2017 (12) TMI 689 - HC - VAT and Sales Tax

Re-opening of assessment - TNGST Act and CST Act - sale of tea - auction sale - exemption towards sales to exporters through auctioneers at Coonoor and Coimbatore auction centers - certificates as per the notification in CTRE/214(d)82-G.O.Ms No.876-CTRE dated 29.07.1982 - Form H - Held that - A dealer who is effecting sales to merchant exporters for the purpose of export is required to produce a copy of the foreign order; the order should be placed on the local customer specifically to meet the earlier export obligation; and the very same goods should be exported. If the three obligations are fulfilled, the assessee is entitled for exemption on export of sales under Section 5(3) of the CST Act. So far as the goods of tea is concerned, which is sold at the public auction for export, the dealers found it difficult to fulfill the three conditions and hence, the Tea Planters Association of Tamil Nadu submitted their representations dated 31.10.1981 and 02.11.1981, praying for grant of exemption by the State of Tamil Nadu in respect of tea which is sold in public auction for export. The Government considered the same and by G.O.No.876 dated 29.07.1982, decided to exempt the sale of tea at auction centers of Coonoor and Coimbatore for export from liability to tax by notification issued under Section 17 of the TNGST Act and the exemption was subject to the condition that the tea purchased at the auction center is exported within six months from the date of auction and the proof of export is also produced. Whether the first respondent was justified in proposing to re-open the assessment on the ground that the petitioner has not produced the declaration form as stipulated in G.O.No.876 dated 29.07.1982? - Held that - From the certificate, it is seen that all the tea brokers have been registered under the provisions of the TNGST Act and have been assigned registration numbers. Thus, if the impugned assessment orders are allowed to be re-opened for the reasons stated by the first respondent in the impugned notice, it would virtually obliterate the benefit of exemption granted by the Government to promote the tea industry to ensure that the rates offered are competitive. The assessments were completed by the assessing officer stating that the petitioners have produced certificates from the tea brokers, who were registered dealers and tea has been sold in auction centers and tax sufference have been proved and exemption is allowed. Thus, the production of certificates as per the notification dated 29.07.1982, would be required only in cases where the tea brokers are not registered - One more error committed by the first respondent is to issue an identical notice in respect of the assessment year 2000-01 under the provisions of the CST Act, wherein Form H declaration has been produced, which has been specifically recorded by the assessing officer while completing the assessment vide order dated 01.03.2002. The reason given in the impugned notices is not tenable and there is no justification on the part of the first respondent in re-opening the assessments - petition allowed - decided in favor of petitioner.

Summary

Issues:
Reopening of assessment for the years 2000-01 and 2001-02 under the TNGST Act and CST Act based on exemption claims towards sales to exporters through auctioneers.

Analysis:
The petitioners, two tea estate companies, challenged notices proposing to reopen assessments for 2000-01 and 2001-02 under the TNGST Act and CST Act, regarding exemption claims for sales to exporters through auctioneers. The notices alleged that the petitioners claimed exemption without proper certificates as per the notification. The petitioners argued that auctioneers issued necessary certificates previously, and the tax department accepted these without dispute. The auctioneers acted on behalf of the petitioners in tax matters. The Government had exempted tea sales at auction centers for export under specific conditions. The petitioners had submitted Form H declarations to auctioneers, who were registered dealers under TNGST and CST Acts, and the assessing officer had verified and granted exemption based on these forms.

The Court examined whether the first respondent was justified in proposing to reopen assessments due to the absence of specific declaration forms as per the notification. The Form H declaration, similar to that under the CST Act, was submitted to auctioneers by the petitioners, providing all necessary export details. The auctioneers, registered under TNGST and CST Acts, issued certificates confirming tax payment and document submission for exemption. Reopening assessments based on missing forms would nullify the exemption benefits granted by the Government to support the tea industry's competitiveness. Assessments were completed previously based on certificates from registered auctioneers, proving tax payment and exemption eligibility.

The Court noted an error in issuing a notice for the assessment year 2000-01 under the CST Act despite the production of Form H declaration, as recorded in the assessment order. Concluding that the reasons for the notices were untenable, the Court allowed the writ petitions, setting aside the impugned notices. The Court found no justification for the first respondent to reopen the assessments. The writ petitions were allowed, and no costs were imposed.