9911796707
TMI Blog2000 (4) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... ng taxable as the last purchase in the State. After getting objections from the assessee an order of assessment was made on January 30, 1984 in the following manner: "Sales turnover of yarn ... Rs. 3,56,62,869.00 at 3% Sales turnover of cotton waste ... 4,07,797.00 at 4% Sales turnover of cone yarn ... 19,93,760.00 at 4% Sales turnover of Misc. goods ... 35,668.00 at 5% Purchase turnover of local cotton ... 77,50,061.00 at 3% Taxable turnover determined ... 4,58,50,155.00 Add: Exemption allowed purchase turnover of country cotton 1,43,46,717.00 ------------------- Total turnover determined 6,01,96,872.00" ------------------- Tax due on Rs. 4,34,12,930.00 at 3% Rs. 13,02,387.90 Tax due on Rs. 24,01,557.00 at 4% Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention on the part of the assessee to hide the turnover. He accordingly set aside the order imposing penalty. The matter was taken up on suo motu revision by the Joint Commissioner. The Joint Commissioner has dealt with the objections of the assessee and held against them in the following manner: "The dealer contended before the Appellate Assistant Commissioner that they did not receive invoices from the suppliers even though the goods have been recovered and accounted by them. The sale is complete as soon as the goods are delivered and hence the dealer should have reported the turnover and paid tax thereon as soon as they received the goods. The Appellate Assistant Commissioner has also held that there is no wilful failure to disclose t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g up the question of limitation first, the assessment order is 1982-83 and the notice proposing levy of penalty under section 12(5) of the Tamil Nadu General Sales Tax Act, 1959 was issued in January 18, 1988. The proviso to section 12(5) of the Tamil Nadu General Sales Tax Act, 1959 as it stood at the relevant time is as follows: "Provided that no penalty under sub-sections (3) and (5) shall be imposed after a period of five years from the expiry of the year to which the assessment relates and unless the dealer affected has had a reasonable opportunity of showing cause against such imposition." 6.. Therefore, limitation runs from April 1, 1983 and the notice issued on January 18, 1988, is definitely within the prescribed period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mil Nadu General Sales Tax Act, 1959. The Madras High Court has not referred to any previous decision on the aspect. Actually there is a line of cases which held in that it is sufficient to initiate the proceedings before the period of limitation and it is not necessary that final orders should be passed before the period of limitation. The earliest decision on this aspect and which is a binding decision, was rendered by the Supreme Court of India (Sales Tax Officer, Special Circle, Ernakulam v. Sudarsanam Iyengar Sons [1970] 25 STC 252). The Supreme Court of India was interpreting rule 33(1) of the Travancore-Cochin General Sales Tax Rules, 1950. That rule was as follows: "Rule 33(1): If for any reason the whole or any part of the tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety of proceedings which are taken with regard to it. It cannot and does not mean a final order of assessment alone unless there is something in the context of a particular provision which compels such a meaning being attributed to it. In our judgment despite the phraseology employed in rule 33 the principle which has been laid in other cases relating to analogous provisions in sales tax statute must be followed as otherwise the purpose of a provision like rule 33 can be completely defeated by taking certain collateral proceedings and obtaining a stay order as was done in the present case or by unduly delaying assessment proceedings beyond a period of three years." 9.. We are concerned in the present case with the word "imposed" used in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Municipal Act. The Supreme Court in that case observed that the word "imposed" in section 59 will have the following meaning: "Hence, in our view 'impose' in section 59 means the actual levy of the tax after authority to levy it has been acquired by rules duly made and sanctioned, and it is such imposition that is made subject to the general or special orders of the Government. Therefore, the Government can at any time by any such order prohibit the imposition of the tax." 11.. For all the above reasons we do not accept the contentions of the appellant that the imposition of penalty under section 12(5) had been made beyond the period of limitation. It was done within the period of limitation because the notice was admittedly is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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