2000 (10) TMI 937 - AT - VAT and Sales Tax

Summary

Issues Involved:
1. Correctness of the penalty imposed under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959.
2. Applicability of section 7-A for the turnover of Rs. 93,713.50.
3. Whether the revised assessment was made under section 55 or section 16(1) of the TNGST Act.
4. Requirement of personal or oral hearing under the proviso to section 55(1) of the TNGST Act.

Issue-wise Detailed Analysis:

1. Correctness of the penalty imposed under section 12(5)(iii) of the TNGST Act:
The initial penalty of Rs. 7,029 was imposed by the assessing authority under section 12(5)(iii) of the TNGST Act in the original order of assessment. The revised order imposed an additional penalty of Rs. 14,057. The Appellate Assistant Commissioner cancelled both penalties, stating that section 12(5)(iii) applies only if the assessment was made under section 12(4) of the Act. The Sales Tax Appellate Tribunal upheld this view, cancelling the revised penalty but allowing the initial penalty as it was not appealed against. The Tribunal concluded that the revised penalty of Rs. 14,057 could not be imposed under section 12(5)(iii) since the revision was made under section 16(1) and not section 12(4).

2. Applicability of section 7-A for the turnover of Rs. 93,713.50:
The assessing authority determined that the turnover of Rs. 93,713.50, related to purchases from unregistered dealers, was liable to tax under section 7-A. The Appellate Assistant Commissioner and the Appellate Tribunal confirmed this, noting that the sellers were unregistered dealers and the goods were used in manufacturing other goods, thus attracting section 7-A.

3. Whether the revised assessment was made under section 55 or section 16(1) of the TNGST Act:
The Appellate Assistant Commissioner and the Appellate Tribunal initially held that the revision was under section 16(1)(b) despite the assessing authority quoting section 55. The Judicial Member of the Tribunal, however, disagreed and held that the revision was indeed under section 55. The Vice-Chairman agreed with this view, leading to the case being referred to a Full Bench to reconsider the Special Tribunal's earlier decision in Vinayaga Spinning Mills v. Commercial Tax Officer.

4. Requirement of personal or oral hearing under the proviso to section 55(1) of the TNGST Act:
The Full Bench had to decide whether the words "a reasonable opportunity of being heard" in the proviso to section 55(1) required a personal or oral hearing. The Tribunal upheld the view that personal hearing is mandatory when the rectification has the effect of enhancing the assessment or penalty. This interpretation was consistent with previous decisions, emphasizing that the provision of law visiting the assessee with grave civil consequences necessitates a personal hearing before rectification.

Judgment:
The Tribunal dismissed both tax revision cases filed by the Revenue, upholding the Appellate Tribunal's order for different reasons. The Tribunal reiterated that section 55 requires a personal hearing before enhancing any assessment or penalty. The dissenting opinion by the Judicial Member argued that a personal hearing is not mandatory unless explicitly stated in the statute. However, the majority view prevailed, affirming the necessity of personal hearings in such cases.