9911796707
TMI Blog2006 (8) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... tax due in a sum of Rs.2,94,561/- and surcharge in a sum of Rs.14,726/- resale tax due in a sum of Rs.38,201/- and further levied penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act in a sum of Rs.42,907/-. That order is canvassed before this Court on the ground that a turnover in a sum of Rs.14,85,636/- in respect of sale is covered by Form XVII. As the purchasing dealer has contravened the condition of Form XVII, tax and penalty could be imposed in respect of that turnover only against the purchasing dealer and not against the petitioner, who is the selling dealer, as per the section. 2. In order to sustain the case, an order of the Division Bench of this Court in the case of State of Tamil Nadu v. Madras Petrol Chem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the relevant provision, which was in existence during the assessment year 1978-79. It is clear from paragraph 6 of the said judgment, section 3(3), as it stood at that relevant point of time, has been taken into consideration. In paragraph 10 of the said judgment the Court proceeded to the effect that having regard to the subsequent legislative enactment referred to therein, the Court has taken the view that no action could be taken against the purchasing dealer by following the earlier judgment in the case of Premier Electro-Mechanical Fabricators v. State of Madras, (1968) 22 STC 269. The same is the position in respect of the unreported judgment of a Division Bench of this Court dated 04.12.2001 referred to supra as the relevant asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the revenue to the effect that direction may be issued to the respondent to follow the law laid down by this Court in writ petition No.10610 of 2000 dated 04.12.2001, the respondent therein was directed to consider Form XVII submitted by the assessee and levy tax only at 3% and not at 16% as mentioned in the pre-assessment notice. 7. In all the above said three cases, arguments have been advanced and considered by the Court with reference to section 3(3) of the Tamil Nadu General Sales Tax Act. But as on date, statutory position is not as it was during the time the above referred to cases were considered. Even the section 3(3) of the Tamil Nadu General Sales Tax Act has been considerably amended and further more, section 10, which pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -04, which is in all fairness amenable to appellate provision provided under the statute book itself. The contention of the petitioner that the selling dealer cannot be penalised for the infraction in the declaration filed by the purchasing dealer and whether penalty can be levied on the selling dealer having regard to section 10 with particular reference to section 10(3) are all matters that can very well be agitated before the appellate authority. The availing of appellate remedy is onerous cannot be a point for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India, particularly in the fiscal statutes. While considering another fiscal enactment, i.e., the Central Excise Act, the Supreme Court has, in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods. The High Court in exercise of its jurisdiction cannot give guidance to the Assistant Collector about the manner and mode in which the assessment should be made." The latest judgment of the Supreme Court dated 16.2.2006 made in Civil Appeal Nos.7323-7325 of 2000 (Ms/Sabari Jewellery Vs. Deputy Commercial Tax Officer) is also to the same effect. 9. This case is a clear example to the above said factual situation. The order impugned is virtually an order appealable under the statute. The appealable time has also not expired. As a matter of fact, it is admitted across the Bar by the learned counsel for the petitioner that the order challenged in this writ petition has been received by the petitioner on 15.07.2006. Appealable time is sti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
