TaxTMI 
TaxTMI 
2001 (1) TMI 955
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....31, 1997 and to direct him to redo the assessment by classifying the turnover as determined by the first appellate authority in A.P. No. 543/95, dated May 12, 1997 by levying tax at 3 per cent on the sales of electronic goods for the assessment year 1994-95. 3.. In both the cases, the assessment orders passed by the assessing authority on January 31, 1997 by classifying the sales of mini transformers and coils for television sets at 12 per cent instead of the claim of 3 per cent by the dealers were allowed to become final by not preferring first appeal before the appellate authority. Hence the present petitions. 4.. Mr. K. Venkatasubramanian, the learned counsel for the petitioners, contended that the assessments for the earlier year namely 1993-94 were taken on first appeal and the issue related to the classification of mini transformers and coils for television sets and the appellate authority in the order passed in A.P. Nos. 542 of 1995 and 543 of 1995 dated May 12, 1997 held that the goods of electronics is taxable at 3 per cent. In view of the fact that the petitioners preferred appeal for the assessment year 1993-94, it is incorrect on the part of the assessing authority to....
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....be directed to classify the electronic goods sold by the dealers at 3 per cent by following the judgment of the first appellate authority in A.P. No. 543 of 1995 dated May 12, 1997. 5.. I have considered the contentions carefully and perused the records. The argument that the reduction in rate of tax on electronic goods to 3 per cent in notifications with effect from March 17, 1990 was not followed by the assessing authority is totally an incorrect argument inasmuch as the learned counsel for the petitioner failed to take note of the cancellation of the notification in G.O. Ms. No. 87, dated March 17, 1993. The relevant notifications are extracted below for the sake of clarity. Sale of Electronic Goods and ComponentsReduction in Rate of Tax (Tamil Nadu) Notification G.O.P. No. 155 dated the 17th March, 1990. No. II(1)/CTRE/52(f)/90.-In exercise of the powers conferred by sub-section (1) of section 17 of the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959), the Governor of Tamil Nadu hereby makes the reduction in rate to four per cent in respect of the tax payable by any dealer on the sale of electronic goods and components in the categories falling under any of....
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....tte, Extraordinary No. 137, Part II, Section 1, dated 17th March, 1990. hereby cancels the following Commercial Taxes and Religious Endowments Department Notifications: Sale of Electronic Goods and Components Falling Under the First Schedule. (18) No. II(1)/CTRE/52(f)/90, dated the 17th March, 1990, published on page 3 of Part II-Section 1 of the Tamil Nadu Government Gazette, Extraordinary, dated the 17th March, 1990, relating to the reduction in rate of tax up to three per cent payable on the sale of electronic goods and components falling under the First Schedule except those falling under entry 1-B; Sale of Electronic Teleprinters and Parts Accessories (19) No. II(1)/CTRE/52(g)/90, dated the 17th March, 1990, published on page 4 of Part II-Section 1 of the Tamil Nadu Government Gazette, Extraordinary, dated the 17th March, 1990, relating to the reduction in rate of tax from fifteen per cent to ten per cent on the sale of electronic teleprinters and parts and accessories thereof." 6.. Thus, it is quite clear that in so far as the assessment year 1994-95 is concerned, the reduction of rate of tax at 3 per cent for electronic goods as per the notifications relied on by the lea....
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....er making such enquiry as it may consider necessary, assess the dealer to the best of its judgment: .................. Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of proving the correctness or completeness of any return submitted by him. (3) In addition to the tax assessed under sub-section (2), the assessing authority shall, in the same order of assessment passed under sub-section (2) or by a separate order, direct the dealer to pay by way of penalty, a sum- (a) which shall be, in the case of failure to submit return, one hundred and fifty per cent of the tax assessed on final assessment; and (b) which shall be, in the case of submission of incorrect or incomplete return,- (i) twenty-five per cent of the difference of the tax assessed and the tax paid as per the return, if the tax paid as per the return falls short of the tax assessed on final assessment by not more than five per cent; (ia) fifty per cent of the difference of the tax assessed and the tax paid as per the return, if the tax paid as per the return falls short of the tax assessed on final assessment by more than five per cent but not more than fif....
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....rroneously that a transaction, which is an outside sale, is not an outside sale and proceeds to levy sales tax on it, it cannot be said that the decision of the appropriate authority is without jurisdiction." 10.. In these cases, the assessment orders were passed on January 31, 1997. However, the appellate authority granted relief for the assessment year 1993-94 in the orders passed by him on May 12, 1997 by classifying the goods as taxable at 3 per cent and the order of the first appellate authority was subsequent to the orders passed for the assessment year 1994-95 by the assessing authority on January 31, 1997. According to section 31 of the Tamil Nadu General Sales Tax Act, 1959, the assessee should have filed appeal before the first appellate authority within 30 days on receipt of the assessment order. Beyond this period, the appellate authority has got powers to condone the delay for valid reasons up to a period of 30 days only. Therefore it is quite clear that the dealers allowed the assessments for 1994-95 to become final by not approaching the first appellate authority. In such circumstances, it cannot be claimed now in writ jurisdiction to direct the assessing authorit....
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....not claim that they abstained from filing statutory appeals for the assessment passed for the year 1994-95. As observed by the Supreme Court, in Mittal Engineering Works (P) Ltd. v. Collector of Central Excise reported in [1997] 106 STC 201 at page 205, "a decision cannot be relied upon in support of a proposition that it did not decide". Thus, when the letter of the Special Commissioner and Commissioner of Commercial Taxes in K.Dis. Acts Cell II/54539/95 dated September 18, 1996 did not contain any clarification regarding rate of tax, the petitioner cannot claim that on the basis of the letter dated September 18, 1996, no appeals were preferred before the first appellate authority. From page 13 of the typed set (O.P. No. 9 of 2001), it is seen that a circular was issued by the Special Commissioner and Commissioner of Commercial Taxes in Acts Cell II/25899/95, dated March 28, 1995 referring to earlier circular in D.Dis. Acts Cell II/29421/94, dated May 10, 1994 wherein it was clarified that small "electronic" transformers used in radio, television, etc., are to be assessed at 12 per cent under specific entry "transformer" in item 21(ii), Part "E" of the First Schedule and that the....