Southern India Regional Council of
The Institute of Chartered Accountants Of India
(Setup by an Act of Parliament)

 

Professional Updates

 

Professional Updates- October 2018

Recent Judgments in VAT CST GST

by Sampathkumar V V

Opportunity : The petitioners, having failed to respond to the revision notices, cannot now approach this Court and complain that there has been a violation of the principles of natural justice. The case on hand is one where the petitioners failed to utilize the opportunity granted to them nor filed their objections. This would be a sufficient ground to dismiss the writ petitions. However, considering the fact that though the respective AO. passed the orders on 30.8.2016 and 30.10.2017, the assessment still continues to remain in paper and no recovery can be made and this Court is inclined to grant one more opportunity to the petitioners to go before the respective Assessing Officer to submit their objections, however, subject to conditions. WP No.1860 of 2018 Dated: 30.1.2018[2018] (Mad) M/s. Thavamani Traders Vs CTO, Vellore (Rural) Circle, Vellore

Natural Justice: When the petitioner has specifically sought for an opportunity of personal hearing and when the respondent proposes to revise the turnover under Section 22(4) of the State Enactment, an opportunity of personal hearing ought to have been provided to the petitioner. This Court does not approve the manner, in which, the impugned assessment has been completed. Considering the fact that certain reasons have been assigned in the impugned order stating that the dealer did not substantiate their plea by filing documentary evidence, this Court is of the view that impugned assessment proceedings should be treated as a show cause notice, so that the petitioner can file a comprehensive reply covering all the points and produce necessary documents before the Assessing Officer for redoing the assessment. [2018] (Mad)WP No.1849 of 2018 Dated : 30.1.2018. M/s.Otto Clothing Private Ltd., Vs AC (CT), Nandanam Assessment Circle.

Registration Cancellation: The file relating to registration does not show that the cancellation of the registration was on account of non-filing of the returns. The Court observes that, in fact, such a stand could not have been taken as there is an electronic acknowledgment produced by the petitioner to prove that he has filed the return through on-line on 02.05.2016. Hence, the cancellation of the registration appears to be solely based upon report of the DCTO, which in fact is a report submitted by another officer of the Department. In any event, before cancellation of the registration, procedure required to be complied with under sub-sections (14) and (15) of Section 39 of the TNVAT Act has to be mandatorily complied with. This having not been done, cancellation of the petitioner's Registration is held to be not sustainable in law and the Court directed the respondent to restore the petitioner's registration under the provisions of the TNVAT Act within a period of two weeks from the date of receipt of a copy of this order. M/s.N.G.Brothers Vs. AC Egmore Assessment Circle [2018] (Mad) W.P.Nos.253 and 279 of 2018 DATED: 19.01.2018

Mismatch: The revision notice itself is based on the details culled out from the departmental website. While revising the assessment based on the details obtained from the departmental website, since there was no guiding principles to the Assessing Officer as to how he should go about for such revision of assessment, this court evolved certain principles in the case of JKM Graphics Solutions Private Limited Vs. CTO, Vepery Assessment Circle, reported in 99 VST 343.Therefore, what is essentially required to be done is the conduct of an enquiry which requires production of necessary documents and if the dealer disputes the transaction as recorded /not-recorded by the other end dealer, then an enquiry is required to be done with the other end dealer by atleast obtaining information from the assessing officer of the other end dealer. Thus, considering the peculiar facts and circumstances of the case, this Court is inclined to give one more opportunity to the petitioner to appear in person before the respondent and to produce all the documents and if any other documents or details are required from the petitioner, they can be called for by the respondent, after affording adequate opportunity of personal hearing to the petitioner and the petitioner shall submit its further objection and thereafter, the respondent shall complete the assessment in accordance with law. M/s.K.R.S.Maligai Vs. DCTO (Main) Nagapattinam Main Assessment Circle. [2018](Mad) W.P. No.229 of 2018 DATED: 17.01.2018

Reopening of assessment: After the original assessment order was received by the petitioner, the petitioner filed an Application u/s 55 of the TNGST Act, to re-open the assessment. Along with the said Application, the petitioner enclosed Form A1 Abstract, Form A9 Abstract, Form XVII, Green card and Form H. The respondent entertained the Application u/s 55 of the TNGST Act, and while re-opening the assessment, granted the benefit to the petitioner, insofar as the Form XVII is concerned, but, declined to accept the claim made by the petitioner for sales made to 100% E.O.U. and the resale turnover. The question would be as to whether the respondent is denuded of his power to examine those two issues, after re-opening the assessment under Section 55 of the TNGST Act. This question came up for consideration before this Court, in the case of M/s. Aachi Masala Foods Ltd., Vs. The AC(CT), in W.P.No.2413 of 2017 dated 01.02.2017. In the said case, the AO took a stand that, by following the circular, dated 28.02.2001, the Assessing Officer can consider only Form XVII declaration and nothing more. This contention was repelled in the said order, and it was held that, once the issue is re-opened or one ground or other, the AO would have power to consider the said documents, which have already been filed by the dealer. M/s.Samas Engineering Corporation, Vs. AC (CT), Nandanam Assessment Circle [2018] (Mad) W P No.4885 of 2012 Dated: 30.01.2018

Declaration Forms: When no stay has been granted pending appeal, that the petitioner is in arrears of tax and penalty and that therefore, the first respondent withheld the issue of 'C' and 'F' declarations forms from the Departmental website. The Court held that the basis, on which, the impugned order has been passed is completely flawed for the reason that the Appellate Authority only dismissed the stay petition and that the appeal is still pending. Therefore, by virtue of the dismissal of the stay petition by the Appellate Authority pending appeal, the first respondent cannot treat the petitioner to be in arrears and deny on- line generation of 'C' and 'F' declaration forms. Stating so the writ petition is allowed by the Court and the impugned order dated 14.3.2017 is set aside and the petitioner shall be permitted to generate on-line Form 'C' and 'F' declarations. The first respondent is at liberty to proceed with the matter before the Appellate Authority, before whom, the appeal is pending. The above direction permitting the petitioner to generate on-line 'C' and 'F' declarations forms shall be complied with by the first respondent within a period of two weeks from the date of receipt of a copy of this order. M/s.Sri Lakshmi Saw Mill, rep. Vs. 1.ADCTO, IAC, Puducherry 2. AAC(CT), Puducherry [2018] (Mad) WP No.34043 of 2017 Dated : 03.1.2018


 

Professional Updates- September 2018

Recent Judgments in VAT CST GST

by Sampathkumar V V

Natural Justice: The petitioner has filed this Writ Petition, challenging the assessment order passed by the respondent under the provisions of the Tamil Nadu Value Added Tax Act, 2006, for the assessment year 2010-11 on the ground of total violation of principle of natural justice, as no notice was issued to the petitioner, prior to the impugned assessment order, which is a revision of assessment. On a reading of the impugned assessment order, it is seen that there is no averment about the revision notice issued by the respondent. Though such point was specifically raised by the petitioner, and based on such submission, the Writ Petition was entertained and order of stay was also granted, till date, the respondent has not filed any counter affidavit, denying the said averment. Thus, going by the averment set out in the impugned assessment order, it is held that the assessment, having been issued without notice and opportunity to the petitioner, has to be held to be in violation of principles of natural justice. M/s.Balu Spinning Mills (P) Ltd.,Vs The AC (CT), Bazaar Circle, Tirupur Writ Petition No.4994 of 2012 Dated : 30.01.2018

Interest: The interest liability is automatic on delayed payment of admitted tax. Mahe Beach trading company, Palakkal, Mahe, Pondicherry, Vs The Commercial Tax Officer, Mahe, Pndicherry. W.P. Nos.50305 and 50306 of 2006 DATED: 08.01.2018

Mismatch : Assessment has been completed exparte as the petitioner did not file their objections. The petitioner's case is that soon after they came to know the impugned assessment order, they approached the respondent and submitted a representation on 21.02.2012, clearly explaining as to how the error has occurred and there can be no discrepancies between the Annexure - I and Annexure II of the seller. On this ground the writ petition has been entertained and considering the factual issue involved in this case and the bunch of documents produced by the petitioner, to establish that one of the dealers namely, Ingram Micro India Limited, is an existing dealer and on account of wrong TIN number has been mentioned, an error has occurred, this is a fit case, where the assessment could be redone after considering all the materials available with the petitioner. Exelan Net Working Technologies Pvt. Ltd Vs. Commercial Tax Officer,Kilpauk Assessment Circle, Kilpauk, Writ Petition No.5868 of 2012 DATED : 29.01.2018

Interest: Well within this thirty days period of receipt of assessment proceedings with demand notice, the application for settlement had been filed by the petitioner. Therefore, the question of levy of interest does not arise. This interpretation will be in consonance with Section 24(3) of the Tamil Nadu General Sales Tax Act, 1956 (in short the TNGST Act). Therefore, the impugned order of rejection of the application for settlement on the ground that the petitioner has not remitted 25% of the interest amount is incorrect, as no interest was leviable in terms of Section 24(3) of the TNGST Act. M/s.Audinarayana Trading Company, Vs. Commercial Tax Officer, Kothawalchavadi Assessment Circle, W.P.Nos.5972 & 5973 0f 2012 DATED : 30.01.2018

Revision, intranet data: Notices were issued and the revision of assessment is based on the details culled out from the intranet website of the Department, which was pursuant to an inspection conducted in the place of business of the petitioner by the officials of the Enforcement Wing. Though the petitioner received the revision notices, they failed to file any reply. Therefore, the assessment has been completed on account of the fact that the petitioner has not submitted their objections to the revision notices The Assessing Officer cannot be faulted for having completed the assessment. The petitioner contend that details were not furnished and therefore, the petitioner could not explain to the Assessing Officer that there is no case for revision of assessment. No request in this regard was made by the petitioners. However, considering the above facts this Court is inclined to grant one more opportunity to the petitioner to go before the Assessing Officer, however, subject to a condition of payment of 15% of disputed tax M/s.R.K.Enterprises, Vs The Commercial Tax Officer, Broadway Assessment Circle, Writ Petition Nos.984 to 993 of 2018 Dated : 17.1.2018

Stay Orders: An interim order of stay subject to the condition that the petitioner should furnish bank guarantee to the satisfaction of the Assessing Officer for the balance tax of and that the bank guarantee should be kept valid for a period of six months. The second respondent restricted the stay order for a period of six months or till the disposal of the case, whichever is earlier from the date of issue of the order. Aggrieved by such condition, the petitioner filed W.P.Nos.7896 and 7897 of 2017 in respect of the appeals for two assessment years and this Court, disposed of the said writ petitions modifying that portion of the condition imposed by the second respondent by directing the petitioner to execute a personal bond instead of bank guarantee. The second respondent though restricted the order of interim stay for a period of six months, was unable to dispose of the appeal. Taking advantage of this, the first respondent has now issued the demand notice. This Court finds that the procedure adopted by respondents 1 and 2 is wholly arbitrary. If the second respondent was confident of disposing of the appeal within a particular date, he should have done so and if he was of the opinion that he could dispose of the appeal within six months, he should have passed final orders within such time. However, he was unable to dispose of the appeal within such time. In such circumstances, the second respondent should have granted an order of interim stay for a period of six months or till the disposal of the appeal, whichever is later. This Court made such observations in its earlier orders. But, the Appellate Authority has not paid any heed to such observations. At least, in future, the Appellate Authorities should adhere to the same while restricting the order of stay and should state that it shall be for a period of six months or till the disposal of the appeal, whichever is later. M/s.Manali Petrochemicals Ltd., Vs 1.AC (CT), Alandur Assessment Circle, Chennai-16. 2. ADC (CT) (East), Greams Road, Chennai-6.Writ Petition No.1104 of 2018 Dated : 18.1.2018

Opportunity: After furnishing the copies of stock statement and without affording a personal hearing the assessment has been completed and the court held that the manner, in which, the assessment has been completed, is incorrect and will not stand to scrutiny of law and set aside the impugned order. M/s.The Western India Plywoods Ltd., Vs The Assistant Commissioner (CT),Choolai Assessment Circle, Chennai-8. Writ Petition No.1170 of 2018 Dated : 19.1.2018

Inspection: The Assessing Officer has verbatim adopted proposal of the Enforcement Officer. Further, it is submitted that the objection filed by the dealers were not considered and by a single line it has been over ruled. On a perusal of the impugned assessment orders, the Court held that the Assessing Officer has not been given any reasons for rejecting the objection and by on the single line stated that the objections are over ruled. This is a case, where the Assessing Officer has abdicated his quasi-judicial powers. Furthermore, the Assessing Officer cannot be solely guided by the report of the Enforcement Officer and at best, such report can be a starting point for issuance of a revision notice and once the dealer submits his objection, that the Assessing Officer has to independently consider the matter unbiased and uninfluenced. In this regard, usual reference can be made to the judgment of the Hon'ble Division Bench in the case of State of Tamil Nadu Vs. A.N.S.Guptha and Sons reported in [2011] 38 VST 45 (Mad). Tvl Gennext Auto World Vellore.Vs. The Commercial Tax Officer Vellore (North) Writ Petition Nos.13927 to 13930 of 2013 DATED : 02.02.2018


 

Professional Updates- August 2018

Recent Judgments in VAT CST GST

by Sampathkumar V V

Opportunity : The petitioners, having failed to respond to the revision notices, cannot now approach this Court and complain that there has been a violation of the principles of natural justice. The case on hand is one where the petitioners failed to utilize the opportunity granted to them nor filed their objections. This would be a sufficient ground to dismiss the writ petitions. However, considering the fact that though the respective AO. passed the orders on 30.8.2016 and 30.10.2017, the assessment still continues to remain in paper and no recovery can be made and this Court is inclined to grant one more opportunity to the petitioners to go before the respective Assessing Officer to submit their objections, however, subject to conditions. WP No.1860 of 2018 Dated: 30.1.2018[2018] (Mad) M/s. Thavamani Traders Vs CTO, Vellore (Rural) Circle, Vellore

Natural Justice: When the petitioner has specifically sought for an opportunity of personal hearing and when the respondent proposes to revise the turnover under Section 22(4) of the State Enactment, an opportunity of personal hearing ought to have been provided to the petitioner. This Court does not approve the manner, in which, the impugned assessment has been completed. Considering the fact that certain reasons have been assigned in the impugned order stating that the dealer did not substantiate their plea by filing documentary evidence, this Court is of the view that impugned assessment proceedings should be treated as a show cause notice, so that the petitioner can file a comprehensive reply covering all the points and produce necessary documents before the Assessing Officer for redoing the assessment. [2018] (Mad)WP No.1849 of 2018 Dated : 30.1.2018. M/s.Otto Clothing Private Ltd., Vs AC (CT), Nandanam Assessment Circle.

RegistrationCancellation: The file relating to registration does not show that the cancellation of the registration was on account of non-filing of the returns. The Court observes that, in fact, such a stand could not have been taken as there is an electronic acknowledgment produced by the petitioner to prove that he has filed the return through on-line on 02.05.2016. Hence, the cancellation of the registration appears to be solely based upon report of the DCTO, which in fact is a report submitted by another officer of the Department. In any event, before cancellation of the registration, procedure required to be complied with under sub-sections (14) and (15) of Section 39 of the TNVAT Act has to be mandatorily complied with. This having not been done, cancellation of the petitioner's Registration is held to be not sustainable in law and the Court directed the respondent to restore the petitioner's registration under the provisions of the TNVAT Act within a period of two weeks from the date of receipt of a copy of this order. M/s.N.G.Brothers Vs. AC Egmore Assessment Circle [2018] (Mad) W.P.Nos.253 and 279 of 2018 DATED: 19.01.2018

Mismatch: The revision notice itself is based on the details culled out from the departmental website. While revising the assessment based on the details obtained from the departmental website, since there was no guiding principles to the Assessing Officer as to how he should go about for such revision of assessment, this court evolved certain principles in the case of JKM Graphics Solutions Private Limited Vs. CTO, Vepery Assessment Circle, reported in 99 VST 343.Therefore, what is essentially required to be done is the conduct of an enquiry which requires production of necessary documents and if the dealer disputes the transaction as recorded /not-recorded by the other end dealer, then an enquiry is required to be done with the other end dealer by atleast obtaining information from the assessing officer of the other end dealer. Thus, considering the peculiar facts and circumstances of the case, this Court is inclined to give one more opportunity to the petitioner to appear in person before the respondent and to produce all the documents and if any other documents or details are required from the petitioner, they can be called for by the respondent, after affording adequate opportunity of personal hearing to the petitioner and the petitioner shall submit its further objection and thereafter, the respondent shall complete the assessment in accordance with law. M/s.K.R.S.Maligai Vs. DCTO (Main) Nagapattinam Main Assessment Circle. [2018](Mad) W.P. No.229 of 2018 DATED: 17.01.2018

Reopening of assessment: After the original assessment order was received by the petitioner, the petitioner filed an Application u/s 55 of the TNGST Act, to re-open the assessment. Along with the said Application, the petitioner enclosed Form A1 Abstract, Form A9 Abstract, Form XVII, Green card and Form H. The respondent entertained the Application u/s 55 of the TNGST Act, and while re-opening the assessment, granted the benefit to the petitioner, insofar as the Form XVII is concerned, but, declined to accept the claim made by the petitioner for sales made to 100% E.O.U. and the resale turnover. The question would be as to whether the respondent is denuded of his power to examine those two issues, after re-opening the assessment under Section 55 of the TNGST Act. This question came up for consideration before this Court, in the case of M/s. Aachi Masala Foods Ltd., Vs. The AC(CT), in W.P.No.2413 of 2017 dated 01.02.2017. In the said case, the AO took a stand that, by following the circular, dated 28.02.2001, the Assessing Officer can consider only Form XVII declaration and nothing more. This contention was repelled in the said order, and it was held that, once the issue is re-opened or one ground or other, the AO would have power to consider the said documents, which have already been filed by the dealer. M/s.Samas Engineering Corporation, Vs. AC (CT), Nandanam Assessment Circle [2018] (Mad) W P No.4885 of 2012 Dated: 30.01.2018

Declaration Forms: When no stay has been granted pending appeal, that the petitioner is in arrears of tax and penalty and that therefore, the first respondent withheld the issue of 'C' and 'F' declarations forms from the Departmental website. The Court held that the basis, on which, the impugned order has been passed is completely flawed for the reason that the Appellate Authority only dismissed the stay petition and that the appeal is still pending. Therefore, by virtue of the dismissal of the stay petition by the Appellate Authority pending appeal, the first respondent cannot treat the petitioner to be in arrears and deny on- line generation of 'C' and 'F' declaration forms. Stating so the writ petition is allowed by the Court and the impugned order dated 14.3.2017 is set aside and the petitioner shall be permitted to generate on-line Form 'C' and 'F' declarations. The first respondent is at liberty to proceed with the matter before the Appellate Authority, before whom, the appeal is pending. The above direction permitting the petitioner to generate on-line 'C' and 'F' declarations forms shall be complied with by the first respondent within a period of two weeks from the date of receipt of a copy of this order. M/s.Sri Lakshmi Saw Mill, rep. Vs. 1.ADCTO, IAC, Puducherry 2. AAC(CT), Puducherry [2018] (Mad) WP No.34043 of 2017 Dated : 03.1.2018


 

Professional Updates- July 2018

Recent Judgments in VAT CST GST

by Sampathkumar V V

Input Tax Credit : Following the ratio of the Decision in Tvl. Sogan Starch Industries, Salem Vs. AC (CT) Leigh Bazaar Circle, in W.P.No.68 of 2015, after taking note of the scope of Section 19 (17) of the TNVAT Act held that, adjustment of excess of inout tax Credit can be used for the output liability under the CST Act 1956. Tvl. Suresh Enterprises Vs. The AC (ST) Annadhanapatty Assessment Circle, Salem. (Mad) [2018] W P Nos.1001 to 1004 of 2018 Dated: 01.02.2018

Best of judgement assessment: The court held that the petition filed u/s 22(6) of the TNVAT Act, 2006 by the petitioner, in this case, should not have been rejected and has to be considered by the AO as the petitioner got registered themselves and that the returns has been filed, taxes paid at the time of filing the petition u/s 22(6) Sre Sai Builders Vs. The AC (CT) Thudiyalur Assessment Circle [2018] (Mad) W.P.No.10690 of 2013 DATED: 08.01.2018

Assessment :The petitioner filed their objections on 12.3.2014 for the notice dated 07.2 2014. For 3 1/2 years nothing had happened. After the present officer took over charge, the second notice dated 21.9.2017, for the assessment years 2009-10 to 2013-14, was issued. The petitioner sent a letter dated 26.10.2017 seeking six months' time to file their objections. Further, the objections dated 09.11.2017 were made ready and were taken to the office of the first respondent and the first respondent was stated to have refused to receive the objections dated 09.11.2017. Therefore, on 23.11.2017, the objections were sent by registered post and received by the office of the first respondent on 26.12.2017. However, on the very next day, the impugned assessment orders were passed by putting the date as 02.11.2017. Hence, the Court was of the prima facie view that in all probabilities, the impugned orders are antedated. In any event, as on 26.12.2017, the objections filed by the petitioner sent through registered post, were on the file of the first respondent and therefore, before despatch of the orders to the petitioner, if the objections were available on the file, he ought to have considered the same. The manner, in which, the first respondent completed the assessment, is wholly unsustainable and deprecated. For all the above reasons, the writ petitions are allowed and the impugned orders are set aside with remand directions to the AO. Ashok Agencies Vs AC (ST), Salem Town North Assessment Circle [2018] (Mad) W P Nos.1136 to 1140 of 2018 Dated: 19.1.2018

Revision: Revisional powers u/s 16[1][a] of the TNGST Act 1959 can be exercised to bring taxable turnovers which have escaped assessment or has been under assessed at a lower rate and this power cannot be utilised to revise or review the turnover either actual or estimated, already assessed, for which purpose, the power of the Assessing Authority could be exercised u/s 55 of the TNGST Act or by the higher authorities, namely, the DC or JC. M/s.Jenway General Vs. CTO, Koyambedu Assessment Circle [2018](Mad) W.P.No.12638 of 2006 DATED 16.03.2018

Mismatch: Petitioner did not file their objections to the revision notices dated 25.7.2017. Hence, the respondent cannot be faulted in confirming the proposal in the said notices. However, when the revision of assessment was based on the details, which were gathered by the respondent from the Departmental website, this Court, in the case of JKM Graphics Solutions Private Limited Vs. CTO, Vepery Assessment Circle [(2017) 99 VST 343], laid down certain guidelines as to how the AO have to proceed with the assessment when the revision of assessment is based on mismatch of the details between the returns filed by the dealers and what are reflected in the Departmental website and that too when the Department has not issued any guidelines to the AO as to how to deal with the assessments when the revision of assessment is made by gathering details from the Departmental website. Considering the fact that appropriate rate of tax has to be collected and that the assessment orders should not be paper orders, this Court is inclined to grant one opportunity to the petitioner to go before the AO. M/s.N.R.K.Furniture Vs DCTO, Vellore (South) Assessment Circle [2018] (Mad) WP Nos.1328 & 1329 of 2018 Dated: 23.1.2018

Appeal, not filed in time: Petitioner has not preferred any appeal against the assessment order within the time permitted and the present writ petition is undoubtedly a belated attempt to remedy the breach. The petitioner had produced copies of the returns along with demand draft before the office of the respondent on 21.10.2016 and a copy of the letter delivery book where an endorsement has been made. The respondent cannot reopen the assessment dated 22.4.2015 based on accounts stated to have been submitted later to the passing of the order and in the absence of any petition filed by the petitioner u/s 84 of the said Act. However, the larger concern of this Court is that the impugned assessment order is of the year 2015 and that the AO has not been able to recover tax or penalty as quantified except attaching the petitioner's property. This stalemate will continue for several years leading to further litigation. Hence, this Court is inclined to issue appropriate directions, so that the petitioner can go before the AO and submit their records especially when they state that majority of the work done by the petitioner as a contractor is for the Government Department such as TWAD Board. However, such liberty shall be subject to a condition to pay 25 % of the disputed tax and the benefit of this order will not enure to the petitioner, if the petitioner fails to comply with the condition of payment of 25% of the disputed tax as quantified in the impugned order within the time stipulated. A.Gopal Vs AC (CT), Omalur Assessment Circle [2018](Mad) WP No.1401 of 2018 Dated : 23.1.2018

Penalty: For imposition of penalty under Section 27(3) of the said Act, the Assessing Officer should record his satisfaction that escapement was due to wilful non-disclosure and that mere non-disclosure does not automatically amount to levy of penalty. The Statute contemplates levy of penalty in cases of wilful non-disclosure. The impugned order has been challenged only with regard to levy of penalty and equal time addition and that the petitioner has already paid the tax in full with interest, this Court is inclined to grant one opportunity to the petitioner to go before the AO and accordingly, the writ petition is disposed of with a direction to the petitioner to treat the impugned proceedings as a show cause notice and submit their objections within a period of fifteen days from the date of receipt of a copy of this order. On receipt of the objections, the respondent shall afford an opportunity of personal hearing to the petitioner and redo the assessment in accordance with law. Rayan Tile Bazaar Vs AC(CT), Vadapalani Assessment Circle [2018] (Mad) WP No.1568 of 2018 Dated : 25.1.2018

Show Cause Notice: The Court found, on a reading of the show cause notice, that it does not contain specific allegations and there are vague and unnecessary averments, which are to be eschewed. The learned Government Advocate got instructions from the Assessing Officer and she produced a draft amended notice, and stated that only a draft show cause notice was issued and proper show cause notice is yet to be issued to the petitioner. However, the Hon’ble Court was inclined to accept the stand taken by the respondent and pointed out that the legal position that the show cause notice is nothing but a charge memo and it should contain specific and sharp-pointed allegation and it should not be vague and ambiguous. The noticee should be given proper opportunity to answer the allegation against him, for which purpose, the allegation are required to be precise and to the point. Unnecessary reference to the facts, which are not germane to the issue should be avoided and with this principle in mind, the respondent is directed to issue fresh notice to the petitioner. M/s. BBC City Park Vs AC(CT) (FAC), T. Nagar Assessment Circle [2018] (Mad) WP Nos.1642, 1643 of 2018 Dated : 01.02.2018


 

Professional Updates- June 2018

Tamil Nadu VAT Update

Recent Judgments in VAT CST GST

by Sampathkumar V V


Attachment: When arrears of tax was settled and that the alleged settlement appears to have been made when the writ petition was pending and as no interim order was granted in the writ petition and it was pending since 2013, no purpose would be served in keeping this writ petition pending and hence the Court is inclined to dispose of the writ petition directing the petitioner to submit a representation to the first respondent to revoke the order of attachment on the petitioner's property for recovery of dues payable by the third respondent on the ground that the third respondent has already settled the entire dues to the Commercial Taxes department. As and when such representation is filed, the first respondent is directed to verify the same and after affording an opportunity of personal hearing to the petitioner, pass orders on merits and in accordance with law. Needless to state that if the dues have been settled by the third respondent, the attachment of the petitioner's property should be lifted within a period of 15 days from the date on which the representation is submitted. Autotech Industries (India) Private Limited Vs.1.The Assistant Commissioner, Ambathur Assessment Circle.2.The Branch Manager, State Bank of India,3.M/s.K.K.Polycolor India Ltd,4.M/s. Assets Care & Reconstructions Enterprise Ltd. W.P. No.18635 of 2013 DATED: 22.01.2018

Mismatch: In a writ petition, Writ of Mandamus was prayed by the petitioner seeks for issuance of a direction to the respondent to provide details regarding mis-match issue (variations in the reporting of purchases by buyer and sales by the seller in the monthly returns ) , as per the request made to the AO in the petitioner's reply, dated 26.12.2017, for the years 2011-12 to 2014-15. It was submitted by the department that the AO has received only one page note from the Audit Department/TNCSC and the AO has addressed the Audit Department/TNCSC to furnish the basis of finding rendered by the Audit, that there is no gross discrepancy in the sales tax turnover, and as and when the details are received from the Audit Department, the same would be considered and appropriate information would be furnished to the petitioner. Considering the predicament now faced by the AO, who is awaiting for proper instructions from the Audit Department/TNCSC regarding the request made by her for furnishing necessary documents, the Writ petition is disposed of by directing the Authorized Representative of the petitioner to appear before the respondent, within a period of two weeks from the date of receipt of a copy of this order at a convenient time of the respondent and produce all the copies of the invoice pertaining to the subject transaction and the respondent shall examine the same and the respondent should not pass orders before based on those documents but shall await for the information that she has sought for from the Audit Department/TNCSC, and as soon as such information is received, necessary opportunity should be granted to the petitioner for submitting their objections, which can be done only if the relevant information is furnished to the petitioner and only after thorough enquiry into the matter, the respondent should consider and complete the assessment. Arunnachala Impex Private Ltd, Vs. State Tax Officer, Harbour Assessment Circle. W.P.No.1895 of 2018 Dt: 06.02.2018

Opportunity: The first respondent has intimated the petitioner that the petitioner has to pay interest of Rs.2,65,136/- so as to enable the first respondent to entertain the application for settlement under the provisions of the Tamil Nadu Sales Tax (Settlement of Arrears) Ordinance, 2008. Unfortunately, the first respondent while issuing the impugned notice did not assign any reason as to how the computation given by the petitioner and the payment of tax made by the petitioner is incorrect. The procedure under Section 7 of the ordinance has not been adhered to while determining the amount payable. No opportunity was given to the petitioner to state as to how the amount computed by them is not just and proper. Reliance was placed on the decision of this Court in the case of Batliboi Ltd. v. JC (CT) and another reported in [2011] 28 VST 465 (Mad.).The Court held that the impugned communication is bereft of particulars and the petitioner is unaware as to how the demand has been made. Thus, the first respondent having issued the impugned communication in utter disregard to the procedure under the Act, the same calls for interference and accordingly, Writ Petition is allowed and the impugned communication is set aside and consequently, the Writ Petition stands disposed of by directing the second respondent to take on file the petition filed by the petitioner for issue of certificate of settlement of arrears, afford an opportunity of personal hearing and pass fresh orders on merits and in accordance with law. Royal Trading Company, Erode-3 Vs.1.The AC (CT), Park Road Assessment Circle, Erode. 2. The JC (CT), Salem Division, Salem. W.P.Nos.2493 & 2494 of 2012 DATED: 19.01.2018

TDS and Penalty: For any illegal collection of tax, without an opportunity of being heard penalty cannot be imposed. In the revision notice, there was no proposal to levy penalty u/s 40(2) of the TNVAT Act. What is required to be seen is whether Section 40(2) of the TNVAT Act would stand attracted. Admittedly, the petitioner not deducted tax at source and therefore, the petitioner cannot be brought within the ambit of Section 40(1) of the TNVAT Act. If that be so, the question of invoking Section 40(2) of the TNVAT Act does not arise. However, in the instant case the contractee has deducted tax at source on the premise that the works contracts are taxable. However, when the assessment proceedings were made, the petitioner was able to convince that the Assessing Officer by records that the transaction done by the petitioner is entitled for exemption which plea was accepted and assessment was completed.

Therefore, the respondent could not have levied penalty at the first instance and could not have adjusted the tax which was deducted at source by the contractee and remitted to the respondent towards the petitioner's account. In fact, the respondent should have refunded the amount to the petitioner as a consequence of holding that the petitioner is eligible for exemption of the contract receipt. Thus, the Court held that, the order levying penalty as unsustainable and the adjustment of TDS towards the said penalty as illegal. M/s.Pooja Marbles, Vs. AC(CT), Alandur Assessment Circle, W.P.No.24939 of 2013 DT : 25.01.2018

Mismatch: The petitioner aggrieved by the assessment order by which the respondent has reversed the input tax credit availed by the petitioner on the ground that they have had transactions with seven dealers, whose registration certificates have been cancelled. Since there was no reply, the assessing officer confirmed the proposal in notice and passed the impugned order. In this Writ petition, the petitioner submitted that the said observation of the AO appears to be factually incorrect and to substantiate the same, the e-returns filed by those seven dealers was produced. However, the verification has to be done by the AO and not by a Writ Court. Therefore, necessarily the petitioner has to go before the assessing officer and establish that the transactions made by them are with existing dealers, whose registration certificates were valid, as they have filed online monthly returns. Stating so, the impugned order is set aside and the matter is remanded to the respondent for fresh consideration. The petitioner shall file their objections to the revision notice within a period of fifteen days from the date of receipt of a copy of this order. After which, the respondent shall afford an opportunity of personal hearing to the petitioner, peruse the documents produced by the petitioner and re-do the assessment. M/s.BSR Steel Alloys Private Ltd., Vs. The AC (CT), Harbour IV Assessment Circle,W.P.No.2884 of 2012 DATED : 19.01.2018

Attachment of property for arrears of tax: When the matter was pending before the Debt Recovery Tribunal (DRT), the Commercial Taxes Department made a claim for the arrears of sales tax together with penalty from the defaulting company. The Commercial Taxes Department attached the property of the dealer for the arrears of tax and brought the property for auction. The Department stated that, if the properties, given as security to the banks, are sold in public auction to be held by the Recovery Officer of DRT, the arrears of tax claimed by the Sales Tax Department should be paid from its sale proceeds. The movable and immovable assets of the defendant company including the subject property, which were mortgaged to the Banks have been proclaimed for sale by public auction in execution of the orders of the DRT, and the recovery officer has to recover the amount specified in the recovery certificate issued to him by the Presiding Officer and disburse the amount among the judgment-creditors in the manner specified in the order. As against the above referred order, the Commercial Taxes Department has not initiated any further action, nor there anything on record to show that the Commercial Taxes Department has obtained an order from a competent Court of law on their claim. If an order was passed to the said effect, then it was well open to them to approach the secured creditor viz., the Banks for appropriate relief. Thus, in the background of these facts, the impugned notice of attachment and the consequential notice of sale have to be held to be without jurisdiction. A.Gunasekaran Vs DCTO Avadi Assessment Circle, CTO Royapettah II, Assessment Circle, CTO, Anna Salai Assessment Circle III, Anna Salai, Chennai. M/s. Gremach CNC Ltd, The Recovery Officer of DRT, IDBI BANK and others W.P.No.3183 of 2006 DATED : 24.01.2018

Revised returns: Petitioner submits that the impugned assessment order though dated 17.02.2012 was received by them on 07.02.2013. The petitioner reasonably apprehends that the assessment order would have been antedated. On receipt of the order, the petitioner filed revised return for the year 2007-08 and at the relevant point of time, there was no time limit prescribed within which the revised return has to be filed. However, the respondent has referred to Rule 7 (9), which came into force only in the year 2010 and would not apply for the assessment year 2007-2008 and stated that revised return cannot be accepted. Since there was an error, the petitioner filed a petition under Section 84 of the TNVAT Act to rectify the error pointing out that suo motu, the respondent has revised the turnover without an opportunity to the petitioner. Thus, the Court held that the procedure adopted by the respondent is completely flawed. Stating so, the impugned order is set aside and the matter is remanded to the respondent for fresh consideration. Bharatham Stores, P.Thirumani, Vs. The Assistant Commissioner (CT), Perambur II Assessment Circle,W.P.Nos.7073 & 7074 of 2013 DATED :24.01.2018

Inspection : There was an inspection by the Enforcement wing officials at the place of business of the petitioner and statement was recorded. Such statement or findings of the inspecting officer, it was argued, can be a starting point for issuing a revision notice and nothing more. As and when the petitioner submitted an explanation to the impugned notices, the second respondent should have considered the same independently uninfluenced by any of the observation made the Enforcement Officer and if there is any trace or tinge to show that the AO has acted as a mouthpiece of the Enforcement Officer that they will be officer, that will be sufficient to hold that the above are illegal. The above said principles should borne in mind by the AO while dealing with the assessment. Hence, the writ petitions are disposed of by directing the petitioners to submit their objection to the impugned notices within 15 days from the date of receipt of a copy of this order, after which, the second respondent shall fix a date for personal hearing and afford an opportunity to the petitioner and decide and complete the assessment and uninfluenced by any of the observation made by the Enforcement Officer and take an independent decision in the matter. The second respondent should decide the legal issue raised by the petitioner with regard to the proposed re-assessment, which were completed when the TNGST Act was in force. Needless to state that the petitioners seek for copies of records which were seized which they have to furnish. If the records a voluminous the petitioner should be granted sufficient time for perusal of those records in the presence of the officers. M/s.Ben Foundation Pvt. Ltd., Vs The DC (SMR),and AC (CT), Koyambedu Assessment Circle, W.P. Nos.9467 to 9477 of 2015 and W.P.No.9467 of 2015 DATED: 08.01.2018


 :

Professional Updates- May 2018

Tamil Nadu VAT Update

Recent Judgments in VAT CST GST

by Sampathkumar V V


Writ Petition: The petitioner received revision notice but they did not file their objections to the proposals which resulted in the order demanding tax and reversal of input tax credit. In the Writ petition, one more opportunity was prayed to go before the AO since the petitioner is in the process of filing a petition u/s 84 of the said Act for reopening the assessment under the CST Act, 1956 and if that is done, reversal of input tax credit under Section 19(5)(c) of the State Enactment would not arise and also relied on the rulings of this Court in the case of AC (CT), Broadway Assessment Circle, Chennai V. Bhairav Trading Company, reported in (2016) 96 VST 315. Considering the above, this Court granted one more opportunity to the petitioner subject to a condition payment of tax of 19,712/- as per form WW report and also pay 15% of the disputed tax under reversal of ITC u/s 19(5)(c) of the Act and the purchases alleged to have been effected from registration cancelled dealers, within a period of 15 days from the date of receipt of a copy of this order. If the petitioner complies with the conditions, they will be entitled to treat the impugned assessment order as a show cause notice and submit objections within a period of 15 days thereafter. On receipt of the objections, the respondent shall consider the same, afford an opportunity of personal hearing and redo the assessment in accordance with law. If the petitioner fails to comply with any one of the above conditions, the WP would stand automatically dismissed and the respondent is entitled to recover the tax as quantified in the impugned assessment order. Rayan Tile Bazaar, Vs The AC (CT), Vadapalani Assessment Circle, (2018) (Mad) WP No.1569 of 2018 Dated : 25.1.2018

Remand directions: The second appeals filed before the Tamil Nadu Sales Tax Appellate Tribunal were not registered, but were listed for maintainability on the ground that in terms of third proviso to Section 58(1), such an appeal is not maintainable since the matter has been remanded to the assessing officer by the first appellate authority . The Tribunal after hearing the learned counsel for the petitioner sustained the objection regarding maintainability of the appeals by the impugned order and held that the appeals are not maintainable. This order is challenged in the present tax cases raising the questions of law as mentioned above. The appeals are remanded back for fresh disposal, by the first appellate authority, the remand is only on one aspect i.e. with regard to the equal time addition. Though the order states that there are two directions in effect, there is only one direction regarding the equal time addition. The other issues are all findings rendered by the appellate authority on the merits of the matter. Therefore, there was no direction to the assessing officer to redo the assessment afresh by setting aside the assessment order. Therefore, in our considered view the Tribunal erred in not entertaining the second appeals filed by the petitioner challenging the order passed by the Appellate Deputy Commissioner. The facts of the case clearly show that the third proviso under Section 58(1) has no application to the cases on hand. Thus for the above reasons, the impugned orders call for interference and the Tamil Nadu Sales Tax Appellate Tribunal is directed to entertain the second appeals filed by the petitioner and hear the matter on merits and in accordance with law. Dr.Reddy's Laboratories, vs The AC (CT) Woraiyur Assessment Circle, Trichy (2018) (Mad) T C (R) Nos.1 to 7 of 2018 DATED: 23.02.2018

Tribunal order Perverse or not? : Tribunal observed that surgical items purchased from interstate were not the items purchased locally and the ITC reversal as per Section 19(5)(c) of VAT Act, is not to be made for the sales made on interstate sales without C forms. The Department in this petition submitted that the finding of the tribunal that the interstate purchases have been sold on interstate sale, without verifying the primary evidence of stock book and without taking into consideration the local purchase of similar goods, is not correct. Also submitted that when stock variation was noticed at the time of inspection, the tribunal ought not to have deleted the penalty levied by the AO u/s 27(3) of the Act, on the ground that the dealer had wrongly claimed ITC without effecting reversal as prescribed under the Act. Learned counsel of appellant submitted that the order of the tribunal is perverse, illegal and prayed for reversal of the same. Referring the rulings in Kuldeep Singh Vs. The Commissioner of Police & Others, reported in (1999) 2 SCC 10, the Hon'ble Supreme Court that if a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with and other observations, this Court held that as there is some evidence on record which is acceptable and which could be relied upon, the conclusions of Tribunal would not be treated as perverse and the findings would not be interfered with. The JC (CT), Chennai (North) Division, Chennai Vs. Tvl.Union Surgicals (2018) (Mad) (TC (R) No.27 of 2018 DATED: 14.03.2018

Limitation: In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: It cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency. The appeal has been filed well beyond the further period of 90 days over and above the initial 90 days period, as provided under Section 60 (1) of the TNVAT Act, 2006. Hence, Tax Case Revision Petition is dismissed. JC (CT) Chennai Central Division Vs Tvl. Meidiam Tanneries (P) Ltd (2018) (Mad) TC (SR) No.87191 of 2005 DATED: 6/2/2018

GST on Petrol and diesel : When a Petition is filed praying for the issuance of a Writ of Mandamus, to bring the petrol and diesel prices under the GST ambit to ensure One Nation One Tax, then only petrol diesel and other essential goods prices will come down and by considering the petitioner's representation, dated 16.02.2018 , the Court observed that the policy decision can be interfered with only if it is found to be arbitrary or based on an irrelevant consideration or mala-fide or against any statutory provisions and held that in the considered opinion of this Court, in the light of the legal principles initiated by the Honourable Supreme Court of India in the above cited decisions coupled with the fact that it is for the Central Government to act on the recommendations of the Goods and Service Tax council as to bring the petroleum and diesel prices within the ambit of the Goods and Service Tax, this Court is not in a position to issue any positive direction to the respondents to consider the prayer sought for by the petitioner and stating so, the Writ Petition is dismissed. K.K.Ramesh Vs. 1. The Union of India, Rep. by its Principal Secretary to Prime Minister, 2. The Union of India, Rep. by its Principal Secretary, Ministry of Finance, 3. The Union of India,Rep. by its Principal Secretary, Ministry of Law and Justice, New Delhi. 4. The Union of India, Rep. by its Secretary, Ministry of Petroleum and Natural Gas, 5.The Secretary, Office of the GST Council Secretariat,New Delhi. 6. The Commissioner, Commercial Tax Officer, Cheupakkam, Chennai 5. (2018) (Mad) W.P (MD) No.5484 of 2018 DATED: 15.03.2018

Writ appeal, Best of judgment: The conditional order issued by the Single Judge against the order of the AO was not complied with by the Writ Petitioner in this Writ appeal. The AO passed the best of judgment order stating that the reply / objections was not filed by the Petitioners herein. Going by the submission that the best of judgment order was passed not complying with the circular issued by the Commissioner and that the reply / objections were belatedly filed and acknowledged by the AO and that the condition of the single judge as to payment of 25 % of tax has been complied with this court was inclined to set aside the orders and remand the matter the back to the AO. Tvl.Pthi & Co., and Tvl.Ambaa & Co.,Vs CTO I , Rajapalayam (2018) (Mad) W.A.(MD)Nos.801 of 2012 and 802 of 2012 DATED: 22.02.2018

Personal hearing: Before passing the revision order u/s 16 of the TNGST Act 1959, reasonable opportunity personal hearing is to be afforded to the dealer. Tvl.Rajalakshmi Mills, Vs. CTO - I, Virudhunagar (2018) (Mad) W.A(MD) No.994 of 2016 DATED: 08.01.2018

Natural Justice: The impugned order has been challenged only on the ground that it is in violation of principles of natural justice. Notice dated 01.02.2013 was received by the petitioner on 16.02.2013 by which, 15 days’ time was given to the petitioner to respond to the notice dated 01.02.2013, which expired on 03.03.2013, which happened to be a Sunday. Therefore, in terms of the General Clauses Act, the respondent was required to wait till the close of his business hour on 04.03.2013 before an order could be passed. However, on 04.03.2013, the impugned order has been passed stating that the petitioner has not filed objections. Thus, the rights of the petitioner has been affected and there is gross violation of principles of natural justice. For that reason, the impugned order is liable to be interfered with. However, instead of setting aside the impugned order, the Court inclined to direct the petitioner to treat the impugned order as a show cause notice and submit their objections, so that the assessment can be re-done. Heritage Property Development Company Pvt. Ltd., Vs. The AC(CT), T.Nagar (South) Assessment Circle, (2018) (Mad) W.P.No.11529 of 2013 DATED: 18.01.2018

Remand: When the matter is remanded for fresh consideration and when it is an open remand, all issues have to be considered by the Assessing Officer, without reference to the observations contained in the impugned assessment orders. Tvl.B.K.S.Textiles Private Ltd.,Vs. The CTO, Palladam Assessment Circle, Palladam. (2018) (Mad) W.P.No.18472 of 2013 DATED: 22.01.2018


 :

Professional Updates- March 2018

Tamil Nadu VAT Update

Recent Judgments in VAT CST

by Sampathkumar V V

Limitation: Period of limitation for reopening / revising the assessments is amended as 5 years from the date of assessment which was earlier from end of the relevant assessment year. If this view is applied, then the peri006Fd of limitation would come to an end on 31.03.2004 for the assessment years 1998-99 and 31.03.2005 for the Assessment years 1999-2000.The respondent has issued notices taking advantage of the amendment which was made to Section 16(1)(a) of the TNGST Act, which provides that the assessments can be reopened within a period of 5 years from the date on which the order of original assessment was made. Therefore, the respondent would contend that the period of limitation should be reckoned from 30.03.2001 when the orders of assessment were passed. Thus, the issue is whether the impugned notices are barred by limitation or not. The Court held that the issue has to be answered in favour of the petitioner in the light of the decision of the Division Bench in M/s. Stanes Amalgamated Estates Limited Vs. The Commercial Tax Officer, Trichy Road Circle, Coimbatore, in W.P.No.3175 of 2006 dated 27.08.2013. The Division Bench also took note of the decision of the Division Bench in the case of M/s.M.V.A.Arumugaperumal and Sons Vs. The Additional Commercial Tax Officer, (FAC), Srivilliputtur (2008-09 (14) TNCTJ 115) and the judgment in W.A (MD) No.136 of 2008 dated 19.06.2012. M/s. The Peria Karamalai Tea & Produce Co., Ltd.,Vs The CTO (FAC) Trichy Road Circle Coimbatore(Mad) [2018] WP Nos.9659 to 9661 of 2006 DATED: 21.08.2017

Alternative remedy: The petitioner is aggrieved by the order dated 20.01.2017, passed under the provisions of the CST Act, 1956 for the assessment year 2007-08, by which the respondent has held that the Form F Declarations filed by the petitioner were invalid and he has treated the transactions as direct interstate sales not covered by 'C' Forms and assessed the turnover under Section 8(2) of the CST Act. Though the learned counsel for the petitioner has elaborately argued the matter contending that there is a finality attached to the sanctity of Form F Declarations and relied on decisions in the case of M/s. Rajam Offset Printers, Madras-1 v. CTO, Mannadi East Asst. Circle, Madras-1 reported in 1995 (8) MTCR 55, etc the Court was not inclined to consider all those contentions as the petitioner has failed to submit their objections to the revision notice dated 15.12.2016. The explanation, which is given before this Court for not submitting objections to the notice dated 15.12.2016 is by stating that the proprietor of the petitioner is aged about 80 years and on account of ill health and other issues, he was unable to promptly submit their objections. Considering the peculiar facts and circumstances of the case that the impugned assessment order having been passed as early as on 20.01.2017 and the matter is still languishing before this Court, this Court is of the view that one more opportunity can be granted to the petitioner to go before the Assessing officer, raising all factual and legal contentions. Tvl. Sakthi Starch Factory, Vs. The AC (CT), Annathanapatty, Salem. (Mad) [2018] WP.No.8919 of 2017 DATED : 14.09.2017

Form H sales: In respect of auction sale of tea for which the agent / brokers, who bought the goods for and on behalf of the dealers. Such goods were sold to exporters by the said dealers. The form H and related documents was issued by the Exporters, in the name of the brokers was obtained and submitted. The assessing officer passed the order, considering the form H and documents, granting exemption i/s 5(3) of the CST Act to the dealers. When the revision notices were issued stating that the Form h was not in the name of the dealers the Court held that the reason given in the impugned notices is not tenable and there is no justification on the part of the first respondent in re-opening the assessments. Stating so the writ petition field in this regard was allowed and the impugned notices are set aside. M/s.The United Nilgiri Tea Estates Co. Ltd. Coimbatore. Vs. The CTO (FAC), Trichy Road Circle (Mad) [2018] WP.Nos.7406 to 7410 of 2006 DATED : 04.12.2017

Natural Justice: For the sales covered by C Forms, the petitioners contented that they have paid through credit at the time of filing returns. With regard to the sales not covered by C forms and taxed at 14.5%, the petitioner requested extension of time and the Assessment Order has been passed without affording an opportunity of personal hearing and if such hearing had been afforded, the petitioner would have been able to produce majority number of C forms. So far as the export sales, which has been disallowed and taxed at 14.5% is concerned, the petitioner would plead that the export documents have been submitted subsequent to the Assessment Order and if an opportunity of personal hearing is granted, the petitioner would establish that they have effected valid export sales. With regard to the reversal of ITC under Section 9(2) r/w Section 19(5)(c) of the Act is concerned, the petitioners contention is that there is no power under Section 9(2) of CST Act to propose reversal of ITC. Reliance has been placed on the decision of this Court in M/s.Chennai United Metal Industries Pvt Ltd., Vs. CTO (2018). The Court observed that on a perusal of the impugned Assessment Order it is evidently clear that that the same has been completed without an opportunity of personal hearing to the petitioner and it is in violation of principles of natural justice. Stating so, the writ petitions were allowed and the impugned assessment orders are set aside and the matters are remanded to the respondent for fresh consideration. Forech India Limited Vs. The CTO, Vandavasi (Mad)[2018] WP Nos.7087 and 7156 of 2014 DATED: 13.10.2017


 :

Professional Updates- February 2018

Tamil Nadu VAT Update

Recent Judgments in VAT CST

by Sampathkumar V V

Rights of secured Creditor : By virtue of section 31B of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 introduced by section 41 of the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Act, 2016, the rights of a secured creditor to realise secured debts due and payable by sale of assets over which security interest is created, would have priority over all debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or a local authority. This section is with a "notwithstanding" clause and came into force from September 1, 2016. It would govern the rights of the parties in respect of even a lis pending. Therefore, a financial institution, which is a secured creditor, or the Department of the Government concerned, would have priority of charge over the mortgaged property in question, with regard to the tax and other dues. The status and the rights of a third party purchaser of the mortgaged property in question in auction sales, which may be carried out in pursuance of the rights exercised by the secured creditor having a mortgage of the property are also covered by section 31B, as it includes "secured debts due and payable to them by sale of assets over which security interest is created". [2017] 99 VST 222 (Mad) [FB] ASSISTANT COMMISSIONER (CT),ANNA SALAI-III ASSESSMENT CIRCLE, CHENNAI V.INDIAN OVERSEAS BANK AND ANOTHER

Natural Justice: Pre-revision notice dated 11.06.2014 was not served on the petitioner and returned by postal authority. Therefore the second notice was issued on 12.03.2015 which was received by the father of the petitioner on 16.03.2015. Therefore the said date has to be excluded and 15 days period has to be commenced from 17.03.2015 which will expire on 31.03.2015. However, the impugned assessment order has been passed on 31.03.2015, which is without giving 15 clear days to the petitioner. Also, the petitioner did not have opportunity to produce any record to establish that the cancellation of the registration of the selling dealer was with retrospective effect. Thus, this Court is of the view that the respondent could have afforded reasonable opportunity to the petitioner before finalizing the assessment as has been done by virtue of the impugned order. M/s.Green Labs India Vs The Commercial Tax Officer, KK Nagar Assessment Circle, Chennai. (MAD) W.P No.8450 of 2017 DATED: 04.10.2017

Arrears of tax: For the tax arrears of a Private limited company, the property owned individually by the director cannot be proceeded against for the default committed by the said private limited company. Identical issue was considered by this Court in the case of W.P.No.39790 of 2005 dated 30.10.2017 in which the this Court passed an order after taking into consideration in the earlier decision in the case of Chamundeeswari Vs. Commercial Tax Officer, Vellore reported in [2007] 6 VST 399 (Madras). M/s. Cavin Kare Pvt. Ltd. Vs 1.The Commercial Tax Officer, Cuddalore Town Assessment Circle Cuddalore. 2. Mr.C.K.Kumaravel,Chennai - 600 101.(MAD)W.P.No.15315 of 2004 DATED : 07.12.2017

Sales in the Course on export : Whether the petitioner is entitled to claim exemption on the sale of zip fasteners to a readymade garment manufacturer, who has exported the readymade garments outside the territory of India. The respondent rejected the petitioner's claim for exemption for the reason that the petitioner had sold only zip fasteners and what was exported readymade garments through the documents are not proper and the petitioner is not entitled to claim exemption. The legal issue is no longer res integra and has been settled by the Constitution Bench of the Hon'ble Supreme Court in the case of State of Karnataka V. Azad Coach Builders Pvt. Ltd., and another [(2010) 36 VST 1 (SC)]. This decision of the Hon'ble Supreme Court will apply with full force to the case on hand. The petitioner has sold zip fasteners to a manufacturer of readymade garments, who has fixed the zips in the garments and exported the garments outside the territory of India. Therefore, the transaction between the petitioner and the exporter was inextricably connected with the export of the goods outside India. Thus, when the transaction between the petitioner and the exporter and the transaction between the exporter and the foreign buyer were inextricably connected with each other, the same goods theory would have no application to the case on hand. With these observations the Writ Petition is allowed by the Court and the impugned order is set aside. M/s.Zip Industries Ltd., Vs. The Commercial Tax Officer, Esplanade II Assessment Circle, Chennai 108.(MAD) W.P.No.9416 of 2009 DATED : 07.11.2017


 :

Professional Updates- January 2018

Tamil Nadu VAT Update

Recent Judgments in VAT CST

by Sampathkumar V V

Assessment, penalty: Though the order of assessment was an eight-page order, the finding rendered by the AO was at the bottom of the penultimate page of the order. The finding of the assessing officer was in one paragraph from which it was clear that the assessment had been completed in a cryptic and arbitrary manner. None of the contentions raised by the dealer had been gone into and in fact, when the AO recorded that the documents relating to transport of goods by T were produced for verification, the AO arbitrarily stated that the dealer had not contested the matter with documentary evidence for transport of the goods. Thus, it was clear that it was a case of total non-application of mind on the part of the AO. Furthermore, no copy of the communication given by the CTO, Thackalay, was furnished to the dealer nor did the AO appreciate the fact that the dealer wanted e month time to trace the dealer, G Who was said to be absconding. If the AO had doubted the genuineness of the transactions, she could have issued notices to T, TVS and G and gathered details from the respective Dealers or from their AO and completed the assessment after due enquiry. However, this procedure which ought to have been followed had not been adhered to. That apart, even in the notice the assessing officer had pre decided the matter inasmuch as there was a direction to the dealer to pay Rs. 68,93,000 along with interest. Thus, the notice itself was defective as the opportunity granted to the dealer to file objections was an empty formality. The assessment order had been passed on the same day the dealer submitted its objections. This itself would indicate that the AO had prejudged the issue. Hence, the notice and the assessment were bad in law and liable to be quashed. [2017] 99 VST 297 (Mad) VAGA ENTERPRISES V. AC (CT), SALIGRAMAM ASSESSMENT CIRCLE, CHENNAI

Mismatch : On writ petitions against orders of assessment for the assessment years 2006-07 to 2014-15 on the grounds that a specific request was made by the petitioner-dealer in its objections for an opportunity of personal hearing, but this was not granted and that the turnover was sought to be reassessed based on mismatch with the Departmental website without furnishing any details to the dealer and the AO had violated the circular issued by the Principal Secretary/Commissioner dated April 1, 2015: The failure to grant an opportunity of personal hearing would render the order in violation of principles of natural justice. In circular dated April 1, 2015, the Commissioner had directed that in cases of mismatch invoice-wise data for mismatch to each demand must be mandatorily attached or to the notice either in print form or as a CD or send as email (in case it is voluminous), that the fact of enclosing such mismatch transaction date (invoice level) shall be clearly mentioned entered in the notice and acknowledgment receipt obtained, that personal hearing had been held to be mandatorily granted and the AO was directed to give a patient hearing to the dealer in order to understand the basis of his contentions and the same should be recorded in the assessment proceedings and that the order of assessment must be a speaking order and must address every contention raised by the dealer in clear terms to ensure that the orders were fair and justified not only in appellate forum but also it was felt by the dealers thereby to which the dealer might not tend recourse. In the order in question, none of these parameters mentioned in the circular had been adhered to. Therefore, the orders were liable to be quashed and the matters remanded to the respondent-assessing officer for fresh consideration, and assessment in accordance with law by a speaking order dealing with all the contentions raised by the dealer. [2017] 99 VST 301 (Mad) COROMANDEL ENGG CO LTD. v. AC (CT), ESPLANADE ASSESSMENT CIRCLE, CHENNAI

Refund of tax: The turnover of the dealer for the assessment year 1997-98 fell below the taxable minimum. No tax was due from it but by the time the assessing officer completed the assessment, the dealer had remitted a sum of Rs. 24,003 being the tax collected by it. The AO did not order refund. The dealer preferred an appeal to the AAC who dismissed it. On further appeal, the Tribunal held that the amount collected by way of tax at Rs. 24,003 had been retained by the assessing officer without any demand or invoking any penal provision as provided u/s 22(2) of the TNGST Act, 1959 and that the assessing authority himself had declared that there was no tax due because the dealer's turnover fell below the taxable minimum and granted liberty to the dealer to approach the assessing officer. The dealer filed an application seeking refund of the sum of Rs. 24,003 followed by another representation. The applications were considered and rejected on the ground that the dealer did not file the name of the real beneficiary to whom the refund had to be granted. The Court held in a writ petition that the Tribunal rightly understood the legal effect of such an order of assessment, wherein the turnover of the petitioner fell below the taxable minimum and the rate of tax was nil and therefore, the Tribunal observed that the amount collected by way of tax from the petitioner at RS. 24,003 had been retained by the assessing officer without any demand or invoking any penal provision as provided u/s 22(2) of the Act. Thus, the respondent could not retain the amount of tax. The case pertained to assessment for the year 1997-98, much prior to the introduction of section 3(1)(b) of the Act which was inserted with retrospective effect from April 1, 2000. This was not a case where the dealer, without authority of law, had collected the tax. Being a registered dealer it was empowered to collect the tax and the question of initiation of penalty proceedings u/s 22(2) of the Act did not arise. The dealer was entitled to refund of the tax remitted by it. [2017} 106 VST 88 (Mad) HARI PIPES v. CTO, POLLACHI (EAST) CIRCLE, POLLACHI


 :

Professional Updates- December 2017

Tamil Nadu VAT Update

Recent Judgments in VAT CST

by Sampathkumar V V

Input tax credit : The dealer was found to have effected purchases from several dealers and availed of input-tax credit (ITC) on such purchases, but the sellers had not disclosed the relevant turnover in their monthly returns or paid tax due and payable to the Department. The notice issued by the assessing officer proposed to reverse the ITC availed of by the dealer. In a writ petition filed in this regard, the division bench, affirming the earlier decision of the single judge, held that the show-cause notice issued by the AO proposing to reverse the ITC availed of by the dealer lacking valid or sustainable basis. If the sales effected to the dealer were not disclosed by such a seller either in the form of return filed monthly or the tax collected from the dealer was not made over to the Department by such seller, action would lie against such defaulting seller and not against the purchaser. Instead of trying to cross verify the ITC availed of by the dealer with specific reference to each component, action was directed by the AO against the dealer. [2017] 99 VST 341 (Mad) AC (CT), THIRUVERKADU ASSESSMENT CIRCLE, KOLATHUR V. INFINITI WHOLESALE LTD.

Input tax credit reversal: On writ petition against the reversal of input-tax credit (ITC) based on verification done by the AO or at the direction of superior authorities, by comparing the returns filed by the dealer with the data maintained by the CT Department, the court held that (i) when the dealers had not challenged the correctness of the individual assessment orders on the facts, but the manner in which proceedings had been issued and the jurisdiction of the assessing officers to do so. Therefore, the writ petitions were maintainable and the court could test whether the procedure adopted by the respondents prior to and while passing the orders was fair and reasonable and whether it satisfied the statutory requirement and hence the writ petitions were maintainable. (ii) That all that the assessing officers had done was to issue show-cause notices to the dealers registered in their jurisdiction referring to the information uploaded in the web portal of the Department and calling upon the purchasing dealer to prove the negative, the assessing officers had either totally ignored the directions issued in the circular or there had been partial compliance. When procedure which was required to be followed, had been not adhered to that would suffice to set aside the proceedings with direction for consideration de novo. The show-cause notices were bereft of particulars at times not even disclosing the name or TIN of the dealer at the other end, the invoice numbers were not furnished and in certain cases, a screen shot of the web portal image was copied in the show-cause notice. There were cases where allegations of mismatch were made against dealer, who was registered as large taxpayer units and in many cases, the dealer at the other end was a public sector undertaking. Therefore, the Department should have embarked upon a proper enquiry before confronting the dealer and calling upon him to explain.(iii) It is high time the Principal Secretary and Commissioner of Commercial Taxes in consultation with his officers lay out a detailed procedure as to how to take forward cases of mismatch, evolve a central mechanism, which can go into these aspect and furnish details in full form to the respective assessing officers, who can decide for themselves as to whether there is a case made out to call upon their dealer to explain. [2017] 99 VST 343 (Mad) JKM GRAPHICS SOLUTIONS P LTD V.CTO, VEPERY ASSESSMENT CIRCLE, CHENNAI

Alternative Remedy: Writ petitions filed by the appellant-dealer against assessments under the TNVAT Act, 2006 were dismissed by a judge on the ground of availability of alternative remedy. On appeal the Court held that the alternative remedy of appeal could be by-passed only under three contingencies, namely, (i) violation of principles of natural justice; (ii) lack of jurisdiction on the part of the assessing officer; and (iii) lack of competence or power to initiate proceedings. All these were absent in this case and hence the court directed the dealer to file statutory appeals within a period of four weeks from the date of receipt of a copy of this judgment, with 25 per cent of the tax demanded under the assessment orders; upon filing of such appeals, together with 25 per cent of the tax demanded, the appellate authority shall deal with the appeals independently with reference to the facts as well as law and dispose of them within further period of three months and till then, the dealer shall have the benefit of an order of interim stay of the demand in respect of the remaining portions. [2017] 99 VST 430 (Mad) V.V.V. AND SONS EDIBLE OIL LIMITED V. CTO -1 (FAC), VIRUDHUNAGAR

Recovery of tax: The Division Bench of the Court had given three directions: that appeal shall be filed by the dealer within four weeks along with 25% of the tax demanded under the assessment order, that upon the dealer filing the appeal together with 25% of the demand the appellate authority shall decide the appeal independently and dispose of it within a further period of three months and that till then the dealer shall be entitled to interim stay in respect of the remaining demand. The words "till then" meant "till the disposal of the appeals by the appellate authority". The Division Bench granted four weeks’ time to file appeals and three months’ time to dispose of the appeals. Therefore, altogether four months were available for the purpose of deciding the appeals. Till such time stay granted would be in operation. Upon a special leave petition filed by the dealer it had been given six weeks’ time to approach the authority with a rider that if such appeals were not filed within such time, time shall not be extended beyond that. Pursuant to this, appeals were filed with 25% of the demand and the appeals were also entertained by the appellate authority. Therefore, the time of four weeks given by the Division Bench had been modified or extended by six weeks’ time either from the date of the order of the Supreme Court or from the date of receipt of copy of the order from the Supreme Court. Meanwhile, the assessing authority passed an order raising a demand to be paid within seven days, on the ground that the dealer has not made a deposit of 25%. of the demand and filed an appeal within four weeks’ time in compliance with the direction issued by the Division Bench of the court. Once the appeals had been entertained the only limitation left was the three-month outer time-limit given by the Division Bench within which the appeals shall be disposed of by the appellate authority. Therefore, the order of the CTO was totally against the spirit of the two orders, one passed by the Division Bench of the High Court and the other passed by the Supreme Court and quashed. [2017] 99 VST 433 (Mad) V. V. V. AND SONS EDIBLE OILS LIMITED V. CTO-1 (FAC), VIRUDHUNAGAR


Professional Updates- November 2017

Tamil Nadu VAT Update

Recent Judgments in VAT CST

by Sampathkumar V V

Input Tax Credit reversal: Whether the ITC can be denied to the petitioner on bullion and raw material, purchased within the State of Tamil Nadu, which is sent outside the State for being converted into finished jewellery and thereafter, brought back into the State for sale. The requirement to reverse input tax credit for the goods sent outside the State otherwise than by way of sale, which goods after processing outside the State of TN is brought into the State for sale from TN is considered to be , violating Article 304(a) of the Constitution. The impugned provision seeks to pivot the denial of tax credit on the basis circumstance and not on the basis of quality or nature of goods. The fact that credit is denied on the basis of where the manufacturing unit of the assessee is located results in hostile discrimination against those who have their manufacturing unit located outside the State. Section 19(2)(ii) of the Act is invalid to the extent that it denies availment of ITC in respect of those units which despatch tax suffered raw materials for conversion into final product outside the State which upon conversion are received back and sold within the State of Tamil Nadu. Thus, the mere fact that the manufacturing unit is located outside the State of Tamil Nadu, cannot be the basis, for denial of ITC u/s 19(1) of 2006 Act. Section 19(2)(ii) of the 2006 Act is, thus, declared bad in law. The writ petition is allowed. Section 19(4) of the 2006 Act provides intrinsic evidence that ITC cannot be disallowed merely because transfer of goods takes place outside the State. PATINA GOLD ORNAMENTS PVT LTD Vs THE AC (CT), ERODE (MAD) WP No.6377 / 2010 Dt: 22.09.2017

Input Tax Credit Reversal: A dealer is entitled to claim input-tax credit (ITC) in respect of tax suffered inputs, which are specified in the First Schedule to the Act and are used for the purpose set out in section 19(2)(i) to (vi) of the Act. The proviso to section 19(2) limits the availment of ITC by providing that ITC shall be allowed in excess of 3% if the Inter State sale covered by declaration forms. Section 19(2)(v) of the Act provides that if, a dealer were to purchase taxable goods specified in the First Schedule to the Act, which were sold in the course of inter-State trade against C declarations, a dealer would be allowed ITC only in excess of 3% of the tax paid on such purchases. There is nothing in the proviso to conclude that it is attracted to any of the other clauses of section 19(2) of the 2006 Act. A plain reading of section 19(1) and (2) of the 2006 Act would show that, as long as specified goods, which suffer tax are used for any of the purposes set out in section 19 (2)(i) to (vi), the dealer should be able to claim the ITC, with a caveat in so far as clause (v) is concerned encapsulated in the proviso to section 19(2) of the 2006 Act. Therefore, the limitation provided in the proviso would apply only vis-a-vis the purpose specified in clause (v) and not qua other purposes set out in Section 19(2) i) to (iv) and 19(2)(vi) of the 2006 Act. In view of the amendment, the Department reversed the ITC and raised demands for tax with interest at the rate of two per cent. Allowing the petition the Court held that the orders in question, reversing ITC, were held as not sustainable.[2017] 100 VST 158 (Mad) EVEREST INDUSTRIES LIMITED V.STATE OF TAMIL NADU AND ANOTHER


Professional Updates- September 2017

Telegana VAT Update

Recent Judgments in TNVAT, TNCST

by Sampathkumar V V

Compounding Notice: Writ petition was moved against a notice of compounding asking the dealer to pay tax and compounding fee amounting to twice the amount of tax. The dealer contended that it rendered service to the original owner of the detained consignment of mobile phones, that for the purposes of reworking the mobile phones, the consignment of 435 boxes (containing 4350 mobiles) was transferred from its own facility in Chennai, that the reworked consignment being despatched to Delhi was accompanied by documents, which, inadvertently, instead of referring to its own address, adverted to the address of another entity in New Delhi, that the conclusion that it was a case of inter State sale was erroneous. Considering this, the Court held that the dealer's claim that the mobile phones had been received at its Chennai unit from its unit in Manaser for the purpose of repair had not been dealt with by the CTO, while issuing the notice. Furthermore, notice was passed at a point in time when the CTO had not completed the exercise of tallying the IMEI numbers and directed the CTO to rule on the representation preferred before him by the dealer, hear the authorised representative, and thereafter, pass a speaking order and supply it to the dealer. [2017] 101 VST 279 (Mad) EXCELLENCE MOBILE TECH INDIA P LIMITED v. CHECKPOST OFFICER / CTO, PUZHAL (OUT) CHECKPOST, CHENNAI.

  • Declaration forms: Petitioner was assessed to tax under the CST Act, 1956 at 12.5% as against 2% in respect of inter-State sales which were, according to the AO, not covered by declarations in form C because form C declaration covered more than one quarter. The circular dated October 20, 2015 of the Commissioner showed that the Revenue itself had taken a view that technicalities ought not to come in the way of acceptance of declaration forms. For instance, when, goods were despatched on the last day of the last quarter of a financial year and they were recorded by the buyer in his record, based on the date of delivery or receipt and a declaration was issued accordingly the seller could not be denied the benefit of the form C declaration. The second and third provisos of rule 12(1) of the Rules, contemplated only two scenarios. The present case presented a third scenario not envisaged under the Rules. Stating so, the assessing officer was directed to re-examine the matter and then, reach a definitive conclusion as to the rate of tax applicable to the dealer, qua the transactions in issue. [2017] 101 VST 312 (Mad) HEWLETT PACKARD INDIA SALES PVT.LTD v. STATE OF TAMIL NADU
  • Stock Transfer by SEZ unit: Appellant-dealer had a unit located in a special economic zone. The unit was issued a letter of approval for the setting phone and sets and mobile phone parts and accessories". The dealer purchased mobile phones from a manufacturing unit within the same SEZ and either sold them in the domestic tariff area after paying applicable duties and taxes including value added tax or transferred them to its branches located in other States, by way of stock transfer. Assessing Officer passed orders holding the dealer liable to pay purchase tax on the value of the goods transferred by it to its branches in other States. The dealer filed petitions for rectification which were dismissed. The dealer filed two petitions which were dismissed by a single judge. On appeals the Court held that the letter of approval specifically permitted the appellant to supply or sell goods or services in the domestic tariff area also. Export obligation was imposed upon the dealer, not with the idea of making it a 100% EOU but entitling it to apportion its exports and domestic sales in such a manner that it achieved a positive net foreign exchange within the stipulated period. In other words, the inter-State stock transfer made by the dealer to its own branches located outside the State, was clearly authorised by the letter of approval and would come within the purview of the expression "authorised operations". In fact, that State had not withdrawn any of the other benefits, privileges or concessions to the dealer on the ground that it had stopped carrying on authorised operations. Therefore, to say that the inter-State stock transfer effected by the dealer would not be permissible was not correct and reversed the decision of the single judge in NOKIA INDIA SALES P LTD. V AC (CT) [2016] 89 VST 163 (Mad). [2017] 101 VST 361 (Mad) NOKIA INDIA SALES P LTD v. AC (CT), SRIPERUMBUDUR ASSESSMENT CIRCLE, CHENNAI


Professional Updates- August 2017

Telegana VAT Update

Recent Judgments in VAT CST

by Sampathkumar V V

Purchase tax, Exim Scrip: On the question whether the State Bank of India would be liable to levy of purchase tax for accepting EXIM scrips for the purpose of cancellation from holders thereof, it was held that "ownership" in the goods was never transferred or assigned to the State Bank of India and not taxable [2017] 97 VST 1 (SC) CTO AND OTHERS v. SBI.

  • Input tax Credit: Where on verification of annexure I of the dealer with annexure II of the selling dealer, the AC concluded that the selling dealers not having filed returns or reflected the sales effected to the dealer, the input­ tax credit availed of by the petitioner-dealer was liable to be reversed in terms of section 19(6) of the TNVAT Act, 2006, and the dealer was liable to penalty under section 27(4) of the Act, the Court, held that the dealer could not have been directed to reverse the input-tax credit availed of by it on the grounds assigned by the AC. [2017] 97 VST 91 (Mad) GURUDEV ENTERPRISES v. AC (CT), VALLALAR NAGAR ASSESSMENT CIRCLE, CHENNAI
  • Remand directions: The Appellate Deputy Commissioner (ADC), in appeals filed by the dealer against orders of assessment passed by the AC rejected all the pleas raised by the dealer, set aside the assessment, and remanded the matter for fresh investigation giving opportunity to the dealer to produce all the documents. In a writ petition filed, the court held that the ADC had recorded certain findings against the dealer, yet, remanded the matter for thorough verification. Both these conclusions could not sail together. When the ADC came to the conclusion that the matter required to be re-examined, he should have refrained from making any adverse observations on the merits of the assessment. The ADC having rejected all the grounds raised by the dealer in the appeals and remanded the matter to the AC, obviously, the AC, who was, a subordinate officer to the ADC, would be guided by those findings rendered by the superior authority. Therefore, the findings recorded by the ADC were vacated, and the matter was to be remanded to the AC for assessment afresh after thorough verification of the records and after affording opportunity of personal hearing to the dealer uninfluenced by any of the observations made by the ADC. [2017]97 VST 153 (Mad) AMMAN BALAJl TWO WHEELERS (PVT.) LTD. v. AC (CT), OMALUR ASSESSMENT CIRCLE, OMALUR.
  • Inspection and statement : In a writ petition contending that the entire inspection and the statement recorded, during the course of inspection, was, illegal, without jurisdiction on the ground that no power was conferred on the officer in the rank of a CTO, that the petitioner is not carrying on business within the jurisdiction of the first respondent, nor was registered as a dealer within the assessment circle the Court held that writ of certiorari could not be issued, quashing the inspection report or the seizure mahazar or the statement recorded from the dealer. The documents were seized from the place of business of the petitioner. Therefore, if the petitioner had any reservations on the statement given by it before the enforcement officials, it was open to the petitioner to raise contention before the assessing officer. It was settled law that the assessing officer, while competing the assessment, could not solely be guided by the statement recorded by the enforcement officials. Therefore, the petitioner need not have any apprehension that its rights and remedies would stand foreclosed, if the inspection report and the statement were allowed to stand. The issue relating to jurisdiction was left open to be canvassed by the petitioner as and when notice was issued by the assessing officer.[2017] 97 VST 156 (Mad) KADHIR TRADERS v CTO, GROUP-VII, ENFORCEMENT (NORTH), GREAMS ROAD, CHENNAI.
  • Declaration forms: For failure to produce the C forms relating to interstate sales for the four years, viz., 2006-07 to 2011-12, assessments were completed by the assessing officer and recovery proceedings were initiated for recovering tax arid penalty as assessed on it. Upon receiving communication proposing to conduct auction to bring its property for sale for recovery of the tax dues, the dealer filed a representation under section 84 of the TNVAT Act, 2006 enclosing certain C forms which it claimed represented 75 per cent of the transactions. Before bringing the property of the dealer to sale, the assessing officer was to consider the dealer's representation under section 84 of the Act along with the C forms enclosed in the representation, and pass appropriate orders of revised assessment on the merits and in accordance with law. Till then, the distraint proceedings shall be kept in abeyance. After the passing of such order, the dealer should remit the balance amount of tax and penalty as assessed for the transactions for which C forms were either not produced or rejected or returned, on valid grounds, In case of failure by the dealer to remit it, the respondents would be permitted to proceed further with the distraint proceedings. [2017]97 VST 182 (Mad) GTR EXPORTS v. ASSISTANT COMMISSIONER (CT), HOSUR (SOUTH), HOSUR.
  • Input tax credit on DEPB licence: DEPB licences are goods. But, the mere fact that these licences constitute goods within the meaning of section 2(21) of the Act is not sufficient to make the dealer entitled to input-tax credit. Under section 19(1), the entitlement to input-tax credit is restricted to the amount of tax paid or payable under the Act by the registered dealer to the seller on his purchases of taxable goods specified in the First Schedule to the Act. Therefore, unless the claim for input-tax credit relates to the tax paid or payable on the purchase of taxable goods specified in the First Schedule, it is not possible to grant credit. He had used these DEPB licences, for the purpose of payment of import duty. Therefore, the benefit that he was claiming now under the Act was a double benefit. The dealer did not satisfy all the three conditions for claiming input tax credit. Hence, the denial of input-tax credit on the purchase of DEPB licences was perfectly in order. [2017] 97 VST 295 (Mad) SHA KANTILAL JAYANTILAL v. STATE OF TAMIL NADU


Professional Updates- July 2017
Recent Decisions in TNVAT
SAMPATHKUMAR.V.V.

Refund: The petitioner-dealer was issued a notice of a refund order in form P for the assessment year 2013-14, of the excess of tax collected from the dealer estimated at Rs. 39,33,672. Since no action was taken pursuant thereto, the dealer filed a writ petition which the court disposed of directing the CTO to consider the representation. However, that order had not been complied with by the CTO who issued a notice based on certain queries raised by the DC. The Court in a writ petition filed, held that it was not clear under which provision of law, the DC had issued the proceedings calling upon the CTO to issue the notice. In the absence of any statutory powers, the proceedings of the DC had to be held to be without jurisdiction. Nevertheless, the dealer sent a detailed objection and in spite of having received such a reply, instead of granting refund, the CTO had addressed a letter to the Additional Commissioner, PR as to what had to be done in the matter. There was no statutory sanction to such procedure being adopted by the respondent. Even assuming that there was some manual of procedures formulated by the Commercial Taxes Department, which obviously had no statutory force, assuming that the Commissioner came to a conclusion that the explanation offered by the dealer to the queries raised by the DC was incorrect and unacceptable and he passed the order that would amount to reviewing the order of assessment which undoubtedly the Act did not contemplate. The procedure adopted by the CTO as well as the DC (CT) was wholly illegal. The notice was set aside and the CTO was directed to effect refund of the tax.
[2016] 94 VST 335 (Mad) GOPAL ENGINEERING WORKS v. CTO, MANALI ASSESSMENT CIRCLE, KODUNGAIYUR, CHENNAI

Input tax credit: The petitioner-dealer had export sales, during the year categorised as zero rated sale" under section 18 read with section 2(44) of the Tamil Nadu Value Added Tax Act, 2006. It claimed input-tax credit on its purchases and set off proportionate input-tax credit relating to export in the following order: (i) set-off against value added tax liability on local sales, (ii) set-off against Central sales tax liability on inter-State sales, and (iii) the balance input-tax credit carry forward to the next year. The Assistant Commissioner made the set-off in the following manner relating to local and Central sales tax sale: (i) local sale (set-off against value added tax liability), (ii) Central sales tax sales (set-off against Central sales tax liability), and (iii) balance input-tax it in relation to export sale was denied on the ground that the petitioner did not file form W. The Court in writ petition filed in this regard, held that section 18 of the Act does not prescribe the method of preference set-off of input-tax credit and unless and until the Assistant Commissioner was able to clearly demonstrate that the procedure adopted by the dealer was contrary to the statute, the dealer should be permitted to adopt the preference to set-off. The findings rendered by the assessing officer with regard to preference of set -off were set aside and the matter remanded to the assessing officer to redo the assessments after issuing notice to the dealer and after affording opportunity of personal hearing and in the light of the directions issued in preceding paragraphs. [2016l 94 VST 409 (Mad) XOMOX SANMAR LTD. v. ASSISTANT COMMISSIONER (C. T), MYLAPOREASSESSMENT CIRCLE, CHENNAI


Professional Updates- June 2017
Recent Decisions in TNVAT
SAMPATHKUMAR.V.V.

Form XVII: The dealer and HLL are registered dealers in the State of TN. Instruction was given by HLL to the dealer to deliver the product to a factory at Ranipet, job-worker. The job-worker had a manufacturing facility at Ranipet and had the requisite licences and registration. The linear alkyi benzene sold by the dealer was used as a raw material in the manufacture of acid slurry and such manufacturing activity took place within the State of TN. The contract of sale was completed upon delivery of the goods at Ranipet within the State of Tamil Nadu. The seller, namely, the dealer had no contractual or other obligation to take the goods to another State. Thus, when the transaction /sale concluded within the State at Ranipet, which was an additional place of business of HLL, undoubtedly, the transaction was an intra-State sale and the dealer was entitled to avail of the concessional rate of tax on submission of form XVII declaration. [2016] 95 VST 118 (Mad) TAMILNADU PETROPRODUCTS LTD v. AC (CT), FAST TRACK ASSESSMENT CIRCLE II.

Alternative remedy: While coming to the conclusion, on the alleged adoption of wrong methodology followed by Inspecting officials, the Assessing officer had observed that in the absence of the correct figures, there was no other alternative except to adopt the figures as furnished by the dealers at the time of inspection. Therefore, it could not be said that the AO had totally ignored the contentions raised by the dealer. Since the contentions raised before court were on factual aspects they could be decided only by the appellate authority and not under Article 226 of the Constitution of India. [2016] 95 VST 134 (Mad) HIL LIMITED v. ASSISTANT COMMISSIONER (CT), MADHAVARAM ASSESSMENT CIRCLE.

Natural Justice: Though in taxation matters, court should be slow in interfering with the orders of assessment by issuing writs when the statute provides for a hierarchy of remedies, this rule would not apply, when the assessee is able to establish that the order is in violation of principles of natural justice, suffers from errors apparent on the face of the record or outcome of irrelevant consideration and when perversity is writ large on the face of the order. [2016] 95 VST 296 (Mad) HINDUSTAN UNILEVER LTD v. DC (CT)-II, LTU, EGMORE.

Attachment of property: The property was subject matter of mortgage with the bankers, who were secured creditors and they had brought the property for sale. The petitioner's vendor had purchased the property for valid consideration through the DRT ebts Recovery Tribunal and a certificate of sale was issued in his favour. As long as the said certificate of sale had not been cancelled or modified, the first respondent Department could not have any lien over the property. [2016] 95 VST 308 (Mad) ANSARI v. CTO, KOYAMBEDU ASSESSMENT CIRCLE.

Audit report : When a writ petition was moved to issue a writ of certiorari to call for the records on the file of the respondent and to quash the same, contending that though the petitioner had submitted form WW report on December 30, 2015 for the year 2014-15 and had stated that it had been regularly submitting the monthly returns, the respondent had not appreciated the audit report and had taken four years total turnover for framing an assessment dated November 30, 2015, the court allowed the petition, set aside the order dated November 30, 2015 and remanded the matter back to the respondent with a direction to receive form WW and decide the matter afresh, after giving an opportunity of personal hearing to the petitioner. [2016] 95 VST 331 (Mad) CONCRETE ADDITIVES AND CHEMICALS PVT. LTD. v. AC (CT) FAC, THIRUVALLUR ASSESSMENT CIRCLE.


Professional Updates- May 2017
Recent Decisions in TNVAT
SAMPATHKUMAR.V.V.

Input Tax Credit: Non-intimation of change in constitution of an entity is an irregularity and not an illegality and the assessing authority is not correct in reversing the entire input tax credit on the ground for not informing the change in constitution and obtaining fresh registration. [2016-17] 22 TNCTJ167 (MAD) Sri Kamatchi Gas Service Vs AC (CT) Kanchipuram Assessment Circle.

Penalty: Wilful non-disclosure of any assessable turnover is the criteria for invoking the penal provisions of section 27(3) of the TNVAT act 2006 and if wilful suppression is not found levy of penalty is not justified. [2016-17] 22 TNCTJ 173 State of Tamil Nadu Vs Golden Homes Pvt Ltd

SEZ : Supply of Ready Mix Concrete to An SEZ Unit is exempt from tax vide Notification in GO Ms 193 dated 30.12.2006. [2016-17] 22 TNCTJ 184 (MAD) IJM Concrete Products Pvt Ltd., Vs AC CT Ponnamallee Assessment Circle

Rectification: A rectification order causes grievance to a dealer, then it is an appealable order u/s 55(4) of the TNGST Act and if the rectification request is successful, then any rectification order in this regard cannot be appealed. [2016-17] 22 TNCTJ 255 (MAD) P C W Castings Pvt Ltd Vs ADC CT Chennai (East).

Going Concern: When a person might carry on several lines of business and each line of business would a unit of business by itself; if there was a sale of that unit of the business, as a whole, then the assessee would not be liable to be taxed either on the general principle that there was no sale in the course of business, since closure of a line of business could not be incidental or ancillary to its carrying on or on the alternative basis of application of Explanation III, to sub-section (41) of section 2 of the Tamil Nadu Value Added Tax Act, 2006, [2016] 95 VST 494 (Mad) VTX INDUSTRIES LIMITED v. AC (CT), FTAC, POLLACHI, COIMBATORE

Mutuality: As the levy of tax on the sale of food and drinks to members of a club should be clear, the matter should be referred to a larger Bench framing the questions (i) whether the doctrine of mutuality was still applicable to incorporated clubs or any club after the insertion of article 366(29A) in the Constitution of India, (ii) whether the judgment of the court in JCTO v. Young Men's Indian Association [1970] 26 STC 241 (SC) still held the field even after the 46TH of the Constitution of India, and whether the decisions in Cosmopolitan Club [2009] 19 VST 456 (SC) and Fateh Maidan Club [2008] 12 VST 598 (SC) which remitted the matter applying the doctrine of mutuality after the Constitutional amendment could be treated to state the correct principle of law, and (iii) whether the Forty-sixth Amendment to the Constitution, by a deeming fiction provided that provision of food and beverages by incorporated clubs to their permanent members constituted sale liable to sales tax. [2016] 96 VST 20 (SC) STATE OF WEST BENGAL AND OTHERS v. CALCUTTA CLUB LIMITED


Professional Updates- April 2017

Discount: Sub-section (20) was inserted in section 19 of TNVAT Act, on August 19, 2010 with retrospective effect from January 1, 2007 and provided that "where any registered dealer had sold goods at a price lower than the price of the goods purchased by him, the amount of the input tax credit over and above the output tax of those goods shall be reversed". The writ petition challenging the vires of the provisions of section 19(20) and its retrospectivity was dismissed by the High Court. The Apex Court held that there was no right, inherent or otherwise, vested with dealers to claim the benefit of input tax credit but for section 19 of the Act. There were valid and cogent reasons for inserting section 19(20). The main purport was to protect the Revenue against clandestine transactions resulting in evasion of tax. Also held that the amendment failed to meet the tests laid down by the court in testing the validity of retrospective operation of fiscal laws. Sub-section (20) of section 19 is altogether a new provision introduced for determining the input tax in a specified situation, could not have retrospective effect, especially when vested rights had accrued in favour of the dealers in respect of purchases and sales made between January 1, 2007 and August 19, 2010. Thus, the vires of sub-section (20) of section 19 was upheld but not the retrospective effect from January 1, 2007. [2016] 96 VST 1 (SC) JAYAM & CO .v. AC CT AND ANOTHER

Input tax credit, reversal: The Input tax credit reversal for sales with C forms at 3% as per the provision to section 19(2))v) of TNVAT Act 2006, is held to be applicable for the proviso (v) only and not to the other clauses of section 19(2). M/s EVEREST INDUSTRIES LIMITED Vs 1. THE STATE OF TAMIL NADU, 2 THE DC CT FAST TRACK ASSESSMENT CIRCLE-II, COIMBATORE [2017] (Mad) W.P.No.7969 of 2014 and others DATED: 06.02.2017

Input tax credit, Mismatch: The petitioners contend that the moment the tax is paid to the selling dealer and tax invoice is issued, the input tax credit is available to the purchasing dealer. The default of the selling dealer in not filing returns or not paying tax at his end cannot result in the denial of credit to the purchasing dealer. For the revision notice or order in this regard, the held that the settled legal principle is that change of opinion or change of officer is no ground to reopen an assessment. The reasons for reopening should not only be explicitly stated, but should be duly supported with adequate information. Invariably in all cases, the Assessing Officers merely state that on going through the details in the official website, it is seen that there is mismatch in transaction and the dealer is called upon to explain as to why the input tax credit availed by him, should not be directed to be reversed. M/s JKM GRAPHICS SOLUTIONS PRIVATE LIMITED Vs THE CTO, CHENNAI [2017] (Mad) WP.No.105/2016 Date: 01.03.2017 and others


Professional Updates- March 2017


TNVAT

Transit pass:
When the imported goods were transferred to Pondicherry, it was detained for absence of a transit pass. When it was contended that, in view of section 88(3)(i) of the TNVAT Act, 2006, the clarification issued by the Commissioner of Commercial Taxes, Chennai, in Circular Acts Cell-IV /69980/2000 dt 23.11.2000 would apply, the court held that section 70(2)(a) of the TNVAT Act, 2006 clearly provides that when any goods specified in the Sixth Schedule are sold or consigned or transferred by any goods vehicle to another State from any place within the State, the seller or consignor or transferor of the goods shall obtain a transit pass in the prescribed form and in the prescribed manner from the assessing authority and produce it at the time of crossing the check-post. Admittedly, the goods were transferred from one State to another State. Hence, according to section 70(2) of the TNVAT Act, 2006, the dealer had to necessarily obtain a transit pass in the prescribed form and in the prescribed manner. The plea of the dealer that the said Circular of Act Cell-IV would apply was not tenable as it would have no force in law after the coming into force of the 2006 Act. [2013] 64 VST 541 (Mad) SHIV A POLYMERS v. DCTO, KANDAMANGALAM CHECK-POST, VILLUPURAM DISTRICT

Opportunity: The petitioner filed a writ petition contending that due to compelling reasons for making arrangements for its daughter's marriage, the petitioner could not go before the authority for filing objections within the time prescribed and pleading for an opportunity to file its objections. The court considering the plea made by the petitioner to give him an opportunity to file objections to the demand notice and the reasons assigned by him for not filing the objections, directed the petitioner to file his objections within the specified time. 2014] 69 VST 133 (Mad) ESTEEM ALLOY CASTINGS P. LTD. v. CTO, EGMORE-II ASSESSMENT CIRCLE, CHENNAI

Consignment sales: In respect of consignment sales exemption claim, the rule 4(3A) of the 1957 Rules provides for the particulars to be furnished by the dealer when called for by the assessing authority. The assessing authority referred to a few instances and drew the inference that the entire transactions were inter-State sales. It was not clear whether the dealer filed the statutory declaration and whether any enquiry was held in respect of individual transactions. The assessing authority came to the conclusion on the basis that the entire goods sent as consignment were sold as one lot within a couple of days which could not be done unless there was a pre-existing order for the goods and that loads had been moved upon specific orders only. Thus without examining the individual transactions, the entire transactions were treated as inter-State sales falling under rule 4(3A) of the 1957 Rules. The matter was remitted to the assessing authority for fresh consideration after affording sufficient opportunity to the dealer in respect of each transaction based on decisions of the Supreme Court in Ashok Leyland Ltd. v. State of Tamil Nadu [2004] 134 STC 473 (SC) ; [2004] 2 RC 249. [2013] 66 VST 277 (Mad) SRI AMBIKA SAW MILL AND TRADERS v. STATE OF TAMIL NADU

Clarification and penalty: A clarification cannot go beyond the scope and ambit of the provision of law. The levy of penalty without considering the bona fides of the assessee cannot be sustained. [2014] 68 VST 406 (Mad) STATE OF TAMIL NADU v. SREEJEE AND CO.