Swastik Household and Industrial Products vs State of Tamil Nadu

Abdul Hadi, J.—A short question is involved in this tax case revision preferred by the assessee u/s 38 of the Tamil Nadu General Sales Tax

Act, 1959 (hereinafter referred to as ""the Act"") against the levy of penalty u/s 22(2) of the Act to an extent of Rs. 16,06,820 confirmed by the

Tribunal by its order dated December 15, 1988, in Tribunal Appeal No. 1008 of 1987. Under the said provision, the said penalty is leviable if the

dealer collects any amount ""by way of tax or purporting to be by way of tax in contravention"" of section 22(1) of the Act, which 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 no registered

dealer shall make any such collection except in accordance with the provisions of the Act and the Rules made thereunder.

But, the contention of the assessee is that the collection made by it form its purchaser, Promar Sales Limited, to the above extent of Rs.

16,06,820 on its second sale of detergent soap (in which it deals and which was taxable only at the point of first sale in the State) to the said

purchaser was only as ""incidental charges"" and that hence the said provision does not get attracted at all. The further contention which is also

stressed by learned counsel for the petitioner is that at any rate since the Tribunal has found as of fact that the said collection has been made by the

assessee towards tax suffered by it earlier on its purchase from Whitco Limited and since this Court has held in Metal Sales Corporation v. Joint

Commercial Tax Officer [1983] 52 STC 392, that such collection does not attract penalty levy u/s 22(2) of the Act, the Tribunal erred in

confirming the penalty levied. The said learned counsel also relied on the decision in Mather and Platt Ltd. Vs. State of Maharashtra, and the

judgment dated September 21, 1990 is Shree Narasimgasahay Mudungopal Electric Co. Pvt. Ltd. v. State of Tamil Nadu [T.C. (R) Nos. 171 to

175 and 468 of 1981 and 1417 to 1421 of 1984].

On the other hand, learned counsel for the Revenue points out that as found by the Appellate Assistant Commissioner, the abovesaid collection

represented only the tax on the value of the sale effected by the assessee in favour of the abovesaid Promar Sales Limited and that it is an

unauthorised collection and hence section 22(2) is attracted. The said learned counsel also points out that the Tribunal has also found that the claim

that the collection was made as incidental charges, has not been proved and that the assessee has collected sales tax under the guise of incidental

charges. Learned counsel for the Revenue also points out that both the Appellate Assistant Commissioner and the Tribunal have found that as

much as Rs. 61,896 in excess of tax suffered has been collected under the guise of incidental charges. She also relied on the decision in P.

Ramasamy Vs. The State of Tamil Nadu,

We have considered the rival submissions. First of all it is clear that the concurrent factual arrived at by the authorities below that the assessee

has not collected the amount in question as ""incidental charges"" in relation to its second sales to the abovesaid Promar Sales Limited, cannot be

disturbed since learned counsel for the assessee has not, actually speaking, advanced any serious argument in this regard for our interference u/s 38

of the Act. The order of the Appellate Asisstant Commissioner mentions tht the learned counsel for the assessee argued before him that it

(assessee) had not collected any amount in the name of tax, ""but only reimbursed the amount paid to the seller"". This itself shows that the assessee

itself argued before the Appellate Assistant Commissioner that only tax suffered had been collected by the assessee from the abovesaid its

purchaser Promar Sales Limited and not that the amount collected was ""handling charges"". Further, admittedly the assessee has not produced any

documentary proof to show what are the components of the alleged incidental charges and how they are entered in the books of accounts of the

assessee. Further, while initially the contention was that the abovesaid collection was only incidental charges, for the first time, the stand taken

before the Appellate Assistant Commissioner is that it represented the tax already suffered. This shift in stand also shows that the initial plea that the

collection was by way of incidental charges, cannot be believed.

4A. Further, the Tribunal also makes the following observations in paragraph 12 of its order :

The sellers to the appellants Whitco Limited have not charged anything by way of incidental charges but the appellants have charged incidental

charges which is almost equivalent to the sales tax, surcharge and additional surcharge paid by them to their sellers. From the above it is clear that

the sales tax, surcharge and additional surcharge work out to Rs. 13.02 and incidental charge work out to Rs. 14.34 per cardboard box. The sales

tax, surcharge and additional tax on Rs. 210 work out to Rs. 14.32 and incidental charges has been calculated ar Rs. 14.34. So it is clear that the

incidental charges are only the same as the sales tax, surcharge and additional surcharge. The point to be noted is that if they have ultimately

collected incidental charges whatever may be the rate it is not a point to be probed into by the department. But, if they have created any

impression on the purchasers that they only collected incidental charges whereas they have intended to pass on the tax paid by them that would not

be permissible under the Act.

So also it is clear that what has been collected is not incidental charges, and according to the Tribunal, the collection represents tax suffered

already by the assessee with some excess.

Then regarding the abovesaid second stand taken that the said collection only represents the taxes already suffered, we may straightway point

out the finding of the Appellate Assistant Commissioner as found in the following passage of his order :

It is true that as per judgment quoted by the appellants they are eligible to recoup the amount of tax paid by them to the purchasers. But in this

case, they have not recouped the amount that they have paid. But collected more than that which comes to Rs. 61,896.91 because the collection is

on the sale value. Therefore it cannot be considered as a recoupment as discussed in the above judgment.

So, the abovesaid collection is not simply tax suffered already by the assessee, but it is much as Rs. 61,896.91 in excess thereof. That so why, the

Appellate Assistant Commissioner has rightly come to the conclusion that it cannot be considered as recoupment of tax suffered, but only the

amount of tax that could be levied on the value of the sale effected by the assessee to the abovesaid Promar Sales Limited, as if it were a taxable

sale.

5A. This is also borne out by the following passage in the Appellate Assistant Commissioner''s order :

A perusal of the assessment order and the copy of invoices filed before me, it is noted that the appellants have paid tax at 6 per cent, surcharge at

5 per cent, and additional surcharge at 5 per cent to their sellers, and collected 6.6 per cent in their sale invoice from their purchasers, on the sale

value.... Considering the observation of the assessing officer, the way in which the amount has been mentioned in the bills shows that the amount

collected by the appellants from the purchasers is only tax. This amount has also been collected on the sale value which is evident from the

statement obtained and filed by the learned departmental representative. So without any doubt the amount collected by the appellants has to be

treated as collection of sales tax, surcharge and additional surcharge on the value of the commodity sold by the appellants.

5B. Further we also find from the affidavit of the director of the abovesaid Promar Sales Limited, which was filed by the assessee along with the

reply to the pre-assessment notice, that the abovesaid alleged incidental charges were paid ""at the rate applicable to the goods resold"" to the

abovesaid Promer Sales Limited. So, it is clear to us that to us that the alleged incidental charges to the extent of the abovesaid Rs. 16,06,820 are

only at the taxable rates applicable to the value of the sales effected by the assessee in favour of the abovesaid Promer Sales Limited, as if those

sales were taxable, despite being second sales within the state. The Tribunal also does not disturb, the abovesaid finding of the Appellate Assistant

Commissioner that the assessee has collected Rs. 61,897 in excess of the tax it has suffered earlier or the other finding of Appellant Assistant

Commissioner that while the assessee paid tax at 6 per cent, surcharge at 5 per cent on tax and additional surcharge at 5 per cent on tax, it

collected at 6.6 per cent on its sale value. But the Tribunal proceeds to construe or infer that the assessee made the abovesaid total collection of

Rs. 16,06,820 only by way of taxes already suffered and that in that process it has collected the abovesaid sum of Rs. 61,896.91 in excess.

But, in our view there is no warrant for such construction or inference by the Tribunal as against the above referred to observations of the

Appellate Assistant Commissioner and as against what is contained in the above referred to affidavit of the director of the abovesaid Promar Sales

Limited. The Tribunal also has not given any specific reason for it to construe or infer in the way in which it has done. No doubt, in the abovesaid

passage extracted from paragraph 12 of the Tribunal''s order, we find that the Tribunal observing that the total alleged ""incidental charges

collected is ""almost equivalent to sales tax, surcharge and additional surcharge paid by them (assessee) to their sellers (Whitco Ltd.)"". But even

from the very Tribunal''s order, it is seen (as we have already indicated), the said alleged incidental charges are not almost equivalent, but there is

an actual substantial excess over the taxes suffered by the assessee to an extent of Rs. 61,897 and according to the Appellate Assistant

Commissioner''s order, as already pointed out from the extracted passage of the order the total collection by the assessee to the extent of Rs.

16,06,820 is actually equal to 6.6 per cent of the value of the sales effected by the assessee in favour of Promar Sales Limited. Only because this

6.6 per cent represented the tax at 6 per cent, surcharge on tax at 5 per cent and the additional surcharge on tax at 5 per cent all in relation to the

value of the sale effected by the assessee - the Appellate Assistant Commissioner came to the conclusion rightly that the said total collection could

only be considered as collection ""by way of tax or purporting to be by way of tax in contravention"" of section 22(1) of the Act as mentioned in

section 22(2) of the Act.

No doubt, after referring to Metal Sales Corporation Vs. Joint Commercial Tax Officer, Harbour III Assessment Circle, , wherein it was held

that if tax suffered already had been collected, section 22(2) penalty is not attracted, the Tribunal goes on to say that the case in hand is different

from Metal Sales Corporation Vs. Joint Commercial Tax Officer, Harbour III Assessment Circle, since according to the assessee the abovesaid

collection was only by way of incidental charges.

In this regard, no doubt the abovesaid reasoning of the Tribunal is not correct, because once it finds that the collection by the assessee was only

taxes already suffered by it together with some excess thereon, then Metal Sales Corporation Vs. Joint Commercial Tax Officer, Harbour III

Assessment Circle, is squarely applicable to that portion of the collection, which represents the taxes already suffered and the penalty u/s 22(2)

could be levied only on the other portion, viz., the said excess. But, in the present case, as we have already held, the total collection of Rs.

16,06,820 made by the assessee, cannot be construed in the way in which the Tribunal has construed it, but the said collection only represents in

reality the taxes due on the value of the sales effected by the assessee as if those sales were taxable. If that is so, the other decision rendered by

this Court in [1984] 57 STC 72 (Ramasamy v. State of Tamil Nadu) is squarely applicable on the entire collection of Rs. 16,06,820. There a

Division Bench of this Court observed thus :

....... The assessee in this case put forward a defence that as the Act enables him to pass on the sales tax which he has paid to his seller to the

purchaser, he has passed on the amount of sales tax which he has paid at the time of his purchase, to his purchaser and therefore, that cannot be

taken to be a collection in violation of the provisions of the Act. But, a perusal of the assessment file indicates that the assessee has collected sales

tax on his sales turnover and the net collection is not the amount of tax which he has paid on his purchases. Apart from that, the Tribunal also has

found specifically in its order that the appellant (petitioner) has collected tax on his sale value of the goods at 5 per cent. If the assessee has, in

addition to the sale value of the timber sold, collected the exact amount which he has paid on the value of the timber as sales tax at the time of his

purchase, it would have been a different matter. But, here he has collected sales tax on his sales turnover and therefore, his plea that he is passing

on the sale tax, which he has paid on his purchases, to his purchaser is not at all tenable. Since the assessee is found to have collected sales tax on

his sales turnover, which is contrary to the provisions of the Act and which is specifically prohibited u/s 22(1) and which is made a ground for

levying penalty u/s 22(2). The order of the assessing officer, levying penalty on the assessee, which has been upheld by the Tribunal, does not call

for any interference.

We may also add that [1983] 53 STC 104 (Mather & Platt Ltd. v. State of Maharashtra) also will not help the assessee. In the said case, the

Bombay High Court pointed out that there were actually two types of collections by the assessee in the said case, one representing the amount of

sales tax payable by it, if its sale were a taxable sale. The other collections by the assessee was by way of tax already suffered. In such a situation,

the Bombay High Court points out that in the former case, the penalty is leviable under the relevant provisions of the Bombay Act, while in the

latter case, no penalty is leviable under the said provision. So actually speaking, even the Bombay decision does not lay down any different law.

Now doubt, the said Bombay decision is also referred to in the above referred to order of this Court dated September 21, 1990, in T.C. (R) Nos.

171 to 175 of 1981. The said decision of this Court also does not lay down any different law.

We may also point out that in one other order which we have delivered today in T.C. (R) Nos. 7 and 8 of 1989 (Speed-Away Limited v.

State of Tamil Nadu [1997] 106 STC 367 supra), the decision of the assessing authority, which was confirmed by the Appellate Assistant

Commissioner and the Tribunal, levied penalty u/s 22(2) of the Act, only on the ""excess over tax suffered"" on the footing that the entire collection

by the assessee therein represented only tax suffered already by the assessee with some excess. As against the said decision confirmed by the

Tribunal, the Revenue did not prefer any revision contending that the abovesaid entire collection represented only the tax leviable on the sale

effected by the assessee, if it were a taxable sale and that hence the penalty could be levied u/s 22(2) of the Act on the said entire collection itself.

Only the assessee preferred revision against the abovesaid decision of the Tribunal confirming that of the lower authorities and we saw no reason

to interfere with the said decision of the Tribunal therein, u/s 38 of the Act. Therefore, we also point out that there is actually no inconsistency

between the said our order in T.C. (R) Nos. 7 and 8 of 1989 (Speed-Away Limited v. State of Tamil Nadu [1997] 106 STC 367 supra) and the

present order in this T.C (R) No. 82 of 1989.

The net result is, no interference is called for by this Court in the present case. Accordingly the revision is dismissed. No costs.

Petition dismissed.