TMI Blog2018 (3) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Petitioner : Mr. V. Hari Babu Additional Government Pleader (Taxes) ORDER ( Order of the Court was made by S. Manikumar , J. ) Instant Tax Case (Revision) is filed against the order of the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai dated 20.12.2013 made in S.T.A.No.142 of 2011. 2. Short facts leading to the filing of the appeal are that the respondent, Tvl.Union Surgicals, dealers in surgical goods were assessed on a total and taxable turnover of ₹ 9,39,65,027/- and ₹ 9,38,64,448/- respectively for the year 2009-10 under Section 22 of the VAT Act by the Assistant Commissioner (CT), Park Town I, Assessment Circle, Chennai by pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in STA No.142/2011 dated 20.12.2013 dismissed the appeal holding that the interstate sales without C form were made out of corresponding interstate purchases. 5. Being aggrieved against the order of the Tribunal, State has filed the instant Tax case (Revision) on the following substantial questions of law. 1. Whether on the facts and in the circumstances of the case the Tribunal was right in law in holding that the surgical items purchased from interstate were not the items purchased locally? 2. Whether on the facts and in the circumstances of the case the Tribunal was right in law in holding that the interstate sales without C form were made out of corresponding interstate purchases in the absence of verification of rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Let us see as to how the appellate tribunal has considered the material facts. Admittedly, the revisions under Section 27 for the years 2008-2009 and 2009-2010 were as a consequence of VAT audit conducted by the department. Regarding the reversal of ITC under Section 19(5)(C), the objections were filed by the respondents before the Assessing Officer along with relevant purchase and sale bills claiming that the interstate sales without 'C' forms were effected out of interstate purchases and they have not availed any ITC for these sales. The Assessing Officer after verifying their claim with reference to bills furnished has observed that the interstate sales were effected from both inter and interstate purchases; hence he ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue for both the years. 10. Thus, from the above it could be seen that the tribunal has held that surgical items purchased from interstate were not the same items purchased locally. Sale statement substantiated that interstate sales without C-Forms were made of corresponding interstate purchases. 11. Further, with regard to penalty under Section 27(3), the tribunal has held as follows: ... estimation on the stock difference cannot be said to be due to willful suppression. In the absence of willfulness, there is no error in the order of the Appellate Deputy Commissioner (CT) in deleting penalty under Section 27(3) pertaining to stock difference. Similarly the penalty on the sale of asset modified by the Appellate Deputy Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' as to be in total defiance of logic or moral standards. 15. In State of A.P., v. Abdul Khuddus reported in 2007 (15) SCC 261, the Hon'ble Supreme Court, at Paragraph 12, held that, we are unable to sustain the order of the High Court, which had set aside the findings of fact arrived at by the Special Court, which, in our view, were arrived at on consideration of the materials on record and which, by any stretch of imagination, cannot be said to be based on no evidence or surmises or conjectures and therefore, it was not open to the High Court, in the exercise of its writ jurisdiction, to set aside the findings of fact arrived at by the Special Court which were based on sound consideration of the materials on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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