1995 (7) TMI 402

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.... Appellate Assistant Commissioner upholding the levy of penalty under section 22(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 section 22(1) of the Act, the assessing authority may impose upon him a penalty as prescribed under section 22(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....

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....he material evidence, viz., that similar handling charges were collected by the assessee even with reference to its first sales, which were actually assessed to tax. 5.. We have considered the rival submissions. No doubt, if the abovesaid collections are really by way of handling charges, section 22(2) of the Act, is not attracted. 6.. But, in the present case, a factual finding has been given by the authorities below including the Tribunal that the relevant collections were not made as handling charges. But, learned counsel for the assessee argues that the abovesaid factual finding arrived at by the Tribunal, has been rendered, without taking note of a very material evidence, viz., the sale bills relating to the abovesaid first sales....

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....says as follows: "Similarly for the year 1976-77 relating to T.A. No. 1335 of 1986 the assessing authority found that the assessees have not produced the bills for the sales to prove their claim that handling charges were collected apart from sales tax for first sales also." (Emphasis* supplied). So, in respect of assessment year 1976-77 also, the first sale bills, said to contain the reference to handling charges, were not produced. 7.. 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 as....

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....orked out to 13 per cent for auto parts, 9 per cent for tractor parts and 6 per cent for industrial machinery parts and the rate of tax for the relevant year for the above goods was 13 per cent, 9 per cent and 6 per cent respectively. Further the assessing officer also found that the details of expenditure furnished by them had no relevance for the handling charges collected by them. So the assessing officer found that the assessees have only recouped the tax borne out by them at the stage of the first sales in their second sale bills. But while so doing they have collected more than the tax incident. Here italicised.   He has found that such excess collection was Rs. 29,627.75." (It is this sum which was levied as penalty for as....