IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 16.09.2011 Coram The Honourable Mrs.Justice CHITRA VENKATARAMAN and The Honourable Mr.Justice M.JAICHANDREN TC(R). No. 694 of 2006 The State of Tamil Nadu rep. By the Deputy Commissioner (CT) Vellore Division, Vellore ... Petitioner -vs- S.Vaidayanathasami (Legal representative of V.Balasubramaniam) Gandhinagar Vellore – 6 ... Respondent Tax Case Revision filed under section 38 of the TNGST Act 1959 to revise the orders of the Tamil Nadu Sales Tax Appellate Tribunal (AB), Chennai in T.A.No. 275/96 dated 19.2.1999. against the order of the Appellate Assistant Commissioner (CT), Vellore dated 29.1.1996 made in Appeal No. 620/95, against the order of the Deputy Commercial Tax Officer, Gudiyatham (East) dated 29.6.1995 and made in TNGST No.557399/92-93. For Petitioner : Mr.R.Sivaraman, Special Government Pleader (Taxes) For respondent : Mr.A. Thiagarajan, Senior Counsel for M/s. Mc.Gan Law firm ORDER (Order of the Court was made by CHITRA VENKATARAMAN,J) The Revenue is on revision as against the order of the Tribunal relating to assessment year 1992-93. 2. Originally the assessment of the assessee was finalised granting exemption on a turnover of Rs.69,443/- on the second sale of bakery products. However, finding that the sale of bakery https://hcservices.ecourts.gov.in/hcservices/ products had not suffered tax earlier, the assessment was sought to be revised under Section 16 of the Tamil Nadu General Sales Act to bring the turnover for assessment under Section 7A(1)(a) of the Act. 3. The assessee filed an appeal as against the said order of reassessment, that the assessee's vendors' total turnover was less than Rs.1 lakh, which was well below the chargeable limit under Secton 3(1) of the Tamil Nadu General Sales Tax Act and hence, the vendors' sales were not assessed to sales tax. The assessee pointed out that the sellers were already assessed to tax by the respective jurisdictional authorities; hence, levy of tax under Section 7A of the Act was bad. The Appellate Authority pointed out that in the absence of any evidence to show that the vendors were already assessed, the levy of tax was justified. Aggrieved by the same, the assessee went on appeal before the Sales Tax Appellate Tribunal. 4. Before the Tribunal, the assessee placed reliance on the decision reported in 66 STC 58 - TVL. VASU GENERAL STORES v. STATE OF TAMIL NADU as well as on the subsequent decision of the Apex Court reversing the said decision reported in AIR 1999 SUPREME COURT 1516 – SHANMUGA TRADERS v. STATE OF TAMIL NADU, wherein it was held that when once the bakery products were assessable at the point of first sale, the mere fact that the vendor was exempted from payment of tax on the ground of his turnover being less than the taxable turnover was not a ground for shifting the tax liability to the assessee. The Tribunal accepted the case of the assessee and set aside the assessment made by the Officer. Aggrieved by the same, the Revenue is on revision before this Court. 5. It is seen from the notification issued under Section 17 of the Act that in respect of the sale of bakery products by a dealer whose turnover exceeded Rs.3 lakhs, the rate of tax was reduced from 8% to 5% at the single point flat rate. The notification in G.O.P.No.332 CT & RE dated 30.5.1990 came into effect from 1.4.1990. Learned senior counsel appearing for the assessee pointed out that once the liability to pay tax under the Act is fixed on the first seller, on the mere fact that the Revenue could not assess the dealer on account of the total turnover well below the required minimum under Section 3 of the Act, the levy could not be shifted to the assessee, who is admittedly a second seller and the notification could not be invoked. When the point of levy of tax is fixed under the Act, namely the first seller, it is not open to the Revenue to shift the point of sale to the assessee. Thus there is no taxable sale effected on the part of the assessee for the purpose of levying tax. 6. In so contending, learned senior counsel placed reliance on the decision of the Apex Court reported in AIR 1999 SUPREME COURT 1516 – SHANMUGA TRADERS v. STATE OF TAMIL NADU and contended that even though the said decision was with reference to the declared https://hcservices.ecourts.gov.in/hcservices/ goods, the law declared therein would apply to the facts of the case on hand. In any event, none of the conditions under Section 7A of the Act would attract to the case herein. In the above circumstances, the charge itself is not correct. 7. Per contra, learned Special Government Pleader pointed out that given the fact that the first seller was not taxed herein, the assessee being the first seller, the liability was rightly fixed under Section 7A of the Act. 8. Heard learned Special Government Pleader (Taxes) appearing for the Revenue as well as the learned senior counsel appearing for the assessee and perused the materials on record. 9. A perusal of Section 3(1) of the Tamil Nadu General Sales Tax Act, as it stood at the relevant time, shows that in the case of a dealer the liability to pay tax arises when the total turnover exceeded Rs.1 lakh. In the case of casual trader or agent of a non- resident, the liability is fastened irrespective of sales turnover. Tax at flat rate at 8% was liable to be paid at the point of first sale. 10. As far as Section 7A is concerned, it deals with levy of purchase tax. This is a charging Section by itself. A reading of Section 7A shows that the chargeability under Section 7A is attracted under stated circumstances. Without purchase of goods from any registered dealer or other persons whose sale or purchase, though liable to tax, does not suffer tax by reason of circumstances given under Sections 3 and 4 and such purchased goods were used and consumed in the manufacture of other goods or for sale or otherwise or in any manner other than by way of sale in the State or despatched them to a place out the State except as a direct result of sale or purchase in the course of inter-State trade or commerce. Then alone the charge under Section 7A stands attracted. On the admitted fact herein that the assessee, a dealer in bakery products, had effected sales locally only and that none of the circumstances given under Section 7A of the Act stood attracted to the facts herein, we do not find that the Revenue has a case for assessing the turnover under Section 7A of the Act. Thus on the admitted facts herein, we do not find any ground to sustain the assessment. 11. As far as the reliance placed on the decision of the Apex Court reported in AIR 1999 SUPREME COURT 1516 – SHANMUGA TRADERS v. STATE OF TAMIL NADU is concerned, it is no doubt true that it related to a case of a declared goods. Nevertheless, it may be seen therein that the Apex Court pointed out that when a person purchases scrap from the Tamil Nadu Electricity Board and sells, he is effectively the first seller liable for tax. Depending on what that purchaser is doing with scraps, liability to tax under Section 7-A of the Tamil Nadu General Sales Tax Act may arise. Referring to the https://hcservices.ecourts.gov.in/hcservices/ clarification, the Apex Court pointed out that given the fact that iron and steel sold are taxable at the point of first sale and not on any subsequent sale in the State, there is only one sale in the State to be taxed. It is further stated that it is for the State to determine whether the single point levy should be at the point of first sale in the State or the last sale in the State or any intermediate sale in the State. If the single point is fixed by the State to say, the point of first sale and the State exempts the first sale from payment of tax, either by a general provision or a specific provision applicable to a class of seller, particular seller or the goods sold may not be subjected to tax at either that point of first sale or any subsequent sale in the State. Referring to Second Schedule of the State Act, the Apex Court held that the iron and steel sold by the Tamil Nadu Electricity Board was not liable to tax either at the point of first sale or any subsequent sale in the State. It also pointed out that the State Act does not fix the single point of the levy at the first taxable sale, it fixes it at the point of first sale. 12. Even assuming that the assessment is not under Section 7A of the Act, extending the said decisions to the provisions herein, Section 3(1) of the Act fixes the liability at the point of first sale, thus by applying the law declared by the Supreme Court in the above stated decision, particularly in paragraph 14, in the absence of any provision to say that the point of first sale is treated as point of first taxable sale, we have no hesitation in accepting the case of the assessee, thereby, confirming the order of the Tribunal. 13. In the result, the Tax Case (Revision) is dismissed. No costs. bg Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Deputy Commissioner (CT), Vellore Division, Vellore 2. The Tamil Nadu Sales Tax Appellate Tribunal (AB), Chennai 3. The Appellate Assistant Commissioner (CT), Vellore. 4. The Deputy Commercial Tax Officer, Gudiyatham (East) + 1 cc to McGan Law Firm, Advocate SR No.57844 TC.(R). No. 694 of 2006 KSJ(CO)SR/12.10.2011 https://hcservices.ecourts.gov.in/hcservices/