2018 (2) TMI 197 - HC - VAT and Sales Tax

Revision of assessment - rate of tax - tools & hardware - Whether on the facts and in the circumstances of the case the Tribunal was right in law in setting aside the assessment made by the Assessing Officer on the turnover at 4% when the dealer has not exercised their option as per the amendment Act? - Held that - The appellant had filed their return in form K and paid tax u/s 3(4) of the Act from 2006-07 i.e. from the introduction of the Tamil Nadu Value Added Tax Act 2006. At the time of introduction of the Act there is no provision to exercise their option to pay tax u/s 3(4) in each year. Hence the appellant had filed his option for the year 2006-07. In the absence of such provision as each yearthe appellant had paid the tax u/s 3(4) for the year 2008-09 also further the Act amended in the middle of the year is not aware by the appellant. If an amendment made in the Act the Assessing Officer has to issue notice to the dealer who has paid compounding tax to file their option immediately. It is not done by the Assessing Officer - Further the amendment made in December 2008 will not attract with effect for 01.04.2008 - the order passed by the Assessing Officer is set aside - appeal allowed. Whether on the facts and in the circumstances of the case the Tribunal was right in law holding that mere filing of returns in Form K is enough and filing of fresh option within 30 days from the amendment for the year 2008-09 does not arise? - Held that - the option should be given on or before 30th April of that year of the taxable turnover is below Rs. 50 lakhs in the previous year. But this Amendment came into effect from 18.06.2008 only. Even before and after the Amendment the dealer has filed return in Form-K issued under Section 3 (4) of the Act and not Form-I issued under Section 3(2) of the Act. So the filing of fresh option within 30 days from the Amendment for the year 2008-09 does not arise in our case - the re-assessment order of Assessing Officer is not correct and the order of Appellate Deputy Commissioner set asiding the order of Assessing Officer is correct and no Interference is warranted. Revision dismissed - decided against Revenue.

Summary

Issues:
1. Assessment made by the Assessing Officer at 4% on the turnover.
2. Tribunal's decision regarding the exercising of option under the amended Act.

Analysis:

Issue 1: Assessment made by the Assessing Officer at 4% on the turnover
The case involved a dispute where the dealer was assessed at 4% on the total taxable turnover for the assessment year 2008-09 under the TNVAT Act. The Assessing Officer revised the assessment, levying tax at 4% as the dealers did not exercise their option to pay tax at 0.5% as per the amended Act within the stipulated time. The Appellate Deputy Commissioner set aside the assessment made at 4% and allowed the appeal. However, the State filed an appeal before the Tamil Nadu Sales Tax Appellate Tribunal, which dismissed the appeal. The State then filed a Tax Case Revision challenging the Tribunal's decision.

Issue 2: Tribunal's decision regarding the exercising of option under the amended Act
The substantial questions of law raised in the Tax Case Revision primarily focused on whether the Tribunal was correct in setting aside the assessment made by the Assessing Officer at 4% when the dealer had not exercised their option as per the amended Act. The Tribunal held that the filing of returns in Form K was sufficient and that filing a fresh option within 30 days from the amendment for the year 2008-09 was not necessary. The Tribunal considered the provisions of the Act and the Amendment 2008, emphasizing that the option to be exercised by the dealer was mandatory regardless of filing Form K returns.

In the final judgment, the court dismissed the Tax Case Revision, upholding the decisions of the Appellate Deputy Commissioner and the Tribunal. The court noted that the Act was amended in the middle of the financial year and could not have retrospective effect. The dealer had been paying tax by submitting Form K, indicating the exercise of the option as per the rule 3(4) of the TNVAT Act, 2006. Therefore, the court found no grounds to interfere with the decisions of the lower authorities, answering the substantial questions of law against the revenue.