New Bharath Steel House vs The State of Tamil Nadu

Ramanujam, J.—The petitioner in this revision reported a total and taxable turnover of Rs. 41,802.22 for the year 1972-73. The assessing officer determined the turnover at Rs. 47,853.32 u/s 7 and Rs. 41,944.80 u/s 5 by his order dated 31st August, 1973. No appeal was preferred against the said order. However, the assessing officer passed a revised order, including certain turnover as being attributable to outside State purchases and determining the turnover for the purpose of section 7 at Rs. 89,798.12. There was no appeal against that order also. On 10th September, 1976, the assessment was further revised and tax was levied u/s 5 on Rs. 41,944.80. The petitioner filed a rectification proceeding u/s 55 of the Tamil Nadu General Sales Tax Act, to the assessing officer which was rejected. He filed an appeal to the Appellate Assistant Commissioner, against the refusal of the assessing officer to pass orders u/s 55 which was also dismissed. A further appeal was filed before the Sales Tax Appellate Tribunal, and the Tribunal, following the judgment of this Court, reported in O.M.S.S. Sivamurugan Vs. Assistant Commercial Tax Officer VIII, dismissed the appeal. The decision of the Tribunal has been challenged in this revision.

According to the assessee, once an assessment is made u/s 7 and tax is paid on compoundable basis, there is no question of any separate assessment being made u/s 5. This question came up for consideration before this Court for the first time in Sivamurugan v. Assistant Commercial Tax Officer [1970] 26 STC 68 and this Court held that the levy of tax u/s 5 is a separate and independent charge apart from the levy of tax u/s 3(1), and the levy of tax u/s 7 is only in lieu of the tax leviable under any other provision of the Act and that, therefore, the levy of tax u/s 5 on a part of the turnover already subjected to levy of tax u/s 7 is valid. The view taken in that case has been accepted by another Division Bench of this Court in Coimbatore District Central Co-operative Supply and Marketing Society Ltd. v. Deputy Commercial Tax Officer [1975] 35 STC 226. Since the question arising in this revision is covered by the said decisions of this Court, the order of the Tribunal in this case has to be upheld. This revision is, therefore, dismissed. There will be no order as to costs.