TMI Blog2011 (4) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... Nazirudeen, Special Government Pleader, for the respondent ORDER This tax case revision is filed by the assessee as against the order of the Sales Tax Appellate Tribunal (Additional Bench) dated February 26, 2003 made in S.T.A.No. 1629 of 2000, restoring the levy of penalty under section 22(2) of the Tamil Nadu General Sales Tax Act, 1959 made in connection with the turnover pertaining to the job-work done by the assessee. The assessment year under consideration is 1985-86. The assessee herein is a dealer in hides and skins. The assessee-petitioner executed works contract on a turnover of ₹ 7,87,140 during the assessment year under consideration and collected tax at 70 per cent of the turnover of ₹ 3,93,423 based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (Larsen and Toubro Limited v. State of Tamil Nadu). While upholding the charging provisions, this court held that the deduction provision under rules 6A and 6B of the Act were unconstitutional and until the Rules are framed for quantifying the taxable turnover, the charging provisions could not be effectuated. In the light of the decision which came long after the assessment year under consideration, no exception could be taken to the petitioner collecting the tax and the same could not be held as an unauthorised collection to invite the provisions under section 22(2) of the Act. Heard learned counsel appearing for the assessee and the learned Special Government Pleader appearing for the Revenue and perused the material on record. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acy) that the collection of tax was a result of mutual mistake, the appellate authority allowed the appeal, holding that the penalty levied under section 22(2) of the Act was not sustainable. Aggrieved by the same, the Revenue went on appeal before the Tribunal, which, however, restored the order of penalty, holding that the collection of tax was in contravention of the provisions of section 22(2) of the Tamil Nadu General Sales Tax Act. The Tribunal referred to the decision reported in [1996] 101 STC 516 (Mad) (State of Tamil Nadu v. Ganesh and Company), wherein, this court held that the tax collected by an unregistered dealer, not paid to the Department, attracted the provisions of section 22(2) of the Tamil Nadu General Sales Tax Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Going by the decisions of this court, this is a case of bona fide mistake and a mutual mistake too, which should have been given its due weightage while considering the levy of penalty under section 22(2) of the Tamil Nadu General Sales Tax Act. In the circumstances, learned counsel appearing for the assessee is justified in placing reliance on the decision reported in [1984] 57 STC 164 (Mad) (State of Tamil Nadu v. Jaya Pharmacy), that in the case of a mutual mistake, the question of invoking section 22(2) of the Tamil Nadu General Sales Tax Act, does not arise. In the background of the decision of this court reported in [1993] 88 STC 289 (Mad) (Larsen and Toubro Limited v. State of Tamil Nadu) on the aspect of the validity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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