9911796707
TMI Blog2016 (7) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition itself is taken up for final disposal. 2.The petitioner is a registered dealer with the respondent under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act). The challenge in this Writ Petition is to an order of assessment dated 17.05.2016, for the assessment year 2013-14. The respondent issued a notice on 15.06.2015, stating that the petitioner has produced Wind Electrical Energy, sold the same to Tamil Nadu Electricity Board and claimed exemption and on verification of Form WW along with the Trading Profit and Loss Account of the petitioner's business for the year 2013-14, certain discrepancies were found. Further, it was stated that the petitioner has sold the Wind Mill during the year 2013-14 and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Registration dated 19.11.2008, stating that there is no Stamp Duty levyable in respect of the Wind Mill. Inspite of having taken such a stand in their reply dated 28.01.2016, the respondent proceeded to reject the petitioner's contention holding that the dealers have not produced proof for disposal of the Wind Mill. 6.In my view, the Assessing Officer has misdirected himself in not properly appreciating the scope of the documents produced by the petitioner. The petitioner's case is that the sale of Wind Mill is a 'slump sale' based on the Business Transfer Agreement dated 24.3.2014. Therefore, the Assessing Officer has to consider the entire agreement which contains various Schedules and in Schedule No.4 of the agreement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Limited under Business Transfer Agreement dated 15.12.1993 ? 2. Whether the Hon'ble Sales Tax Appellate Tribunal committed an error of law in applying the erroneous, legal test of requiring transfer of all businesses of an assessee as the only circumstance in which there could be exemption under Explanation 3 to Section 2(r) of the Tamil Nadu General Sales Tax Act, 1959 ? 3. Whether the Hon'ble Sales Tax Appellate Tribunal committed an error of law in emphasizing on the retention of a small part of the assets in the course of business succession, while failing to apply the correct legal test, which was to determine whether the retention of the small part of the assets was to continue in the same line of business or was being r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the Branch itself was closed thereafterwards. Thus, on the closure of a branch by sale thereof as a running concern, this Court held that the sale proceeds in question could not be taken as a part of the turnover, consequently, the question of denying the exemption to the assessee did not arise. This Court pointed out that the sale of stock-in-trade for the purposes of closing down the business is different from the sale of the business as a whole as running concern; the sale of the business, lock, stock and barrel, was not incidental or ancillary to the carrying on of a business so as to be taxable under the Act. Thus, this Court held that the transaction in question would not fall within the scope of the Act at all, consequently, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business as a whole, then the assessee would not be liable to be taxed either on the general principle that there is no sale in the course of business, since closure of a line of business could not be incidental or ancillary to its carrying on or on the alternative basis of application of Rule 6(d) of Tamil Nadu General Sales Tax Rules, 1959. Thus, on facts once again, this Court held that the assessee was eligible for exemption in respect of the turnover. 17. In the decision reported in 112 STC 01 in the case of Coromandal Fertilisers Limits Vs. State of A.P., the Full Bench of the Andhra Pradesh High Court considered a similar question and once again reiterated the law laid down by this Court in the decision reported in 39 STC 325 in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation given by the Division Bench in the case of Eicher Motors Limited. Therefore, the observation made by the Assessing Officer to that extent, call for interference. 5. Accordingly, the Writ Petition is allowed to the extent mentioned above and the impugned order of Assessment, assessing the Wind Mill Disposal value of Rs. 33,32,96,827/- at 4% alone, is set aside. In respect of other demands, it is open to the petitioner to pursue the matter before the competent authority provided under the Act. Consequently, the connected M.Ps are closed. No order as to costs." 8.The above referred decision clearly shows as to how the Assessing Officer has to consider the matter and complete the assessment. Since the respondent has not done so, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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