TMI Blog2013 (12) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee itself does not appears to be a bonafide claim - the order of penalty under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act levied on the assessee upheld – Decided against Assessee. - Tax Case (Revision) Nos.174 and 175 of 2009 - - - Dated:- 23-10-2013 - Chitra Venkataraman And T. S. Sivagnanam,JJ. For the Petitioner : Mr. R. L. Ramani, Senior Counsel for Mr. B. Raveendran For the Respondent : Mr. Manoharan Sundaram Additional Government Pleader ORDER (The Order of the Court was made by Chitra Venkataraman, J.) The assessee is on Tax Case (Revisions) as against the order of the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench) Chennai passed in T.A.Nos.113 and 139 of 2006 dated 29.04.2009 relating to the assessment years 1990-91 and 1991-92 raising the following question of law:- " Whether the Forty-sixth amendment to the Constitution of India has done away with the doctrine of Mutuality?" 2. The assessee is an association registered under the provisions of Tamil Nadu Societies Registration Act, 1975. The members of the association are engaged in the business of processing hides and skins. In respect of the processing of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be invoked. 6. The Sales Tax Appellate Tribunal, however, pointed out that the assessee's members were running their business in the other States. The Sales Tax Appellate Tribunal further pointed out that when the association called for supply of Wattle extract, 'sale' arose between the assessee and its members carrying on the business in other States, thus, 'sale' in pursuance of such contracts were liable to be assessed under the provisions of the Tamil Nadu General Sales Tax Act; further the assessee had not filed any material before the authorities concerned that the sale got concluded in the State itself. Consequently, the Sales Tax Appellate Tribunal rejected the assesee's contention and upheld the assessment. On the levy of penalty, the Sales Tax Appellate Tribunal pointed out that the issue as regards the assessability of an incorporated body came to be decided by this Court in the decision reported in 127 STC 491 (All India Skins Hides Tanners and Merchants Association Vs. Commercial Tax Officer and others) on 12.12.2001. The assessee pointed out that on account of the bonafide belief that their supplies to the members would not constitute a 'sale' under the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Tribunal dismissing the writ petition of the assessee, this Court was approached by the assessee, wherein, the judgment was delivered, against which the appeal was preferred. The assessee did not file any reply to the show cause notice. Pointing out that the Courts ought not to have interfered at the stage of show cause notice itself, the Apex Court directed the assessee to file reply to the show cause notice and exhaust remedy and in order to give opportunity to the assessee and for the further issues to be adjudicated, the Apex Court directed the Department to take additional grounds, if so advised within eight weeks, thereupon, the assessee was directed to reply within a period of six weeks from the date of receipt of show cause notice; on receiving the reply, the Assessing Officer was directed to dispose of the matter. Thus, the decision of the Apex Court reported in (2009)23 VST 8 (SC) (South India Tanners and Dealers Association Vs. Deputy Commissioner of Commercial Taxes and others) relates to the show cause notice as such and has nothing to do with the assessability of the assessee in the status of the unincorporated body. 9. Leaving this aside, if we look at the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; by recording the submission made by the State that it was initiating action against the State owned Corporation for the recovery of tax on transactions which were similar to those like that of assessees herein, this Court rejected the writ petition. Thus the judgment of this Court, which was based on several decisions of this Court does not appear to be the subject matter of (2009)23 VST 8 (SC) (South India Tanners and Dealers Association Vs. Deputy Commissioner of Commercial Taxes and others). 11. Even though learned Senior Counsel appearing for the assessee insisted that the subject matter of the judgment of this Court reported in 127 STC 491 (All India Skins and Hides Tanners and Merchants Association Vs. Commercial Tax Officer and Others) was the subject matter of the decision reported in (2009)23 VST 8 (SC) (South India Tanners and Dealers Association Vs. Deputy Commissioner of Commercial Taxes and others), going by the narration of the decision reported in (2009)23 VST 8 (SC) (Cited Supra), we do not agree with the submission of learned Senior counsel appearing for the assessee. 12. In the circumstances, we have no hesitation in rejecting the Tax Case (Revision) filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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