Citation : 2025 Latest Caselaw 7705 Mad
Judgement Date : 10 October, 2025
S.A.No.1035 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 01.08.2025
Pronounced on 10.10.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN
THILAKAVADI
S.A.No.1035 of 2019
M/s. Rishabh Enterprises,
rep. by its Partner Mr.Rakesh Daga,
No.66/39, Tirumalai Pillai Road,
T. Nagar, Chennai 600 017. ...Appellant
Vs.
M/s. Bharat Heavy Electricals Limited
Rep. by its Managing Director
High Pressure Boiler Plant
Tiruchirapallai 620 014. ...Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
aggrieved portion of judgment and decree dated 26.02.2019 passed in
A.S. No.426 of 2018, on the file of the XVII Additional City Civil Court,
Chennai, confirming the aggrieved portion of Judgment and decree
dated 08.12.2016 passed in O.S.No.3094 of 2015, on the file of the V
Page 1 of 26
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S.A.No.1035 of 2019
Assistant City Civil Court, Chennai.
For Appellant : Mr. K.S. Ganesh Babu
For Respondent : Mr.S.Shyam Kumar
JUDGMENT
In this Second Appeal, challenge is made to the aggrieved portion
of judgment and decree dated 26.02.2019 passed in A.S. No.426 of
2018, on the file of the XVII Additional City Civil Court, Chennai,
confirming the aggrieved portion of Judgment and decree dated
08.12.2016 passed in O.S.No.3094 of 2015, on the file of the V Assistant
City Civil Court, Chennai.
2. The unsuccessful plaintiff before both the courts below has filed
the present second appeal.
3. For the sake of convenience the parties are referred to as per
their ranking in the trial court.
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4. The case of the plaintiff is that he has supplied refrigeration
items to the defendant on credit basis on various purchase orders and
raised invoices for payment there to. The defendant has made part
payments of a sum of Rs.2,25,414/-on 9.6.2014 and a sum of
Rs.18,58,103/- on 8.7.2014 totalling an amount of Rs.20,83,517/-
through ICICI RTGS payment towards the abovesaid purchase. After
giving credit to the said part payments made by the defendant, still there
is a sum of Rs.3,21,650/- due and payable by the defendant to the
plaintiff. In spite of the plaintiff's request and demand made vide its
letters dated 9.9.2014 and 29.1.2015, the defendant failed and neglected
to pay the said outstanding amounts to the plaintiff. The plaintiff has sent
a legal notice on 4.4.2015 through his counsel to the defendant by way of
a registered post with acknowledgment due and the said notice was
received by the defendant on 8.4.2015. The defendant neither made
payment nor replied to the said legal notice. The defendant is liable to
pay interest at 24% per annum on the balance outstanding invoice
amount as the transaction is commercial in nature. As on date, a sum of
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Rs.3,21,650/- is outstanding in respect of the abovesaid purchase and the
same has to be paid along with 24% interest per annum. Hence, the total
outstanding amount payable by the defendant is Rs.3,89,320/-. Hence the
suit.
5. In the written statement filed by the defendant it is stated that
the defendant is a public limited company, registered under the
companies Act, having one of its units at Tiruchirappalli. The defendant
is a manufacturer of power boilers and its components. In the usual
course of its business, the defendant procures various goods and services
though public tendering. The plaintiff filed this suit alleging short
payment of Rs.3,21,650/- against 10 invoices in relation to supply of
items under the two purchase orders. The payment as per the agreed
terms of the contract, subject to statutory dues, have been paid and there
is no short payment as alleged. The defendants denied the liability as
alleged in the plaint. The invoices are as per the terms of the agreement
only on the dates mentioned against each invoice. The covering letters of
the invoices of the plaintiff dated 3.4.2014 and 1.7.2014 show the date on
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which the said invoices were sent by plaintiff and the date seal of
defendant company on the said covering letters show that the said
invoices reached the defendant company only on 7.4.2014 and 3.7.2014
respectively. Copy of the invoices along with the covering letters are
filed along with the written statement. Further the date of invoice
No.2783 is 15.7.2014 and the date of receipt of the same by defendant is
2.3.2015 and the copy of the invoice showing its date and also date seal
showing the date on which they are received by the defendant company
is filed along with the written statement. On receipt of the said invoices,
the defendant has processed the bills and payment to the tune of
Rs.21,32,633.00 was made to the plaintiff. The amounts of
Rs.2,72,534.00 was deducted from the bill amounts as detailed above
under section 19(11) of Tamil Nadu Value Added Tax Act, 2006 (for
short "TN VAT Act"), input tax credit needs to be taken within the same
month of transaction of taxable purchase. If this cannot be done, credit
shall be claimed before the end of the financial year or before ninety days
from the date of purchase, whichever is later. The invoices at SL. 1 to 5
of the table are submitted by the plaintiff after the lapse of more than 4
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months from the date of invoice. It is seen that the Value Added Tax
(VAT) credit dis-allowance is done only in the case of 7 invoices. No
deductions on account of VAT dis-allowance are done in case of invoices
mentioned at Sl.Nos.6, 7 and 10 as the said invoices were within 90 days
of the date of invoice and hence defendant could avail VAT credit and the
same was paid to the plaintiff. It is also submitted that the invoices
against which VAT amounts are disallowed are of the month February
and March and as per the provisions of TN VAT Act, the purchaser has to
take credit "before the end of the financial year or before ninety days
from the date of purchase, whichever is later" and in these cases the
defendant has applied the period of "90 days" from the date of invoice as
the cut of date for availing VAT credit. In the case of invoice at Sl.No.10
the defendant has applied the period as "the end of financial year" as the
cut of date for availing VAT credit and though the invoice at Sl.No.10
was also after the lapse of 7 months of the date of invoice, the defendant
has paid the VAT portion also to the plaintiff as the defendant could take
VAT credit till the end of financial year. The defendant also made certain
deductions against invoice nos. at S1.No.6 to 10 in the table being
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liquidated damages as per the terms of the contract between plaintiff and
defendant due to delayed supply of certain items.
5.1. As per the respective purchase order, the delivery date for
SL.No.6 to 9 was 4.2.2014 and it can be seen in page No.3 – 5 of the
purchase order vide No.7100111611 dated 1.1.2014 filed by the plaintiff
along with the plaint. Regarding the invoice at Sl.No.10 of the above
table the delivery date was 15.4.2014 and the same can be seen in page
No.3 of the respective purchase order vide No.7000015942 dated
8.3.2014, a copy of the same is filed along with the written statement.
Whereas it can be seen from the table in the written statement that the
plaintiff has supplied the items against the invoices at Sl.No. 6 to 10 after
the delivery schedule stipulated in the said purchaser orders. As per the
terms of the purchase orders "if the supplier fails to deliver the raw
materials/components/equipments within the period specified in the
contract, the purchaser shall deduct liquidated damages, a sum equivalent
to 0.5% of the price for each week of delay or part purchase order
value/undelivered portion to be reckoned from the contract delivery date
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to cargo readiness date (final inspection agency's signed date in the test
certificate.)" The plaintiff issued the legal notice on 4.4.2015 and the
same was received by the defendant on 8.4.2015. The legal notice was
forwarded to the respective department for verification of facts. In the
meantime the plaintiff filed the suit in the month of June 2015. The
period of notice was too short and before the defendant could file a reply,
the plaintiff filed the present suit.
6. The trial court on the basis of pleadings, evidence and
submissions made by the respective counsel for the parties, partly
decreed the suit vide its judgment and decree dated 08.12.2016.
Aggrieved by the said judgment and decree, the plaintiff has preferred an
appeal in A.S. No.426/2018 before the XVII Additional City Civil Court,
Chennai. The first appellate court, by its judgment and decree dated
26.02.2019, dismissed the said appeal by confirming the judgment and
decree of the trial court. Assailing the same, the present second appeal
has been preferred by the plaintiff.
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7. The second appeal has been admitted on the following
substantial question of law:
"i) Whether the respondent having failed to claim
input credit based on the original invoices, blame the
plaintiff for the delay in seeking copies of invoices?"
8. The learned counsel for the appellant/plaintiff submits that the
suit claim is based on undisputed and valid invoices marked as Ex.A3,
Ex.A6 and Exs.A8 to A12 for supplying the goods as per the purchase
order of the defendant marked as Ex.A2 and Ex.A7 respectively. As per
the terms of the purchase order, the defendant has to pay the invoice
amount to the plaintiff. The defendant failed to plead and pay the court
fee for any counter claims or set off for their alleged liquidated damages
and dis-allowance of VAT credit portion. He would submit that it is an
admitted fact that as per the purchase order, the invoices were raised to
consignee address and the goods received by them with original tax
invoices. Therefore, if they were entitled to claim input tax credit, they
have to claim the same within 90 days from the date of original invoice
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as per the provisions of the TN VAT Act. His further submission is that as
per the provisions of Section 19 (10)(b) of the TN VAT Act, if the
original tax invoice is lost, input tax credit shall be allowed only on the
basis of duplicate or carbon copy of such tax invoice obtained from the
selling dealer and therefore, the plea of the defendant that they could not
claim input tax credit within 90 days from the date of original invoice for
the goods supplied to them due to the alleged belated submission of three
copies of invoice with original signature by the plaintiff is against the
provisions of the TN VAT Act and Rules. He would further submit that as
per the provisions of Rule (6) of the TN VAT Act Rules, that every
registered dealer shall issue bill or invoice for each sale in triplicate
showing the particulars of goods and quantity sold with its value, one
copy of which must be retained for check by the official of the
Commercial Taxes Department and accordingly the plaintiff had
preferred the invoices in triplicate and the original was given to the
defendant's consignee address marked as Ex.A3 to Ex.A7 and Ex.A9 to
Ex.A13 and the triplicate was retained for check by officials of the
Commercial Tax Department. He would further submit that in the
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purchased orders of the defendant marked as Ex.A2 and Ex.A7, it was
only asked for three copies of invoices with original signature to be
submitted. Where as, the input tax credit would be claimed only based on
the original tax invoice. Therefore, the three copies of invoice with
original signature asked by the defendant in the purchase orders is not for
the purpose of claiming the input tax credit, but, the same were asked to
give only to make payment to the plaintiff and it at all the said three
copies of invoice with original signature were submitted belatedly, they
could not held liable for the belated payment and they may not be held
liable to pay interest for the said belated period not otherwise. It is also
submitted that the defendant had not pleaded that they met with liquidate
damages due to belated supply of goods by the plaintiff and that in the
invoices produced before the court, it has been mentioned in the terms
and conditions that interest at the rate of 24% per annum would be
charged on all the bills if not paid by the due dates, since it is admittedly
a commercial transaction between the parties. While so, the courts below
failed to appreciate the above facts in a proper perspective.
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9. The learned counsel for appellant further submits that in the
absence of claiming alleged credit input tax based on the original invoice
sent to the consignee address, there is no breach of contract on the part of
the plaintiff. In support of his contentions, he relied on the decision of
the Hon'ble Supreme Court in the case of M/s. Kailash Nath Associates
vs. Delhi Development Authority & another reported in 2015(4) SCC
136. Hence, he prayed for setting aside the dis-allowed portion of the
judgment and decree passed by the courts below.
10. On the other hand, the learned counsel appearing for the
respondent/defendant submits that the plaintiff has violated conditions of
the purchase orders and submitted the invoices belatedly. As per TN VAT
Act, the purchaser had to take value added tax credit before the end of
the financial year or before 90 days from the date of purchase whichever
is later. It is further contended that only three invoices were submitted
enabling the defendant to claim VAT credit, but, seven invoices were
furnished after lapse of several months. Hence, the defendant could not
claim VAT credit, Hence, the plaintiff is not entitled for the amount
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claimed for in the said seven invoices. He would further submit that as
per Section 19(11) of the TN VAT Act, input tax credit needs to be taken
within the same month of the transaction of taxable purchase and if this
cannot be done, credit shall be claimed before the end of the financial
year or before 90 days from the date of purchase whichever is later. He
would further submit that Section 19 of the TN VAT Act was challenged
as unconstitutional before the Hon'ble Supreme Court and the same was
held constitutionally valid in the the judgment rendered in the case of
ALD Automative Pvt. Ltd vs. The Commercial Tax Officer & others
reported in (2019) 13 SCC 225. Hence the defendant is entitled to
deduct liquidated damages at the rate of 5% to the maximum of 15% for
the delayed and undelivered portion of the articles. He would further
submit that P.W.1 has admitted in his evidence that the invoices were
submitted belatedly. He would further submit that the legislature has
intentionally prescribed a time frame for the availment of input tax credit
that accrues before the end of the financial year or within 90 days from
the date of purchase, whichever is later. Section 19 of the relevant stature
serves as a pre-condition for the availment of Input Tax Credit. Section
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19(11) of the TN VAT Act cannot be invalidated on the grounds of being
unreasonable or discriminatory. He would further contend that Input Tax
Credit is a form of concession which is provided by the Act. It cannot be
claimed as a matter of right, but only in terms of the provisions of the
statute. Therefore, the conditions mentioned in Section 19(5)(c) of TN
VAT Act, had to be fulfilled by the dealer and sub-section (2) of the
Section 19 was constitutionally valid. The provision was aimed at
achieving a specific and justified purpose and could not be treated as
discriminatory. He would further submit that the courts have held that
Section 19(11) as a valid piece of legislation and cannot be struck down
as being either unreasonable or discriminatory and in violation of
Articles 265 and 360(A) of the Constitution of India. In support of his
contentions he has relied upon the following judgments.
i. Order of this Court dated 01.03.2018 in W.P. No.2972 of 2009 (Sri Laxmi Narasimma vs. The assistant Commissioner) and W.P. No.10062 of 2009 (Bhavani vs. The Commercial Tax).
ii. Usa Agencies Vs. Commercial Tax officer reported in 2013 SCC Online MAD 2062.
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iii. M/s. TVS Motor Company Limited vs. The State of Tamil Nadu and others reported in (2018) 13 SCR 96.
Hence, he prayed for dismissal of the present appeal.
11.Heard on both sides and records perused.
12. On a perusal of the impugned judgment it is seen that the
courts below have arrived to a conclusion that in view of the belated
supply of invoice, VAT credit could not be claimed by the defendant and
hence the plaintiff is not entitled for claiming VAT amount from the
defendant. It is not in dispute that the goods were supplied to the
defendant on credit basis based on various purchase orders and the
plaintiff raised invoices for payment thereto. According to the plaintiff,
after giving credit to the part payments made by the defendant a sum of
Rs.3,21,650/- is due and payable to the defendant to the plaintiff. In spite
of several requests and letters communicated to the defendant, the
defendant failed to pay the outstanding amounts to the plaintiff. Hence, a
legal notice (Ex.A15) was sent on 04.04.2015, which was received by the
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defendant on 08.04.2015. The defendant neither made payment nor
replied for the said legal notice. Hence, the plaintiff filed the above suit
for recovery of money. The claim of the plaintiff was resisted by the
defendant stating that as per Section 19(11) of TN VAT Act, input tax
credit needs to be taken within the same month of transaction of taxable
purchase, if the same is not possible, credit shall be claimed before the
end of the financial year or before 90 days from the date of purchase
whichever is later. While so, the invoice in Serial No. 1 to 5 were sent by
the plaintiff after a lapse of four months from the date of invoice. VAT
credit dis-allowance is done only in the case of seven invoices. No
deductions on account of VAT dis-allowance are done in case of invoices
mentioned in Serial Numbers 6, 7 and 10 as the said invoices were within
90 days of the date of invoice and hence the defendant could avail VAT
credit and the same was paid to the plaintiff. It is further stated that the
invoices against which VAT amounts are disallowed are of the month
February and March and as per the provisions of TN VAT Act, 2006,
purchaser has to take credit "before the end of the financial year or before
ninety day from the date of purchase whichever is later" and in these
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cases the Defendant has applied the period '90 days' from the date of
invoice as the cut of date for availing VAT credit. In the case of invoice
at serial number 10, the defendant has applied the period as "the end of
financial year" as the cut of date for availing VAT credit and though the
invoice at Serial number 10 was also after the lapse of seven months of
the date of invoice, the defendant has paid the VAT portion also to the
plaintiff as the defendant could take VAT credit till the end of financial
year. The defendant also made certain deductions against the invoice
numbers at Serial Number 6 to 10 being liquidated damages as per the
terms of the contract between the plaintiff and the defendant due to
delayed supply of certain items. As per the purchase order, the delivery
date of Serial Number 6 to 9 was on 04.02.2014 and it could be seen in
purchase order dated 01.01.2014 filed by the plaintiff. With regard to Sl.
No.10, the delivery date was 15.04.2014 and the same is mentioned in
the Purchase order dated 08.03.2014 which is filed on the side of the
defendant. From the above, it is made clear that the plaintiff has supplied
the items against the invoices at serial numbers 6 to 10, after the
stipulated delivery schedule in the purchase orders. The terms of the
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purchase orders were that "if the supplier fails to deliver the goods
within the period specified in the contract, the purchaser shall deduct
liquidated damages, a sum equivalent to 0.5% of the price mentioned for
each week of delay or part purchase order value/undelivered portion to
be reckoned from the contract delivery date to cargo readiness date final
inspection agency's signed date in the test certificate".
13. It cannot be disputed that the plaintiff and the defendant are
governed by the TN VAT Act. It is also not disputed that the invoices
were VATable under Section 19(3) of the TN VAT Act and that input tax
credit needs to be taken within the same month of transaction on taxable
purchases. According to the defendant, disallowed VAT is Rs.2,50,572/-
and the liquidated damages is Rs.15,057/- and the same has been claimed
by the plaintiff and that the defendant is liable to deduct the same as per
the terms of the contract. The defendant has relied upon the order of this
Court in W.P. No.14807 and W.P. No.14808 of 2013 in which it has been
held that "There is a statutory obligation for every registered dealer
having turnover of sales above the amounts specified to issue a tax
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invoice serially numbered containing the prescribed particulars and
failure to comply with the mandatory requirements attracts penalty." In
the present case, the plaintiff has admitted the delay in submitting the
invoice and delay in supply of certain items attracting liquidated damages
in view of the contract entered into between the plaintiff and the
defendant. According to the defendant, the defendant has only
disallowed VAT credit portion due to late submission of invoice and had
made certain demands against the delayed supply as liquidated damages
and apart from this there is no shortage of payment as alleged by the
plaintiff. Where as, the plaintiff claims that there is shortage of payment
against invoice, but, failed to establish the same. It has to be seen due to
belated submission of invoice by the plaintiff, the defendant was not able
to obtain VAT credit within the stipulated period. Section 19(11) of TN
VAT Act provides that "if any registered dealer fails to claim input tax
credit in respect of transaction of taxable purchase in any month, he shall
make claim before the end of the financial year or before 90 days
whichever is later". This Court in a bunch of writ petitions challenging
the assessment order/show cause notices denying the credit taken in the
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revised returns involving Section 19(11) of TN VAT Act, held that
Section 19(11) actually relaxes the rigor of Rule 7 under which the
registered dealer is required to furnish correct and complete details of
Input Tax Credit on or before 20th of succeeding month. In addition to
filing of revised return under Rule 7(9), Section 19(11) enables the dealer
to make the Input Tax Credit before the end of the financial year or
before ninety days whichever is later. Section 19(11) not only effectuates
the provision of the Act, but is also more in the nature of the beneficial to
registered dealer. Therefore, the benefit of credit under the Act is in the
nature of a concession given which could be availed only in the manner
and in the circumstances mentioned in Section 19. Therefore, the
Legislature has given one more benefit which also is in the nature of a
concession in respect of registered dealer who failed to claim tax credit
in any month and they have been given time to make the claim till the
end of the financial year or before 90 days from the date of purchase,
whichever is later. Therefore, the word "shall" used in Section 19(11) of
the VAT Act is held to be mandatory and not directory. Therefore, from
the above observations, it is made clear that the word "shall" in Section
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19(11) of TN VAT Act is held to be mandatory and not directory. In the
bunch of writ petitions filed before this Court in the case of Usa
Agencies vs. Commercial Tax Officer reported in 2013 MLJ 6 142, it is
held that the word "shall" used in Section 19(11) of the TN VAT Act, is
held to be mandatory and not directory. The relevant portions are
extracted hereunder.
53. Section 19(11) of TN VAT Act provides that if any registered dealer fails to claim Input Tax Credit in respect of any transaction of taxable purchase in any month, he shall make the claim before the end of the financial year or before ninety days whichever is later. In our considered view, Section 19(11) actually relaxes the rigour of Rule 7 under which the registered dealer is required to furnish correct and complete details of Input Tax Credit on or before 20th of succeeding month. In addition to filing of revised return under Rule 7(9), Section 19(11) enables the dealer to make the Input Tax Credit before the end of the financial year or before ninety days whichever is later. Section 19(11) not only effectuates the provision of the Act, but is also more in the nature of the beneficial to registered dealer.
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54. We have held that the benefit of credit under the Act is in the nature of a concession given which could be availed only in the manner and in the circumstances mentioned in Section 19. Therefore, the Legislature has given one more benefit which also is in the nature of a concession in respect of registered dealer who failed to claim tax credit in any month and they have been given time to make the claim till the end of the financial year or before 90 days from the date of purchase, whichever is later. Therefore, the word shall used in Section 19(11) of the VAT Act is held to be mandatory and not directory.
---
63. Legislative entries in the Seventh Schedule to the Constitution have to be read in a broad and comprehensive sense to include all subsidiary and ancillary matters. An entry, which authorises the imposition of a tax, such as Entry 54 of List II, also authorises an enactment, which prevents the tax evasion or taking excess credit. Regulating the claim of Input Tax Credit is within the powers of legislative competence. The Legislature consciously enacted Section 19(11) of TN VAT Act with avowed object of incorporating the time-frame for availing the Input Tax credit. Prescribing
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such time frame for availing input tax credit is well within the legislative competence of the State.
---
84. The other bunch of writ petitions challenging the assessment order/show cause notices denying the credit taken in the revised returns involving Section 19(11) of TN VAT Act are not maintainable. The writ petitions challenging the constitutionality of Section 19(11) having failed the writ petitions challenging assessment orders/show cause notices have no legs to stand and therefore, they should necessarily fail.
13.1. Again in W.P. No.2972/2009 (Sri Laxmi Narasimma vs. The
Assistant Commissioner) and in W.P. No.10062/2009 (Bhavani vs. The
Commercial Tax), this Court has held that Section 19(11) of TN VAT Act
cannot be struck down as being either unreasonable or discriminatory.
13.2. In the judgment relied on the side of the respondent in the
case of M/s.TVS Motor Company Limited vs. The State of Tamil Nadu
and others it is held that Section 19(5)(c) is constitutionally valid; that
this provision was aimed at achieving a specific and justified purpose to
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protect the revenue against clandestine transaction resulting in invasion
of tax and could not be treated as discriminatory; that sale by a dealer
who is registered in the State of Tamil Nadu which is effected outside the
state of Tamil Nadu will qualify for ITC only when the said sale is made
to a registered dealer; that insofar sales to unregistered dealers, that too,
situated outside the state of Tamil Nadu, the State would not have any
mechanism to find out the genuineness of the sales; that in essence, the
State is put in the condition that ITC would admissible when form 'C' is
given, which can be given only in those cases where sale is to a
registered dealer and that prescribing such a condition in order to ensure
that there is no evasion, has a rationale purpose and objective (Tamil
Nadu Value Added Tax Rules, 2007 - Rule 19(9) (a)).
13.3. Therefore, the belated supply of invoice resulted in the
defendant ineligible from claiming VAT credit as per Section 19(11) of
TN VAT Act. Hence the Courts below were right in decreeing the suit in
part, which warrants any interference by this Court. Therefore, I do not
see any question of law much less a substantial question of law in order
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to enable me to entertain this appeal.
14. In the result,
i. The Second Appeal is dismissed. No costs.
ii. The judgment and decree dated 26.02.2019 passed in A.S. No.426
of 2018, on the file of the XVII Additional City Civil Court,
Chennai, confirming the Judgment and decree dated 08.12.2016
passed in O.S.No.3094 of 2015, on the file of the V Assistant City
Civil Court, Chennai, is upheld.
10.10.2025 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order bga
To
1. The XVII Additional Judge, City Civil Court, Chennai.
2. The V Assistant Judge, City Civil Court, Chennai.
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J bga
Pre delivery Judgment in
10.10.2025
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LatestLaws.com presents 'Lexidem Online Internship, 2026', Apply Now!