TMI Blog2019 (2) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... ish that there was no excess collection of sales tax. However, the Petitioner failed to discharge the burden cast upon them rather failed to co-operate in the assessment proceedings, which is evident from the conduct in not responding to the show cause notice dated 04.01.2006. There is no error of law nor any substantial question of law arising out of consideration - appeal dismissed. - Tax Case Nos.96 to 98 of 2015 - - - Dated:- 3-1-2019 - Mr.Justice T.S.Sivagnanam And Mr.Justice N.Sathish Kumar For the Petitioner : Mr.V.Sundareswaran For the Respondent : Mr.V.Haribabu, AGP (Taxes) COMMON JUDGMENT T. S. SIVAGNANAM, J. These tax case revisions have been filed under Section 38 of the Tamil Nadu General Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resume excess collection and not the actual excess collection in sale bill? Notice. 3. Heard Mr.V.Sundareswaran, learned counsel for the Petitioner and Mr.V.Haribabu, learned Additional Government Pleader (Taxes) for the Respondent. 4. The short issue which falls for consideration is, whether the levy of penalty under Section 22(2) of the Tamil Nadu General Sales Tax Act, 1959 [hereinafter referred as 'TNGST Act'] and consequential penalty under Section 16(2) of the TNGST Act are justified. 5. The Petitioner is a registered dealer on the file of the Commercial Tax Officer, Big Bazaar Street Circle, Coimbatore, under the provisions of the TNGST Act. The place of business of the Petitioner was inspected by the officials of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Petitioner, they have failed to produce the records, in spite of four months time granted to them to do so. Accordingly, the Assessing Officer having left with no other option completed the assessment by adopting a formula. 6. Being aggrieved by such order, the Assessee preferred appeals before the First Appellate Authority. The First Appellate Authority by common order dated 25.01.2007 allowed the appeals, on the ground that the assessing officer should have culled out the exact amount of tax paid from the sale bills issued by the Petitioner. The State preferred an appeal against the said order before the Tribunal. The Tribunal after taking into consideration the factual aspects, held that the order passed by the First Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, as we are required to consider as to whether there is a question of law to be decided by the Court in an appeal. 10. The mandate under Sub-section (1) of Section 38 is very clear that the jurisdiction of the revisional court is to decide whether the appellate tribunal has either decided erroneously or failed to decide any question of law. The learned Additional Government Pleader placed reliance on the decision of the Hon'ble Division Bench in the case of Ellon Curative Pvt. Ltd. Vs. Deputy Commercial Tax Officer, Velachery Assessment Circle, Chennai and another reported in [2009] 25 VST 402 (Mad). In the said tax case revision, identical question of law was raised for consideration and the Court after taking note of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. 11. In our considered view, the decision can in no manner advance the case of the Petitioner before us and it is clearly distinguishable on facts. In the instant case what was collected as incidental charges or service charges was found to recoup the sale tax liability payable by the Petitioner. The onus of proof was on the Petitioner to establish that there was no excess collection of sales tax. However, the Petitioner failed to discharge the burden cast upon them rather failed to co-operate in the assessment proceedings, which is evident from the conduct in not responding to the show cause notice dated 04.01.2006. 12. Even earlier in obedience to the directions issued by this Court in a Writ Petition filed by the Petitioner da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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