TMI Blog1990 (8) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... u Electricity Board placed orders on the respondents. The Tribunal held that there was no evidence before them to show that the entire goods imported were sold only to the Tamil Nadu Electricity Board and that therefore they were constrained to remand the matter to the assessing officer to give an opportunity to the respondents to adduce evidence on that aspect. 2.. On the second question relating to the disallowance of credit notes issued in the year 1982-83 in respect of sales which related to the year 1981-82, the plea before the Tribunal was that fresh invoices for the goods returned had been issued and such invoices were placed before the Tribunal. The contention was that since the invoices had been withdrawn, there was no sale and therefore, the assessing officer and the Appellate Assistant Commissioner should have granted exemption. The lower authorities had treated the claim under sections 4-C and 4-D of the Tamil Nadu General Sales Tax Act (hereinafter called "the Act ") and inasmuch as the claim was barred by limitation, the claim was disallowed. The Tribunal held that the fundamental taxation principle is that the turnover cannot be taxed unless the sale was complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eader referred us to page 15 of the typed set of papers where the Appellate Assistant Commissioner has considered the point. The argument is that the parties were only concerned with sections 4-C and 4-D of the Act. Similarly, before the Tribunal also, no argument was advanced on the basis that the said sections will not apply. Therefore, it will not be open to the respondents to put forward any new case in this Court. On the issue regarding form XVII declaration, the learned Government Pleader refers to T.C. No. 736 of 1989 (State of Tamil Nadu v. Electronics Trade and Technology Development Corporation Ltd., Madras) dated December 5, 1989 (printed at page 10 infra) where this Court has applied the decision in State of Tamil Nadu v. Arulmurugan and Company [1982] 51 STC 381 (Mad.) [FB] even in respect of the delay in filing form XVII declaration. 6.. Mr. C. Natarajan, learned counsel for the respondents, does not seriously dispute the fact that the assessee ought to have produced the evidence regarding import sales and they having failed to do so, cannot seriously seek for a remand at the stage of the Tribunal. Therefore, the learned counsel does not seriously dispute the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r also refers to section 13 of the Act as amended by Act 15 of 1964. Section 13(5) reads as follows: "(5) Where a dealer has refunded the price of articles returned by customers together with the tax collected from such customers in respect of the sale of such articles and where the amount representing the price refunded by the dealer is included in his turnover, the dealer shall be entitled to claim deduction of the tax levied in respect of such sales, within a period of six months from the date of sale by adjustment in the assessment and the final assessment shall be completed accordingly but such dealer shall not be entitled to claim any adjustment or refund of the tax in respect of the sale of such articles after the expiry of the said period of six months.' In the background of the said provisions of law, the Full Bench decision in Traders and Traders v. State of Tamil Nadu [1977] 40 STC 289 (Mad.) may be referred to with advantage. At page 297, the court observes with approval the observations in Devi Films (Private) Ltd. v. State of Madras [1961] 12 STC 274 (Mad.) which are as follows: "The Court held on a construction of rule 5(1)(b) of the Turnover and Assessment Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are satisfied, as that is the inevitable consequence of rule 9(b)(i) which allows deduction of the value of the goods returned within three months from the date of their delivery from the total turnover of that assessment year." The decision in Peico Electronics Electricals Ltd. v. State of Tamil Nadu [1990] 78 STC 88 to which one of us was a party, lends support to the arguments of the learned counsel for the petitioner. 8. We may, however, point out that before the Appellate Assistant Commissioner, the respondent did not present the case in the manner in which it is projected before us. However, being a question of law, we are impressed by the arguments advanced before us by the learned counsel for the respondent and we are, therefore, sustaining the order of remand for reasons different from the reasons given by the Tribunal. There is room for raising this plea because, admittedly, the sales have taken place during the year 1981-82 and fresh invoices were raised cancelling the original invoices issued during the year 1981-82. Therefore, the argument is that while determining the turnover for the year 1981-82, the said sales in respect of which fresh invoices have been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also include the assessment made on appeal by an appellate authority. The learned counsel for the respondents relies on the judgment of the Supreme Court in Commissioner of Agricultural Income-tax v. V.N. Narayanan Bhattadiripad [1972] 83 ITR 453 where it is held that the Appellate Tribunal has all the powers of the assessing authority and the order of the Tribunal should be considered as an order under section 29 of the Kerala Agricultural Income-tax Act, 1950. The Bombay High Court in Commissioner of Sales Tax v. Minimax Ltd. [1975] 35 STC 388, held that it was permissible in law for the Assistant Commissioner to accept the declarations in form D in exercise of his appellate jurisdiction and subject the sales to the concessional rates of tax under section 8(1) of the Central Sales Tax Act. The judgment of the Patna High Court in Hewitt Robine Incorporation v. State of Bihar [1973] 32 STC 146 is also to the same effect in respect of a declaration under section 6A of the Bihar Sales Tax Act. The Orissa High Court in Sahu Trading Co. v. State of Orissa [1983] 54 STC 122 says that the Assistant Commissioner in exercise of his discretion given to him by a specific rule can accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing authority or by the appellate authority. To make things easier for us a judgment of this Court in State of Tamil Nadu v. Electronics Trade and Technology Development Corporation Ltd. (T.C. No. 736 of 1989 dated December 5, 1989) (printed at page 10 infra) is placed before us. In that case, this Court has dismissed at the stage of admission a tax revision case filed by the Revenue against the judgment of the Tribunal applying the ratio in the decision in State of Tamil Nadu v. Arulmurugan and Company [1982] 51 STC 381 (Mad.) [FB] in respect of belated filing of form XVII declaration. One of us was a party to the said judgment. We are, therefore, following the said judgment in State of Tamil Nadu v. Electronics Trade and Technology Development Corporation Ltd. (T.C. No. 736 of 1989) (printed at page 10 infra), though it was a decision rendered at the time of dismissing a tax case without hearing the other side. Accordingly, the remand order of the Tribunal to enable the assessee to file form XVII declaration and the direction to the assessing authority to verify the same and give relief in accordance with law, has to be sustained. 10.. For all the above reasons, the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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