Ajey and Sons Oils (Madras) Private Limited vs State of Tamil Nadu

Chitra Venkataraman, J.—The assessee is on revisions as against the order of the Tribunal. The above revisions are admitted on the

following common questions of law:

(i) Whether, in the facts and circumstances of the case, the Sales Tax Appellate Tribunal is right in holding that the sales effected by the petitioners

are local sales ?

(ii) Whether, in the facts and circumstances of the case, the Sales Tax Appellate Tribunal erred in stating that in the absence of a specific order,

there cannot be an inter State sale as contemplated u/s 3(a) of the Act.?

(iii) Whether, in the facts and circumstances of the case, the Sales Tax Appellate Tribunal is right in confirming the levy of penalty in a revision of

assessment u/s 16 of the Act ?

The assessment years under consideration are 1989-90, 1988-89 and 1990-91, respectively. The assessment years relating to 1989-90 and

1988-89 were made u/s 16 of the Tamil Nadu General Sales Tax Act and the assessment year relating to 1990-91 relates to original assessment.

The facts are not disputed before us.

The petitioner herein is a dealer in vanaspati and edible oil. The place of business of the dealers was inspected by the enforcement wing officers

on December 3, 1990. The documents seized at the time of inspection revealed that the petitioner had effected sales to Andaman customers, but

the goods were delivered to the agent at Madras. According to the assessee, the agent of the customers had arranged for shipment. The assessee

had originally shown the turnover under the provisions of the Central Sales Tax Act and charged at four per cent against the C forms. However,

the inspection revealed that the bill of lading indicated the name of S. Vijayarajan & Co., Chennai and Kesavaram & Co., at Port Blair as buyer,

Going by the documents thus recovered, the assessment was sought to be re-opened proposing to assess the turnover under the provisions of the

Tamil Nadu General Sales Tax Act. The assessee resisted the said assessment on the ground that the purchasers at Andaman have no office or a

branch place of business at Madras. Most of their requirements of grocery, edible oils, vanaspati are to be ordered at Madras and moved to

Andamans from their nearest port, viz., Madras harbour. Each of the dealer has representative at Chennai to despatch the goods to Andaman and

the assessee pointed out that the services rendered by the representatives to the overseas buyer did not alter the inter-State character of the sale.

However, based on the records available, the assessing authority came to the conclusion that the goods had been delivered locally and that the

sales were concluded in the Madras. Consequently, the assessments for the assessment years 1988-89 and 1989-90 were revised under the Tamil

Nadu General Sales Tax Act. In that process, the assessing, authority levied penalty u/s 16(2) of the Tamil Nadu General Sales Act, Aggrieved by

the said assessments, the assessee went on appeal before the Appellate Assistant Commissioner, who confirmed the assessments. The appellate

authority recorded the finding in his order relating to 1988-89, that the assessee admitted that the goods were taken delivery by the representative

of the out-of-State buyers. Thus, the appellate authority confirmed the assessment. However on the aspect of penalty/the appellate authority'' held

that the. entire turnover in their returns were found in the books of accounts and the same were reported for assessment under the provisions of the

Central Sales Tax Act and tax paid. The sales turnover was fully reflected in the accounts books and also declared before the assessing officer by

way of statement at the time of assessment. Since, there was no wilful non-disclosure and mala-fide intention, by taking lenient view, the appellate

authority reduced the penalty from 150 per cent to 50 per cent/The orders passed in respect of all the three years are one and the same.

Aggrieved by the said order of the appellate authority, the assessee went on appeal before the Sales Tax Appellate Tribunal. By a common order

in respect of all the three years, the Tribunal confirmed the assessment including the penalty. Aggrieved by the same, the present appeal by the

assessee before this court.

The learned counsel for the petitioner submitted that going by section 3 of the Central Sales Tax Act, 1956, when the movement of goods from

Chennai to Andaman and the sale are inter connected, the revision of assessment made, as though it is local sales, is unsustainable in law. A perusal

of the order of the Tribunal, particularly in paragraph 14 of the order, shows that there are no materials to support the case of the assessee that the

sale was an inter-State sale. The Tribunal pointed out that the authorised representative of the assessee conceded that there was no agreement

providing for movement of goods to Andaman pursuant to the sale or as an incident of sale. In the absence of any agreement as well as in the

absence of material to show that the movement of goods to Andaman without any break for anyone to take delivery in Chennai, the sales had to

be treated as local sales. In that process, the Tribunal also referred to the decision reported in Balabhagas Hulaschand Vs. State of Orissa, and

held that in the absence of material to pin-point that the recipient of the goods at Chennai are not agents of the Andaman dealers, the sales had to

be treated as local sales; that there is hardly any material to go against the finding, the Tribunal pointed out that the sale in the case was concluded

by the delivery effected inside Tamil Nadu and that the persons who received the goods in Chennai were not agents of customers of the Andaman

dealer taking delivery in this State itself. Thus, on facts, the Tribunal held that there is nothing on record to show that the assessee had contract with

the Andaman dealers towards that end, effected sales, resulting in movement of goods from Chennai to Andaman. In the absence of any material,

we have no hesitation in confirming the order of the Tribunal holding that the turnover was assessable under the Tamil Nadu General Sales Tax

Act.

However as regards penalty u/s 16(2) of the Tamil Nadu General Sales Tax Act is concerned, except for revising the assessment for the

assessment years relating to 1988-89 and 1989-90, there are no materials to show that there was wilful non-disclosure to invoke section 16(2) of

the Tamil Nadu General Sales Tax Act. In fact, the order of the Appellate Assistant Commissioner records the finding that the turnover is found in

the books of accounts and there was no mala fide intention on the part of the assessee.

Given the said factual finding, the question of levy of penalty u/s 16(2) of the Tamil Nadu General Sales Tax Act does not arise in respect of two

assessment years relating to 1988-89 and 1989-90. Hence, the levy of penalty stands deleted in respect of assessment years 1988-89 and 1989-

Consequently, T.C. (R) Nos. 1817 and 1818 of 2006 are partly allowed, No costs. As far as T.C. (R), No. 1819 of 2006 is concerned, even

though the turnover is found in the accounts, when there is a difference between assessed turnover and the turnover returned under the Tamil Nadu

General Sales Tax Act, we do not find any acceptable reason to interfere with the order of levy of penalty at 50 per cent. In the result, T.C. (R),

No. 1819 of 2006 stands dismissed.