AWAY LIMITED Vs. SPEED STATE OF TAMIL NADU

JUDGEMENT

(1.) THESE two tax revisions under section38 of the Tamil Nadu general Sales Tax Act, 1959 (hereinafter referred to as "the Act")are preferred by the same assessee, who is a dealer auto parts, tractor parts, etc. , the former relating to the assessment year 1978-79 and the latter relating to the assessment year 1976-77. They are only against the confirmation by the Tribunal of the order of the Appellate Assistant Commissioner upholding the levy of penalty under section22 (2) of the Act to the extent of Rs. 1, 94, 262 and Rs. 29, 628 respectively for the assessment years 1976-77 and 1978-79. According to the said provision, if any registered dealer collects any amount "by way of tax or purporting to be by way of tax in contravention" of section22 (1) of the Act, the assessing authority may impose upon him a penalty as prescribed under section22 (2) of the Act. Section 22 (1) of the Act says that no person who is not a registered dealer, shall collect any amount by way of tax or purporting to be by way of tax under this Act and that no registered dealer shall make any such collection except in accordance with the provisions of the Act and Rules thereunder.

(2.) HOWEVER, in the present case, taking into amount the decision in Metal Sales Corporation v. Joint Commercial Tax Officer only the excess collection, by the assessee over and above the tax suffered by it in its purchase in each of the abovesaid two years was levied as penalty. The total collection was discovered, on checking of accounts of the assessee for the later assessment year 1979-80. Then, it was found that the assessee had collected sales tax in the guise of "handling charges" for the second sales of single point goods in its hands.

(3.) APART from the abovesaid observations in the tribunal's order, learned Additional Government Pleader (Taxes) also produces the assessment file in respect of both the years and submits that nowhere it is mentioned that the abovesaid first sales tax bills were produced at the time of the abovesaid assessment relating to penalty, after checking the accounts for the year 1979-80, as stated above. She also submits that such sale bills are not in the said files. Learned counsel for the assessee could not say anything contra excepting merely asserting that those bills were produced at the time of penalty assessment. We cannot take note of the mere assertion of the said learned counsel and, therefore, we are unable to agree with the contention of the said learned counsel that the Tribunal has failed to take note of any material evidence as contended by him. The counsel also requested a remand, to enable the assessee to produce the abovesaid bills, for being considered afresh. But we cannot show any such indulgence in this revision under section38 of the Act, particularly in the light of above features.