TMI Blog2023 (1) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... sment Years. There is no discussion in so far as alleged branch transfer in Bangalore. The employee of the first respondent assessee was not only a Branch Manager of the first respondent assessee but also partner of M/s.Karthik Engineering to whom the invoices were raised from the Branch in Bangalore - Mere location of the dealer in Karnataka at Door.No.36, J.C.Bose Road, Bangalore and appellants at 16-B, G.N.Lalbagh Road, Bangalore, ipso facto , would not justify a conclusion that there was a stock transfer first and thereafter a sale to the said dealer. Even then, a first sale would have taken place from a depot to the dealer in Karnataka, thereafter, a second sale from the dealer i.e., M/s.Karthik Engineering to its customer. The order of the Appellate Tribunal allowing the appeal of first respondent assessee is un-sustainable - the case remanded back to the Assessing Officer to determine the penalty is correct and was wrongly interfered by the Appellate Tribunal. - W.P.No.3039 of 2006 - - - Dated:- 29-12-2022 - Honourable Mr.Justice S.Vaidyanathan And Honourable Mr.Justice C.Saravanan For the Petitioner : Mr.V.Prasanth Kiran Government Advocate For the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the Assessment Year 1992-1993 was completed vide Assessment Order dated 31.12.1993 in TNGST/CST/315879/92-93, whereby, the total and taxable turnover was determined as follows:- Headings Reported by the first respondent Determined by the Assessing Officer Total Turnover Rs.77,76,811.00 Rs.86,35,621.00 Taxable Turnover Rs.40,80,251.00 Rs.48,21,061.00 6. For the above taxable turnover, a sum of Rs.3,84,300/- was levied as tax and a sum of Rs.57,823/- was levied as surcharge. While the assessment was passed, the Assessing Officer had agreed the turnover reported by the first respondent in respect of Branch Transfer and Consignment Transfer. The operative portion of the assessment order dated 31.12.1993 reads as under:- The turnover reported agrees; (1) ........ (2) The dealer had effected Branch Transfers and consignment transfers to the extent of Rs.21,94,442.00 between 12.3.93 to 31.3.93 for the year under assessment and purchases of XVII for the above period of Rs.12,413/- which attracts l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their letter dated 06.03.97. Accordingly copies of documents were taken on their own cost and issued to them on 17.03.97. Again the dealers have requested time for 3 weeks in their letter dated 26.03.97 for filling their objections. Even after issue of sufficient time, the dealers have not filed any objections to the above proposals till date. I therefore confirm the proposals and passed orders accordingly as detailed below: For the year 1992-93 Disallowed the branch to Rs.80,36,147.00 Bangalore at 11.2% Tax Due Rs.9,00,048/- Tax Paid Rs. N I L /- Rs.9,00,048/- A notice in Form 3 is issued. Penalty under section 9(2) of the CST Act read with section 12(3)(b) of the TNGST Act'59 levied at 150% of the tax due. Penalty levied at Rs.13,50,048/-. 10. On the very same day, separate revision assessment order was also passed for the Assessment Year 1993-94. Against the above revision assessment orders dated 21.04.1997, the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirements than that of the amended provisions of section 12(3)(b) of TNGST Act. Therefore the initiation of action and imposition of penalty by the Assessing Authority under section 9(2) read with section 12(3)(b) of TNGST Act is found to be erroneous application as per as these cases on hand are concerned. The learned Counsel for the appellants has argued that the transactions are very much available in the books of accounts, and the bonafide claim of exemption on account of branch transfer would not amount to wilful suppression warranting penalty under section 16(2) of TNGST Act. The learned Counsel has also relied upon 45 STC 197 and 98 STC 408. The various contention of the appellants as well as learned Counsel for the appellants have to be examined by the Assessing Authority with reference to the relevant transactions in the books of accounts during these assessment years and claim of stock transfer. In both these cases, I find that the Assessing Authority has imposed penalty under section 12(3)(b) of the TNGST Act at 150% which is found to be improper application of the law. The Assessing Authority ought to have examined the imposition of penalty under section 9(2) read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing these principles, we have no hesitation in holding that the revision of assessments has been wrongly made in respect of the sale effected through the depots in other state and hence the orders passed by the first appellate authority is set aside. 61. In as much as, we have set aside the entire disputed taxes in full, the penalty is also ordered to be set aside in consequence of the orders issued above. 13. Aggrieved by the above order of the Tribunal, the revenue has filed this Writ Petition. 14. The learned Government Advocate for the appellant submits that the challenge to the impugned order of the Tribunal in so far as the Assessment Year 1992-93 is concerned, is primarily on the ground that the Tribunal erred in allowing the appeal of the first respondent. 15. It is submitted that the first respondent's so called branch at Bangalore was looked after by one S.Balasubramaniam, who was stated to be employed as the Manager of the first respondent who had signed all the documents and Form 'F' Declarations. The said S.Balasubramanian was admittedly one of the partners of M/s.Karthik Engineering, Bangalore who had prepared proforma invoice, delivery ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Spinners vs. Joint Commissioner (CTIII( SMR)), Chennai , [2021] 92 GSTR407(Mad); 24. We have considered the arguments advanced by the learned counsel for the State(Writ Petitioner) and the learned counsel for the first respondent. 25. The Tribunal is the ultimate fact finding authority and therefore, ordinarily a Writ Court as also an Appellate Court is bound by the finding of facts rendered by the Tribunal. 26. The facts on record indicate that the Assessment was completed earlier on 31.03.1993. Thereafter, an inspection was carried out on 19.05.1995, which led to issue of a notice on 13.07.1997, which culminated in a Re-Assessment Order dated 21.04.1997 of the Assessing Officer. 27. Based on the aforesaid order, an Assessment Order came to be passed on 19.06.1997, for the Assessment Year 1995-1996, which is a subject matter of W.P.No.13029 of 2006, which has been delinked. 28. The facts on record indicate that despite, notice being issued prior to passing of order dated 21.04.1997, the first respondent assessee failed to reply to the same. Therefore, the Additional Appellate Assistant Commissioner vide order dated 27.01.1999, confirmed the revision order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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