TMI Blog2014 (5) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- - Thus, irrespective of whether the turnover upto 16.7.1996 is taken as one block and from 17.7.1996 to 31.3.1997 as one block, with the total turnover remaining at ₹ 1,76,239/- and hence, below the chargeable minimum, it is too difficult to accept the case of the assessee that when the reported turnover was very much within the knowledge of the assessee at ₹ 1,51,237/- and that too well below the minimum, the assessee could justifiably contend that there are no ground to warrant levy of penalty u/s 22(2) of the Act. The fact that it had remitted the sum before the assessment was not justifiable of its violation, more so when it had the knowledge of the turnover well below the chargeable limit – This court is not satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee filed an appeal before the Appellate Assistant Commissioner, who however dismissed the appeal. The assessee preferred further appeal before the Tribunal, which once again confirmed the view of the authorities below. Hence, the present revision by the assessee. 3. It is seen from the facts herein that the total turnover for the said year worked out to Rs.1,76,239/-. Section 3(1) of the Tamil Nadu General Sales Tax Act is a charging provision based on the total turnover. As per section 3(1) of the Act as it stood upto 16.7.1996, the minimum total turnover for attracting the tax liability was fixed at Rs.1,00,000/-. By Act 38/96, with effect from 17.7.1996, the total turnover was raised to Rs.3,00,000/-. The total turnover upto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of tax collected. Hence, the collection of tax by the assessee amounted to unjust enrichment. The assessee had neither refunded the tax to the customers nor remitted the same to the State but retained the same. Since the tax collected would amount to illegal collection and retention was amounting to unjust enrichment at the hands of the assessee, applying the decision reported in AIR 1991 SC 1676 ORISSA CEMENT LIMITED v. STATE OF ORISSA, the appeal was rejected. The assessee preferred an appeal before the Tribunal. A reading of the order of the Tribunal shows that it upheld the view of the Appellate Assistant Commissioner on the premise that the assessee had failed to refund the tax to the customers. Hence, the collection of tax and ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluded in the turnover and hence, following the same, the assessee's assessment herein was completed holding that gallonage fee was not liable to be taxed. It was pointed out that the State had preferred an appeal as against the judgment reported in 44 STC 352 EID PARRY (INDIA) LIMITED v. STATE OF TAMIL NADU. In the meantime, the assessee preferred refund claim. Thereupon, the Sales Tax Officer, imposed penalty under Section 22(2) of the Act with a condition that if satisfactory arrangements were made by the dealer to refund the tax that the dealer had collected from its customers within 30 days, the amount of tax recovered as penalty would be refunded. The Tribunal set aside the order of levying penalty under Section 22(2) of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s dealers or not, at the behest of the sales tax authorities, the decorticates collected the tax from the oil mill owners and remitted it to the Government to the account of the said oil mill owners. On a levy of penalty under Section 22(2) of the Act, this Court held that all that the decorticates had done was to 'receive' the tax due from the oil mill owners, who were the first purchasers in the State and liable to pay the sales tax and that the collection of tax by the decorticates was at the instance of the sales tax authorities and the same was remitted to the Government. Given the fact that the decorticates had remitted the tax to the Government on account of the purchasing oil millers as per the list furnished by the Revenue, it coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 83 STC 402 STATE OF TAMILNADU v. K. MOHAMMED IBRAHIM SAHIB hence has to be read in the context of the facts stated therein. So too the decision reported in 137 STC 218 STATE OF TAMILNADU v. SAKTHI SUGARS LIMITED, wherein this Court pointed out that when this Court pointed out that the levy of penalty just to offset the refund, with a condition imposed on the dealer to make arrangements to refund the same would not be well within the provisions of Section 22 of the Act. Considering the fact that the refund claim at the hands of the Revenue itself was not sustainable under any of the provisions of the Act and that too under the provisions of the Tamil Nadu General Sales Tax akin with the Central Excises and Salt Act, 1944, this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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