TaxTMI 
TaxTMI 
2024 (3) TMI 268
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...., 2017). 4. The specific case of the petitioner is that the petitioner is a Works Contractor, who had rendered Works Contract Service. It is submitted that the employer who had employed to the petitioner as a Works Contractor had deducted Tax Deducted at Source (TDS) amount under Section 13 of the Tamil Nadu Value Added Tax Act, 2006 (In short TNVAT Act, 2006) and this Tax Deducted at Source was transitioned under Section 140 of the TNGST Act, 2017, along with the "purchase tax" paid by the petitioner, which was availed as Input Tax Credit (In short ITC). 5. It is further submitted that tax transmitted was wrongly denied by the respondent vide the impugned Assessment Order dated 27.04.2021. 6. The petitioner has now filed this writ petition after the petitioner received the second mentioned final demand notice/final order dated 21.06.2023, calling upon the petitioner to pay the amount confirmed vide the impugned Assessment Order dated 27.04.2021 towards arrears of tax. 7. The learned counsel for the petitioner submits that the law on the subject is clear. He further submits that the petitioner was entitled to transition the credit of ITC lying unutilized in the VAT Account on 3....
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....958] 1 SCR 595; ii. Oil & Natural Gas Corporation Limited Vs. Gujarat Energy Transmission Corporation Limited and others, (2017) 5 SCC 42; iii. Assistant Commissioner of State Tax Vs. Commercial Steel Limited, (2021) 88 GST 799 (SC); iv. Godrej Sara Lee Limited Vs. The Excise and Taxation Officer-cum-Assessing Authority and others, [2023] 109 GSTR 402(SC). v. State of Tamil Nadu Vs. M/s.Everest Industries Limited, the Division Bench of this Court in W.A.No.1260 of 2017 dated 31.03.2022. 12. A specific reference is made to Paragraphs 148 to 150 in State of Tamil Nadu vs. M/s.Everest Industries Limited, which reads as under:- "148. Insofar as W.A Nos.1446 and 1447/2021 are concerned, the same have been preferred against the orders of the learned Judge dismissing the writ petitions as barred by limitation, based on the decision of the Apex Court in Glaxo Smith Kline Consumer Health Care Pvt lTd. 149. It is brought to the knowledge of this court, a subsequent judgment of a Co-ordinate Bench of this court in W.A No.493/2021, wherein after considering the observations of the Hon'ble Apex Court, it was held that "no bar has been imposed by the Apex Court in entertaining a wri....
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.... other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose. ...... 19........ Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non compliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all. 6. On a reading of the above extracted paragraphs, it is seen that the Hon'ble Supreme Court, after referring to the decision of the Constitution Bench in the case of Thansingh Nathmal, held that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self imposed restra....
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....ingle Judge to the effect that there is absolute bar for entertaining a writ petition does not reflect the correct legal position. Hence, we are inclined to interfere with the observation made in the impugned order.? 150. With utmost respect, the Hon'ble Supreme Court has held that such writs should not be entertained as a matter of course, even though, the court has wide powers under Article 226 of the Constitution. The writ court ought to have seen that the High Court under Article 226 of Constitution is rather circumscribed by the theory of laches and not by limitation, because the Constitution is above a statute as held by the Apex Court in the Judgment in the matter of Samjuben Gordhanbhai Koli Vs State of Gujarat, reported in MANU/SC/0826/2010. The effect of ?laches? depends upon the facts of each case and is left to the discretion of the court to either reject or entertain a writ petition. In taxing matters, whenever a levy or demand is made without authority of law, the court would be within its power to set aside the same, because any illegality cannot be perpetuated on technicalities. Further, as per the provisions of the TNVAT Act, Section 84 empowers rectification of ....
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....er of course. Doing so would be in the teeth of the principle underlying the dictum of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose." 16. A further reference is also made to Paragraph 17 in Glaxo Smith Kline Consumer Health Care Limited, wherein, the decision of the Hon'ble Supreme Court in M/s.ITC Limited and another Vs. Union of India and others, (1998) 8 SCC 610, has been distinguished. 17. It is further submitted that in Paragraph 18 of the aforesaid case, the Hon'ble Supreme Court has clarified the position that the writ petition cannot be entertained assailing the Assessment Order beyond the statutory period of limitation prescribed for filing an appeal. 18. The learned Additional Government Pleader for the respondent submits that the writ petition challenging the impugned order on the ground of princ....
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....y appeal could not be filed under Section 107 of the TNGST Act, 2017. 24. There is reasonable case for accepting the explanation of the petitioner for not having filed an appeal in time under Section 107 of the TNGST Act, 2017. The decision of the Hon'ble Supreme Court in the above case was rendered before the outbreak of Covid-19 Pandemic and therefore, statutory appeal cannot be applied for the orders passed during pandemic. 25. On perusing the records, there is also no doubt that the petitioner was entitled to ITC on Section 12(2) of the TNVAT Act, 2006. To that extent, there is merits in the submission of the petitioner. 26. If ITC was validly availed by the petitioner on "purchase tax" paid by the petitioner under Section 12(1) of the TNVAT Act, 2006 and same was remaining un-utilized, the petitioner was entitled to transition the same under Section 140 of the TNGST Act, 2017 as transitional credit. 27. The petitioner is therefore justified in assailing the impugned Assessment Order although the limitation to file an appeal had expired long back. 28. In so far as transition of Tax Deducted at Source (TDS) under Section 13 of the TNVAT Act, 2006, on Works Contract rend....
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.... concerned that he has no liability to pay or has paid the tax under section 5: Provided further that no such deduction shall be made under this section, where the amount or the aggregate of the amount paid or credited or likely to be paid or credited, during the year, by such person to the dealer for execution of the works contract including civil works contract does not or is not likely to, exceed rupees one lakh. Explanation.-For the purpose of this Section - (a) the term ' person' shall include - i. the Central or a State Government; ii. a local authority; iii. a corporation or body established by or under a Central or State Act; iv. a company incorporated under the Companies Act, 1956 including a Central or State Government undertaking; v. a society including a co-operative society; vi. an educational institution; or vii. a trust; b the term "civil works contract'' shall have the same meaning as in the Explanation to Section 6 (2) Any person making such deduction shall deposit the sum so deducted to such authority, in such manner and within such time, as may be prescribed. (3) Any person who makes the deduction and deposit, shall within fifteen days o....
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.... to the petitioner after assessment under Rule 10(A) and 10(B) of TNVAT Rules, 2007. 32. As per Rule10(A) and 10(B) of TNVAT Rules, 2007, the tax liability of an assessee is to be adjusted and excess Input Tax Credit lying utilized has to be refunded back. Sub-rule 10(A) & 10(B) to Rule 10 of TNVAT Rules, 2007 reads as under:- Rule 10 of the TNVAT Rules, 2007 Rule 10(A) Rule 10(B) 10(a) In cases where the input tax paid in the month exceeds the output tax payable, the excess input tax credit shall be carried over to the next month. 10(b) In cases where the input tax credit as determined by the assessing authority for any registered dealer, for a year, exceeds the tax liability for that year, it may adjust the excess input tax credit against any arrears of tax or any other amount due from him. If there are no arrears under the Act or after the adjustment there is still an excess of input tax credit, the assessing authority shall serve a notice in Form P upon such dealer. Form P is issued to refund of ITC. 33. Though there are no prescribed method in the manner in which the amounts have to be adjusted and appropriated, what is evident is that the Tax Deducte....