Speed-away Limited vs State of Tamil Nadu

Abdul Hadi, J.—These two tax revisions u/s 38 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as ""the Act"") are

preferred by the same assessee, who is a dealer auto parts, tractor parts, etc., the former relating to the assessment year 1978-79 and the latter

relating to the assessment year 1976-77. They are only against the confirmation by the Tribunal of the order of the Appellate Assistant

Commissioner upholding the levy of penalty u/s 22(2) of the Act to the extent of Rs. 1,94,262 and Rs. 29,628 respectively for the assessment

years 1976-77 and 1978-79. According to the said provision, if any registered dealer collects any amount ""by way of tax or purporting to be by

way of tax in contravention"" of section 22(1) of the Act, the assessing authority may impose upon him a penalty as prescribed u/s 22(2) of the Act.

Section 22(1) of the Act says that no person who is not a registered dealer, shall collect any amount by way of tax or purporting to be by way of

tax under this Act and that no registered dealer shall make any such collection except in accordance with the provisions of the Act and Rules

thereunder.

However, in the present case, taking into amount the decision in Metal Sales Corporation Vs. Joint Commercial Tax Officer, Harbour III

Assessment Circle, , only the excess collection, by the assessee over and above the tax suffered by it in its purchase in each of the abovesaid two

years was levied as penalty. The total collection was discovered, on checking of accounts of the assessee for the later assessment year 1979-80.

Then, it was found that the assessee had collected sales tax in the guise of ""handling charges"" for the second sales of single point goods in its hands.

The contention of the assessee before the authorities below as well as before us is that the abovesaid collections were made only as ""handling

charges"" and so section 22(3) is not attracted. Learned counsel for the petitioner points out that as per section 22(2), penalty could be levied only

if the relevant amount is collected ""by way of tax or purporting to be by way of tax in contravention"" of section 22(1) of the Act and that since the

collections were made as handling charges, no penalty could be levied u/s 22(2).

On the other hand, learned Additional Government Pleader (Taxes) points out that as of fact, the Tribunal finds after giving valid reasons, that

those collections were not really made as handling charges. In reply, learned counsel for the assessee submits that the Tribunal in coming to the

abovesaid conclusion did not take into consideration the material evidence, viz., that similar handling charges were collected by the assessee even

with reference to its first sales, which were actually assessed to tax.

We have considered the rival submissions. No doubt, if the abovesaid collections are really by way of handling charge, section 22(2) of the Act,

is not attracted.

But, in the present case, a factual finding has been given by the authorities below including the Tribunal that the relevant collections were not

made as handling charges. But, learned counsel for the assessee argues that the abovesaid factual finding arrived at by the Tribunal, has been

rendered, without taking note of a very material evidence, viz., the sale bills relating to the abovesaid first sales by which also similar handling

charges were collected. But, the said learned counsel is unable to point out from the orders passed or any other records before us that such sale

bills of first sales were actually produced before any of the authorities below. In fact, we find the following observation in the Tribunal''s order in

respect of the assessment year 1978-79 :

As regards the assessment year 1978-79 is concerned relating to T.A. No. 1334 of 1986 the appellants contended before the assessing officer

that they have collected similar handling charges for taxable goods (that is, the abovesaid first sales) also during that year and also collected sales

tax and it would prove their bona fides. The assessing officer called upon them to produce the first sale bills where handling charges were also

collected. He also requested them to furnish the details of the expenditure over cooly, freight, postage, advertisement etc. The assessees were also

requested to produce the formula on the price structure for the year 1978-79. They produced price structure effective from June 1, 1978.

So, even though the assessing officer called upon the assessee to produce (1) the abovesaid first sale bills, (2) the details of the expenditure over

cooly, freight, postage, advertisement, etc., and (3) the formula on the price structure for the year 1978-79, the assessee produced only the above

price structure spoken to in item 3 above. Then, in respect of assessment year 1976-77, the Tribunal says as follows :

Similarly for the year 1976-77 relating to T.A. No. 1335 of 1986 the assessing authority found that the assessees have not produced the bills for

the sales to prove their claim that handling charges were collected apart from sales tax for first sales also.

So, in respect of assessment year 1976-77 also, the first sale bills, said to contain the reference to handling charges, were not produced.

Apart from the abovesaid observations in the Tribunal''s order, learned Additional Government Pleader (Taxes) also produces the assessment

file in respect of both the years and submits that nowhere it is mentioned that the abovesaid first sales tax bills were produced at the time of the

abovesaid assessment relating to penalty, after checking the accounts for the year 1979-80, as stated above. She also submits that such sale bills

are not in the said files. Learned counsel for the assessee could not say anything contra excepting merely asserting that those bills were produced at

the time of penalty assessment. We cannot take note of the mere assertion of the said learned counsel and, therefore, we are unable to agree with

the contention of the said learned counsel that the Tribunal has failed to take note of any material evidence as contended by him. The counsel also

requested a remand, to enable the assessee to produce the abovesaid bills, for being considered afresh. But we cannot show any such indulgence

in this revision u/s 38 of the Act, particularly in the light of above features.

We may also point out the other reasons given by the Tribunal for coming to the conclusion that the assessee made the abovesaid collections not

as handling charges, but only by way of tax or purporting to be by way of tax in contravention of section 22(1) of the Act. The reason given in the

common order passed by the Tribunal, relating to both the assessment years can be gathered from the following two observations of the Tribunal :

(1) Relating to assessment year 1978-79 -

According to the assessing officer the price structure showed discount allowable to the buyers ranging from 15 per cent to 28 per cent and that

the handling charges for the second sales worked out to 13 per cent for auto parts, 9 per cent for tractor parts and 6 per cent for industrial

machinery parts and the rate of tax for the relevant year for the above goods was 13 per cent, 9 per cent and 6 per cent respectively. Further the

assessing officer also found that the details of expenditure furnished by them had no relevance for the handling charges collected by them. So the

assessing officer found that the assessees have only recouped the tax borne out by them at the stage of the first sales in their second sale bills. But

while so doing they have collected more than the tax incident. He has found that such excess collection was Rs. 29,627.75."" (It is this sum which

was levied as penalty for assessment year 1978-79, as stated above).

(2) With reference to the assessment year 1976-77 -

He (assessing officer) also found that the assessees have not produced any evidence to prove that expenses incurred by them during that year,

towards cooly, freight, postage, etc., had relationship with the handling charges recovered by them in their second sale bills. He further found that

the handling charges collected by them which worked out to 14 per cent for automobile parts, 10 per cent for tractor parts, 9 per cent for

industrial machinery parts and 4 per cent for other goods, proved that the assesses wanted to recover the single point tax paid by them to the

suppliers and while doing so they have actually collected excess amount of Rs. 1,94,261.58."" (It is this sum which was levied as penalty for the

assessment year 1976-77, as stated above).

Thus, it is clear that the alleged handling charges for the abovesaid different goods sold by the assessee were uniformly commensurate with the

respective tax in respect of this goods. Further, as also found by the Tribunal, the alleged handling charges have not been collected at uniform rate,

but they differed according to the type of commodity as found by the assessing office.

These features necessarily lead us to the conclusion that really speaking those collections were made only by way of tax or purporting to be by

way of tax and not as handling charges. No doubt, learned counsel for the assessee also drew our attention to one sentence in the Tribunal''s

order, starting that the rate of alleged handling charges collected ""differs slightly from one bill to another"". But, from this observation about slight

difference from one bill to another alone, the learned counsel cannot build up an argument that the Tribunal erred in law in dealing with the

abovesaid question, particularly in the light of the above referred to other features mentioned by the Tribunal. The Tribunal also gives certain other

reasons, But, there is no necessity to go into those reasons, since in these tax revisions u/s 38 of the Act, we have only to see whether any error of

law has been committed by the Tribunal. Once we find that no material evidence has been overlooked by the Tribunal as contented by learned

counsel for the assessee, we are unable to see any error of law in the order of the Tribunal below.

In the result, we dismiss both the tax case revisions. However, in the circumstances of the case there is no order as to costs.

Petitions dismissed.