2021 (4) TMI 503 - HC - VAT and Sales Tax

Levy of tax on turnover - transactions purportedly involving inter-state sales and branch transfers which were not supported by the Form-C and Form-F respectively - inclusion of freight element in taxable turnover - HELD THAT - Assessments under the Tax enactments are by and large based on the returns filed by an assessee. In the case of Tamil Nadu Value Added Tax, 2006 and the Central Sales Tax Act, 1956, it is certainly driven by the returns filed by a dealer unless no returns were filed. In this case the petitioner had filed returns under the provisions of the Central Sales Tax Act, 1956. In the present case, the sale was concluded at the factory gates itself and therefore the freight element cannot from part of the taxable turnover as was rightly contented by the petitioner - Since the sale took place at the factory gate, the sale never assumed the character of an inter-state sale. It was actually a local sale. It was therefore to be assessed as a local sale under Tamil Nadu Value Added Tax Act, 2006. As an Appellate Authority, the 1st respondent is required to merely examine the correctness of the order passed based on the returns filed by an assessee. Therefore, if the first respondent as an Appellate Authority, finds that the petitioner had wrongly filed return by treating a transaction as that of an inter-state when it indeed it was that of a local sale, as an Appellate Authority, the 1st respondent was well within his rights to direct the Assessing officer to complete assessment in accordance with law - In the impugned order, the first respondent has not added any tax liability in the impugned order. The first respondent has merely directed the jurisdictional Assessing Officer to exercise the jurisdiction by revising the assessment. The original assessment which was impugned before the 1st respondent proceeded on a wrong assumption that the transactions were liable to tax under the provisions of the Central Sales Tax Act, 1956 when indeed the transaction in question was liable to tax under the provisions of the Tamil Nadu Value Added Tax Act, 2006. The direction in the impugned order to the Assessing Officer was not outside the scope of Section 52 of the Tamil Nadu Value Added Tax Act, 2006. The impugned order was based on the facts put forth by the petitioner - there are no merits in the present petition - the second respondent is directed to complete the assessment under the provisions of the Tamil Nadu Value Added Tax Act, 2006 - Assessing Officer directed to complete the assessment under the provisions of the Central Sales Tax Act, 1956 regarding the transaction involving branch transfer if the petitioner has produced requisite Form F - petition disposed off.

Issues Involved:
1. Justification of tax demand on inter-state sales and branch transfers unsupported by Form-C and Form-F.
2. Inclusion of freight charges in the taxable turnover under the Central Sales Tax Act, 1956.
3. Jurisdictional overreach by the Appellate Authority under Section 52 of the Tamil Nadu Value Added Tax Act, 2006.

Issue-wise Detailed Analysis:

1. Justification of Tax Demand on Inter-State Sales and Branch Transfers Unsupported by Form-C and Form-F:
The petitioner challenged the tax demand on transactions purportedly involving inter-state sales and branch transfers that were not supported by Form-C and Form-F respectively. The Appellate Joint Commissioner (1st respondent) concluded that the transactions for which the petitioner had filed returns under the Central Sales Tax Act, 1956, claiming branch transfers/inter-state sales, were actually local sales as the sale took place at the factory gate of the petitioner in Sriperumbadur. The 1st respondent observed that the delivery terms were ex-factory, and the responsibility of the seller ended once the goods were delivered to the buyer at the factory gate. Consequently, these transactions were deemed local sales and not CST transactions.

2. Inclusion of Freight Charges in the Taxable Turnover:
The petitioner contended that the freight charges should not be included in the taxable turnover as the sales were ex-factory. The 1st respondent accepted this contention, noting that the freight element was not a pre-sale expense and should not be included in the taxable turnover. The 1st respondent referenced various judgments and concluded that the delivery to the carrier at the factory gate constituted delivery to the buyer, thereby proving that the sale concluded at the factory point. Consequently, the freight charges did not form part of the taxable turnover, and the transactions were to be assessed as local sales under the Tamil Nadu Value Added Tax Act, 2006.

3. Jurisdictional Overreach by the Appellate Authority:
The petitioner argued that the 1st respondent exceeded the jurisdiction under Section 52 of the Tamil Nadu Value Added Tax Act, 2006, by altering the basis of tax assessed by the original authority. The petitioner cited Supreme Court decisions, including Commissioner of Income Tax (Central), Calcutta Vs. Rai Bahadur Hardutroy Motilal Chamaria and Commissioner of Income-Tax, Bombay City I, Bombay Vs. Shapoorji Pallonji Mistry, to assert that the Appellate Authority's powers are restricted and cannot alter the basis of assessment completed by the lower authority.

The respondents countered that Section 52(3)(a)(iii) of the TNVAT Act, 2006, grants the Appellate Authority wide jurisdiction to pass orders as deemed fit. The Court agreed with the respondents, stating that the Appellate Authority's powers under Section 52(3) are broad and include directing the Assessing Officer to make a fresh assessment or pass other suitable orders. The Court found that the 1st respondent acted within these powers by directing the assessment to be completed under the TNVAT Act, 2006, based on the correct classification of the transactions as local sales.

Conclusion:
The Court upheld the impugned order, directing the Assessing Officer to complete the assessment under the provisions of the Tamil Nadu Value Added Tax Act, 2006, for the local sales and under the Central Sales Tax Act, 1956, for transactions involving branch transfers if requisite Form-F is produced by the petitioner. The writ petition was disposed of with these observations, and no costs were awarded.

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