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TMI Blog2014 (5) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... under consideration is 1996-97. 2. The assessee herein is a registered dealer. It reported a total and taxable turnover of Rs.1,55,261.00 for the above said assessment year. Since the turnover in question was below Rs.3,00,000/-, there was no liability to pay the sales tax under the charging provisions. Hence, the Assessing Authority viewed that the collection of tax was in violation of the provisions of Section 22(1) of the Act and consequently, he levied penalty under Section 22(2) of the Act. The assessee filed an appeal before the Appellate Assistant Commissioner, who however dismissed the appeal. The assessee preferred further appeal before the Tribunal, which once again confirmed the view of the authorities below. Hence, the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty was called for to the tune of Rs.15,608/-. The assessee contended that going by the decision reported in 64 STC 1 KASTURI LAL HARLA v. STATE OF UP, the assessee was entitled to a refund of tax paid, since there was no liability under Section 3(1) of the Act to remit any tax. The Appellate Assistant Commissioner pointed out that when the assessee had the knowledge of the turnover well below the chargeable turnover as per Section 3(1) of the Act, it should have taken steps to refund the amount of tax collected. Hence, the collection of tax by the assessee amounted to unjust enrichment. The assessee had neither refunded the tax to the customers nor remitted the same to the State but retained the same. Since the tax collected would amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee as well as the learned Special Government Pleader (Taxes) for the respondent. 7. A perusal of the judgment of this Court reported in 137 STC 218 STATE OF TAMILNADU v. SAKTHI SUGARS LIMITED, shows that the assessee therein treated the gallonage fee as part of the turnover and collected the tax from the buyers and remitted the same to the State. In the judgment reported in 44 STC 352 EID PARRY (INDIA) LIMITED v. STATE OF TAMIL NADU, this Court held that gallonage fee was not liable to be included in the turnover and hence, following the same, the assessee's assessment herein was completed holding that gallonage fee was not liable to be taxed. It was pointed out that the State had preferred an appeal as against the judgment reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the case of decorticating millers. The respondents therein carried on the business of decorticating groundnut kernel. Eventhough they were only decorticating millers, they registered as dealer under the direction of the Department. The decorticates purchased kernal from oil mill owners, who in turn purchased the same from agriculturists. Though the oil mill owners were liable to pay tax as first purchasers, yet, because of the doubt as to the stage whether the decorticates are to be treated as dealers or not, at the behest of the sales tax authorities, the decorticates collected the tax from the oil mill owners and remitted it to the Government to the account of the said oil mill owners. On a levy of penalty under Section 22(2) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided for under the Section. This Court further pointed out that in the case of mutual mistake collection of tax or any amount by way of tax, would not mean contravention of the provisions of the Act to attract Section 22(1) of the Act. Although strong reliance was placed by the learned counsel on the above said decision, we do not think, the said decision would be of any assistance to the assessee herein since the facts in the said case is distinguishable from the one on hand. The decision reported in 83 STC 402 STATE OF TAMILNADU v. K. MOHAMMED IBRAHIM SAHIB hence has to be read in the context of the facts stated therein. So too the decision reported in 137 STC 218 STATE OF TAMILNADU v. SAKTHI SUGARS LIMITED, wherein this Court pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrant levy of penalty under Section 22(2) of the Act. 11. Learned counsel for the petitioner pointed out that the assessee had remitted the tax before the assessment, consequently, the question of levy of penalty does not arise. We do not agree with the said submissions. The assessee had retained the tax collected in spite of the fact that it had the knowledge that the total turnover was well below the chargeable limit. The fact that it had remitted the sum before the assessment was not justifiable of its violation, more so when it had the knowledge of the turnover well below the chargeable limit. We are not satisfied with the claim of the assessee herein in retaining the tax collected without taking any steps to refund the same to the cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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