TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 144
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....0.2016 2010-11 3.In the following Writ Petitions, the petitioner has challenged the impugned orders passed for the above mentioned Assessment Years and for the Assessment Years 11-12 to Assessment Years 2015 to 2016 on the ground that the orders have been passed in variance with the demand proposed in the notices:- Table-2 Sl. No W.P.No Impugned Notice No Dated Assessment Year 6 W.P.No.42543/2016 TIN/33590540639/2006-2007 28.10.2016 2006-07 7 W.P.No.42545/2016 TIN/33590540639/2007-2008 28.10.2016 2007-08 8 W.P.No.42547/2016 TIN/33590540639/2008-2009 28.10.2016 2008-09 9 W.P.No.42549/2016 TIN/33590540639/2009-2010 28.10.2016 2009-10 10 W.P.No.42552/2016 TIN/33590540639/2010-2011 28.10.2016 2010-11 11 W.P.No.42569/2016 TIN/33590540639/2011-2012 28.10.2016 2011-12 12 W.P.No.42570/2016 TIN/33590540639/2012-2013 28.10.2016 2012-13 13 W.P.No.42571/2016 TIN/33590540639/2013-2014 31.10.2016 2013-14 14 W.P.No.42572/2016 TIN/33590540639/2014-2015 31.10.2016 2014-15 15 W.P.No.42573/2016 TIN/33590540639/2015-2016 31.10.2016 2015-16 4. Petitioner's Head Office was inspected by the Enforce....
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....g to the learned counsel for the petitioner, for the Assessment Years 2006-2007 upto 2010-2011, the Assessments were not completed as was required under Section 22 of TNVAT Act, 2006 as it stood upto 2012. 13. He submits that Section 22 of the TNVAT Act, 2006 was amended in 2012 with effect from 19.06.2012. As per the amended provision, if no Assessment Orders were passed for the Assessment Years 2006-2007 upto 2010-2011, returns shall be deemed to have been assessed on 30.06.2012 based on the returns filed. It is therefore submitted that since assessment are deemed to have been completed, the respondent cannot issue notice to deny credit particularly on account of their inability to assess and on account of the fact that the petitioner was not required to maintain the accounts for a period of 5/6 years as per Section 64 of the Act. 14. The learned counsel further submits that the interim order which was granted by this Court on 02.12.2016 merely stayed the recovery proceedings and it did not prevent the respondent to re-open the assessment. It is further submitted that the respondent cannot be allowed to improvise the allegation in the Show Cause Notice by adding new grounds whi....
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....essment under Section 27 of the TNVAT Act, 2006, the period during which the proceedings of assessment or reassessment are stayed alone under the orders of the Civil Court or other competent authority shall be excluded and therefore the respondent cannot improvise the case to make a new demand. 19. It is further submitted that Section 27(7) and 27(8) will apply to the facts of the present case. The imposition of penalty of 300% under Section 27(4) of the TNVAT Act is also impermissible as it has come into force with effect from 29.01.2016 and therefore penalty under Section 27(4) is liable to be dropped. 20. Countering the arguments advanced on behalf of the Petitioner, the learned counsel for the Respondents submits that as per Section 64(5) of the TNVAT Act, 2006 the Officers while conducting audit, can call upon a registered dealer to furnish the documents that are necessary for the purpose of audit. 21. It is further submitted that under Section 64(2)(b) of the TNVAT Act, 2006,expression used is "ordinarily". The petitioner was required to maintain records till the assessment are completed and period of re assessment is over. In this case, the assessment is deemed to have be....
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....iod of 5 years from the date of assessment order reverse input tax credit availed and determine the tax due after making such an enquiry, as may be considered necessary. 29. As there was scope for reopening the assessment under Section 27 of the TNVAT Act, 2006, it was incumbent on the part of a registered dealer to retain records until the expiry of period prescribed therein. 30. As per Section 64(2) of the TNVAT Act, 2006 also a registered dealer was required to ordinarily maintain the accounts at the designated place for a further period of 5 years (later 6 years effect from 29.1.2016). The expression "ordinarily" would include a period of 5 years (later 6 years) after the assessment was completed. 31. Therefore, in case of Assessment Years between 2006 to 2011 where assessment was not completed, a registered dealer was required to maintain accounts upto a period of 5 years from 30.6.2012 which period was increased to six years. 32. Further, as per Section 19(6) of the Tamil Nadu VAT Act, 2006 the input tax credit availed was provisional. It could be revoked by the assessing officer if it appeared to the said officer that the credit availed was incorrect, incomplete or othe....
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....ed to produce any document to substantiate the credit. 39. At the same time, I also do not find any grounds to sustain the impugned orders for it has not considered implication of the amendment to Section 19 of the Tamil Nadu VAT Act, 2006. 40. It is further noticed that though the impugned orders beyond the scope of the proposal in the revision notice, it is not an independent and new issue. It is intertwined with the powers to deny credit on account of the failure to comply with the requirement of Section 19 of the Act. However, the respondent had failed to co-operate during inspection and therefore revision notice could not be issued to articulate the proposal clearly. 41. Therefore, I am inclined to quash the impugned orders and remit the case back to the respondent. The impugned orders which stands quashed therefore shall be treated as Show Cause Notice. 42. The petitioner is therefore relegated back to the respondent to answer the issues. The petitioner is therefore directed to file its objection and produce documents that are required for scrutiny before the respondent within a period of 60 days from the date of receipt of copy of this order. 43. If desired the responde....