TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 307
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....noticed that three State Appeals were filed before the second respondent Tribunal for the Assessment Years 1997-1998, 1998- 1999 & 2000-2001 against the common order of the Appellate Assistant Commissioner dated 29.10.2003 allowing the appeals of the petitioner. By the impugned common order dated 06.03.2006, the second respondent Tribunal has passed the following orders:- Table No.1 W.P.No. A.Y. C.T.S.A.No Remarks 39536/2006 1997-1998 161/2004 Allowed 39537/2006 1998-1999 171/2004 Allowed - 2000-2001 162/2004 Dismissed 4. By the impugned common order dated 06.03.2006, the second respondent Tribunal had accepted the case of the respondent and ordered inclusion of the turnover of liquor sold in the petitioner's hotel while computing taxable turnover for the purpose of Section 3-D of the Tamil Nadu General Sales Tax Act, 1959 [hereinafter referred to as "TNGST Act, 1959"]. The operative portion of the impugned common order dated 06.03.2006 of the second respondent Tribunal reads as under:- 7. We have considered the arguments of the both the sides and also verified the connected records. The issue involved in these three cases are the liability to tax under s....
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....sessment year 2000-01, the respondents had contended that the liability to tax under section 3D of the Act arise only on the taxable sale of Food and Drinks and that the other turnover are not to be included, the claim was not admitted by the Assessing Authority and the assessment made on the disputed turnover. The first appellate authority however, had contended the claim of the respondents. The appellant seeks for restoration of assessment stating that the order of the Assessing Authority was legally correct. But the stand taken by the appellant is found to be not correct. 10. Section 3-D was substituted with effect from 1.4.99 by Act 28/99 and the substituted section reads as follows:- "Section 3-D - Payment of tax by hotels, restaurants and sweet stalls. - (1) Notwithstanding anything contained in subsection (1) of Section 3, every dealer whose total turnover is not less than twenty five lakhs of rupees for the year on the first point of sale of food and drinks in hotels, restaurants, sweet stalls and any other eating houses other than those falling under item 20 of Part-C of the First Schedule shall pay tax at the rate of two per cent of the taxable turnover." As could b....
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....ion 3-D. Payment of tax by hotels, restaurants and sweet stalls.- (1) Notwithstanding anything contained in sub-section (1) of section 3, every dealer whose total turnover is not less than twenty five lakhs of rupees for the year on the sale of food and drinks in hotels, restaurants, sweet stalls and any other eating houses other than those falling under item 20 of Part-C of the First Schedule, shall pay tax at the rate specified in Part-A of the Ninth Schedule. (2) A dealer liable to pay tax under subsection (1) shall not collect any amount by way of tax or purporting to be way of tax on the sale of food and drinks. 9. The specific case of the petitioner in these Writ Petitions is that there is no case made out for clubbing the turnover of alcoholic liquor sold from the licenced bar of the petitioner. It is submitted that the sales turnover of alcoholic liquor sold from the bar attached to the petitioner's hotel, for which, the petitioner was given a bar licence under the provisions of the Tamil Nadu Prohibition Act, 1937 read with Rules made thereunder, cannot be included into the taxable turnover of food and drinks. It is submitted that the sale of alcoholic liquor was se....
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....was passed in the context of validity of Section 3-D / 3-E(1) and Part A or Part B of the IX Schedule to the TNGST Act, 1959, the Tamil Nadu Taxation Special Tribunal has categorically held that the taxable turnover for the purpose of Additional Sales Tax Act is taken as the "turnover assessed" under Section 3-D of the TNGST Act, 1959. 16. It is further submitted that the Tamil Nadu Taxation Special Tribunal has rejected the arguments advanced by the petitioner therein with the following observations:- 12. The arguments based on the levy of tax being on the total turnover has to be rejected because the total turnover will not include export sales, import sales and inter-State sales as assumed by the petitioner. In Kannan & Company v. State of Tamil Nadu [1975] 36 STC 300, the Madras High Court has held that the total turnover will not include the inter-State sale and this is being adopted by the Government. The second argument that the total turnover for the purpose of Section 3-D or Section 3-E takes into account the second and subsequent sales is based on a mis-conception. Both Sections 3- D and 3-E charging sections and as such they are competent to levy tax on the total turn....
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.... the order passed by the second respondent Tribunal in C.T.S.A.No.171/2004 for the Assessment Year 1998-1999 along with Writ Petition in W.P.No.39536 of 2006 against the order passed in C.T.S.A.No.161/04 for the Assessment Year 1997-1998. 21. Be that as it may, we proceed to examine the issue in the light of the rate of tax under the First and Sixth Schedules to the TNGST Act, 1959. Section 3-D was inserted by Act 39/97 published in Gazette dated 19.05.1997 with effect from 01.04.1997. 22. A reading of Section 3-D of the TNGST Act, 1959 as it stood during the period in dispute makes it clear that it is an exception to Section 3(1) of the TNGST Act, 1959. As per Sub-Section (1) to Section 3-D of the TNGST Act, 1959, every dealer whose whose total turnover is not less than Rs.25,00,000/- for the year on the sale of food and drinks in Hotels, Restaurants, Sweet Stalls and any other eating houses other than those falling under item 20 of Part-C of the I Schedule, was required to pay tax at the rate specified in Part-A of the IX Schedule. 23. As per Sub-Section (2) to Section 3-D of the TNGST Act, 1959, a dealer liable to pay tax under Sub-Section (1) to Section 3-D of the Act cannot....
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....ncerned, the levy of tax is under Section 3(2) of the TNGST Act, 1959. Section 3(2) is to be read in conjunction with Section 3(1) of the Act. Sections 3(1) and 3(2) as it stood then read as under:- Table No.3 Section 3(1) of the TNGST Act Section 3(2) of the TNGST Act Levy of taxes on sales or purchase of goods - (1) Every dealer (other than a casual trader or agent of a nonresident dealer) whose total turnover for a year exceeds three lakhs of rupees and every casual trade or agent of a non-resident dealer, whatever be this turnover for the year, shall pay a tax for each year in accordance with provisions of the this Act. (2) Subject to the provisions of subsection (1), in the case of goods mentioned in the First Schedule, the tax under this Act shall be payable by a dealer at the rate and only at the point specified therein on the turnover in each year relating to such goods: Provided that all spare parts, components and accessories of such goods shall also be taxed at the same rate as that of the goods if such spare parts, components and accessories are not specifically enumerated in the First Schedule and made liable to tax under that Schedule. Provided furthe....
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....Sixth Schedule [See Section 3(2-B)] Period Sl. No. Description of goods Point of levy Rate of tax (per cent) 12.03.1993 to 26.03.1998 1 All kinds of alcoholic liquors for human consumption, other than i. foreign liquors falling under item 1 of Part - J of the First Schedule ii. toddy, iii. arrack, and iv. all kinds of alcoholic liquors for human consumption falling under item 1 of Part - I of the First Schedule At the first point of sale and the second point of sale in the State 30% ? (17.07.1996 to 26.03.1998) 27.03.1998 to 26.03.2002 1 All kinds of alcoholic liquors for human consumption, other than i. foreign liquors falling under item 1 of Park- K of the First Schedule, ii. toddy, iii. arrack, and iv. all kinds of alcoholic liquors for human consumption falling under item 1 of Part-J of the First Schedule. At the first point of sale and the second point of sale in the State 40 % ? (27.03.1998 to 11.11.1999) & 50 % ? (12.11.1999 to 31.11.2001) 31. The petitioner has not included the turnover relating to the sale of alcoholic liquors for human consumption in its return. On the other hand, the petitioner has excluded the value of the liquor fro....