TaxTMI 
TaxTMI 
2013 (5) TMI 727
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....u Value Added Tax Act, 2006, hereinafter referred to as 'the TNVAT Act'. Subsequently, by notice dated 5.8.2011, the first respondent proposed to disallow the input tax credit (for short, 'the ITC') availed of by the petitioner during the months of April, May and June 2007 to an extent of Rs. 27,41,385/-. The notice also contained certain other adverse proposals, which are not disputed by the petitioner in the present writ petition. (b) To the above notice, the petitioner submitted objections, vide letter dated 24.8.2011. By an order dated 7.10.2011, the first respondent confirmed the proposal to treat the sum of Rs. 27,41,385/- as ineligible credit and also issued a notice of assessment and demand in Form-O for that amount. (c) Aggrieved by the said order dated 7.10.2011, the petitioner filed First Appeal before the second respondent, which was numbered as A.P.No. 9 of 2011 and it was taken up for final hearing on 11.12.2012. The only dispute in the appeal related to the reversal of ITC of Rs. 27,41,385/- ordered by the first respondent. Before filing the appeal, the petitioner reversed the ITC amount of Rs. 27,41,385/- while filing their monthly returns for ....
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.... the credit which is provisional under Section 19 (16) of TNVAT Act '06 with the disputed tax due to be payable by the Appellants in connection with the appeal filed. The most possible reason for admission of the appeal petition is that this is the first case under TNVAT Act '06 in respect of this dealer Tvl. K.S.B. Pumps and also the first case where instead of paying 20% disputed tax separately, adjusted with ITC which is also in dispute. Because of this reason, it has been clearly mention in the appeal order in Para 5 (6th sentence) which reads as follows : "Though the appeal petition has been admitted inadvertently, before disposing the appeal petition, it is necessary to verify whether such appeal eligible to be heard and orders passed at any point of time before passing any order." With reference to the claim of the Appellants in the writ petition that the Appeal petition would have been returned demanding 25% of the disputed tax, it is submitted that the appellants filed the appeal petition only on the last day ( i.e. 30th day of the receipt of the assessment order) 30.11.2011. Had the appeal petition was returned as claimed by the appellants, any payment....
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.... an order dated 13.05.2011. However, by a notice dated 5.8.2011, the 1st respondent proposed to disallow the input tax credit availed by the petitioner during the months of April, May and June 2007 to an extent of Rs. 27,41,385/-. Petitioner submitted its explanation on 24.08.2011. But, by his order dated 7.10.2011, the 1st respondent confirmed the proposal and issued a notice of assessment and demand for that amount. Petitioner went before the 2nd respondent in appeal A.P. No: 9 of 2011. Though the 2nd respondent heard the petitioner on merits, by its order dated 21.12.2012, declined to hear the appeal on merits and dismissed the appeal in toto as not maintainable. The reason for coming to such a conclusion, as stated by the 2nd respondent in its order dt. 21.12.2012, is that the appellants have not fulfilled the condition specified under second proviso to Section 52 of the T.N.V.A.T. Act by paying 25% of the disputed tax while filing the appeal. Challenging such an order, the petitioner is before this Court. 8. It is necessary to state here that before filing the appeal, the petitioner has reversed the ITC amount of Rs. 27,41,385/- while filing their monthly returns for the mo....
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....of time before passing any order. Perusal of the appeal petition revealed the fact that the appellants, instead of paying 25% of the disputed tax separately, they have filed a copy of the monthly returns pertaining to the month of October 2011 as a proof of payment required for filing the appeal. In the copy of the returns filed, the appellants made a reversal of ITC to the extent of Rs. 28,03,891.00 which included the value of Rs. 27,41,385.00 being the disputed reversal of Input Tax Credit made in this appeal. The appellants made reversal of Input Tax Credit out of the ITC carry forward relating to the month of September 2011 and the ITC accrued during the month of October 2011. While doing so, the appellants have shown in the return that ITC accrued during the month of November 2011 has reduced from Rs. 26,82,675.00 to Rs. -1,21,216.00 and also arrived corresponding turnover as Rs. -1,75,05,117.00. Thus the appellants instead of paying disputed tax separately, reversed the disputed ITC and shown as proof of payment to the Department. Using the available ITC on hand, the appellants adjusted the 25% of the disputed tax payable in the appeal by reversing the entire disputed ITC. As....
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....ppropriate here to look into the relevant proviso to Section 52 of the T.N.V.A.T. Act. Second Proviso to Sec. 52 reads as under : " 52. Appeal to Appellate [Joint] Commissioner :- .... ..... ...... .... ..... ..... Provided further that in the case of an order under Section 22, Section 24, Section 26 or sub-sections (1), (2), (3) and (4) of Section 27, Section 28, or Section 29, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be and twenty-five per cent of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant. " Thus, it is clear from the above proviso that, no appeal can be entertained unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be and twenty-five per cent of the difference of the tax assessed by the assessing authority and the tax admitted by the appellant. Admittedly, such payment of 25% has....