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TMI Blog2016 (7) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... No.3 requires to be set aside and remanded for fresh consideration. With regard to finding in D.No.2 is concerned, once again it appears that there was no sufficient opportunity granted to the petitioner, since after the receipt of the notice dated 29.01.2016 the petitioner sought for time atleast of 15 days and this has not been either accepted or rejected. - Therefore, the finding rendered in D.No.2 of the impugned order also calls for interference and remitted for fresh consideration. Order set aside - Matter remanded back. - W.P.No.14242 of 2016, WMP.Nos.12442 and 16588 of 2016 - - - Dated:- 6-6-2016 - T. S. Sivagnanam , J. For the Petitioner: Mr.N.SriPrakash N.Prasad For the Respondent : Mr.Manokaran Sundaram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 2011-12 as 'addition'. The Assessing Authority opined that the Goodwill and Intellectual property being used are nothing but intangible goods liable to tax at 4%. Further, he stated that in terms of Section 12 of the Act, every registered dealer who in the course of business purchases from a registered dealer or any other person, any goods in circumstances in which no tax is payable by that registered dealer on the sale price of such goods under the Act and either consumes or uses such goods in or for the manufacture of other goods for sale or otherwise is liable to pay tax on the purchase at the rate specified in the schedule to the Act. It is further opined that in the case of the petitioner, the purchase of the Goodwill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of India Vs. The State of Tamil Nadu, 51 STC 278; (iii) Eicher Motor Limited TC (R) 49/13 dated 06.11.2013. Further, it was stated that for the purpose of valuation, a certain value is indicated in the books as value of 'goodwill' and 'brand'. However, the contract remains one for transfer of business as a whole. The decision in the case of Coromandel Fertilizers Limited V. State of A.P., 112 STC page 1 was relied on to support their contention that merely because the schedule to the business transfer agreement set out a value for the purpose of valuation, it does not mean that the sale is in respect that asset which is valued. But the sale continues to be one of business. Therefore, it was submitted that Section 12 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the petitioner. The decision in the case of Deputy Commissioner CT, Coimbatore V. K.Behanan Thomas, 39 STC 325, has pointed out that when the assessee sold the branch as of whole, consequent on which the branch itself was closed thereafter, the sale proceeds in question would not be taken as a part of the turnover. Further, it was pointed out that the sale of stock-in-trade for the purposes of closing down the business is different from the sale of the business as a whole as running concern; the sale of business, lock, stock and barrel, was not incidental or ancillary to the carrying on of a business so as to be taxable under the Act. This decision was followed by the Division Bench in the case of Eicher Motors Limited, Thiruvotriyur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of bifurcating certain turnover as related to the goods sold for the purposes of assessability did not arise. Pointing out to the distinction arising in the case reported in (1977) 39 S.T.C. 317 in the case of State of Tamil Nadu Vs Thermo Electrics, this Court pointed out that where the assessee retained certain assets and continued the business as a whole, the assessee could not claim the benefit of exemption under the provisions of the Act. 16. The decision reported in 39 STC 325 in the case of Deputy Commissioner (C.T.) Coimbatore Vs. K.Behanan Thomas once again came up for consideration in the decision reported in 51 STC 278 in the case of Monsanto Chemicals of India Ltd., (P) Limited Vs. The State of Tamil Nadu, wherein, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no sufficient opportunity granted to the petitioner, since after the receipt of the notice dated 29.01.2016 the petitioner sought for time atleast of 15 days and this has not been either accepted or rejected. Further, the petitioner, in their reply to the show cause notice, had referred to the decision of this Court in the case of Sri Vinayaga Agencies, Infinity Wholesale Ltd., and Tulsyan NEC (referred supra) and necessarily the respondent had to consider the effect of those decisions on the facts of the case. Therefore, the finding rendered in D.No.2 of the impugned order also calls for interference and remitted for fresh consideration. 8. Accordingly, the Writ Petition is allowed and the finding recorded by the impugned order at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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