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TMI Blog2010 (11) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... year pertains to 1997-1998. 2. The questions of law raised for consideration are as under :- a) Whether in the facts and circumstances of the case, the Appellate Tribunal is right in restoring the levy of purchase tax on the purchase consideration of Rs.6,35,917/- paid by the petitioner on the purchase of fly ash from TNEB by shifting the point of levy from the point of first sale to the point of purchase ? b) Whether in the facts and circumstances of the case, the Appellate Tribunal is right in restoring the levy of purchase tax on the sum of Rs.40,02,498/- being the expenses incurred by the petitioner for transporting the fly ash to their factory, when the condition of sale by TNEB was ex-works and the transportation charges were post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Co., Ltd., ..v.. State of Tamil Nadu) held that the transport charges incurred by the petitioner would not form part of the purchase price paid and consequently the payment of purchase tax on such transport charges would not lie. The Division Bench has held as under in paragraph 11:- "11. ...... . Therefore, the findings rendered in the above decision in paragraph Nos.5 and 6 squarely applied to the facts of the present case. Paragraph Nos. 5 and 6 of the said judgment are extracted hereunder (at page 178 of 27 STC) : 5. In the present case herida was either on the tree or was to come subsequently. The seller did not incur any expenses towards anything done at the time of or before delivery of the herida. The purchaser himself was to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner also brought to the notice certain amounts of turn over of the stock transfer left out to the value of Rs.38,09,557/- (Rupees thirty eight lakhs nine thousand five hundred and fifty seven only). The Assessing Authority in his order dated 07.03.2000 took note of the said omission which was pointed out by the petitioner himself and ultimately arrived at the turn over both on fibre as well as cement for the levy of tax under section 3(4) of the TNGST Act in a sum of Rs.2,00,45,867 /- (Rupees two crores forty five thousand eight hundred and sixty seven only). However, the Assessing Authority proceeded further and imposed a penalty under section 23 of the Act. For that purpose, the Assessing Authority held that there was mis-declaration in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government either by themselves or through seller. Having been knowingly wilfully intentionally issue such false and wrong Form XVII declarations they have committed the offence of misuse of Form XVII under Section 45(2)(e) on the TNGST Act '59 for which penalty under section 29 is prescribed. The Commissioner of Commercial Taxes reference in Act Cell No.I.105508/94, dated 23.11.94 which is subsequent than the one cited by the dealer in reply clarified that there are no provisions in the Act to condone penalty for transfer tax payment under Section 3(4)." 6. The appellate Assistant Commissioner however rightly held that the petitioner was entitled for the invocation of Section 3(4) of the TNGST Act in respect of the stock transfer effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted in this case. We are not, therefore, convinced to sustain the said part of the order of the Tribunal. The question of law raised in ground 'C' therefore answered in favour of the petitioner and the order of the Tribunal on that account stands set aside. 7. In the light of the conclusions reached above on the question 'c' and having regard to the fact that the petitioner has complied with the requirements of the tax liability under Section 3(4) of the Act, we do not find any contravention of provisions of Section 3(3) of the Act. Consequently, the question of law raised in ground 'd' is answered in favour of the petitioner. 8. The Tax Case Revision stands allowed to extent indicated above. Consequently, connec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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