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2010 DIGILAW 695 (MAD)

STATE OF TAMIL NADU v. RAJA JEWELLERS.

2010-02-18

D.MURUGESAN, P.P.S.JANARTHANA RAJA

body2010
ORDER P. P. S. Janarthana Raja, J. - The Revenue has come forward with this revision challenging the order passed by the Tamil Nadu Sales Tax Appellate Tribunal (AB), Madurai, in MTSA No. 879/2002 dated August 5, 2003. This tax case revision raises the following three questions of law : "(i) Whether the Sales Tax Appellate Tribunal is right in holding that the property purchased by the assessee from bank in public auction were not worn out or beaten jewellery falling under entry 3 of Part A of the First Schedule taxable in the hands of the assessee at the point of last purchase but jewels falling under entry 25 in Part B of the First Schedule taxable at the point of first sale in the hands of the seller by placing the burden of proof on wrong shoulders, namely, on the assessing officer, ignoring that section 10 of the Tamil Nadu General Sales Tax Act, 1959 places the burden of proof on the assessee ? (ii) Whether the Sales Tax Appellate Tribunal is right in holding that sale of jewels pledged to the bank is taxable at the point of first sale (Lord Krishna Bank Limited v. Assistant Commissioner (Assessment I), Sales Tax Office [1999] 114 STC 333 (Ker)) ? and (iii) Whether the Sales Tax Appellate Tribunal has not committed an error of law in not ignoring the purchase turnover of worn out jewellery which would fall under section 7A of the Tamil Nadu General Sales Tax Act, 1959 for arriving at the total turnover for the purpose of section 3E of the Tamil Nadu General Sales Tax Act, 1959 ?" The assessee is a trader in jewellery. The assessment year involved is 1998-99. The assessee reported a total and taxable turnover of Rs. 37,15,316 and Rs. 36,97,627, respectively. This includes the turnover of Rs. 32,58,113 made under section 3E of the Tamil Nadu General Sales Tax Act, 1959, and a sum of Rs. 4,16,076 under section 3(2) of the TNGST Act. While the assessing officer made the assessment, he included a sum of Rs. 21,88,601 towards the purchase turnover of jewellery from banks on auction in the total turnover and accordingly arrived at the total turnover of Rs. 59,35,733. Since the turnover determined by the assessing officer exceeded Rs. 4,16,076 under section 3(2) of the TNGST Act. While the assessing officer made the assessment, he included a sum of Rs. 21,88,601 towards the purchase turnover of jewellery from banks on auction in the total turnover and accordingly arrived at the total turnover of Rs. 59,35,733. Since the turnover determined by the assessing officer exceeded Rs. 50 lakhs, he rejected the claim made by the assessee under section 3E on slab rate system as per the Ninth Schedule to the TNGST Act. Aggrieved by that order, the assessee filed an appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner deleted the inclusion of the purchase turnover of Rs. 21,88,601. Aggrieved, the Revenue filed an appeal before the Tribunal. The Tribunal, on being satisfied with the order passed by the Appellate Assistant Commissioner, dismissed the appeal preferred by the Revenue and confirmed the order passed by the Appellate Assistant Commissioner. Hence the present revision. The learned Special Government Pleader (Taxes) appearing for the Revenue submitted that the order of the Tribunal is wrong, illegal and without basis and justification and that the Tribunal did not consider the case in its proper perspective. It is further contended by the learned counsel that the turnover of Rs. 21,88,601 represents old and worn out jewellery, falling under entry 3 of Part A of the First Schedule to the TNGST Act, and therefore, the order passed by the Tribunal is not in accordance with law and the same shall be set aside. The learned counsel appearing for the respondent - assessee submitted that the authorities below, after verifying the records, passed the order taking into consideration the facts and circumstances of the case and based on, the valid material and evidence. Hence the order passed by the authority below needs no interference and the same shall be confirmed. Heard the learned counsel on either side and perused the material placed on record. The relevant provision to be quoted hereunder is section 3E of the TNGST Act : "(1) Notwithstanding anything contained in sub-section (1) of section 3, every dealer whose total turnover is not more than fifty lakhs of rupees for the year on the sale of gold and silver jewellery including articles thereof, shall pay tax at the rate specified in Part B of the Ninth Schedule. (2) A dealer liable to pay tax under sub-section (1) shall not collect any amount by way of tax or purporting to be by way of tax on the sale." From a reading of the above, it is clear that if the turnover is less than Rs. 50 lakhs, the assessee can avail of the benefit of compounded rate of tax specified in Part B of the Ninth Schedule. Further the Explanation of the said Schedule excludes the following items, viz., (i) sales turnover of bullion; (ii) last purchase turnover of worn out and beaten jewellery; and (iii) 7A purchase of bullion. Thus, applying the above provision of law, the purchase turnover of jewellery from the bank on auction for a sum of Rs. 21,88,601 was deleted from the turnover, and if that amount is deleted, the total turnover comes below Rs. 50 lakhs. Therefore, the authorities below correctly came to the conclusion that the assessee is entitled to compounded rate of tax. The Appellate Assistant Commissioner has also given a finding deleting the inclusion of purchase turnover and held as follows : "Besides the above, the appellants have also purchased old and worn out jewellery for Rs. 4,16,076 on which they have paid tax at the rate of two per cent as per the provisions of section 3(2) of the TNGST Act. Since the 'total turnover' as defined in section 3E of the TNGST Act is less than rupees fifty lakhs, they have paid taxes under slab rate system as per the Ninth Schedule of the TNGST Act. Since the total turnover during the year falls between Rs. 30 lakhs to Rs. 40 lakhs, they have paid taxes of Rs. 72,000 as per the slab prescribed in the Ninth Schedule to the TNGST Act. In this connection, the inclusion of the purchase turnover of jewellery which are taxable at the hands of the bankers as per entry 25 of Part B of the First Schedule in the appellants' total turnover is not in order, only worn out and beaten jewellery are liable to be assessed at the last purchase. But in the instant case, what the appellants have purchased are not worn out and beaten jewellery in order to consider the same for arriving at the total turnover. The jewellery so purchased for Rs. But in the instant case, what the appellants have purchased are not worn out and beaten jewellery in order to consider the same for arriving at the total turnover. The jewellery so purchased for Rs. 21,88,601 have been converted into new jewellery of latest fashion and sold the same as first sale. Therefore, at any cost, the inclusion of the purchase turnover of wearable jewellery into the appellants total turnover is not in order and hence the same is ordered as deleted." The Tribunal also confirmed the order passed by the Appellate Assistant Commissioner to give a categorical finding that the assessee is entitled to the said benefit and held as follows : "The total turnover referred to in the above section is excluding the following : (i) Sales turnover of bullion; (ii) last purchase turnover of worn out and beaten jewellery; (iii) 7A purchase of bullion. Accordingly that we accept that last purchase turnover of worn out and beaten jewellery are also not includible with the taxable turnover to be arrived under section 3E of the TNGST Act, 1959. Applying the above principles he arrived the total turnover of the assessee at Rs. 36,29,443 which includes the turnover assessable under section 3(2) at Rs. 4,16,076. In the above circumstances, we found that there is no merit in the grounds raised by the appellants/Revenue to consider the turnover under section 3E of the TNGST Act, 1959. The appellants/Revenue has also raised a point that during the relevant period, the respondents are not eligible to pay tax under section 3E of the TNGST Act, 1959 for the reason that they have not given any option to come under the proviso. The learned authorised representative contended that there was no option existed that the dealers whose turnover below Rs. 50 lakhs are coming under the category. Compulsorily such kind of dealers have to pay tax under section 3E of the TNGST Act, 1959. The option under the compounding system come into effect from April 1, 1997 onwards. So, he contended that there was no force in the grounds raised by the learned Deputy Commissioner. He also pointed out that they have given option for the year 1997-98 and also he produced a copy of the assessment order passed under section 3E of the TNGST Act, 1959 in respect of the above assessee. So, he contended that there was no force in the grounds raised by the learned Deputy Commissioner. He also pointed out that they have given option for the year 1997-98 and also he produced a copy of the assessment order passed under section 3E of the TNGST Act, 1959 in respect of the above assessee. He pointed out that the option given for the year 1997-98 has to be considered as an option for 1998-99 also because they have not withdrawn their option. At any event, we found that the assessment made under section 3E in this case is exigible. We find that there is no merit in the points raised in the grounds of State's appeal. We accept the order of the learned Appellate Assistant Commissioner and dismiss the appeal filed by the State including the prayer of the State to restore the penalty." It is a concurrent finding based on valid material and evidence. It is a question of fact and it is not a perverse order. The learned Special Government Pleader (Taxes) has not produced any material evidence before us to take a contrary view from that of the authorities below. We do not find any error or illegality in the order passed by the Tribunal. Accordingly, the order passed by the Tribunal is confirmed. Under these circumstances, the questions of law are answered in favour of the assessee and as against the Revenue. In the result, the tax case revision is devoid of merits and the same is dismissed. No costs.