2017 (3) TMI 826

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....crores five lakhs eighty four thousand and rupee one only) pertained to tax, while the balance amount related to interest and penalty levied under Section 27(3) of the Tamil Nadu Value Added Tax Act, 2006 (in short the 2006 Act). 2.2. Furthermore, it has also been observed by me, in the very same order, that out of the tax imposed, via the impugned orders, equivalent to Rs. 2,05,84,001/-, a sum of which, Rs. 1,83,36,064/- (Rupees one crore eighty three lakhs thirty six thousand and sixty four only), was sought to be recovered on the ground that there was a mismatch in the information, which was available on the Department's website, qua, the sellers, and that, which was reflected in the monthly returns of the petitioner. 2.3. Apart from what is stated above, a perusal of the record would show that a sum of Rs. 1,70,013/- (Rupees one lakh seventy thousand and thirteen only), is sought imposed as tax liability, on account of cancellation of registration certificate of the sellers. 3. As a matter of fact, the petitioner has given this information in a tabular chart incorporated in paragraph 10.1 of the affidavit accompanying the writ petition. For the sake of convenience,....

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....contention of the petitioner is that the respondent/Assessing Officer passed the impugned orders, without affording a personal hearing in the matter to the petitioner. 5.5. Learned counsel further submitted that in these circumstances, he is authorised to convey to the Court that in respect of the tax demanded qua other issues, the same will be deposited with the respondent/Assessing Officer, albeit, without prejudice to the rights and contentions of the petitioner to contest the same. 5.6. Learned counsel for the petitioner, thus, submits that the grievance of the petitioner could be assuaged without effecting the interest of the Revenue, by setting aside the impugned orders, with liberty to the respondent/Assessing Officer to redo the assessment, after affording due opportunity to the petitioner to place the relevant material on record. 6. Mr.K.Venkatesh, who appears for the respondent, on the other hand, submitted that a statutory remedy by way of an appeal, under Section 51 of the 2006 Act, is available to the petitioner, and therefore, these petitions should not be entertained. 6.1. Learned counsel says that this is, especially so, as despite being given an opportu....

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....mmunication dated 07.10.2016, calling upon the petitioner to file its objections, within seven (7) days, from the date of the said notice, failing which, orders would be passed, based on the proposals given in the pre-assessment notice. 8.7. It is the petitioner's case that this communication was received by it, on 15.10.2016. 8.8. Admittedly, as indicated above, the petitioner did not file its objections, which led to the impugned assessment orders being passed. Consequently, the proposals made in the pre-assessment notices were confirmed. 9. The petitioner being aggrieved by the impugned assessment orders has preferred the captioned writ petitions under Article 226 of the Constitution. AREAS OF CHALLENGE AND DISCUSSION : 10. The broad areas of challenge, articulated by the petitioner, are as follows : 10.1. That the actions of the selling dealers could not emasculate the right of the petitioner to claim ITC. The fact that the information concerning the selling dealers did not match with the information provided by the petitioner in its monthly returns, could not automatically lead to the conclusion that the transactions were bogus and/or were not genuine. Di....

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.... Marks, [1998] 8 SCC 1. 11. Consistent with the stand taken before me, counsel for the petitioner specifically stated that the petitioner would be willing to deposit a sum of Rs. 20,77,924/- (Rs.2,05,84,001.00 - Rs. 1,83,36,064.00) towards disputed tax, though, without prejudice to its rights and contentions. 12. On the other hand, Mr.K.Venkatesh, who appears for the respondent, noticed above, submitted that in view of the remedy of appeal being available under Section 51 of the 2006 Act, the present writ petitions ought not to be admitted. 12.1. Furthermore, learned counsel had also emphasized the fact that despite adequate opportunity being given the petitioner had chosen not to file objection. In this behalf, reference was made to the notice dated 29.07.2016 and 07.10.2006 issued by the respondent/Assessing Officer. 12.2. For all these reasons, learned counsel for the respondent submitted that no interference was called for in the impugned assessment orders. 13. The facts, which have been set out above, would show that the large part of the liability imposed on the petitioner on account of tax, interest and penalty relates to reversal of ITC. The reversal of ITC, ....

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....do-   1061 13.12.2012 -do-   1092 25.01.2013 -do-   1071 26.12.2012 -do-   1081 08.01.2013 -do-   1091 19.01.2013 -do-   1109 26.02.2013 -do-   1110 26.02.2013 -do- 2013-14 51 17.04.2013 31.03.2013   1144 18.03.2013 07.09.2013   1161 23.05.2013 -do-   1188 01.07.2013 -do-   1251 23.08.2013 -do-   1282 24.09.2013 -do-   1299 11.10.2013 -do-   1309 30.10.2013 -do-   191 30.04.2013 29.04.2013   198 2.5.2013 -do-   213 4.5.2013 -do-   232 7.5.2013 -do-   239 8.5.2013 -do-   248 9.5.2013 -do-   257 10.5.2013 -do-   278 14.5.2013 -do-   296 16.5.2013 -do-   305 17.5.2013 -do-   316 17.5.2013 -do-   318 18.5.2013 -do-   320 18.5.2013 -do-   321 18.5.2013 -do-   326 19.5.2013 -do-   ....

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....ve to examine, in the light of the observations made hereinabove and the judgements of this Court rendered in : Sri Vinayaga Agencies V. The Assistant Commissioner (CT), [2013] 60 V.S.T. 283 (Mad.); Indian Products Ltd., V. The CTO, 2016 (11) TMI 1320 (Mad.); and the order dated 12.01.2017, passed in W.P.No.1009 of 2017, titled : International Flavours and Fragrances India Pvt. Ltd., V. The Assistant Commissioner (CT). 15.1. Consequently, the mere fact that objections had not been filed cannot give jurisdiction to the respondent/Assessing Officer to confirm the proposals. The respondent/Assessing Officer is required to come to a definitive conclusion before reversing the ITC that the subject transaction was bogus and/or not genuine, based on cogent and substantial material. Furthermore, if, such material was available with respondent/Assessing Officer, it had to be supplied to the petitioner. 15.2. The observations, in this regard, were made in the order dated 01.02.2017, passed in W.P.No.2325 of 2017, titled : Tvl.Sun Powers rep. by its Proprietrix V. The Commercial Tax Officer. The relevant observations are extracted hereafter :  "...... 7. The respondent i.e., Asse....