{"id":234322,"date":"2002-11-21T00:00:00","date_gmt":"2002-11-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/uma-metal-industries-vs-the-state-of-tamil-nadu-on-21-november-2002"},"modified":"2018-08-03T13:13:53","modified_gmt":"2018-08-03T07:43:53","slug":"uma-metal-industries-vs-the-state-of-tamil-nadu-on-21-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/uma-metal-industries-vs-the-state-of-tamil-nadu-on-21-november-2002","title":{"rendered":"Uma Metal Industries vs The State Of Tamil Nadu on 21 November, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Uma Metal Industries vs The State Of Tamil Nadu on 21 November, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 21\/11\/2002\n\nCORAM\n\nTHE HON'BLE MR.JUSTICE N.V.BALALSUBRAMANIAN\nAND\nTHE HON'BLE MR.JUSTICE K.RAVIRAJA PANDIAN\n\n\nW.P.No.398 of 2001\nand\nW.M.P.No.509 of 2001\n\nUma Metal Industries\nNo.G-9, Industrial Estate\nVysarpadi,\nChennai-39.                     ... Petitioner\n\n-Vs-\n\n1. The State of Tamil Nadu\n   rep.by the Registrar\n   Tamil Nadu Taxation Special\n   Tribunal, Rajaji Salai,\n   Chennai-1.\n\n2. Deputy Commercial Tax Officer,\n   Washermenpet I Assessment Circle,\n   Chennai.                     ... Respondent\n\n\nFor Petitioner : Mr.A.Thiyagarajan\n\nFor Respondents: Mr.T.Ayyasamy,\n                 Spl.Govt. Pleader\n\n:JUDGMENT\n<\/pre>\n
K.RAVIRAJAPANDIAN<\/p>\n
        Prayer:  Writ Petition filed under Article 226 of the Constitution  of
\nIndia for issue of a writ of certiorari as stated therein.\n<\/p>\n
        The  writ  petition  is  filed  against  the  order  of the Tamil Nadu
\nTaxation Special Tribunal dated 14.6.2000 made in Tax Case Revision No.160  of
\n2000 on the file of the first respondent.\n<\/p>\n
        2.  The brief facts of the case are as follows:\n<\/p>\n
        The petitioner  is  a  dealer  in  Aluminium  circle  and vessels.  By
\noriginal assessment, for the assessment  year,  1989-90,  the  petitioner  was
\nassessed  to  tax  on  a  total  and  taxable  turnover  of Rs.17,71,016\/- and
\nRS.16,14,447\/- respectively under assessment  order  dated  19.9.1991.    That
\norder  was  carried  on appeal to the Appellate Assistant Commissioner, who by
\nhis order dated 31.8.1994 in A.P.No.32 of 1993, set aside the  assessment  and
\ndirected  the  Assessing  Officer, the second respondent to pass orders afresh
\nafter investigating the matter  further  and  giving  an  opportunity  to  the
\npetitioner.   After  remand,  the  Assessing  Officer  issued a revised notice
\ncalling upon the petitioner to file objections to the revised notice.  In  the
\npre-revision  notice, the assessing Officer has stated that the petitioner has
\navailed exemption  in  respect  of  a  turnover  of  Aluminium  in  a  sum  of
\nRs.13,45,373\/-  on  the  ground  the  goods  suffered  tax at the hands of one
\nMathuram Traders, No.30, Jambulingam Main Road, Madras-82  i.e.,  second  sale
\nexemption at the hands of the petitioner assessee and on enquiry, it was found
\nthat  the  first  seller,  Mathuram  Traders  were  not doing business and the
\nRegistration Certificate was cancelled from  23.8.1989.    The  said  Mathuram
\nTraders  were  only  bill traders and never handled the goods and as such, the
\nturnover shown as purchased from the  Mathuram  Traders  in  the  petitioner’s
\nreturns has  been the goods purchased from unknown sources.  In order to avoid
\ntax, the assessee produced bogus bills in the  name  of  non-existent  dealer.
\nThe  payment in respect of goods by the assessee was also not supported by any
\nevidence.  Therefore,  the  assessing  officer  proposed  to  determine  under
\nSection  16(1)(a)  of  the  Tamil  Nadu  General  Sales  Tax Act, (hereinafter
\nreferred to as the Act), the  turnover  escaped  from  assessment  to  tax  at
\nRs.16,14,447\/-  at  8%  with  other  components  of  tax  such  as  surcharge,
\nadditional surcharge and additional sales tax.   The  assessing  Officer  also
\nproposed to levy penalty at 150 percent of the tax due under Section 16(2) for
\nwilful failure to disclose the said assessable turnover in the return and paid
\ntax due thereon.\n<\/p>\n
        3.   The petitioner in their objection contended that the first seller
\nMathuram Traders was a registered dealer.  The petitioner was not aware of the
\ncancellation of the registration certificate of Mathuram Traders  and  made  a
\nrequest  for the supply of the report of the Commercial Tax Officer, Perambur,
\nwho at the instance of the assessing officer conducted an enquiry  as  to  the
\nexistence of the Mathuram Traders and their trading activity and reported that
\nthe said  Mathuram Traders were non-existing dealer.  It was further submitted
\nthat the purchase by  the  petitioners  was  bona  fide  and  on  that  ground
\nrequested  to  drop the proceedings initiated under Section 16 for the purpose
\nof reassessment and also for levy of penalty.    The  Assessing  Officer  has,
\nafter taking into consideration of the objections, and the materials available
\nbefore him, rejected the objections of the petitioner and ultimately completed
\nthe revised assessment under Section 16 by levying tax on the escaped turnover
\nas above  stated.    In  addition to that, the assessing officer also levied a
\npenalty in a sum of Rs.1,97,369\/- at 150 percent of the tax due.\n<\/p>\n
        4.  The petitioner carried the matter again on  appeal  to  the  first
\nappellate  authority,  the Appellate Assistant Commissioner, who confirmed the
\nassessment of the turnover of Rs.6,14,447\/-, however reduced  the  penalty  to
\n100 percent from 150 percent.\n<\/p>\n
        5.   The petitioner further carried the matter on Second Appeal to the
\nSales Tax Appellate Tribunal.  The Tribunal by  its  order  dated  22.9.1  999
\ndismissed the appeal.  As against the order of dismissal, the petitioner moved
\nthe Taxation  Special  Tribunal  byway of revision.  In that revision, as seen
\nfrom the order of the Special Tribunal, the one and only point  raised  before
\nthe Special Tribunal was, the registration certificate was issued to the first
\nseller  Mathuram  Traders  and  the renewal was also effected subsequently and
\nhence there was a presumption that the seller was carrying on business and the
\nassessee should not suffer on the ground that he was not  able  to  prove  the
\nexistence of  the dealer, who issued the bill for the sale of goods.  However,
\nthe Tribunal rejected the contention of the assessee by giving reason that the
\npresumption as contended by the petitioner has been rebutted properly by
\nsufficient  material and the authorities below have concluded that the sale at
\nthe hands of the petitioner in a turnover of Rs.6,14,447\/- was the first  sale
\nis a  purely  a  question  of  fact.   As to the existence of the first seller
\ncannot be a question of law to be decided by the Tribunal as  on  question  of
\nlaw alone a revision is maintainable and thereby non-suited the petitioner for
\nany relief.  That order is put in issue in the present revision petition.\n<\/p>\n
        6.   However  Mr.Thiyagarajan,  learned  counsel  appearing  for   the
\npetitioner  has  argued the case and submitted that the revision of assessment
\nunder Section 16 of the Act is not at all  maintainable  and  unwarranted  and
\nliable  to  be  set  aside  since it was passed without furnishing the copy of
\nmaterials, which formed basis for the revision.   He  further  submitted  that
\nSection 16  of the Act speaks about best judgment assessment.  If the turnover
\nof an assessee is reflected in the return filed by him or is available in  the
\nbooks  of accounts and the assessment is made either based on the return or on
\nthe basis of accounts, it cannot be treated as best judgment assessment.    An
\nassessment  to be a best judgment, there must be some addition to the turnover
\nby some guess work made by the assessing officer by rejecting  the  return  or
\nbooks of  accounts.    If  the  return  filed  by the assessee is accepted and
\nassessment is made or an assessment is made based on  books  of  accounts,  it
\ncannot be  best judgment assessment.  So far as the present case is concerned,
\nno addition is made to the reported turnover  and  the  reported  turnover  is
\naccepted, but only tax has been levied on the turnover for which exemption has
\nbeen claimed  and allowed originally.  Hence, the revisional assessment is not
\nmaintainable.\n<\/p>\n
        7.  On the other hand, the learned Government  Pleader  has  submitted
\nthat  there  is absolutely no reason, whatsoever for the petitioner to contend
\nthat the orders of re-assessment has been passed violating the  principles  of
\nnatural  justice, in the sense, not providing copies relied on for the purpose
\nof revision of assessment.  The learned Government Pleader has contended  that
\nthe  alleged  request  of the petitioner of the copy of the statement given by
\nthe landlord of Mathuram Traders is not at all necessary.  The  order  is  not
\nbased  on  the  statement given by the landlord of Mathuram Traders, but it is
\nbased on the report of the  Commercial  Tax  Officer  of  Perambur  Assessment
\nCircle, within whose jurisdiction Mathuram Traders was said to have carried on
\nbusiness.   The  entire  statement  of  the  Commercial  Tax  Officer has been
\nreproduced in the pre-revision notice and as such, the entire material,  which
\nforms  the basis for the purpose of revision notice has been made available to
\nthe petitioner and as such he cannot contend that the order  has  been  passed
\nviolating the  principles  of  natural  justice.    He  further contended that
\nSection 12 of the T.N.G.S.T.Act and Section 16  of  the  T.N.G.S.T.Act,  which
\nprovide  for  assessment  and  reassessment  are  independent  of  each other.
\nSection 12 provides for assessment in two contingencies  viz.,  (1)  that  the
\nassessment  of  the  dealer  shall  be based on the prescribed return filed by
\ndealer, and (2) if no return is  filed  by  the  dealer  as  required  in  the
\nprovisions  of  the  Act or if the return so filed by the dealer appears to be
\nincomplete or incorrect, the assessing authority after making such enquiry  as
\nit considers  necessary  make  an assessment to the best of his judgment.  But
\nSection 16, which provides for revision of assessment, is very  clear  in  its
\npurport  to  the  effect  that  for  any  reason, the whole or any part of the
\nturnover of the dealer has escaped assessment of tax, the assessing authority,
\nsubject to the provisions of sub-section (2)  of  Section  16,  and  within  a
\nperiod  of  five  years  from the expiry of the year to which the tax relates,
\ndetermine to the  best  of  its  judgment,  the  turnover  which  has  escaped
\nassessment  and  assess  the  tax  payable  on such turnover after making such
\nenquiry.\n<\/p>\n
        Further, he contended that sub-section (2) of Section 16 provides that
\nif  the  assessing Officer satisfied that the escape from assessment is due to
\nwilful non-disclosure of the assessable turnover by the dealer, the  authority
\ncan  in  addition  to the tax assessed levy penalty as provided in the Section
\nand contended that there is absolutely no infirmity  or  irregularity  in  the
\norder  passed,  since  the  turnover  brought  to  tax by means of revision is
\nescaped from assessment to tax as provided under Section 16 and as such, there
\nis absolutely no case for the petitioner to put forward  that  there  must  be
\nsome  addition  to  the  turnover  reported  so as to make an assessment under
\nSection 1 6.  It is his contention that if any turnover for any reason escaped
\nfor assessment to tax, that is enough for invocation of  Section  16.    As  a
\nmatter  of  fact, in this case, the turnover in respect of Rs.16,14 ,447\/- has
\nescaped to assessment to tax on the ground that it is a second sale, which  is
\nultimately  found  against  the petitioner and such escapement of the turnover
\nfrom being assessed to tax gives every  jurisdiction  to  the  authorities  to
\ninvoke Section 16.\n<\/p>\n
        8.  We heard the arguments of the learned counsel on either  side  and
\nperused the materials on record.\n<\/p>\n
        9.  In respect of the first contention that the reasons, which weighed
\nthe authorities concerned to come to the conclusion that the whole or any part
\nof  the  turnover  of the business of the dealer has escaped assessment of tax
\nhave been stated in the showcase notice, as also the reason  for  arriving  at
\nsuch  a  prima facie conclusion, need not detain us any longer since the issue
\nhas been considered by the Division Bench of this Court in  MUTHURAJA  TRADERS
\nVS.   DEPUTY  COMMERCIAL  TAX  OFFICER,  PARK  ROAD  ASSESSMENT  CIRCLE, ERODE
\nreported in (1997) 106 STC 283, though in the context of such reasons shown in
\nthe show cause notice would tantamount  to  pre-judging  the  issue,  held  as
\nfollows:\n<\/p>\n
        “Under  section 16 of the act, where, for any reason, the whole or any
\npart of the turnover of business of a dealer has escaped  assessment  to  tax,
\nthe  assessing  authority may, subject to the provisions of sub-section (2) at
\nanytime within a period of five years from the expiry of the year to which the
\ntax relates, determine to the best of its  judgment  the  turnover  which  has
\nescaped  assessment  and  assess the tax payable on such turnover after making
\nsuch enquiry as it may consider  necessary  and  after  giving  the  dealer  a
\nreasonable opportunity  to show cause against such assessment.  Therefore, the
\nreasons which weigh with authority concerned to come to  the  conclusion  that
\nthe  whole  or  any  part  of  the  turnover of the business of the dealer has
\nescaped assessment to tax have to be necessarily  stated  in  the  show  cause
\nnotice  as  also  the  reasons  therefor  for  arriving  at such a prima facie
\nconclusion to enable the assessing authority concerned  to  effectively  issue
\nshow cause notice to the proposals contained in the notice.  It is not correct
\nto invoke the provision for revision of assessment under section 16 of the Act
\non  a  mere  statement  of  the  facts  alone  and  the reasons which made the
\nassessing authority to initiate proceedings at least have to be  disclosed  to
\nenable  the assessee to file his objections and effectively show cause against
\nthe proposals.”\n<\/p>\n
        Thus, the very purpose of giving show cause notice is  to  effectively
\nshow cause against the proposal.  The entire materials, which formed basis for
\nissuance  of  the  show  cause notice has been stated in the show cause notice
\nitself so as to enable the petitioner to put forth his cause effectively.\n<\/p>\n
                10.  So far as the present case is concerned, the revision  of
\nassessment  is  based  upon the report of the Commercial Tax Officer, Perambur
\nAssessment Circle, which  stated  that  the  seller  to  the  petitioner  ie.,
\nMathuram Traders  was  a  bogus  dealer.   They never dealt with the goods and
\ntheir certificate was also cancelled on 30.10.1990 with effect from 23.8.1989.
\nThe entire content of the report was reproduced  in  the  pre-revision  notice
\ncalling for  objection  from  the  petitioner.   When such being the position,
\nthere is absolutely no necessity for once again furnishing  the  statement  of
\nthe  Commercial  Tax  Officer,  Perambur  Assessment  Circle, which is also an
\ninter-Department communication.      Nothing    is    concealed    from    the
\npetitioner\/assessee,  which  formed  basis for issuance of the revised notice.
\nThe very purpose of furnishing the copy of the  statement,  which  formed  the
\nbasis for the notice, is to make known the affected party, the basis or reason
\nfor the  issuance  of  notice.    The materials are provided in the show cause
\nnotice itself.\n<\/p>\n
        11.  Moreover, the  petitioner  herein  filed  an  appeal  before  the
\nAppellate  Assistant  Commissioner  against  the  original order of assessment
\ncomplaining that a copy of  the  statement  given  by  the  landlord  was  not
\nfurnished to him, and the Appellate Assistant Commissioner set aside the order
\nof assessment and remitted the matter.  The fresh order of assessment is based
\non the show-cause notice dated 10.4.1995 and the Deputy Commercial Tax Officer
\nrelied only on the letter received from the Commercial Tax Officer, Perambur-I
\nAssessment  Circle,  and  the  show-cause  notice  dated  7.6.1995, as already
\nobserved by us, contains the full extract of the letter of the Commercial  Tax
\nOfficer addressed  to  the  assessing officer herein.  We are therefore of the
\nview that no prejudice has been caused to the petitioner.  The  submission  of
\nMr.Thiyagarajan,   learned   counsel   that  the  petitioner  was  granted  no
\nopportunity to cross-examine the landlord of the premises lacks  substance  as
\nthe assessing officer in the subsequent order of assessment has not placed any
\nreliance  on  the statement of the landlord, but solely relied upon the letter
\nof the Commercial Tax Officer, Perambur-I Assessment Circle.    Therefore  the
\nsubmission  of  the  learned  counsel  made  with  reference to the additional
\ntyped-set filed by him enclosing the earlier show-cause notice dated 18.6.1991
\ndoes not carry any  conviction  and  appeal  to  us  as  the  fresh  order  of
\nassessment  is not based on the earlier show-cause notice dated 18.6.1991, but
\non the fresh show-cause notice dated 10.4.1995 issued pursuant to the order of
\nthe Appellate Assistant Commissioner.\n<\/p>\n
        12.  So far as the second contention is concerned, Sections 12 and  16
\nof  the T.N.G.S.T.Act are two different provisions, independent of each other,
\nand are working in different fields and in different circumstances.    Section
\n12  provides  for  procedure  to  be followed by the assessing authority while
\nmaking assessment.  As per Section 12, the assessment of  a  dealer  shall  be
\nmade on the basis of the prescribed return filed by the dealer relating to his
\nturnover within  the  time  prescribed.    It also empowers that if the dealer
\nfailed to file return within the prescribed time, or if the  return  filed  by
\nthe  dealer  appears to the assessing authority to be incomplete or incorrect,
\nthe assessing authority to assess the dealer to the best of its judgment after
\nmaking such enquiry.  However, Section 16 provides  for  revision  of  escaped
\nturnover  and  operates  in  a totally different circumstance and in a totally
\ndifferent situation, which provides that where for any reason whatsoever,  the
\nwhole  or  any part of the turnover of a dealer has escaped assessment to tax,
\nthe assessing authority, subject to the provisions of sub-section  (2),  which
\nempowers  the  assessing authority to levy penalty to determine to the best of
\nits judgment, the turnover which has escaped assessment to tax and assess  the
\ntax payable  on  such  turnover.   The scenario or situation for invocation of
\nSection 16 is totally different from the  scenario  or  situation  for  making
\nassessment under  Section  12.    Section  16  applies  or  operates after the
\noriginal assessment under Section 12 has been completed and for any reason, on
\nthe completed assessment, a whole or any part  of  the  turnover  has  escaped
\nassessment  to  tax, either by way of not being shown in the books of accounts
\nor in the returns or shown in the returns and claimed exemption, that part  of
\nthe  turnover  for  which  tax  has  not  been assessed has become the escaped
\nturnover and on such turnover, subject to sub-section (2) of Section  16,  the
\nassessing  authority  is  empowered  to determine to the best of its judgment.
\nThe expression “best of its judgment” employed in Section 12(2) and 16(1)  are
\nto be construed in the context in which the expression is employed.\n<\/p>\n
        13.   The  contention  exactly  similar  to  the one now raised by Mr.
\nThiyagarajan  has  been  raised  before  this  Court  in  the  case  of  SURYA
\nFERTILISERS AND  CHEMICALS  VS.  THE STATE OF TAMIL NADU reported in (1977) 40
\nSTC 538 and the Division Bench of this Court  repelled  the  contention.    In
\norder to appreciate the issue, it is but necessary to extract the same.\n<\/p>\n
        “Basing  upon the language of these sub-clauses, the contention of the
\nlearned counsel for the petitioners is twofold.  One is that the section  uses
\nthe  expression  “turnover  of  business of a dealer has escaped assessment to
\ntax” and, according to the learned counsel, when the assessing  authority,  at
\nthe first instance, has actually applied his mind to a particular turnover and
\nrightly  or  wrongly held that the turnover was not liable to be included as a
\ntaxable turnover, such turnover cannot be said  to  be  an  escaped  turnover.
\nAccording  to  the  learned  counsel,  the  expression “escaped turnover” will
\ninclude only that turnover which was not  at  all  noticed  by  the  assessing
\nauthority,  whatever  the  reason may be, but it will not include the turnover
\nwhich was actually noticed and with reference to which the assessing authority
\nhas come to a conclusion one way or the other.  The second submission based on
\nthe language of section 16(1) of the Act is that  the  section  talks  of  the
\nassessing authority determining to the best of judgment the turnover which has
\nescaped  assessment and the reference to the best of judgment will necessarily
\nimport into it the notion of an estimate of the turnover and when the turnover
\nwas actually before the  authority  originally  and  was  decided  not  to  be
\nincludible in the taxable turnover, the question of estimating such a turnover
\nby  way  of  rectification or reopening cannot arise and, therefore, to such a
\nturnover section 16(1) cannot apply.  We are of the opinion that there  is  no
\nsubstance in  either  of  these  contentions.   As far as the first contention
\nbased upon the notion of escaped turnover is concerned, the question has  been
\nconsidered  by  a  Bench  of  this  Court,  to which one of us was a party, in
\nYercaud Coffee Curing Works Ltd., Salem v.  State of Tamil Nadu<\/a> represented by
\nthe Deputy Commercial  Tax  Officer,  Salem  (Rural)  (  (1977)  40  STC  531)
\n(T.C.Nos.298 to  300,  305  and 314 of 1971 decided on 18th March, 1976).  The
\nBench has taken the view that section 16 will apply even to a  turnover  which
\nwas  originally  considered  by the assessing authority, which authority after
\napplying its mind to the turnover has held that the turnover, ;for some reason
\nor other, was exempt from tax or was not includible in the  taxable  turnover.
\nFollowing  that  judgment, we must reject the first contention advanced by the
\nlearned counsel for the petitioners.\n<\/p>\n
        The second contention is the result of a confusion  between  the  best
\njudgment  assessment  provided  for  in  section  12(2)  of  the  Act  and the
\ndetermination to the best of judgment of the turnover provided for in  section
\n16(1) of  the  Act.  The language used in the two sections and the purpose for
\nwhich the best judgment test is to  be  applied  are  different.    Therefore,
\nsimply  because  section  16(1) uses the expression “best of its judgment”, it
\ncannot be held that section 16(1) can be invoked  only  in  a  case  where  an
\nelement  of  estimate  of  the turnover enters into the calculation and has no
\napplication to a case where a turnover is known  and  definite  and  only  the
\nliability of the same to tax is under consideration.  Therefore, we reject the
\nsecond contention also.”\n<\/p>\n
        The  above  said  judgment  is in all fours answer the argument of the
\nlearned counsel Mr.Thiyagarajan against him.\n<\/p>\n
        14.  In  the  case  of  DINOD  CASHEW  CORPORATION  VS.    THE  DEPUTY
\nCOMMERCIAL  TAX  OFFICER AND ANOTHER reported in (1986) 61 STC 1, the Division
\nBench of this Court has held that having regard to the expression employed for
\nany reason in Section 16,  it  was  clear  that  even  where  a  turnover  was
\ndisclosed,  which  was not subjected to tax, because at the relevant time, the
\nassessing authority thought that a particular turnover was exempted under  the
\nprovisions  of  Section  5(3)  of  the  Central  sales  Tax  Act,  it would be
\npermissible for the assessing authority to reopen the assessment under section
\n16(1)(a) of the T.N.G.S.T.Act.  Hence, we are of the view that the argument of
\nthe learned counsel for the petitioner has to  be  rejected  as  it  contained
\nneither any merit nor any substance.\n<\/p>\n
        15.    In   support   of  his  contention,  the  learned  counsel  Mr.
\nThiyagarajan appearing for the petitioner relied on the following decisions:\n<\/p>\n
        (1) THE STATE OF MADRAS VS.  S.G.JAYARAJ NADAR AND  SONS  reported  in
\n(1971) 28 STC 700,
\n        (2) APPOLLO SALINE  PHARMACEUTICALS  (P)  LTD.    VS.   COMMERCIAL TAX
\nOFFICER (FAC) AND OTHERS reported in (2002) 125 STC 505 and
\n        (3) STATE OF TAMIL NADU VS.  SRI SHANMUGHANANDA AND CO.   reported  in
\n(1997) 104 STC 61.\n<\/p>\n
        16.  The  first  of  the  judgment  in  THE  STATE OF MADRAS VS.  S.G.
\nJAYARAJ NADAR AND SONS reported in (1971) 28 STC 700  is  one  rendered  while
\nconstruing  Section  12(2)  and  12(3) of the Madras General Sales Tax Act, in
\nwhich the Supreme Court after taking into consideration of the  provisions  of
\nthe  Act,  as  stood  then,  held that the penalty can be levied under section
\n12(3) of the Madras General sales Tax Act, 1959 on the ground that the  dealer
\nsubmitted  an  incomplete or incorrect return only after the assessment had to
\nbe made to the best of its judgment by the assessing authority.  Where certain
\nitems which are not included in the turnover are discovered from the  dealer’s
\nown  turnover,  the assessment cannot be regarded as best judgment and penalty
\ncannot be levied in respect of such item.  The other decision relied on by the
\nlearned counsel is APPOLLO SALINE PHARMACEUTICALS (P) LTD.   VS.    COMMERCIAL
\nTAX  OFFICER (FAC) AND OTHERS reported in (2002) 125 STC 5 05, which is also a
\ndecision, which construe the provisions of  Section  12(1)  to  12(5)  of  the
\nT.N.G.S.T.Act  and on such construction of the said provisions, the Court held
\nthat except during the period from December 3, 1979 to May  27,  1993  penalty
\nunder  T.N.G.S.T.Act, 1959 could be levied only in a case where the assessment
\nis a best judgment assessment made on an estimate and not by relying solely on
\nthe accounts furnished by the assessee in the prescribed return.  On and after
\nApril 1,1996 an explanation has been added below section 12(3) which  requires
\nthe  turnover relating to the tax assessed on the basis of the accounts of the
\nassessee, to be disregarded  while  determining  the  turnover  on  which  the
\npenalty is  to  be  levied  under  section 12(3).  These two decisions are not
\napplicable to t he facts  of  the  present  case,  since  the  said  decisions
\nconstrued  the  assessment  provisions ie., Section 12, which provides for two
\nkinds of assessments, as already stated, on two situations, when no return  is
\nfiled  or  after  rejecting  the returns filed as incorrect and incomplete and
\nrejecting the books of accounts.    However,  in  the  present  case,  we  are
\nconcerned   with   section   16  of  the  T.N.G.S.T.Act,  which  provides  for
\nre-assessment for any reason a taxable turnover is escaped of assessment  from
\ntax.\n<\/p>\n
        17.   The  other  decision  relied  on  by the learned counsel for the
\npetitioner is STATE OF TAMIL NADU VS.  SRI SHANMUGHANANDA AND CO.  reported in
\n(1997) 104 STC 61.  So far as the case cited is concerned, the point in  issue
\nwas  not  seriously disputed and no issue raised and which has been argued and
\nultimately a finding has been given.  The same is evident from paragraph  No.5
\nof the said judgment, which proceeds as follows:\n<\/p>\n
        “In  so  far as the merits of case, in levying penalty under section 1
\n6(2) of the Act, is  concerned,  it  was  represented  that  the  turnover  of
\nRs.1,12,664 was assessed on the basis of book turnover.  The assessed turnover
\nwas stated to be found in the books of accounts and the accounts were accepted
\nby the  department.    In  such  a  case,the  Appellate Assistant Commissioner
\npointed out that in view of the decision of the  Supreme  Court  in  State  of
\nMadras v.  S.G.Jayaraj Nadar & Sons<\/a> (1971 ) 28 STC 700 penalty is not exigible
\nunder section  16(2)  of  the Act.  This situation was not disputed seriously.
\nTherefore, on merits, penalty under section 16(2) of the Act is  not  exigible
\nin the case of the assessee.”\n<\/p>\n
        18.   The  Supreme  Court  in the case of MITTAL ENGINEERING WORKS (P)
\nLTD.  VS.  COLLECTOR OF CENTRAL EXCISE, MEERUT reported in (1997) 106 STC  201
\nhas  held  that  a  decision cannot be relied upon in support of a proposition
\nthat it did not decide.  As already stated in 104 STC  61,  where  penalty  be
\nlevied  under  Section  16(2) of the Act in respect of a turnover available in
\nthe books of accounts has not been discussed or decided, since the  issue  has
\nnot  been  disputed  by  the  parties  to  the proceedings, the Division Bench
\ndeleted the penalty.  Such a clear dispute has been raised  and  arguments  at
\nlength  on  the  side  of both the parties were heard and finally the Division
\nBench in SURYA FERTILISERS AND CHEMICALS VS.  THE STATE OF TAMIL NADU reported
\nin (1977) 4 0 STC 538 has held against the assessee.    Hence,  it  cannot  be
\nconstrued  that  106  STC  201 has rendered a decision on consideration on the
\nissue.\n<\/p>\n
        19.  The other decision relied on  by  the  learned  counsel  for  the
\npetitioner is DEPUTY COMMISSIONER OF COMMERCIAL TAXES, TRICHY DIVISION, TRICHY
\nVS.  V.R.KUPPUSAMY GOUNDER AND SONS     reported   in  (1995)  98  STC  4  08,
\nwherein the assessment  of  the  dealer  was  made  after  examining  relevant
\ninvoices, vouchers,  accounts and records.  The dealers’ claim to exemption in
\nrespect of purchases of groundnuts in  the  State  from  various  dealers  was
\nallowed,  upon  satisfaction  that  the  groundnuts  has earlier suffered tax.
\nHowever, on the ground that some of  the  purchases  on  which  exemption  was
\nallowed  originally  were  based  on  forged  bills obtained from non-existent
\ndealers, the Deputy  Commercial  Tax  Officer  revised  the  assessment  under
\nSection 16(1)  of  the  T.N.G.S.T.   Act and also levied penalty under section
\n16(2).  On appeal, the dealers submitted statement showing the sellers’  names
\nand addresses,  their  registration  certificate  numbers, G.L.  numbers, cess
\npermit numbers, bill numbers with dates, lorry freight paid and  the  relevant
\nday book pages were also filed.  However, the Appellate Assistant Commissioner
\nupheld the  Deputy Commercial Tax Officer’s order.  He further held that there
\nwas no evidence of movement of goods.  The  Appellate  Assistant  Commissioner
\nalso  held that there was no positive evidence that the goods had suffered tax
\nalready in the hands of the sellers.  On appeal, the Tribunal  set  aside  the
\nreassessments, which  were questioned before this Court by the revenue.  While
\ntaking into consideration of the facts of the case, this Court has  held  that
\nwhile  making  the  original assessments, the assessing authority had examined
\nthe relevant invoices, the  cess  permits  and  accounts  and  other  relevant
\nrecords  relating  to the claim of exemption in respect of groundnut purchased
\nby the dealers and on being satisfied that the goods had earlier suffered tax,
\nrightly allowed the exemption.  On the basis of the documents produced by  the
\ndealers, the Tribunal came to the conclusion that the dealers had really moved
\nthe goods  in  furtherance of the purchases effected by them.  The revenue had
\nrelied upon certain statements obtained from mill owners.  Admittedly, at  the
\ntime  of purchase by the dealers, the registration certificates of the sellers
\nwere not cancelled.  There was no explanation by the Revenue  for  not  having
\nexamined the  alleged  sellers.  The Revenue without examining the sellers had
\nexamined the mill owners who had no connection whatsoever with  the  purchases
\nmade by  the dealers.  There was no evidence to show that the sellers were not
\nin existence.  Further, there was proof  to  the  effect  that  the  groundnut
\npurchased by the dealers had already suffered tax in the hands of the sellers.
\nIn  those circumstances, it was held that simply because the dealers’ claim to
\nexemption was rejected by the Department, that did not mean the  dealers  have
\nsuppressed anything.   Under those factual circumstances, this Court held that
\nthe Tribunal was right in holding that no penalty was exigible in any  of  the
\ndealers’ cases under Section 16(2) of the Act.  The facts of the present case,
\nas narrated above, are at variance in almost all facts, in the sense, that the
\nregistration  certificate of the selling dealer has been cancelled with effect
\nfrom 28.8.1989.  The petitioner is  not  able  to  produce  any  evidence  for
\npayment of  the  sale  price.    There  is  absolutely  no evidence whatsoever
\nforthcoming on the transportation of the  goods  from  the  place  of  selling
\ndealer to  the  place of the petitioner.  None of the third parties’ statement
\nhas been taken as the basis for revision.  The revenue proved that  the  bills
\nproduced  by  the  petitioner  are  all issued by a bogus\/non-existent dealer.
\nThere is absolutely no evidence to prove that the goods has  suffered  tax  at
\nthe hands of the selling dealer.  On the other hand, it has been proved by the
\nrevenue that  no tax was paid by the selling dealer.  Hence,there are ocean of
\ndifference on facts between the case relied on by the petitioner and the  case
\non  hand  and  as  such the case of Kuppusamy Gounder is not applicable to the
\nfacts of the present case.  The Courts should not place reliance on  decisions
\nwithout  discussing  as  to  how  the  factual situation fits in with the fact
\nsituation of the decision on which reliance is placed.  Observations of Courts
\nare not to be read as Euclid’s theorems nor  as  provisions  of  the  statute.
\nThese  observations  must  be  read  in  the  context  in  which  they appear.
\nJudgments of courts are not to be construed as statutes.  To interpre t words,
\nphrases and provisions of a statute, it may become  necessary  for  judges  to
\nembark into lengthy discussions but the discussion is meant to explain and not
\nto define  Judges  interpret  statutes, they do not interpret judgments.  They
\ninterpret words of statutes, their words are not be interpreted  as  statutes.
\n(vide JT 2002 (1) SC 482 )<\/p>\n
        20.   The  other  case  relied  on  by  the  learned  counsel  for the
\npetitioner is KALRA GLUE FACTORYVS.  SALES TAX TRIBUNAL AND OTHERS reported in
\n(1987) 66 STC 292, which is also a case in which on arriving at the conclusion
\nthat the transaction entered into by the appellant firm was in the  course  of
\ninter-state  trade, the sales tax Tribunal relied inter alia on a statement of
\na partner of another firm, which has not been tested by cross examination.  In
\nthat factual situation, the Supreme Court set aside the order of the Sales Tax
\nTribunal, and order in revision of the High Court therefrom and remitted  back
\nthe matter  to  the  Tribunal.    In  that case, the Supreme Court allowed the
\nappeal solely on the ground that the statement of one Banke Lal, which was not
\ntested by cross examination was used in order to reach the conclusion that the
\ntransaction was an inter-state sale, but the facts are not similar to that  of
\nthe present  case,  as stated above.  No third party statement has been relied
\nupon for revising the assessment.  Hence, that case is also not applicable  to
\nthe facts of the present case.\n<\/p>\n
        21.   Mr.Thiyagarajan, the learned counsel lastly contended that there
\nis absolutely no finding by the authorities concerned that  the  assessee  has
\nwilfully non-disclosed  the assessable turnover.  We are afraid to accept such
\na contention, in the face of the factual findings as given by the authorities,
\nviz., the assessing Officer has given  reason  that  the  petitioner  produced
\nbogus  bills  in the name of the non-existent dealer, who might perhaps be the
\nstooge of the  assessee,  since  it  is  the  assesses  themselves,  who  have
\nbenefited and  the  nonexistent dealer.  Further, it was found on fact that no
\npayment has been made by the petitioner by way of cheque or demand draft  when
\nthe  turnover  is  as huge as Rs.16 lakhs, and failed to establish the genuine
\nand bona fide nature of the transaction.  The petitioner  has  also  miserably
\nbeen  failed  to  produce  any  iota of evidence for the transportation of the
\ngoods from the place of purchase  to  the  petitioner’s  place  and  that  the
\nintention  is deliberate to avoid the payment of tax by showing it as a second
\nsale exemption.  The first appellate authority also has given a finding to the
\neffect that the appellant with a dishonest intention to  defraud  the  revenue
\nobtained bills to conceal his first sale as second sale.\n<\/p>\n
        22.   The final fact finding authority, the Appellate Tribunal also in
\nits order has stated that during the assessment year 1989-90, M\/s.    Mathuram
\nTraders  has  not paid the sales tax for its alleged supply and the supply has
\nnot suffered tax at the point of first sale.   Therefore,  we  feel  that  the
\nappellant  had  not  brought out any additional point for us to interfere with
\nthe orders of the Appellate Assistant Commissioner.    Before  the  revisional
\nauthority, as  already  stated,  no  question  of law has been raised.  Hence,
\nthere is absolutely no material for us to interfere with the levy  of  penalty
\nalso.\n<\/p>\n
        23.   For the reasons stated above, we are of the view that the orders
\nof the authorities below require no interference  and  the  writ  petition  is
\ndismissed.  However,there  is  no  order  as  to  costs.    Consequently,  the
\nconnected W.M.P.  is also dismissed.\n<\/p>\n
Index:Yes
\nWebsite:Yes<\/p>\n
usk<\/p>\n
To<\/p>\n
1.  The Registrar,
\nTamil Nadu Taxation Special
\nTribunal, Rajaji Salai,
\nChennai-1.\n<\/p>\n
2.  Deputy Commercial Tax Officer,
\nWashermenpet I Assessment Circle,
\nChennai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Uma Metal Industries vs The State Of Tamil Nadu on 21 November, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21\/11\/2002 CORAM THE HON’BLE MR.JUSTICE N.V.BALALSUBRAMANIAN AND THE HON’BLE MR.JUSTICE K.RAVIRAJA PANDIAN W.P.No.398 of 2001 and W.M.P.No.509 of 2001 Uma Metal Industries No.G-9, Industrial Estate Vysarpadi, Chennai-39. … Petitioner -Vs- […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-234322","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nUma Metal Industries vs The State Of Tamil Nadu on 21 November, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/uma-metal-industries-vs-the-state-of-tamil-nadu-on-21-november-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Uma Metal Industries vs The State Of Tamil Nadu on 21 November, 2002 - 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