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TMI Blog2022 (10) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... over of Rs.29,95,525/- on which the claim of exemption as branch transfer was disallowed by the assessing authority and treated as direct interstate sales. Against the above assessment the appellants preferred an appeal before the Appellate Assistant Commissioner (CT), VI, Chennai. After considering the arguments and the connected records, the first appellate authority in his orders dated 11.12.1998 had confirmed the assessment on a turnover of Rs.10,23,728/-. The balance turnover of Rs.19,71,803/- was remanded back to the assessing authority for verification of the claim of exemption with reference to the documents produced by the appellants. When the assessing authority issued notice with reference to the remand directions of the first appellate authority, the appellants had filed the documents relating to the branch transfer not only for the remanded turnover of Rs.19,71,803/-, but also for the confirmed turnover of Rs.10,23,728/-. Since the first appellate authority had already confirmed the assessment on the turnover of Rs.10,23,728/- the assessing officer had not taken into consideration, the documents produced by the appellants. He had confirmed the assessment on this turnov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the petitioner was entitled to produce any other documents in its possession to establish branch transfer. 3. In this connection, a reference was made to the decision of the Division Bench of this Court in A. Dhandapani V. State of Tamil Nadu and Another (1995) 96 STC 98 (Mad). 4. A reference was also made to the decision of the Full Bench of the Kerala High Court in M.Syed Alavi and Others Vs. State of Kerala, (1981) 48 STC 150 (Ker). The Full Bench of the Kerala High Court in the above case relied on several decisions of various Courts including the decision of this Court in S. Senniappa Mudaliar V. The Government of Madras, (1965) ILR 2 Mad 397. A reliance was placed on the decision of this Court in State of Tamil Nadu V.Sharada Enterprises, (2019) 71 GSTR 107 wherein the above view was followed. 5. It was submitted that an issue which was not agitated by way of further appeal after the case was partly allowed and partly remanded by the First Appellate Authority back to the Original Authority, the Appellate Commissioner and the Tribunal could still decide the issue afresh notwithstanding the fact that no appeal was filed against the order of the First Appellate Authority d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "In the instant case, it is true that no appeal was filed against the decision dated 12th April, 1976, of the Appellate Assistant Commissioner. The effect of non-filing of an appeal is that the finding is binding on the assessing authority when the case went back to that authority and also on the Appellate Assistant Commissioner while disposing of the appeal from the revised decision of the assessing authority. It is not binding on the Appellate Tribunal in the appeal filed under Section 9 against the decision of the Appellate Assistant Commissioner. The Appellate Tribunal was free to arrive at its own decision on the question of liability of the petitioners to assessment to sales tax". 12. The decision of the Kerala High Court also refers to an earlier decision of this Court in S.Senniappa Mudaliar vs. The Government of Madras, (1965) ILR 2 Mad 397 apart from other decisions of various courts including that of the Hon'ble Supreme Court. This view was followed by the Division Bench of this Court in State of Tamil Nadu vs. Sharada Enterprises, (2019) 71 GSTR 107 (Mad.) cited by the learned counsel for the petitioner. 13. Earlier, the petitioner had suffered an assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity to the appellants to prove their case. I therefore, remand the turnover of Rs.19,71,803/- back to the Assessing Officer for giving an opportunity to the appellants to produce all other supporting documents to prove that there has not been any pre-existing contract and that the goods have been dispatched to their Pondicherry branch in the normal course of business. ii) In regard to levy of penalty, in as much as the assessment has been Partly Dismissed and Partly Remanded I set aside the levy of penalty also and remand the same back to the Assessing Officer for redo and restructing in the light of the changed circumstances." 15. As far as the issue relating to branch transfer for which Section 6A exemption was denied by the Assessing Officer and confirmed by the Appellate Assistant Commissioner, the petitioner did not take it up on further appeal before the Appellate Tribunal. 16. Thereafter, the Additional Commercial Tax Officer on 31.12.2002 passed an order in the remand proceeding. Relevant portion of the order dated 31.12.2002 of the Original Assessing Authority reads as under:- 4. In pursuance of the order of the AAC (CT) VI, I have examined the reply of the deale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s against Form H 3,18,08,805.00 Tax due @ 4% on Rs.3,06,42,659.00 12,25,706.36 Tax due @ 11.6% on Rs.10,25,640.00 1,18,974.24 13,44,680.60 As proposed, penalty is levied u/s.92A of the CST Act read with Sec.12(3)(b) as amended provisions on the difference of tax paid as per Returns and tax paid as per final assessment: PENALTY PENALTY Penalty due 59,432 - 40.00 Penalty paid Nil Nil Balance 59,432- 40.00 Notice in Form 54 issued Tax Total due Rs.13,44,681.00 Paid Rs.12,25,818.00 Balance Rs. 1,18,863.00 17. Though the petitioner failed to challenge the order of the Appellate Assistant Commissioner dated 11.12.1998, insofar as, rejection of exemption under Section 6A(1) of the Central Sales Tax Act, 1956 is concerned, the fact remains that the benefit of branch transfer was partly allowed to the petitioner to the extent of Rs.19,71,803/- even though, the petitioner was not able to produce Form - F before the Assessing Officer pursuant to remand order as is evident from a reading of order dated 31.12.2002 of the Assessing Officer. 18. Aggrieved by the same, the petitioner preferred an appeal before the Appellate Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 6A of the CST Act, 1956 is not in order, and apt to be rejected. The assessing authority has also not seen sufficient cause for reopening the assessment. In short, I do not find anything amiss in the action of the assessing authority in implementing the appeal orders and levying tax on the turnover of Rs.3,56,143/- confirming the tax already levied. However, the penalty levied in relation to those turnovers which was earlier remanded for reconsideration is not sustainable as per the decision of the Madras High Court in the case of Apollo Saline Pharmaceuticals Private Limited (2002) 125 STC 505. 7. In fine, the tax levied on the turnovers disputed is confirmed and the penalty of Rs.59,432 - levied under Section 12(3)(b) of the Act vide the impugned proceedings is deleted. In fine, the AP.CST.31/2003 is modified". 20. Under Section 55 of the of the Tamil Nadu General Sales Tax Act, 1959 which is applicable for assessment under Central Sales Tax Act,1956, a five year window period is prescribed for revising the assessment. It reads as under:- Section 55 Power to rectify any error apparent on the face of the record. - (1) An assessing authority or an appellate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not open for a Lower Authority to over look the direction of the Appellate Authority, the Higher Appellate Authority, such as the Appellate Tribunal can examine the case afresh in the light of the law settled by the Kerala High Court in M.Syed Alavi and Others vs. State of Kerala, (1981) 48 STC 150 (Ker) followed by this Court in State of Tamil Nadu vs. Sharada Enterprises, (2019) 71 GSTR 107 (Mad. 23. The Appellate Tribunal is the ultimate fact finding authority. Therefore, it was incumbent on the part of the Appellate Tribunal to have examined the claim based on the additional documents/evidence in the light of the law settled by the Kerala High Court in M.Syed Alavi and Others vs. State of Kerala, (1981) 48 STC 150 (Ker) followed by this Court in State of Tamil Nadu vs. Sharada Enterprises, (2019) 71 GSTR 107 (Mad.) 24. We are therefore of the view that the impugned order passed by the first respondent Appellate Tribunal is unsustainable and liable to be set aside. We, therefore remand the case back to the first respondent Appellate Tribunal to re-examine the issue in the light of the law settled by the Kerala High Court in M.Syed Alavi and Others vs. State of Kerala, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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