TMI Blog2014 (1) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... n of assessment was that that the assessee included the entry tax paid into the price for the purpose of charging the sales tax - No ground for holding that there is a suppression of turnover with a wilful intention for the purpose of levy of penalty. The purchase price are consideration for goods, which is agreed to between the willing buyer and the seller, who admittedly, agreed for fixing the price that was inclusive of the entry tax paid and that does not mean that the assessee had wilfully suppressed the turnover. In fact, the assessee had disclosed the entire turnover in the books of accounts, which was dissented to by the Assessing Officer - Therefore, order of the Tribunal is set aside - Decided in favour of assessee. - Tax Case (R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions) on 29.11.2013, it was fairly submitted by learned counsel for the assessee that question Nos.1, 2 and 4 raised herein above are covered by the decision of this Court reported in 35 VST 311 [M/s.Khivraj Motors Limited, No.623, Mount Road, Chennai-6 vs. The State of Tamil Nadu rep.by the Assistant Commissioner (CT), Fast Track Assessment Circle-III, Greams Road, Chennai-6) and were answered against the assessee and the Tax Case (Revisions) were admitted only with regard to question No.3 (supra). 3. The only question that survives for our consideration in all these Tax Case (Revisions) is on the levy of penalty, which is as follows: Whether the Hon'ble Tribunal has erred in confirming the imposition of penalty under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter providing a set off of 11%, towards tax payable under the Act, the difference of 2% of entry tax over and above the tax due under the Act was proposed to be treated as taxable turnover. The assessee resisted the proposed demand by submitting their objections. The Assessing Authority, however, confirmed the proposal in the notice by order dated 30.10.2003. Aggrieved by such order, the assessee preferred appeal to the Appellate Assistant Commissioner. The First Appellate Authority allowed the appeal by order dated 22.09.2004. Aggrieved by such order, the State preferred appeal before the Sales Tax Appellate Tribunal [The Tribunal] and the Tribunal by order dated 09.11.2012 allowed the appeal and remanded the matter back to the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of sub- section(2) of Section 16 of the Act, at any time, within a period of five years from the date of the final assessment, determine to the best of its judgment the turnover, which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause. 9. A reading of the assessment orders will show that it is not a case of best judgment assessment. The Assessing Officer found that the assessee had paid entry tax at 13% under the Entry Tax Act on the purchase value of Motor Vehicles imported from other States. At the time of sale, the dealers have prepared invoices which include entry tax paid on the purchase val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Cell-IV-29951/96 wherein the Special Commissioner and Commissioner of Commercial Taxes has clarified that the entry tax paid cannot be included in the basic cost of the vehicles for working out the Sales Tax (Tamil Nadu General Sales Tax) liability, because the entry tax paid can be adjusted towards the tax due under the Tamil Nadu General Sales Tax and other levies such as surcharge, additional surcharge and additional sales tax. The First Appellate Authority also placed reliance on the decision of this Court reported in (2002) 125 STC 505 [Apollo Saline Pharmaceuticals Ltd., vs. State of Tamil Nadu] and accordingly deleted the penalty levied under Section 16(2) of the Act. 12. The Tribunal referred to the decisions of other assessee& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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