2014 (2) TMI 669 - HC - VAT and Sales Tax

Penalty u/s 12(3)(b) of the Tamil Nadu General Sales Tax Act - Exemption in Notification No. 528 dated 21.11.1997 - Tax payable on the purchase of raw materials - Held that - without considering the claim of the assessee on exemption based on Notification No.528 dated 21.11.1987, passing of an order on the penalty appeal preferred by the State thereby restoring penalty would be totally illegal and hence, cannot be sustained at all. In the circumstances, with no decision rendered on the claim of exemption, the proper course herein would be to set aside the order of the Tribunal and remand the matter back to the Tribunal for de novo consideration of the levy of penalty along with the claim of the assessee in the Cross Appeal - Tribunal is directed to pass orders on the Cross Objection filed by the assessee by following Notification No.528 dated 21.11.1997 - Decided in favour of assessee.

Summary

Issues:
1. Levy of penalty under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act.
2. Exemption under Section 4E of the Act based on Notification No. 528 dated 21.11.1997.
3. Proper consideration of the Cross Appeal filed by the assessee.
4. Correct interpretation of the scheme of the Act regarding sales tax on raw materials purchased by 100% Export Oriented Units.

Analysis:
1. The Tribunal considered the claim of the assessee for exemption under Notification No. 528 dated 21.11.1997 but only recorded a decision on the penalty appeal filed by the Revenue, restoring the penalty. The assessee contended that the Tribunal erred in not giving specific findings on the Cross Appeal related to being a 100% Export Oriented Unit, which would impact the levy of penalty. The High Court found that passing an order on the penalty appeal without considering the exemption claim was illegal. Thus, the Court set aside the Tribunal's order and remanded the matter for a fresh consideration of the penalty levy along with the assessee's Cross Appeal.

2. The assessee purchased taxable cotton, and the Assessing Officer disallowed the exemption claim on the last purchase of cotton, leading to a penalty under Section 12(3)(b) of the Act. The Appellate Assistant Commissioner modified the order, granting relief to the assessee and deleting the penalty. However, the State appealed against this decision, leading to the Tribunal restoring the penalty without deciding on the exemption claim. The High Court emphasized the importance of considering the exemption claim based on Notification No. 528 dated 21.11.1997 and directed the Tribunal to pass orders on the Cross Objection filed by the assessee in accordance with the law and the notification.

3. The High Court highlighted that the Tribunal's failure to address the claim of exemption under the relevant notification before restoring the penalty was a serious error. The Court stressed the need for a thorough consideration of both the Revenue's appeal and the assessee's Cross Objection regarding the assessability of turnover related to the purchase of cotton. The Court directed the Tribunal to reconsider both appeals and provide a decision based on the legal provisions and the notification granting exemption to 100% Export Oriented Units.

4. The Court clarified the interpretation of the Act concerning the sales tax on raw materials purchased by 100% Export Oriented Units. It rejected the Revenue's argument that the exemption was only on payment of sales tax and not purchase tax, emphasizing that the Act considers tax on goods as sales tax regardless of the point of levy. The Court referred to a previous decision to support its interpretation and directed the Tribunal to consider the exemption claim based on the notification while reevaluating the penalty levy.

In conclusion, the High Court allowed the Tax Case Revisions, set aside the Tribunal's order, and remanded the matter back for a fresh consideration of the penalty levy and the assessee's exemption claim, emphasizing the importance of a comprehensive assessment of all relevant issues in accordance with the law and the notification.