(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) The revision is filed by the assessee against the order of the Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai dated 28.04.2000 and assessed in STA No.533 of 1999.
2. The levy of tax and penalty in respect of the premium received for transfer of REP licences is put in issue in this revision. The issue that the sale of REP licences is assessable to tax was settled by this Court as early as 04.04.1994 in the case of P.S.Apparels v. Deputy Commercial Tax Officer, 94 STC 139, wherein after hearing the counsel on either side, ultimately this Court held that REP licences/exim scrips are 'goods' in etymological sense and in common parlance as also within the meaning of section 2(1) of the TNGST Act, 1959 and
section 2(d) of the CST Act, 1956. Having regard to the levy of penalty after hearing the counsel on either side, the Division Bench, in para 15 held that the respondents have made it known that the transactions of the nature under consideration are liable to be taxed at some point of time during the assessment years 1992-93 and the various assessees had an opportunity to submit revised returns or pay tax due on the transactions in question. Consequently, the Division Bench has taken the view that the penalty, if any, could be leviable only from the assessment years 1992-93 onwards and the respective assessing authorities shall consider the issue relating to the actual levy of penalty in individual cases depending upon the facts and circumstances of the case in accordance with law. This judgment has been confirmed by the Supreme Court in the case of Vikas Sales Corporation v. The Commissioner of Commercial Taxes, 102 STC 106.
3. In the case on hand, the factual finding arrived at by the Tribunal is that the assessment order has been passed in this case on 23.12.1994 which is well subsequent to the hotly contested decision in the case of P.S. Apparels v. Deputy Commercial Tax Officer, 94 STC 139. Hence, the assessee should have paid the tax on the value of sale REP licence before framing the assessment. But the assessee did not pay the relevant tax before final assessment, when there was sufficient opportunity for payment of taxes. During the relevant period 1993-94, the penalty provision under
section 12(3)(b) of the Act was not the same, as considered by the Division Bench in P.S. Apparels v. Deputy Commercial Tax Officer, cited supra, where, if there is wilful non-disclosure the assessing officer is vested with power of discretion for levy of penalty. However, during the relevant period, the penalty provision has been amended without giving any discretion to the assessing officer by taking away the ingredient of 'wilful non-disclosure' from the statutory provision and also taking away the discretion vested with the assessing officer to levy the penalty. But slab rate of penalty was statutorily fixed by the amended provision which came into effect on and from 01.07.2002. So, if there is a difference between the tax paid and tax assessed, the penalty has to be levied under
section 12(3)(b) of the Act. The taxability of income from transfer of REP licence was again confirmed in the case of Yasha Overseas v. Commissioner of Sales Tax, (2008) 17 VST 182 by the apex Court. The scope of statutory penal provision has also been enunciated by three Judge judgment of the apex Court in Union of India v. Dharmendra Textiles Processors 306 ITR 277,
4. There is absolutely no material whatsoever made available for us to take a different view, having regard to the dispute as to the taxability of the turnover or any genuine reason given by the assessee for non payment of the tax on that turnover prior to the framing of the assessment. Hence, we do not find any reason to entertain this tax case revision. The Tax case revision is dismissed.
krr/mf Copy to
1. The Deputy Commercial Tax Officer, Park Town II Assessment cicrle, Chennai.
2. The Appellate Assistant Commissioner (CT)-I, Chennai 108.
3. The Deputy Commissioner (CT), Chennai (North) Division.
4. The Sales tax Appellate Tribunal, Additional Bench, Chennai