Madras High Court
Tvl.Sri Renuka Electronics And ... vs The Assistant Commissioner (Ct) ... on 24 June, 2021
W.P. Nos.43965 to 43969 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2021
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.Nos.43965 to 43967 of 2016
Tvl.Sri Renuka Electronics and Furnitures,
Rep. By its Proprietor,
L.Ramachandran,
S/o.Lakshmipathy,
No.86/1, Cuddalore Road,
Panruti 607 106,
Cuddalore District. ..Petitioner in all W.Ps.
Vs.
The Assistant Commissioner (CT) (FAC),
Panruti (Town), Panruti,
Cuddalore District. ..Respondent in all W.Ps.
Common Prayer: Writ Petitions filed under Article 226 of the Constitution
of India, to issue a Writ of Certiorarified Mandamus, calling for the records
relating to the proceedings of the respondent in TIN No.33624481781/2013-
14 dated 15.03.2016, TIN No.33624481781/2014-15 dated 22.01.2016, TIN
No.33624481781/2015-16 dated 31.05.2016, TIN No.33456258672/2014-
15 dated 23.12.2015 and TIN No.33456258672/2015-16 dated 15.06.2016
and quash the same and consequently direct the respondent to conduct fresh
enquiry and pass assessment order for the years 2013-14, 2014-15, 2015-16,
2014-15 and 2015-2016 respectively.
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W.P. Nos.43965 to 43969 of 2016
(In all W.Ps.)
For Petitioner : Mr.S.Rajasekar
For Respondent : Mr.V.Veluchamy
(Government Advocate)
COMMON ORDER
The assessment orders, issued by the respondent, are under
challenge in the present Writ Petitions. The learned counsel appearing for
the petitioner made a submission that the issues raised in these Writ
Petitions were already decided by this Court in number of judgments and
therefore, the Writ Petitions are to be allowed.
2.The learned Government Counsel appearing for the respondent
has not raised any serious disputes with reference to the judgments passed
by this Court in connected Writ Petitions. Thus, this Court is inclined to
follow the order passed by this Court on 11.02.2019 in W.P.Nos.3680 and
3683 of 2019. The relevant paragraphs of the said judgment are extracted
hereunder:
“4. The provisions of section 19(10)(a) of the
Tamil Nadu Value Added Tax Act, 2006 ( in short the 'Act')
read as under:
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W.P. Nos.43965 to 43969 of 2016
“ The registered dealer shall not
claim input tax credit until the dealer receives
an original Tax Invoice duly filled, signed and
issued by a registered dealer from whom the
goods are purchased, containing such
particulars, as may be prescribed, of the sale
evidencing the amount of input tax”.
5. The statutory requirement for claim of ITC is
production of proof of purchases by way of original
invoices from the selling dealer. In the present case,
Mr.Hariharan, learned counsel for the Department, does
not dispute the position that the purchasers have duly
produced the original invoices from the seller.
6. In such a circumstance, no reversal is liable
to be made, in the absence of any further condition
imposed upon the dealer in this regard.
7. A learned Single Judge of this Court in the
case of JKM Graphics Solutions Private Limited Vs.
Commercial Tax Officer, Vepery Assessment Circle,
Chennai, [2017] 99 VST (Mad), has considered an
identical challenge raised by several dealers, wherein
their claim for Input Tax Credit was reversed on an
alleged mis-match between their returns and the returns
filed by the sellers. In conclusion, the Writ Petitions were
allowed in the following terms:
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W.P. Nos.43965 to 43969 of 2016
Admittedly, in the instant case,
there is no challenge to the statutory
provisions and the complaint of all the
dealer is largely on the procedure adopted
by the respective assessing officers. The
principal Secretary and Commissioner of
Commercial Taxes was conscious of the
problems faced by the dealers as complaints
were received which had lead to issuance of
a circular as early as on April 1, 2015. The
directions contained in the said circular are
very pointed direction, but it is sad to note
that the circular remains only on paper and
seldom assessing officers follow the circular
resulting in several assessments being set
aside by the court and remanded for denova
consideration. Thus, this court is fully
convinced that the procedure adopted by the
respondents, assessing officers in all these
cases are half baked attempts, which have
not yielded results and these cases are
before this court or before the appellate
authorities and all that the assessing
officers can record is that they have issued
show-cause notices or passed orders
reversing the input-tax credit with no
appreciable impact on the revenue
collection.
The procedure adopted under the
Maharashtra VAT Act appears to be a more
reasonable procedure, the Rules have been
so designed to constitute independent
authorities, who will in exercise jurisdiction
to dispose of the objections, etc. However,
this court cannot legislate nor direct the
State to legislate in a particular passion and
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W.P. Nos.43965 to 43969 of 2016
it is for the state to bring about and
appropriate rules and set procedures so that
when discrepancy is noted while comparing
the return with that of the figures available
with the Department in their web portal,
there should be an exercise carried out by
the Department within its level before
calling upon the dealer to show cause. This
can be achieved only if there is a centralised
mechanism and if the present practice is
allowed to prevail, it would only result in
multiplicity of proceedings with more
number of cases pending before the courts
and appellate forums, thus jeopardizing the
interest of revenue. Therefore, it is high time
the Principal Secretary and Commissioner
of Commercial Taxes in consultation with
him officers lays 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 to call upon
their dealer to explain. If this centralized
mechanism is not put in place exclusively
for such purpose, it would result in notices
and orders being issued by the respective
assessing officers without even the
knowledge of the assessing officers of the
other end dealer resultantly no action being
taken against other end dealer, assuming, he
is at fault. Therefore, it is high time the
Department wakes up and stops the one way
approach and examine the matter in a
holistic manner so that the defaulting dealer
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W.P. Nos.43965 to 43969 of 2016
is brought to books.
Hence, for all the above reasons,
all the writ petitions are allowed and the
notices/orders either original or appellate
or revisional are set aside and the matters
are remanded to the respective assessing
officers, to undertake a fresh exercise by
conducting a thorough enquiry in
consultation with the assessing officers of
the other end dealer for which purpose the
Commissioner of Commercial Taxes shall
empower the assessing officers to seek
information from other circles as well and
in the mean time to evolve a centralized
mechanism to exclusively deal with the
cases of mismatch and while doing so, the
Principal Commissioner shall take note of
the procedures adopted by the other States,
more particularly, in Maharashtra, Gujarat
and Delhi and if any statutory amendments
have to be made, make appropriate
recommendations to the State Government,
and till then to devise a procedure which is
fair and reasonable and afford an
opportunity to the dealer to put forth his
case and establish that he is entitled to the
concession/set-off availed.
Since these writ petitions have
been allowed and the impugned orders have
been set aside and the matters have been
remanded for fresh consideration the
petitioners/dealers are not entitled to raise
a plea of limitation, when fresh show cause
notices are issued and they are directed to
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W.P. Nos.43965 to 43969 of 2016
submit their explanation to enable the
assessing officers to adjudicate their case.
8. In the light of the above, this Writ Petition is
allowed and the impugned order of assessment is set
aside. The assessment will be re-done as indicated in the
order in the case of JKM Graphics (supra) pursuant to
fresh show case notice to be issued by the Assessing
Authority. No costs. Consequently, connected
miscellaneous petitions are closed. ”
3.In view of the judgment cited supra, all these Writ Petitions
stand allowed and the impugned orders of assessment are set aside. The
assessment will be re-done as indicated in the order in the case of JKM
Graphics, cited supra, pursuant to fresh show cause notice to be issued by
the Assessing Authority. No costs.
24.06.2021
gsa
Index : Yes
Speaking order
https://www.mhc.tn.gov.in/judis/
W.P. Nos.43965 to 43969 of 2016
S.M.SUBRAMANIAM, J.
gsa
To
The Assistant Commissioner (CT) (FAC),
Panruti (Town), Panruti,
Cuddalore District.
W.P.Nos.43965 to 43967 of 2016
24.06.2021
https://www.mhc.tn.gov.in/judis/
