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TMI Blog2018 (3) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3(4) of TNVAT Act, respondent can opt for filing returns in Form 'K', if their total and taxable turnover is below Rs. 50,00,000/-. But, the total and taxable turnover of the dealer for the year 2012-13 and 2013-14, has exceeded Rs. 50,00,000/-. Hence, according to the department, the assessee is not eligible to file returns in Form-K under Section 3(4) of the TNVAT Act 2006. Department has contended that the assessee, ought to have filed their returns, in Form-I, and pay the tax under Section 3(2) of the TNVAT Act, 2006, at the rates specified in Part-B and Part-C of the I Schedule of the Act. Revenue has contended that the dealer has not filed the returns, in Form-I, and paid tax, at the rates specified in Part-B and Part-C of the I schedule under Section 3(2) of the Act. 4. Notice was issued on 30.09.2014, proposing to re-determine the total and taxable turnover of the dealer at Rs. 50,91,404/- and 38,87,434/-, taxable, at 14.5% for the years 2012-13 and 2013-14, respectively, under TNVAT Act 2006. The dealer was given 15 days' time, for filing objections and an opportunity of being heard in person to put forth the objections was also granted. But the dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Additional Government Pleader (Taxes), that the tribunal has failed to consider the provisions of Section 63(2), of TNVAT Act, 2006, which states that the Appellate Deputy Commissioner (CT), or the Appellate Joint Commissioner (CT), shall not for the first time, receive in evidence on behalf of any dealer in any appeal such account, register, record or document as is mentioned in sub-section (1), unless for reasons to be recorded in writing only when such register and documents are genuine could be considered. According to the learned counsel for the appellant, unless or until, for the reasons beyond the control of the dealer, materials in evidence were not produced before the Assessing Authority, and in such circumstances, the 1st Appellate Authority is empowered to pass suitable orders. 9. In the instant case, the dealer has been informed to produce materials in evidence, in support of the defects, before the Assessing Officer, which has not been done. The tribunal without considering that aspect, has chosen to deal with the findings of the 1st appellate authority, and erred in dismissing the State Appeal. As per Section 63(2), the 1st appellate authority cannot entertain an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every dealer, who effects second and subsequent sales of goods purchased within the State, whose total turnover, for a year, is less than rupees fifty lakhs, may, at his option, instead of paying tax under sub-section (2), pay a tax, for each year, on his total turnover at such rate not exceeding one per cent, as may be notified by the Government. Such option shall be exercised by the dealer within 30 days from the date of commencement of this Act: Provided that such dealer shall not collect tax exceeding the rate notified by the Government under this sub-section: Provided further that such dealer shall not be entitled to input tax credit on goods purchased by him: Provided also that the dealer who purchased goods from such dealer shall not be entitled to input tax credit on the goods purchased by him." 17. Section 22(2) of the TNVAT Act, 2006, reads thus: "The assessing authority shall accept the returns submitted for the year, by the dealer, if the returns are accompanied by the proof of payment of tax and the documents prescribed, and on such acceptance, the assessing authority shall pass an assessment order." 18. Section 27 of TNVAT Act, 2006, states that, 27. Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fully not disclosed, if the tax due on such turnover is more than fifty per cent of the tax paid as per the return; (4) in addition to the tax determined under sub-section (2), the assessing authority shall direct the dealer to pay as penalty a sum - (i) which shall be in the case of first such detection fifty per cent of the tax due in respect of such claim; and (ii) which shall be in the case of second or subsequent detections, one hundred per cent of the tax due in respect of such claim: Provided that no penalty shall be levied without giving the dealer a reasonable opportunity of showing cause against such imposition. (5) The powers under sub-sections (1) and (2) may be exercised by the assessing authorities even though the original order of assessment, if any, passed in the matter has been the subject matter of an appeal or revision. (6) In computing the period of limitation for assessment or re-assessment under this section, the time during which the proceedings for assessment or re-assessment remained stayed under the orders of a Civil Court or other competent authority shall be excluded. (7) In computing the period of limitation for assessment or re-assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the above point as follows: "7. In the instant case, the respondent, Tvl.Celony Hardwares, dealers in Hardwares, Chennai-45 who exercised their option to pay tax under section 3(4) of the TNVAT Act, 2006 and they were deemed to have been assessed to tax on a total and taxable turnover of Rs. 50,91,404/- and Rs. 38,87,434/- relating to the assessment years 2012-13 and 2013-14 under Section 22(2) of the Tamil Nadu Value Added Tax Act 2006 by the Assessing Officer. Subsequently, it was noticed by the Assessing Officer that the assessee/respondent opted to pay tax under Section 3(4) of the TNVAT Act, 2006 and accordingly, they had filed monthly return in Form-K reporting a total and taxable turnover of Rs. 50,91,404/- and Rs. 38,87,434/- relating to the assessment years 2012-13 and 2013-14. As the respondent had crossed a total and taxable turnover limit of Rs. 50 lakhs during the assessment year 2012-13 as stipulated under Section 3(4) of the TNVAT Act, 2006, and therefore, the Assessing Officer had rejected their option to pay tax under Section 3(4) of the TNVAT Act, 2006 and assessed them to tax at 14.5% under Section 3(2) of the TNVAT Act, 2006 on a turnover of Rs. 50,91,404 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompounding order did not arise especially when the petitioner had exercised the option for payment of tax at the compounded rate and the petitioner was also made to pay tax 4% on the entire contract value. Section 16 of the TNVAT Act, 2006 was not intended to withdraw the option exercised by the petitioner". In the light of the principles laid down in the case referred to above to the facts of the case on hand, it is clear that the revision of assessment does not arise when a dealer is exercising option in payment of tax at compounded rate. Section 27 of the TNVAT Act, 2006 is not intended to withdraw the option exercised by the dealer. In fact, in the present case on hand, the Assessing Officer, has not at all pointed out any purchase suppression or sales suppression outside the purview of accounts which requires revision of assessment and further he has not specifically mentioned the section under which the revision of assessment was made during the disputed years in question. He simply rejected the option of payment of tax at compounded rate under Section 3(4) of the TNVAT Act, 2006 and assessed them to tax at the rate of 14.5%. The revisional assessment orders passed by the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver is below Rs. 50 Lakhs, but in the case on hand, when the total and taxable turnover, has exceeded Rs. 50 Lakhs, the dealer ought to have filed the returns in Form-I, instead of Form K. 27. Contention of the learned Additional Government Pleader (Taxes) that inspite of opportunity, the dealer has not produced the audited statement, cannot be countenanced for the reason that the tribunal after going through the material on record, has clearly observed that audited statements were produced before the appellate authority, who has not recorded any adverse finding on the filing of the audited statement for the disputed year in question. As per Section 63(2) the appellate Commissioner or the Joint Commissioner is empowered to receive accounts, registers, record or document, at the appellate stage, for the reasons to be recorded in writing and as observed by the Tribunal, nothing adverse has been recorded by the appellate authority, on the filing of the audited statements before him. 28. Though Mr.V.Haribabu, learned Additional Government Pleader (Taxes) submitted that the dealer should have informed the assessing officer, in writing within 7 days from the date on which the turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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