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2010 (7) TMI 936 - MADRAS HIGH COURTWhether, in the facts and circumstances of the case, the Tribunal which is the final fact finding authority is legally correct in having concluded that the assessee after having purchased frames have sold them as such without fitting them into spectacles while the assessing authority has given categorical finding that the frames had not been sold as such without fitting them in spectacles? Whether the order of the Tribunal in not having restored the penalty levied under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 is legally sustainable? Held that:- The conduct of the respondent/assessee in having raised two separate bills, one for the frame and other for lens while delivering the spectacles to its customers, cannot be held to be an act of evasion of tax by the respondent/ assessee. It is well known canon of construction in taxation field that avoidance is not evasion. It will also be relevant to state that in a spectacle the lens being detachable, the customer can always use the frame separately by getting a different lens fixed depending upon the need, may be due to any change in the power of the lens. Therefore, treating the frame as a separate article of spectacle cannot be faulted. We therefore, hold that the action of the respondent/assessee in having raised two separate bills, one for the frame and the other for the lens and thereby, there would be collection of tax on sale of lens alone and not on the frame was permissible and cannot be questioned. No merit in these tax case revision and the questions of law are answered against the Revenue.
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