The collection of tax by a registered dealer in contravention of section 22(1) of the Tamil Nadu General Sales Tax Act, 1959 attracts penalty under section 22(2) of the Act.

ABDUL HADI, J.

A short question is involved in this tax case revision preferred by the assessee under section38 of the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as "the Act") against the levy of penalty under section22(2) of the Act to an extent of Rs. 16, 06, 820 confirmed by the Tribunal by its order dated December 15, 1988, in Tribunal Appeal No. 1008 of 1987. Under the said provision, the said penalty is leviable if the dealer collects any amount "by way of tax or purporting to be by way of tax in contravention" of section22(1) of the Act, which says that no person who is not a registered dealer shall collect any amount by way of tax or purporting to be by way of tax under this Act and no registered dealer shall make any such collection except in accordance with the provisions of the Act and the Rules made thereunder.

2. But, the contention of the assessee is that the collection made by it form its purchaser, Promar Sales Limited, to the above extent of Rs. 16, 06, 820 on its second sale of detergent soap (in which it deals and which was taxable only at the point of first sale in the State) to the said purchaser was only as "incidental charges" and that hence the said provision does not get attracted at all. The further contention which is also stressed by learned counsel for the petitioner is that at any rate since the Tribunal has found as of fact that the said collection has been made by the assessee towards tax suffered by it earlier on its purchase from Whitco Limited and since this Court has held in Metal Sales Corporation v. Joint Commercial Tax Officer that such collection does not attract penalty levy under section22(2) of the Act, the Tribunal erred in confirming the penalty levied. The said learned counsel also relied on the decision in Mather & Platt Ltd. v. State of Maharashtra and the judgment dated September 21, 1990 is Shree Narasimgasahay Mudungopal Electric Co. Pvt. Ltd. v. State of Tamil Nadu [T.C. (R) Nos. 171 to 175 and 468 of 1981 and 1417 to 1421 of 1984].

3. On the other hand, learned counsel for the Revenue points out that as found by the Appellate Assistant Commissioner, the abovesaid collection represented only the tax on the value of the sale effected by the assessee in favour of the abovesaid Promar Sales Limited and that it is an unauthorised collection and hence section 22(2) is attracted. The said learned counsel also points out that the Tribunal has also found that the claim that the collection was made as incidental charges, has not been proved and that the assessee has collected sales tax under the guise of incidental charges. Learned counsel for the Revenue also points out that both the Appellate Assistant Commissioner and the Tribunal have found that as much as Rs. 61, 896 in excess of tax suffered has been collected under the guise of incidental charges. She also relied on the decision in P. Ramasamy v. State of Tamil Nadu.

4. We have considered the rival submissions. First of all it is clear that the concurrent factual arrived at by the authorities below that the assessee has not collected the amount in question as "incidental charges" in relation to its second sales to the abovesaid Promar Sales Limited, cannot be disturbed since learned counsel for the assessee has not, actually speaking, advanced any serious argument in this regard for our interference under section38 of the Act. The order of the Appellate Asisstant Commissioner mentions tht the learned counsel for the assessee argued before him that it (assessee) had not collected any amount in the name of tax, "but only reimbursed the amount paid to the seller". This itself shows that the assessee itself argued before the Appellate Assistant Commissioner that only tax suffered had been collected by the assessee from the abovesaid its purchaser Promar Sales Limited and not that the amount collected was "handling charges". Further, admittedly the assessee has not produced any documentary proof to show