9911796707
TMI Blog2009 (6) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... nto account the railway contract for supply and doing contract work in respect of removal and filling of the ballasts (jelly) and in view of the fact that the assessee had not chosen to disclose the contract entered into the railways for the supply and working of the ballasts in the railway line, a penalty was also imposed at 1½ times the tax of the undisclosed sales under section 12(3) of the Tamil Nadu General Sales Tax Act. Aggrieved against such assessment, the assessee preferred an appeal before the Appellate Assistant Commissioner in both the cases. The appellate authority taking into consideration the letter issued by the Divisional Railway Manager dated October 19, 1994 in letter No. T/W.148/ Genl/WA II concluded that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the assessee is liable not only to pay tax, but also is to be levied penalty. But giving concession reduced only the penalty from 1½ times to 50 per cent which is the mandatory minimum required penalty as contemplated as the law then existed under section 12(3) of the Act. Aggrieved against this order of the suo motu revision made by the Joint Commissioner III, the assessee came forward with the present appeals. An attempt was made by the assessee herein to clearly point out that the railway authorities had given a letter which would read as follows: "The abovesaid work was purely related to dumping work, (i.e.), labour work. Hence the question of reimbursement of sales tax does not arise in this case. The collection of stone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding the general instructions contained in pages 8 and 9 thereof, shall be as binding upon the contractor and upon the railway administration as if the same had been repeated herein and shall be read as part of these presents'." As per this clause the petitioner is bound by the general instructions contained in the tender. The second clause for consideration is in the general instructions which form part and parcel of the agreement clause 20: "In case of tenders for collection and supply of ballast stone metal of not less than 14 cubic decimetre in quantity should be submitted along with the tender as sample to show the quality for the approval of the engineer before accepting tender. The samples should be sent in three sealed gl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allast which will necessarily mean that the new ballast should come only from the tenderer or the contractor for filling up. In fact, in the suo motu assessment, the authority has rightly come to the conclusion that the reading of the clauses in the agreement would mean and include only that of supply as well as work in respect of the contract which has been entered into between the railway and the assessee. Apart from this, from the original assessment order itself we were able to see from the books of accounts as produced by the assessee that the assessee has purchased jelly to the tune of Rs. 36,200. If the contract is only for a works contract, there will be no necessity for the assessee to purchase jelly. This will also clearly indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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