2018 (1) TMI 612 - HC - VAT and Sales Tax

Whether the additional sales tax liability of an Agent, is independent of the liability of its principal? Held that - the petitioner s principal is situated outside the State of Tamil Nadu viz., in Andhra Pradesh, and they have no branch in the State of Tamil Nadu, and the petitioner is the direct agent of the principal, who is an assessee in Andhra Pradesh, and there is a consensus between the petitioner and the principal at Andhra Pradesh - the decision in the case of Siemens Ltd., 1998 (6) TMI 547 - TAMIL NADU TAXATION SPECIAL TRIBUNAL would squarely apply to the facts of the present case, where it was held that clause (a) of sub-section (1) of section 2 of the principal Act, namely Act 14 of1970 is ultra vires and should stand deleted. We make it clear that we are striking down only clause (a) of section 2(1). We also make it clear that under section 2 (2) and 2 (3) the intention of the legislature not to pass on the burden of additional sales tax to the consumers and the reference to prosecution, shall stand unaltered. The matter is remanded to the third respondent/Assessing Officer, who shall redo the assessment in accordance with law.

Summary

Issues:
Challenge to order passed by Commissioner of Commercial Taxes regarding additional sales tax liability of an agent compared to principal.

Analysis:
The petitioner, a manufacturer of refined edible oil, challenged an order by the Commissioner of Commercial Taxes regarding additional sales tax liability of an agent compared to its principal under the Tamil Nadu General Sales Tax Act. The petitioner sought clarification on the assessment and collection of tax, which was initially denied without reasons. A previous Writ Petition was allowed by the Court, directing the Commissioner to consider the petitioner's representation within a specified time frame. The petitioner submitted written arguments citing similarities with another case and requested a similar clarification in their favor. However, the Commissioner rejected the petitioner's case based on a previous court decision involving additional sales tax liability. The Court found the Commissioner's order lacking in addressing the petitioner's points and set it aside.

The Court referenced a case involving India Beedi Leaves Limited, where it was held that the levy of additional tax is automatic if the original assessment to sales tax has been made on a person whose turnover exceeds a certain threshold. The Court noted discrepancies in applying this decision to the present case, especially considering the similarities highlighted by the petitioner with another case. The Court emphasized that the Commissioner failed to consider crucial aspects and did not address the petitioner's arguments adequately, leading to the order being set aside.

Additionally, the Court referred to a decision by the Tamil Nadu Taxation Special Tribunal in the Siemens Ltd. case, where a provision related to the liability of agents of non-resident principals was struck down. The Tribunal held that certain clauses of the provision were ultra vires and should be deleted. The Court found relevance in this decision to the current case, as the petitioner's principal was situated outside Tamil Nadu, and the petitioner had no branch in the state. Following the Tribunal's decision, the Court allowed the Writ Petition, set aside the Commissioner's order, and remanded the matter to the Assessing Officer for reassessment in accordance with the law.

In conclusion, the Court found in favor of the petitioner, highlighting discrepancies in the Commissioner's order, referencing relevant legal precedents, and ultimately remanding the matter for reassessment based on statutory provisions and previous judicial decisions.