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TMI Blog2020 (2) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... reflected in paragraph 34 of its order of the learned Tribunal. Petition dismissed. - W.P.No.2739 of 2005 - - - Dated:- 14-2-2020 - Dr. Justice Vineet Kothari And Mr. Justice R. Suresh Kumar For the Petitioner : Mr.ANR.Jayaprathap Government Advocate (For Taxes) For the Respondents : Ms.Hema Muralikrishnan ORDER DR.VINEET KOTHARI, J. The State has filed this Writ Petition, aggrieved by the order passed by the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench) dated 27.03.2003, whereby the learned Tribunal allowed the Appeal of the Assessee, holding that the transaction in question amounted to branch transfer made by the Assessee which was duly supported by Form-F which was duly verified during the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also available in the sale pattials. Hence the findings of the Assessing Officer is legally of no avail to the Department to create a tax liability on the dealer. When the assessee has furnished declaration in Form F issued by the agent and documents of transportation, unless the authorities below were able to record a finding contrary to the information available in these documents which was in turn based upon their own verification and enquiries and unless the Department would conclusively point out to the moving of consignments from out of settled agreements for inter-state purchase of the assessee's goods an assessment cannot legally arise on the turnover. 30. Another important fact as has been noticed, on perusal of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or otherwise of the details provided in the Form F . In as much as the Assessing Officer had satisfied with the correctness of the Form F further action in this regard is not feasible under law (ii) On facts In the statement recorded on 7.1.93 during the inspection by the Enforcement Wing Officers nowhere any attempt was made to implicate the transactions that had been made in the earlier years. In the absence of specific observations with regard to the transactions in the earlier years, any attempt to revise the assessments on the basis of the insufficient evidence could be futile exercise only. Further in the Hon'ble High Court of Madras the principal Commissioner and Commissioner of Commercial Taxes, Madras had g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of records proceedings can be pursued further without much insistence of the provision of Rule 4(3-A). 35. It is important to point out that during the inspection held by the Enforcement Wing on 7.1.93, in the place of business of the appellants, there was neither any seizure of records nor any discrepancies pointed out and hence there was no case for further proceedings in the absence of any incriminating records. Moreover, the completed assessments have been revised as per rule 4(3-A), which is a clear violation of the Principal Commissioner and Commissioner of Commercial Taxes instructions. Further it is also the fact that the appellants are in possession of entire set of records and the same were also duly produced before the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o hesitation in holding that the revision of assessments have been wrongly made in respect of the sale effected through the agents outside the State. Therefore, the orders passed by the first appellate authority is set aside. In fine, the appeals stand ALLOWED. 3. Both the learned counsels submitted that this legal position has been upheld by the Hon'ble Supreme Court in the case of Ashok Leyland Limited Vs. State of Tamil Nadu and Another reported in (2004) 3 SCC 1 wherein the Hon'ble Supreme Court has held hereunder: 99. An order passed by the Statutory authority who has jurisdiction therefore, the same would amount to a part of substantive and not procedural law. In addition to this, there is no pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermore, the question which has been, raised before us had not been raised therein. 111. We, therefore, are of the opinion that the observations made by this Court in Ashok leyland (supra) to the effect that an order passed under Sub-Section (2) of Section 6-A can be subject-matter of reopening of a proceeding under Section 16 of the State Act were not correct. 112. However, we may hasten to add that the same would not mean that even wherein such an order has been obtained by commission of fraud, collusion, misrepresentation or suppression of material facts or giving or furnishing false particulars, the order being vitiated in law would not (sic) come within the purview of the aforementioned principle. 4. Having heard the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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