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TMI Blog2000 (10) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on January 9, 1989. After considering the objections of the assessee, the final assessment was as follows: Total turnover proposed Rs. 9,34,193.50 Less: 1. Section 7-A turnover allowed Rs. 25,936.00 2. Export sales allowed Rs. 75,596.00 ---------------Rs. 1,01,532.00 ----------------- Rs. 8,32,661.50 Less: Exemption already allowed Rs. 3,59,276.00 Further exemption allowed on contact lens sales Rs. 70,372.00 -----------------Rs. 4,29,648.00 ----------------- Taxable turnover determined Rs. 4,03,013.00 ------------------- This is taxable as under: Commodity Turnover Rate of tax Tax due 1. Ophthalmic 2,37,300.00 8% 18,984.00 instruments 2. Ophthalmic instruments to Railway Hospital, ICF, Sales 72,000.00 4% 2,880.00 3. Microscope stand parts and clamps, Sec. 7A 93,713.50 5% 4,685.70 -------------------- Rs. 4,03,013.50 Tax due Rs. 26,549.70 ----------Tax paid Rs. 21,464.00 ---------- Balance Rs. 5,085.70 or Rs. 5,086.00 -------- 3.. It will be useful to notice the reasoning of the assessing authority on section 7-A turnover of Rs. 93,713.50, because this is the back-bone of the entire controversy. It is as follows: "Regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the revised order was passed by the assessing authority that an appeal in AP No. 585/89 was filed. Before the Appellate Assistant Commissioner, the dispute was as follows: (i) Levy of tax at 15 per cent on a turnover of Rs. 93,713.50 under section 7-A. (ii) Levy of penalty of Rs. 21,086 under section 12(5)(iii). 7.. The findings of the Appellate Assistant Commissioner, in his order dated October 23, 1991, are as follows: (1) The sellers of microscope stand parts and clamps were not registered dealers. The said goods purchased by the assessee were used in the manufacture of other goods. So, section 7-A is attracted. (2) The revision by assessing authority was under section 16(1)(b), though he had wrongly quoted section 55 of the Act. (3) Penalty under section 12(5)(iii) can be made only if the assessment was under section 12(4) of the Act. Since revision was made under section 16(1) of the Act, the entire penalty of Rs. 7,029 made under the original order dated January 9, 1989 and the levy of Rs. 14,057 made under the revised order dated June 30, 1989 was cancelled. 8.. The assessee filed a second appeal to the Sales Tax Appellate Tribunal in T.A. No. 420 of 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal s earlier decision reported in [2000] 118 STC 504 (Vinayaga Spinning Mills v. Commercial Tax Officer, Bazaar Circle, Tiruppur) and to hold that personal hearing or personal evidence was not necessary, especially when the assessee in his reply dated March 15, 1989 did not ask for such a hearing. He also observed that the question of violation of the proviso, was never raised at any earlier stage. It was, therefore, held that the order dated June 30, 1989 levying further penalty of Rs. 14,057 under section 12(5)(iii) was valid. He, therefore, proposed to allow T.C.(R). No. 2931 of 1997. 12.. Learned Vice-Chairman agreed that the revision was under section 55 of the Act, but did not find reason to differ from the earlier view expressed in [2000] 118 STC 504 (TNTST) (Vinayaga Spinning Mills v. Commercial Tax Officer). He, therefore, suggested the placing of the papers before a Full Bench. On the Judicial Member agreeing to this course, the case was posted before the Full Bench of the Special Tribunal to consider the correctness of the decision in [2000] 118 STC 504 (TNTST) (Vinayaga Spinning Mills v. Commercial Tax Officer). 13.. Already, the case has lost its original sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been well truly laid down that where the statute itself provides for a particular form of opportunity, it has to be strictly followed. If this essential difference is kept in mind, much of the controversy can be dispelled from our mind. One has to see only the decision cited by the Revenue to understand this difference. Rajamannar, C.J., effectively brings to light the correct approach in the following passage: "The only ground on which this writ is sought is that the Board did not give an opportunity to the petitioner to be orally heard. There is nothing in the Act or in the Rules framed thereunder which enjoins on the Board the duty to give an oral hearing to a person who invokes their revisional jurisdiction." 18.. In this case, the statute clearly provides a manner of giving opportunity. The same words have been interpreted in a particular manner by three separate Judges of the Madras High Court and a Bench of this Special Tribunal. Argues Mr. Venkateswaran that those judgments did not take note of two Supreme Court judgments. We will now refer to them. 19.. [1977] 39 STC 478 (State of Kerala v. K.T. Shaduli Yusuff), is strongly relied upon by the Revenue. The Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine witnesses. So far as the direct case of making assessment dealer, it is all the more necessary to give an opportunity of oral hearing. In any event, we do not see as how this Supreme Court judgment goes against the ruling of this Special Tribunal in [2000] 118 STC 504 (Vinayaga Spinning Mills v. Commercial Tax Officer). 20.. The next decision relied on by the Revenue for stating that the decision of the Special Tribunal in [2000] 118 STC 504 (Vinayaga Spinning Mills v. Commercial Tax Officer) requires reconsideration, is [1978] 42 STC 189 (AP) (Sri Venkataramana Manure Company v. Deputy Commissioner of Commercial Taxes, Guntur). In that case, section 20 of the Andhra Pradesh General Sales Tax Act, 1957, did not say that a person to whom a show cause notice is given under sub-section (4) should be given a personal hearing. It is in that context that a single Judge of the Andhra Pradesh High Court declared that no personal hearing was necessary, but even here, the division Bench of the Andhra Pradesh High Court held that a personal hearing should have been given to the assessee. 21.. The next decision is [1968] 21 STC 326 [Anandji Haridas and Co. (P.) Ltd. v. S.P. Kushare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. As per the Oxford Concise Dictionary, the meaning of the word, "heard" is given as "given audience". Therefore, it is argued that there is no question of "giving personal audience". It is further argued that the word "hear" and "heard" only means hearing a person either personally or over phone or through a radio message. Even accepting the above arguments of the learned counsel for the Revenue, we have to point out that the TNGST Act, 1959, does not recognize a hearing over the phone or through a radio message. Further, such a hearing is not known to law. "Hearing" in the legal parlance only means a "personal audience" or "oral hearing". We reject the above arguments of the learned counsel for the Revenue and uphold the decision rendered in [2000] 118 STC 504 (TNTST) (Vinayaga Spinning Mills v. Commercial Tax Officer). 25.. In fine, we do not see any ground at all for taking a contrary view than the one taken in [2000] 118 STC 504 (TNTST) (Vinayaga Spinning Mills v. Commercial Tax Officer). We reiterate that section 55 is certainly a provision enabling the assessing authority to revise his order and it is justifiably prescribed that where rectification has the effect of en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd" enumerated in the various provisions of the TNGST Act connote personal or oral hearing as a must or mandatory. It cannot be so, because of the absence of the words "in person" or "personally" after the terms "of being heard". That was the reason why His Lordship Fazal Ali, in State of Kerala v. K.T. Shaduli Yusuff, reported in [1977] 39 STC 478 (SC) (at page 490) had held that the assessing authority is not bound to examine the witness in the presence of the assessee. Hence, I am unable to subscribe the view that personal hearing should be given to the assessee whether he asks for it or not, but at the same time if he asks for it, it should be given and should not be refused. In this case, the assessee never asked for personal hearing at any stage till the arguments put forward by their counsel in the revision before this Special Tribunal though he filed written objections only without asking for oral hearing to the notice given under section 55 of the TNGST Act. 29.. So far all the reasons stated above and the reasoning given in my judgment dated July 25, 2000, both the T.C.R. No. 2930 of 1997 and 2931 of 1997 ought to be allowed accordingly. And this Tribunal doth further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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