LAWS(MAD)-2010-1-620

KAILASH TRADE LINKS PVT LTD Vs. COMMERCIAL TAX OFFICER AYANAVARAM ASSESSMENT CIRCLE

Decided On January 27, 2010
KAILASH TRADE LINKS PVT. LTD., DIRECTOR K.S.KASI CHENNAI Appellant
V/S
COMMERCIAL TAX OFFICER AYANAVARAM ASSESSMENT CIRCLE CHENNAI Respondents

JUDGEMENT

(1.) The appellant is a registered dealer under the Tamil Nadu General Sales Tax Act, 1959 (for short, "the TNGST Act") as well as the Central Sales Tax Act, 1956 (for short, "the CST Act") and is mainly in the business of manufacture of textile fabrics laminated with Polyurethene. For the assessment year 2005-2006, the appellant had reported a total and taxable turnover of Rs.2,89,53,404/- and Rs.45,908/- respectively under the TNGST Act and Rs.53,55,826/- and Rs.Nil respectively under the CST Act. The appellant claimed exemption in respect of sales return amounting to Rs.3,43,210/- and Rs.2,87,52,193/- towards the sale of textile laminated fabrics. However, the assessing officer by the order impugned in the writ petition dated 15.3.2007 disallowed the claim of exemption and assessed the turnover of Rs.2,87,52,193/- as taxable at 16% on the sale of textile laminated fabrics with polyurethene, as the same falls under Entry 2 of Part E of the First Schedule to the TNGST Act, besides levying surcharge at 5% as well penalty @ 150% under the said Act. Similarly, the turnover projected under the CST Act was re-fixed in a sum of Rs.53,55,826/- and Rs.42,30,598/- respectively by the impugned assessment. However, the appellant claimed exemption in respect of the turnover of Rs.42,30,598/- as pertaining to inter-State sales, as the goods fall under Entry 9(iii) of Part-A of the Third Schedule to the TNGST Act. However, the assessing officer by the order impugned in the writ petition dated 7.5.2007 disallowed the claim of exemption on the ground that the goods would fall under Entry 2 of Part of the First Schedule taxable at 16% under the TNGST Act and at 16.8% in the absence of 'C' forms under the CST Act besides levying penalty. Though the appellant had the remedy of preferring appeal against the orders of assessment before the Appellate Assistant Commissioner and in case of failure before that authority, to a further remedy of appeal before the Tribunal, the appellant had approached this Court by way of the writ petitions on the peculiar facts and circumstances of the case.

(2.) It appears that for the assessment year 2003-2004, the appellant collected tax at 16% while dealing with the very same goods, namely, textile fabrics laminated with polyurethene and had remitted the same to the department. However, the assessing officer found that the goods in question are exempted and therefore the appellant ought not to have collected tax and in that view, imposed penalty in terms of Section 22(2) and Section 23 of the TNGST Act. That order was questioned by the appellant before the Appellate Assistant Commissioner, who found that the goods in question are not exempted from tax and consequently set aside the order of the assessing officer. As against the order of the Appellate Assistant Commissioner for the assessment year 2003-2004, the revenue has preferred further appeal to the Tribunal and the same is pending. In such circumstances, there is no point in moving the Appellate Assistant Commissioner, as the orders impugned in the writ petitions were passed on the basis of the order of the Appellate Assistant Commissioner in respect of the assessment year 2003-2004.

(3.) The writ petitions did not find favour with the appellant before the learned single Judge on the ground that the appellant cannot take two different stands, one for the assessment year 2003-2004 and another for the assessment year 2005-2006 and for the said reason, the writ petitions came to be dismissed.