2018 (12) TMI 1358

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....unal) in STA.No.549 of 2005 dated 04.10.2012 for the assessment year 2000-01. 2. The above tax case revision was admitted on 15.3.2013 on the following substantial questions of law : "i. Whether, on facts and in the circumstances of the case, the Tribunal was right in law in holding that penalty under Section 22(2) of the TNGST Act was leviable in circumstances when there was no excess collection of sales tax, but there was only recoupment of entry tax collected in excess? ii. Whether, on facts and in the circumstances of the case, the Tribunal was right in law in confirming the levy of penalty under Section 22(2) of the TNGST Act, 1959 when the petitioner had collected the amount of Rs. 87,144/- and had remitted the sa....

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....ted Rs. 87,144/- in five invoices under the head of recoupment of entry tax paid in excess due to difference in rates, as the entry tax was at 9% as against the rate of sales tax at 8%. Thus, the total collection and remittance of tax amount in the assessment year 2000-01 was Rs. 13,17,267/-, which included the sales tax of Rs. 12,30,123/- and recoupment of entry tax at Rs. 87,142/-. 4. Thus, the Assessing Officer, vide order dated 27.12.2002, which was followed by an erratum order dated 31.1.2003, accepted the returns and issued the refund order in Form C for the amount of Rs. 1,74,731/-. The Assessing Officer subsequently issued the revision notice dated 03.2.2003 proposing to levy penalty under Section 22(2) of the Act for excess coll....

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....l or excess collection of sales tax under the Act. The First Appellate Authority ultimately allowed the appeal filed by the dealer vide order dated 18.2.2004. Aggrieved by the said order passed by the First Appellate Authority, the respondent - State preferred an appeal to the Tribunal stating that the dealer collected excess tax at 8% on the sale value amounting to Rs. 87,144/-, which is in contravention of the provisions of the Act. The Tribunal, by the impugned order, allowed the appeal filed by the State. Challenging the same, the dealer is before us. 7. We have heard Mrs.Aparna Nandakumar, learned counsel appearing for the petitioner - dealer and Mr.V.Haribau, learned Additional Government Pleader appearing for the respondent - Stat....

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.... 11. In the case on hand, there has been no collection of excess sales tax over and above 8% as has been rightly pointed out by the First Appellate Authority and the remaining amount was separately shown in the invoice as recoupment of entry tax, which, though collected by the dealer, has been remitted to the treasury. Therefore, the decision in the case of K.Mohammed Ibrahim Sahib would apply in full force to the case on hand. 12. Another Division Bench of this Court in the case of State of Tamil Nadu Vs. Sakthi Sugars Ltd. [reported in (2004) 137 STC 218] considered a similar issue, took note of the decision in the case of K.Mohammed Ibrahim Sahib and held that Section 22(2) of the Act would have no application to cases where a deal....