in any Network business and the said business is carried on by a separate legal entity. The contention of the respondent that the petitioner allegedly sold only part of plant and machinery and inventory to NSNPL, is not acceptable and under the Income Tax Act, the transaction has been regarded as a slump sale. The entire business has been transferred as a whole and the Network business constitute a separate identifiable business. Therefore, it is submitted that the tax demanded on transfer of assets to NSNPL is not tenable. In support of the said contention, reliance was placed on the decisions of this Court in the case of Deputy Commissioner of Commercial Taxes V. K.Behanan Thomas [1977 (39) STC 325] and in the case of Monsanto Chemicals of India (P) limited V. State of Tamil Nadu [(1982) 51 STC 278].

56. The next issue relates to the non payment of tax on the sale of asset to M/s.NSNPL. This issues arises in the assessment for the year 2007-08. In the pre-revision notice, it was stated that the assessee have made sale of plant and machinery and stock inventory to NSNPL and such sale has not been reported. After referring to Explanation III to Section 2(41) of Act, the assessing officer stated that the petitioner has sold only a part of plant and machinery and stock inventory to NSNPL and not the business of Nokia as a whole to NSNPL, such sale is liable to tax and would not fall under Explanation III to Section 2(41) of the Act.