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TMI Blog2018 (1) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... would squarely apply to the facts of the present case, where it was held that clause (a) of sub-section (1) of section 2 of the principal Act, namely Act 14 of1970 is ultra vires and should stand deleted. We make it clear that we are striking down only clause (a) of section 2(1). We also make it clear that under section 2 (2) and 2 (3) the intention of the legislature not to pass on the burden of additional sales tax to the consumers and the reference to prosecution, shall stand unaltered. The matter is remanded to the third respondent/Assessing Officer, who shall redo the assessment in accordance with law. - Writ Petition No. 27317 of 2007M.P.No.1 of 2007 - - - Dated:- 4-12-2017 - T. S. Sivagnanam, J. For the Petitioner : Mr. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the petitioner submits that the second respondent, namely, the Commissioner of Commercial Taxes, has a statutory duty as stipulated under Section 28-A (2) of the Tamil Nadu General Sales Tax Act to clarify any point concerning the rate of tax or the procedure relating to assessment and collection of tax and the petitioner has sought for clarification with regard to the procedure relating to assessment and collection of tax in the case of agent of a non-resident principal like it and the second respondent has passed one-line order stating that no clarification can be issued , without giving reasons and hence, the impugned order is liable to be set aside. The learned Government Advocate (Tax) fairly admits that the second res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar better case than M/s. Haldia Petro Chemicals. The petitioner, therefore, contended that, a similar clarification should be issued in their favour, as the object of Section 2(1) (aa) of TNGST Act and the explanation (1) is clear that, for the purpose of additional sales tax, the taxable turnover of more than one agent of non-resident principal should not be combined. 5. The second respondent, while passing the impugned order, has taken note of the submissions made by the petitioner, but, however, did not accept the case of the petitioner based on a decision of the Hon'ble Division Bench of this Court, in the case of India Beedi Leaves Limited Vs. State of Tamil Nadu, 1984 Vol.57 STC 190. In the said Tax Revision Case, the the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceeds ₹ 10,00,000/-, then, the levy of additional tax is automatic under Section 2(1) of the Act. 6. On a reading of the impugned order, it is not clear, as to how, the decision in the case of India Beedi Leaves Limited would apply to the facts of the case on hand. That apart, the petitioner has pointed out certain similarities between themselves and M/s.Haldia Petro Chemicals, and sought for a clarification to be issued in their favour, as that of the clarification issued in favour of M/s.Haldia Petro Chemicals. Further, there was a direction issued by the Court to examine the matter as per the statutory provisions. But, all these aspects have not been gone into, by the second respondent while passing the impugned order. Thus t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany situated outside the State in section 2 (1) (aa). If the above directions are carried out, the exemption granted up to Rupees one hundred crores will be equally applicable to all dealers. The O.Ps. are allowed and ordered in the above terms. There will no order as to costs. 8. In the instant case also, the petitioner's principal is situated outside the State of Tamil Nadu viz., in Andhra Pradesh, and they have no branch in the State of Tamil Nadu, and the petitioner is the direct agent of the principal, who is an assessee in Andhra Pradesh, and there is a consensus between the petitioner and the principal at Andhra Pradesh. Thus, on facts, the decision in the case of Siemens Ltd., (supra) would squarely apply to the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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