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TMI Blog2010 (10) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 22(2) of the Tamil Nadu General Sales Tax Act, 1959, (for short 'the Act') for the alleged excess collection of sales tax at 8% instead of 5%. The appeal preferred by the petitioner to the Appellate Assistant Commissioner was rejected and the further appeal to the Sales Tax Appellate Tribunal was also rejected. Hence, the petitioner has approached this Court by way of present revision. 3.1.Mr.B.Ravindran, learned counsel appearing for the petitioner, would submit that inasmuch as the petitioner undertakes only contract works for executing the orders placed by the customers by printing bill books, labels, letter pads, ledgers, etc., the finding that the petitioner is manufacturing and selling the products in the open market and consequently is liable to be taxed accordingly is erroneous. The learned counsel would also submit that in any case, though materials were placed before both the first appellate authority as well as the appellate Tribunal to sustain the plea that the petitioner undertakes only contract works on work contract basis, the same were not considered. Non-application of mind on the part of the first appellate authority as well as the appellate Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has made a detailed submission by contending that the assessee undertakes only contract works for executing the orders placed by the customers and there are no materials available before the authorities to hold that the assessee is also manufacturing and selling printed materials in the open market on commercial basis. Though such arguments were advanced, a reading of the order does not indicate consideration of the materials placed by the petitioner. In fact, the learned counsel appearing for the petitioner has produced those materials before us and on a perusal of the same, it appears, prima facie, to us that the petitioner receives orders from the specified customers for printing of ledgers, receipts, bill books, etc. and these works are undertaken and after the printings are completed, the printed materials are supplied to the customers who placed orders. There is absolutely no discussion about the above materials by the appellate authority as well as the Tribunal. In fact, the appellate authority has also admitted that "the appellant would produce the order book and the relevant invoices at the time of hearing of the appeal to prove that the transactions are works contracts on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax or purported to be by way of tax in contravention of sub-section (1), to impose penalty not exceeding 1 = times of the amount collected. However, from the said judgment, we are unable to find out as to whether the excess tax so collected by the assessee has been retained by him or has been paid to the department. 8.On the other hand, we may refer to yet another Division Bench judgment reported in (1991) 83 STC 402 (State of Tamil Nadu v. Mohammed Ibrahim Sahib). In that judgment, the Division Bench was considering a similar question where excess tax was collected and it was also repaid and the Bench also elaborately considered the meaning of the expression "collected". In fact, the Division Bench had relied upon the judgment of the Supreme Court reported in (1977) 40 STC 497 (Joshi, Sales Tax Officer v. Ajit Mills Limited), where the Apex Court considered the meaning of expression "collected" under sections 37(1)(a) and 46(2) of the Bombay Sales Tax Act. The Supreme Court observed as follows:- "What does 'collected' mean here ? Words cannot be construed effectively without reference to their context. The setting colours the sense of the word. The spirit of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (2) of section 22, that provision came into force only with effect from 28.5.1993, whereas the tax in issue was collected by the petitioner for the period from 1.4.1992 to 30.9.1992, much prior to the said amendment had come into force and the dealer had also filed the return and the return relates to the assessment year 1992-93. In view of the above factual background, the amended provision may not be applicable to the facts of this case. The only provision that could be made applicable is section 22(2), which existed prior to the amendment and the same reads as under:- "22(2). - If any person or registered dealer collects any amount by way of tax or purporting to be by way of tax in contravention of the provisions of sub-section (1), whether or not any tax is due fromsuch person or dealer under this Act in respect of the transaction in which he collects such amount, the assessing authority may, after giving such person or dealer a reasonable opportunity of being heard, by order in writing impose upon him by way of penalty a sum not exceeding one and a half times such amount." The above provision contemplates a reasonable opportunity of being heard to be provided to the dea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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