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TMI Blog2013 (12) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... ting to the assessment years 1990-91 and 1991-92 raising the following question of law:- " Whether the Forty-sixth amendment to the Constitution of India has done away with the doctrine of Mutuality?" 2. The assessee is an association registered under the provisions of Tamil Nadu Societies Registration Act, 1975. The members of the association are engaged in the business of processing hides and skins. In respect of the processing of hides and skins, to convert raw leather into finished leather, Wattle extract is an important material and has to be imported from the foreign countries. Considering the difficulties faced by the members to place independent orders, who are small tanners, they joined and formed an association, which collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s amounted to 'sale' amenable to Sales tax, since the transactions were not covered by 'C' declarations, rightly, the Assessing Officer made the assessment at penal rate and also levied penalty. 5. The assessee pointed out that it did not effect inter-State sales of goods to invoke the provisions of the Central Sales Tax Act. According to the assessee, since members situated in other States, came down to Tamil Nadu and took the materials along with them, the transaction was therefore, completed in the State/Tamil Nadu itself, the provisions of the Central Sales Tax Act could not be invoked. 6. The Sales Tax Appellate Tribunal, however, pointed out that the assessee's members were running their business in the other States. The Sales Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, the present Tax Case (Revision) is preferred by the assessee. 7. Learned Senior counsel appearing for the assessee submits that as against the judgment of this Court in 127 STC 491 (All India Skins & Hides Tanners and Merchants Association Vs. Commercial Tax Officer and others), in which the assessee herein was the petitioner therein, appeal was preferred before the Apex Court in Civil Appeal Nos.5885 of 2002 with 6066 of 2008 and S.L.P.(Civil).Nos.18433 and 18434 of 2002. In the decision reported in (2009) 23 VST 8 (SC) (South India Tanners and Dealers Association Vs. Deputy Commissioner of Commercial Taxes and Others), the Apex Court had set aside the order of this Court with a direction to the Revenue to issue fresh show cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice itself, the Apex Court directed the assessee to file reply to the show cause notice and exhaust remedy and in order to give opportunity to the assessee and for the further issues to be adjudicated, the Apex Court directed the Department to take additional grounds, if so advised within eight weeks, thereupon, the assessee was directed to reply within a period of six weeks from the date of receipt of show cause notice; on receiving the reply, the Assessing Officer was directed to dispose of the matter. Thus, the decision of the Apex Court reported in (2009)23 VST 8 (SC) (South India Tanners and Dealers Association Vs. Deputy Commissioner of Commercial Taxes and others) relates to the show cause notice as such and has nothing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners being an unincorported body clearly fell within the expression "unincorporated association" referred to in Sub-Clause (e) of Article 366(29A) of the Constitution; Section 2(n)(v) of the Tamil Nadu General Sales Tax Act, 1959 treated the supply of goods by an unincorporated association to its members for cash, deferred payment, or other valuable consideration, as a sale; the provisions for levy of tax on the supplies effected as in this case, were clearly to be fell under Section 2(n)(v) of the Tamil Nadu General Sales Tax Act, which was in conformity with Article 366(29A)(e) of the Constitution. 10. On a challenge made to the discriminatory treatment made by the State in not treating similarly placed assessees viz., the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the liability under the provisions of the Central Sales Tax Act, 1956. 13. As regards the levy of penalty under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 is concerned, admittedly, the return filed was incomplete return and the assessee did not report the taxable turnover for supply of Wattle extract to its members. The judgment of this Court in the assessee's own case was rendered on December 12, 2001. The assessment order in this case was made on 25.07.2002 for the assessment year 1990-91 and 1991-92. Given the fact that this Court had already upheld the order of the Sales Tax Appellate Tribunal by order dated 12.12.2001 as regards the unincorporated body on the issue of "sale", we do not agree with the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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