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TMI Blog2018 (3) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government Pleader (Taxes) ORDER ( Order of the Court was made by S. Manikumar, J ) Instant Tax Cases (Revision) are filed against the common order of the Tamil Nadu Sales Tax Appellate Tribunal (Main Bench), Chennai, dated 06.04.2017, made in STA Nos.186 185 of 2015. 2. As the issue involved in both the Tax Cases (Revision) are common, both the cases are taken up together, and disposed of by a common order. 3. Short facts leading to the filing of the appeals are that the respondent Tvl.Celony Hardwares, dealers in Hardwares, has filed the monthly returns in Form 'K' under Section 3(4) of the TNVAT Act 2006 for the years 2012-13 and 2013-14, and reported a total and taxable turnover of ₹ 50,91,404/- and 38,87,434/- respectively. The assessments were deemed to have been completed under Section 22(2) of the TNVAT Act 2006. As per Section 3(4) of TNVAT Act, respondent can opt for filing returns in Form 'K', if their total and taxable turnover is below ₹ 50,00,000/-. But, the total and taxable turnover of the dealer for the year 2012-13 and 2013-14, has exceeded ₹ 50,00,000/-. Hence, according to the department, the assessee is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of assessments made by the Assessing Officer as against the assessments already made under Section 3(4) of the TNVAT Act 2006 by the Assessing Officer for the disputed years 2012-13 is sustainable? 2. In any event the order of the Tribunal is not sustainable either in law or on fact? 3. Whether the order of the Tribunal in confirming the order of First appellate authority and setting aside the revised assessment order made by the assessing Officer made under Section 3(4) of the TNVAT Act for the disputed assessment years is sustainable or not? 6. Supporting the prayer sought for Mr.V.Haribabu, learned Additional Government Pleader (Taxes), submitted that the tribunal has erred, in allowing the appeals by stating that the assessments were already made accepting the option under Section 3(4) of the TNVAT Act, 2006, which is not correct, and the decisions relied on by the first appellate authority are not, in accordance with the provisions of TNVAT Act 2006. 7. Learned Additional Government Pleader (Taxes), further submitted that the tribunal has failed to take note of the fact that the audited statement of accounts were not furnished by the dealer, before the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hreshold of ₹ 50 Lakhs; that both the first appellate authority and the tribunal, have failed to consider the fact that the dealer has not followed the procedure enumerated in Section 3(4)(b) of the Act. 12. Learned Additional Government Pleader (Taxes), further submitted that for adherence to the provisions of the Section 3(4)(b) of the Act, the dealer is liable to pay the notified rate of tax on the transaction made by the dealer. Both the Appellate Authority as well as the Tribunal have totally ignored the above fact, and erred in setting aside a well-considered assessment order. 13. Heard Mr.V.Haribabu, learned Additional Government Pleader (Taxes), appearing for the petitioner and perused the materials available on record. 14. Before adverting to the contentions, let us have a cursory look at the relevant provisions. 15. Section 3(2) of the Tamil Nadu Value Added Tax Act, 2006, is extracted hereunder: 3. (2) Subject to the provisions of sub-section (1), in the case of goods specified in Part - B or Part - C of the First Schedule, the tax under this Act shall be payable by a dealer on every sale made by him within the State at the rate specified therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y dealer produces false bills, vouchers, declaration certificate or any other documents with a view to support his claim of input tax credit or refund, the assessing authority shall, at any time, within a period of five years from the date of order of assessment, reverse input tax credit availed and determine the tax due after making such a enquiry, as it may consider necessary: Provided that no order shall be passed under sub-sections (1) and (2) without giving the dealer a reasonable opportunity to show cause against such order. (3) In making an assessment under clause (a) of sub-section (1), the assessing authority may, if it is satisfied that the escape from the assessment is due to wilful non-disclosure of assessable turnover by the dealer, direct the dealer, to pay, in addition to the tax assessed under clause (a) of sub-section (1), by way of penalty a sum which shall be (a) fifty per cent of the tax due on the turnover that was wilfully not disclosed if the tax due on such turnover is not more than ten per cent of the tax paid as per the return; (b) one hundred per cent of the tax due on the turnover that was wilfully not disclosed if the tax due on such t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (1), unless for reasons to be recorded in writing, he considers that such account, register, record or document is genuine and that the failure to produce the same before the assessing authority was for reasons beyond the control of the dealer. 20. Material on record discloses that aggrieved over the assessment orders for the financial years 2012-13 and 2013-14, vide proceedings of Deputy Commercial tax Officer, Tambaram Assessment Circle dated 25.11.2014 and 17.10.2014, respectively, the respondent company Tvl.Celony Hardwares has filed appeals before the Appellate Deputy Commissioner (CT), Chennai in AP.Nos.389 420 of 2014, respectively. 21. The Appellate Deputy Commissioner (CT), Chennai vide separate orders dated 24.12.2014, allowed the appeals filed by the respondent company 22. Aggrieved over the same, the department filed two appeals viz., STA Nos.185 186 of 2015, respectively before the Tamil Nadu Sales Tax Appellate Tribunal (Main Bench), Chennai and in the appeals, the tribunal framed the following point for consideration whether the orders of the first appellant authority in setting aside the revision of assessments made by the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able turnover of ₹ 50,91,404/- in the monthly return in Form-K filed for the assessment year 2012-13 but the actual total and taxable turnover during the disputed year comes to ₹ 48,59,008/- as per the audited statement certified by the Chartered Account for the assessment year 2012-13. Thus, a total mistake was crept while computing the turnover details reported to the department. Therefore, it is evident that the respondent had wrongly reported a total and taxable turnover of ₹ 50,91,404/- in the monthly returns in Form-K instead of the actual sales turnover due to be reported as ₹ 48,59,008/- as per the audited statement for the assessment year 2012-13. The above audited statements were also filed before the First Appellate Authority and no adverse finding has been recorded on the filing of audited statement for the disputed year in question. A perusal of the First Appellate Authority order by us, it was observed that the revision of assessments were made under section 27 of the TNVAT Act, 2006 for the disputed years and so revision of assessment cannot be invoked especially when a dealer is exercising option in payment of tax in compounded rate and secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the orders of the First Appellate Authority setting aside the revision of assessments made on the impugned turnover for the disputed years by the Assessing Officer are found to be correct and we see no valid reasons to interfere with the orders of the First Appellate Authority. Accordingly, the point is answered. 24. The contention of the learned Additional Government Pleader (Taxes) that the tribunal erred in allowing the appeals by stating that the assessment were already made, by accepting the option made under Section 3(4) of the TNVAT Act, 2006, cannot be countenanced for the reason that in the opening paragraph of the order of the assessing authority, dated 17.10.2014, it is clearly observed that Tvl.Celony Hardwares, Dealers in Hardwares at No.8/20, Thomas Street, Kadaperi, Tambaram, Chennai-45, have filed the monthly returns in Form 'K' under Sec.3(4) of TNVAT Act 2006 for the year 2013-14 and reported a total and taxable turnover of ₹ 38,87,434.00. The assessment has been deemed to have been completed under Section 22(2) of the TNVAT Act, 2006. 25. Besides, the assessing officer, has issued a revision notice dated 30.09.2014. Subject ment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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