IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2010 CORAM: THE HONOURABLE Mr. JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE Mr. JUSTICE M.M.SUNDRESH TAX CASE (REVISION) No.2265 of 2008 The State of Tamil Nadu represented by Deputy Commissioner of Commercial Taxes, Tiruchirapalli Division, Tiruchirapalli. .. Petitioner /versus/ Tvl. Meenakshi Asphalts 9A, Dindigul Road, Tiruchirapalli. .. Respondent. Tax Case Revision Petition filed under Section 38(1) of the Tamil Nadu General Sales Tax Act, 1959 to revise the order of the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Madurai, in M.T.A.No.160/94 dated 28.7.1998 against the order of the Appellate Assistant Commissioner(CT)Tiruchirapalli,dated.28.12.1993 and made in Appeal No.612/93 against Asst.No.360865/87-88 dated.16.9.93 on the file of the Commercial Tax Officer, Palakarai-I, Trichy. For petitioner : Mr.Haja Naziruddin, Special Government Pleader. For respondent : Mr.R.Senniappan. (ORDER OF THE COURT WAS MADE BY F.M.IBRAHIM KALIFULLA,J.) The Revenue has come forward with this revision raising the following questions of law:- (1) Whether in the facts and circumstances, the Tribunal is legally correct in setting aside the order of remand ordered by the first appellate authority in respect of a turnover of Rs.4,33,657/- for verification of the place of business and registration of the selling dealer https://hcservices.ecourts.gov.in/hcservices/ shown in the disputed bills? (2) Whether the consequential deletion of surcharge, penalty by the Tribunal is also legally sustainable?" 2. The Appellate Assistant Commissioner remitted the matter back for ascertaining the liability. The Tribunal applying the law laid down by this Court, set aside the order of the Appellate Assistant Commissioner as well as the Assessing Authority. 3. The question for consideration is whether the respondent/ assessee is entitled for tax exemption on the ground that its sale was a second sale. The only contention raised on behalf of the Revenue was that the first sale was not by a registered dealer and therefore, the respondent's claim for exemption on the ground of second sale, cannot be permitted. Such a contention was raised on behalf of the petitioner on the footing that the registration of the local dealer from whom purchase was made by the respondent/ assessee, was cancelled with retrospective effect and therefore, on the date of purchase by the respondent/ assessee, the seller did not have a valid registration. The question raised was directly covered by a decision of this Court in STATE OF TAMIL NADU v. C.K.GAJAPATHY AND CO. [57 (1984)S.T.C.,137] and the Division Bench has held as under:- " .... If the assessee is able to show that there has been merely a taxable sale and its sale was only a second sale, it is entitled to claim exemption of its sales as second sales. ..... It is not the case of the Revenue that all sales effected by unregistered dealers are not liable to be taxed under the Act. As a matter of fact, if that were to be the position, all registered dealers would like to have their registration cancelled for the purpose of escaping from tax. Therefore, we are not in a position to accept the contention of the learned Government Pleader that merely because Messrs. Premier Steel Distributors were not registered dealers at the time when they sold the goods to the assessee, their sales are not taxable sales. .... Once Messrs. Premier Steel Distributors are found to be dealers engaged in the manufacture or purchase or in the business of purchase and sale of stainless steel vessels, all sales effected by them are taxable sales. It has been held by this Court in GOVINDAN & Co. v. STATE OF TAMIL NADU [1975 (35) STC., 50] and STATE OF TAMIL NADU V. CHAMUNDESWARI ENTERRISES [(1983) 52 STC., 124] that if there is a prior sale in the State, the https://hcservices.ecourts.gov.in/hcservices/ subsequent sales cannot be taken to be exigible for tax under the Act as second sales." 4. Having regard to such a categoric pronouncement by this Court, and the questions of law raised in this revision petition which are directly covered by the above said decision, we do not find any scope to interfere with the order of the Tribunal and the questions of law are answered against the Revenue. The Tax Case (Revision), therefore, fails and is dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar sai To. 1. The Tamil Nadu Sales Tax Appellate Tribunal, Additional Bench, Madurai. 2. The Deputy Commissioner of Commercial Tax, Tiruchirapalli Division, Tiruchirapalli. 3. The Appellate Assistant Commissioner(CT) Tiruchirapalli. 4. The Commercial Tax Officer-I, Palakarai-I, Tiruchi. + 1 CC to Mr.R.Senniappan,Advocate,SR.47772 T.C.(R) 2265 OF 2008 MBS(CO) EM/15.7.10 https://hcservices.ecourts.gov.in/hcservices/