TaxTMI 
TaxTMI 
2013 (8) TMI 532
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...., 3231, 3232, 3736 to 3738, 4022, 4387, 4509, 4648, 4914, 4915, 6197, 6198, 7530 to 7532, 7539, 7540, 7873, 7883, 9935 to 9938, 10555 to 10557, 10564, 10565, 10912 to 10914, 12119 to 12123, 12549, 12550, 13044, 13045, 14535, 15804, 17118, 18530, 18743, 19005, 19756, 19775, 19891, 20806, 20864, 20921, 22498, 23381, 23779, 23822, 24060, 26806, 27968, 27969, 28897 to 28900, 30615, 30621, 31817, 31818, 31967, 33574, 33575, 33626 to 33630, 33863, 34543 and 34544 of 2012; and 1833 to 1835, 1932, 1933, 4655, 4656, 5269 to 5271, 5387 to 5390, 5568, 5569, 5668, 5669, 6302, 9524 to 9526, 10206, 12584, 14807, 14808, 15662, 15663, 15678, 16452, 16453, 16796, 16797, 16992, 16993 and 17993 to 17995, 18161, 18162, 19313 and 19314 of 2013 R. Banumathi And T. S. Sivagnanam,JJ. For the Petitioner : Mr. C. Natarajan,Sr. Counsel Mr. N. Inbarajan, Mrs. R. Hemalatha, Mr. K. Vaitheeswaran, Mr. P. Rajkumar, M/s. Lakshmi Sriram, Mr. P. V. Ravi Kumar, M/s. Aparna Nanda kumar, Mr. S. Prabhakaran, M/s. Hema Muralikrishnan, Mr. K. Soundararajan, Mr. S. Ramanathan, Mr. R. Senniappan, Mr. B. Raveendran, Mr.P. R. Kumar, Mr. L. Muralikrishnan, Mr. S. P. Radhakrishnan, Mr. A. Chandrasekaran, Mr. T. Pramodkuma....
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.... indicates mode of doing and Section 19(11) cannot whittle down the substantive right. Petitioners contend that Sections 20, 21, 22 and 25 of TN VAT Act, which deal with assessment of tax, filing of returns, procedure to be followed in assessment" do not provide for any time limit. While so, the time limit for securing Input Tax Credit under Section 19(11) of TN VAT Act is irrational and arbitrary. Section 19(10)(a) of TN VAT Act gives legal right to Input Tax Credit on receipt of tax invoice and Section 19(10)(a) and Rule 10(2) does not give time limit; whereas Section 19(11) of TN VAT Act prescribes time limit which is arbitrary and irrational offending Article 14 of the Constitution of India and has no nexus to any object of law. While the relevant provisions for assessment does not prescribe the time limit for assessment, Section 19(11) fixes time limit in an arbitrary manner. Contending that Section 19(11) is unworkable and is inconsistent with the general scheme of the Act, petitioners have challenged the vires of Section 19(11) of TN VAT Act. 5. Respondents resisted the writ petitions contending that there is nothing unreasonable or arbitrary in prescribing the time limit....
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....ons, the learned Senior Counsel submitted that the assessing authority is bound by the provisions of Section 3, including sub-sections (2) and (3) to determine the tax payable by the assessee and the right to tax reduction under Section 3(3) is indefeasible on proof of tax having been paid by a dealer on his purchase. In support of his contention that input credit is a substantive right and is indefeasible, reference was made to the decision of the Hon'ble Supreme Court in Commissioner of Central Excise vs. Home Ashok Leyland Limited [2007 (210) E.L.T. 178 (SC)]. 9. Without prejudice to the above submission, it was submitted that Section 19(11) deals with only one situation where the dealer fails to claim the credit inspite of having the tax invoice of the selling dealer, even when tax paid to the vendor and corresponding input credit stood ascertained at the time of filing the return. Reference was made to Blacks Law Dictionary and Advanced Law Lexicon to state that failure and default are synonymous expressions. Further, Section 19(11) does not apply in situations where there is no failure to seek credit, because the additional tax liability was incurred by the vendor, eit....
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....ax, as the provision begins with the word that tax payable under sub-section (2)..... thereby implying that liability to pay tax has already arisen by virtue of Section 3(2). The learned Advocate General placed reliance on the decision of the Bombay High Court in M/s.Mahalaxmi Cotton Ginning Pressing and Oil Industries vs. the State of Maharastra and Ors., [(2012) 51 VST 1 (Bom) = MANU/MH/0620/2012] and submitted that it is squarely applicable to the cases on hand. Reliance was also placed on the decision of the Division Bench of the Kerala High Court in Mohammed Haji Manachithodi Agencies vs. State of Kerala [2012 (3) KLT (SN) 17] and State of Rajasthan vs. Ghasilal, [AIR 1965 SC 1454]. It is urged that Section 3(3) grants a concession which can only be used to compute tax liability and it merely provides a factor to be considered at the time of computation of liability that has already arisen under Section 3(2). That the right under Section 3(3) is a concession and it is strictly to be governed by the manner prescribed under the statute which is Section 19 and the claim for Input Tax Credit is neither a fundamental right nor a common law right. It was submitted that the usage of ....
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....ended to Service tax levy. Since at both levels Value Added Tax (VAT) has been successfully integrated in the tax system, the same has now been extended to state sales tax levies. Tax on sale within the State is a State subject. Over the period, many distortions had come in the regime of sales tax due to heterogeneity prevailed in the structure of sales tax. In the Sales Tax regime, there were problems of double taxation of commodities and multiplicity of taxes resulting in a cascading tax burden. Many steps were taken to remove the distortion and rationalise the tax structure since 1999. It was decided to introduce uniform State Level VAT. 16. Introduction of VAT was difficult in India as sales tax is a State subject and sales tax on sales within the State can be levied under Entry 54 of List II by respective State Governments. Initially the States Governments were reluctant to introduce VAT in their respective States. After persuasion by Central Government, all States ultimately agreed to introduce the State Level Sales Tax - VAT at the Conference of Chief Ministers of all States at Delhi in November, 1999. A High Power Committee (termed as "Empowered Committee") consisting of....
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....of VAT is in providing set off for the tax paid earlier and this is given effect through the concept of Input Tax Credit/rebate. VAT is based on value addition to goods and related VAT liability of the dealer is calculated by deducting Input Tax Credit from tax collected on sales during the payment period. The Input Tax Credit was available on both manufacturer and the trader for purchase of inputs/supplies meant for both sale within the State and sale in the course of inter-State Trade. Consequently, it reduced the immediate tax liability. In cases where, tax credit exceeds the tax payable on sales in a month, the excess credit will be carried over. The entire design of VAT with Input Tax Credit is crucially based on documentation of tax invoice, cash memo or bill. There is a statutory obligation for every registered dealer having turnover of sales above the amounts specified to issue a tax invoice serially numbered containing the prescribed particulars. Failure to comply with the mandatory requirements attracts penalty. The basic simplification of VAT is that VAT liability will be self assessed by the dealer themselves in terms of submissions on returns upon setting of the credit....
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.... mean all kinds of movable property other than newspapers, actionable claims, stocks and shares and securities and includes all materials, commodities and articles including the goods etc. Sub-section (24) of Section 2 defines "input tax" as the tax paid or payable under this Act by a registered dealer to another registered dealer on the purchase of goods including capital goods in the course of his business". Sub-section (28) of Section 2 defines "output tax" as "tax paid or payable under this Act by any registered dealer in respect of sale of any goods". Section 3 deals with "Levy of taxes on sales of goods". Sub-section (3) of Section 3 provides for availing Input Tax Credit. Sub-section (3) of Section 3 provides for reduction of tax payable by a dealer to the extent of tax paid on his purchase of goods . 21. Section 19 deals with Input Tax Credit and the conditions/requirements to be complied with for claiming Input Tax Credit. Section 20 deals with assessment of tax . Section 21 deals with filing of returns in the prescribed form . Section 22 deals with deemed assessment and procedure to be followed by the Assessing Authority . Section 27 deals with assessment of escaped tu....
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.... of the goods specified in Part B or Part C, inside the State to the registered dealer, who sold the goods to him. Input Tax Credit is creature of Statute. Case of respondents is that petitioners have no absolute right to claim Input Tax Credit, but only a concession and when Input Tax Credit is only a concession, it is open to the Government to impose conditions for availing Input Tax Credit. 24. The controversy raised in these cases are whether Section 3(2) and Section 3(3) are both charging provisions. On behalf of the State, it is submitted by the learned Advocate General that Section 3(1) and 3(2) are alone charging sections and sub-section (3) of Section 3 is not a charging section, but only contemplates set-off of the tax to the extent indicated and in the manner prescribed and Section 19 deals with the mechanism for availing Input Tax Credit. 25. Section 19 of TN VAT Act stipulates conditions for claiming Input Tax Credit. Section 19 reads as under:- Section 19. Input tax credit.- (1)There shall be input tax credit of the amount of tax paid or payable under this Act, by the registered dealer to the seller on his purchases of taxable goods specified in the First ....
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....ed to revoke the same if it appears to the assessing authority to be incorrect, incomplete or otherwise not in order. (17) If the input tax credit determined by the assessing authority for a year exceeds tax liability for that year, the excess may be adjusted against any outstanding tax due from the dealer. (18) The excess input tax credit, if any, after adjustment under sub-section (17), shall be carried forward to the next year or refunded, in the manner, as may be prescribed. (19) Where any registered dealer has availed input tax credit and has goods remaining unsold at the time of stoppage or closure of business, the amount of tax availed shall be reversed on the date of stoppage or closure of such business and recovered. (20) Notwithstanding anything contained in this section, where any registered dealer has sold goods at a price lesser 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 entire design of VAT is Input Tax Credit which is crucially based on documentation of Tax Invoice. The tax sufferance proved by original tax invoice, production of original invoice,....
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....akhs. Sub-section (2) of Section 3 is the Charging Section. As per sub-section (2) of Section 3, ... subject to the provisions of sub-section (1), in case of goods specified in Part-B or Part-C of the First Schedule, the tax under TN VAT Act shall be payable by a dealer on every sale made by him within the State at the rate specified therein . Sub-section (3) of Section 3 provides for availing Input Tax Credit by a registered dealer to the extent of tax paid on his purchase of goods specified in Part-B or Part-C of the First Schedule, inside the State to the registered dealer, who sold the goods to him . The charging provision in the Statute is sub-section (2) of Section 3. 29. Learned Senior Counsel for petitioners contended that sub-sections (2) and (3) of Section 3 are the Charging Section and sub-section (3) of Section 3, which provides for availing Input Tax Credit is an integral part of sub-section (2) of Section 3. Learned Senior Counsel submitted that while tax payable under sub-section (2) of Section 3 by a dealer on every sale made by him is mandatory, the dealer as of right is entitled to claim Input Tax Credit and therefore, the Input Tax Credit provided under sub-se....
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.... 33. Similarly under sub-section (7) of Section 19, no input tax can be availed for goods purchased for business, but utilized for providing facility to proprietor, partner or Director, no ITC for purchase of all automobiles, no ITC for purchase of air conditioning units. Similarly, no input tax credit shall be allowed in respect of any goods purchased by a registered dealer for sale, but given away as free sample or gift or goods consumed for personal use. In terms of sub-section (9) of Section 19, no input tax credit is available in cases where goods are not sold because of theft or destruction or damage. In terms of sub-section (10) of Section 19, no registered dealer shall be entitled to claim ITC, unless he receives an original tax invoice. Sub-section (13) of Section 19 gives power to the assessing authority to deny ITC when it is found that fraud has been committed. 34. Thus from out of all taxable transactions stipulated under sub-section (2) of Section 3, certain transactions are carved out to give benefit of Input Tax Credit. Thus, having examined the manner and entitlement of ITC as per Section 19 of the Act, it can hardly be said that the right to claim ITC is a ves....
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.... Rules enable the manufacturing dealer to claim set-off of the tax paid by him on the purchase of raw materials from out of the tax payable by him on the sale of goods manufactured from out of the said raw material. ...... ......... 9. ......... In law (apart from Rules 41 and 41-A) the appellant has no legal right to claim set-off of the purchase tax paid by him on his purchases within the State from out of the sales tax payable by him on the sale of the goods manufactured by him. It is only by virtue of the said Rules which, as stated above, are conceived mainly in the interest of public that he is entitled to such set-off. It is really a concession and an indulgence. More particularly, where the manufactured goods are not sold within the State of Maharashtra but are despatched to out-State branches and agents and sold there, no sales tax can be or is levied by the State of Maharashtra. The State of Maharashtra gets nothing in respect of such sales effected outside the State. In respect of such sales, the rule-making authority could well have denied the benefit of set-off. But it chose to be generous and has extended the said benefit to such out-State sales as well, subject....
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....only in the manner prescribed under Section 19. Law is well settled that the person, who claims exemption or concessional rate, must obey and fulfil the mandatory requirements exactly. Unless there is strict compliance with the provisions of the statute, the registered dealer is not entitled to claim Input tax credit'. Apart from Section 19 of TN VAT Act, there is no independent right to claim Input tax credit . When Section 19(11) stipulates time frame for availment of Input tax credit, the registered dealer must strictly follow the mandatory requirements of the provision. 39. The availment of Input Tax Credit is creature of Statute. The concession of Input Tax Credit is granted by the State Government so that the beneficiaries of the concession are not required to pay the tax or duty which they are otherwise liable to pay under TN VAT Act. While so extending the concession, it is open to the Legislature to impose conditions. Section 19(11) is one such condition imposed making it mandatory for the registered dealer to claim Input Tax Credit before the end of the financial year or before ninety days from the date of purchase, whichever is later. The entitlement to claim Inpu....
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.... be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption. The same principle was reiterated in (2009) 12 SCC 735 [Commissioner of Customs (Preventive), Amristar v. Malwa Industries Ltd.]. 42. In (2005) 2 SCC 129 [India Agencies (Regd.), Bangalore v. Additional Commissioner of Commercial Taxes, Bangalore], the Hon'ble Supreme Court emphasised that in case of Inter-State sales, the provision for furnishing original Form-C to claim concessional rate of tax under Section 8(1) of Central Sales Tax Act, 1956 is mandatory and that dealer has to strictly follow the procedure . Referring to the decisions in (1965) 3 SCR 626 : AIR 1966 SC 12 [Kedarnath Jute Mfg. v. C.T.O.] and (1997) 10 SCC 486 [Delhi Automobiles (P) Ltd. v. C.S.T.], it was held that to claim concessional rate of tax, provisions have to be strictly construed and that unless there is strict compliance with the provisions of the Statute....
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....ecision of the Division Bench of this Court was confirmed by the Hon'ble Supreme Court reported in 2007 (210) E.L.T. 178 (SC) [Commissioner of Central Excise, Madras v. Home Ashok Leyland Limited]. Reliance is placed upon the above said decision (2007 (210) E.L.T. 178 (SC)) to contend that Section 19(11) being procedural, cannot be construed to limit the right of registered dealer to take Input Tax Credit for which the dealer has substantive right under sub-section (3) of Section 3 of TN VAT Act. 46. Section 19(11) being part of Section 19 which is the mechanism for working out Input Tax Credit, cannot be said to be merely procedural. As pointed out earlier, as per Rule 7 of Tamil Nadu Value Added Tax Rules, return for each month in Form-I to be filed on or before 20th of the succeeding month to the Assessing Authority. In Form-I, the dealer is to furnish the correct and complete details of (i) Input Tax Credit; (ii) Tax payable; (iii) Capital goods; (iv) Ouput items and other relevant details indicated in Form-I. If there is any omission or error therein, other than as a result of inspection or audit or receipt of any other information or evidence by the Assessing Authority....
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....ase in any month. If a dealer avails such benefit and makes a claim for input tax credit within the end of the financial year or before 90 days from the date of purchase whichever is later then such claim has to fall within one of the categories mentioned in Section 19 to qualify for credit. Therefore, even in such cases of belated claim within the time permitted under sub-section (11) of Section 19 the claim is not automatic and should satisfy the other stipulation as contained in Section 19. This is one more reason for us to hold that Section 19 is a substantive provision and not a machinery provision. 50. Re.contention : Section 19(11) is not consistent with the other provisions of the Act:- Ms.Hemalatha, learned counsel for petitioners contended that when the Assessing Officer passes an order under Section 22(6)(a) or under Section 25(1) or under Section 27, Section 19(11) would operate as an embargo to the registered dealer in claiming Input Tax Credit which would prejudicial to the registered dealer. Learned counsel further submitted that in respect of Inter-State sale, the assessee is entitled to 3% levy (now reduced to 2%) on production of C Form. Learned counsel further su....
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....e omission or error within the period of six months from the last date of relevant period to which the return relates. 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. 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 ....
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....ut Tax Credit. 58. Rule 8 of the VAT Rules deals with 'procedure for assessment'. Rule 8(6) states that after assessment or revision of assessment under Sections 22, 24, 27, 28 or 29 of the Act, the assessing authority shall serve on the dealer a demand notice in Form O, after adjusting the eligible input tax credit. Rule 10 gives the formula to be adopted for calculating the Input Tax Credit. If the tax due on assessment or revision of assessment, after adjustment of eligible Input Tax Credit, is lower than the tax already paid, the assessing authority shall serve upon the dealer a notice in Form P, informing the dealer of the adjustment of excess tax towards the arrears or the refund of the amount, as the case may be. In terms of Rule 8(6), after assessment or revision of assessment under Section 22, 24, 27, 28 or 29 of the Act, the Assessing Authority is to follow the procedure laid down in Rule 8(6) by serving appropriate notice. Therefore, the contention raised by the petitioners that in the event of the assessment or re-assessment under Section 22, 24, 27,28 or 29, Section 19(11) acts as an embargo is liable to be rejected. Section 19(11) is neither inconsistent no....
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....tute is challenged, Courts must make every effort to uphold the constitutional validity of a statute. In Government of Andhra Pradesh v. P.Lakshmi Devi, (2008) 4 SCC 720, the Hon'ble Supreme Court has observed as under: "The Court must, therefore, make every effort to uphold the constitutional validity of a statute, even if that requires giving the statutory provision a strained meaning, or narrower or wider meaning, than what appears on the face of it. It is only when all efforts to do so fail should the court declare a statute to be unconstitutional." 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 such time frame for availing input tax cred....
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....sokan, learned counsel for petitioners placed reliance upon AIR 1962 SC 113 [Bhikraj Jaipuria v. Union of India] and (2005) 139 STC 74 [State of Jharkhand and others v. Ambay Cements and another]. 67. Referring to the principles as to Statutory Construction and observing that the word shall in Statute though generally taken in mandatory sense does not necessarily mean that in every case it shall have that effect, in AIR 1957 SC 912 [Manbodhan Lal Srivasgava v. State of U.P.], the Hon'ble Supreme Court held as under:- 11. .... Hence, the use of the word shall: in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word may has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on Statutory Construction - Art. 261 at p.516 is pertinent....
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....of 2006, those provisions were not mandatory but directory and they did not take away or curtail the power of the Court to take a written statement on record though filed beyond the 90 days period. 71. Filing of written statement under Order VIII, Rule 1 is a provision contained in the Code of Civil Procedure and belongs to domain of procedural law. Since it is a part of procedural law, although Order VIII, Rule 1 C.P.C. stipulates a time within which the written statement has to be presented, the Hon'ble Supreme Court held that the word shall used were not mandatory but directory. The nature, object and purpose of Section 19(11) of TN VAT Act which is a pre-condition for claiming Input Tax Credit is completely different from the provision of Order VIII, Rule 1 C.P.C. and therefore, the above decision is of no assistance to the petitioners in the present cases. Like wise, in all other decisions, the Hon'ble Supreme Court has taken a view that it is directory only in the light of those enactments which were under consideration. 72. Applying the principles of interpretation, the test to ascertain whether the word shall used in Section 19(11) has to be examined upon the ....
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....from some sense which may be said to carry out the supposed intentions of the Legislature. The intention of the Legislature is to be gathered only from the words used by it and no such liberties can be taken by the Courts for effectuating a supposed intention of the Legislature. [Vide AIR 1959 SC 459 (Sri Ram Ram Narain Medhi v. State of Bombay]. Any interpretation that Section 19(11) is not mandatory but directory would not be an interpretation in consonance of the scheme of the Act. 77. In (1987) 1 SCC 424 [Reserve Bank of India v. Pearless General Finance and Investment Company Limited], the Hon'ble Supreme Court held that a Statute is best interpreted when we know why it was enacted. The reason being Section 19(11) was enacted because the Legislature consciously wanted to set up a time frame for availment of Input Tax Credit accrued on purchases before the end of the financial year or ninety days from the date of purchase whichever is later. 78. On behalf of the petitioners, it was submitted that the impugned provision does not take into account the commercial realities as in the cases of Modvat or Cenvat Credit Rules with the in-built flexibility and therefore, Secti....
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.... excess Input Tax Credit of a year being adjusted for the outstanding tax liability or excess Input Tax Credit being carried forward or refunded for each financial year, necessarily the Assessing Authority has to complete the accounts. It is in consonance with the scheme of the Act. 82. The Legislature consciously enacted Section 19(11) of TN VAT Act with avowed object of incorporating the time frame for availing Input Tax Credit before the end of financial year or ninety days from the date of purchase whichever is later. The provision is for safeguarding the interest of the revenue and to prevent the cascading effect of tax burden on the ultimate consumer. Therefore, we are of the view that Section 19(11) is mandatory and its contravention will result in forfeiture of the concession of availments of Input Tax Credit. 83. Value Added Tax structure has the ultimate goal of augmenting the revenue by making the procedure simple and more transparent. Legislature in its wisdom mandated time frame for availment of Input Tax Credit accrued on purchases before the end of the financial year or ninety days from the date of purchase whichever is later. Section 19(11), being mandatory, t....