TaxTMI 
TaxTMI 
2013 (4) TMI 215
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....t is of the view that there is a gross error on the part of the authority in holding that the petitioner is liable for the non-payment of tax by the selling dealer. This apparently is a mistake which is admitted in the pre-revision notices and in the orders themselves. Therefore, the Court, in exercise of power under Article 226, is entitled to correct such gross injustice, arbitrariness and error apparent on the face of record. 3. The petitioner in these cases is a dealer in lubricants and has a valid TIN number issued by the respondent. The three assessment years relate to 2008-09, 2009-10 and 2010-11. In all these cases, the petitioner purchased lubricants from M/s Classic Enterprises, falling under the jurisdiction of the Assistant C....
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....for claiming input tax credit at the time of self-assessment itself. The first respondent, after three years, has come to a different conclusion that the petitioner is not entitled to avail the input tax credit on the plea that the selling dealer did not file Form-I returns and did not pay the tax. Hence, the revision notices and the proposed penalty were hotly contested as improper, arbitrary and contrary to the provisions of the TNVAT Act. To further clarify the position, the specific objections of the petitioner are as follows:- "We further state that M/s Classic Enterprises are still existing dealer till date and continuing business and also state inter alia that we had already stated before the Enforcement Wing officials that ....
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....ity also went on to hold that merely holding that tax would have been paid will not help the buyer to claim ITC credit. According to the department, the tax due on purchases were not paid by the selling dealer and that was admitted by the dealer before the enforcement wing officials at the time of inspection. In the impugned orders, the first respondent has stated that after inspection on 13.7.2010, when the enforcement officials pointed out the said mistake of the selling dealer to the petitioner, the petitioner herein has not raised an issue with their dealer, and the proof for such objection to the selling dealer has not been filed along with the objections. Peculiarly, the first respondent-authority went on to hold as follows:- ....
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....he registered dealer, who claims input tax credit, shall establish that the tax due on such purchase has been paid by him in the manner prescribed. (16). The input tax credit availed by any registered dealer shall be only provisional and the assessing authority is empowered to revoke the same if it appears to the assessing authority to be incorrect, incomplete or otherwise not in order." At the time of filing the self-assessment return under Section 22(2), the petitioner has followed the relevant rule viz., Rule 10(2) of the Tamil Nadu Value Added Tax Rules and the said rule reads as follows:- "10(2). Every registered dealer who claims input tax credit under sub-section (1) of Section 19 shall, produce the original tax ....
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....tened on the selling dealer. It cannot be mulcted on the petitioner-purchasing dealer, which had shown proof of payment of tax on purchases made. 9. Sub-section (16) of Section 19 states that the input tax credit availed is provisional. It, however, does not empower the authority to revoke the input tax credit availed on a plea that the selling dealer has not paid the tax. It only relates to incorrect, incomplete or improper claim of input tax credit by the dealer. It is not so in these cases. In the present case, the petitioner-dealer, admittedly, had paid the tax to the selling dealer and claimed input tax credit and that was accepted at the time when the self-assessment was made. Even the pre-revision notices and the orders under chal....