TaxTMI 
TaxTMI 
2025 (2) TMI 504
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....hese Writ Petitions, the respective petitioners have challenged the Impugned Assessment Orders passed on the dates mentioned below pursuant to Remand Orders passed by this Court in the earlier round of litigations. The details of the Writ Petitions filed by the respective petitioners are as under:- Sl. No W.P.(MD) No. Petitioner Assessment Year Date of Impugned Order Tax * (In Rs.) Penalty * (In Rs.) Interest (In Rs.) 1 22371/23 Devi Traders 2017-18 25.5.23 8179930 8179930 - 2 22372/23 Devi Traders 2018-19 25.5.23 136906 136906 - 3 22933/23 Thapasi Rubbers 2017-18 24.5.23 2035004 1017502 - 4 22934/23 Thapasi Rubbers 2018-19 24.5.23 3906326 1953163 - 5 22935/23 Thapasi Rubbers 2019-20 24.5.23 561126 280564 - 6 22955/23 J.K.Global Traders 2017-18 2.12.22 649750 649750 - 7 22956/23 J.K.Global Traders 2018-19 2.12.22 267000 267000 - 8 22957/23 J.K.Global Traders 2019-20 30.12.22 1257212 1257212 - 9 23473/23 Alban Rubbers 2017-18 10.5.23 12895762 1289576....
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....rs on the strength of the supplies made by them to the respective petitioners. 6. It is submitted that confirmation of the demand without cross-examination of the suppliers amounts to violation of principles of natural justice. It is further submitted that the demand confirmed against the petitioners would also amount to double taxation. 7. As far as the movement of goods are concerned, it is submitted that the supplier had utilized their own vehicle to supply the goods to these petitioners and there are documents to substantiate that there was indeed delivery of goods to the respective petitioners. 8. On the other hand, the learned Additional Government Pleader for the respondent would submit that pursuant to the orders passed by this Court in W.P.(MD)No.2500 of 2021 etc. batch. On 24.02.2021, summons were issued to the said Charles, which was returned with an endorsement ''Expired'' and that the Department is therefore unable to comply with the order dated 24.02.2021 and therefore, benefit of the cross examination of Charles could not be extended to the respective petitioners. 9. It is submitted that burden of proof is on the petitioners to establish t....
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....ner in W.P.(MD) Nos. 23476 to 23478 of 2023. 16. Earlier, these petitioners except the petitioner in W.P.(MD) Nos. 23476 to 23478 of 2023 had approached this Court in W.P.(MD) Nos.2127, 2117, 2121, 2152, 2159, 2160, 2168, 2177, 2500, 2530, 2532, 2534, 2538, 2539, 2540, 2503 & 2504 of 2021. 17. There, these writ petitioners had challenged the respective orders passed against them. The Writ Court by its order dated 24.02.2021 quashed the Impugned Orders and had remitted the case back to the respondent to pass a fresh order with a specific direction to extend the benefit of cross-examination of the said Charles and his wife Shanthi. Operative portion of the said order in Paragraph No.16 reads as under:- "16. Therefore, the impugned orders are quashed and the matters are remitted back to the file of the respondent. The stage upto the reception of reply from the petitioners herein will hold good. Enquiry alone will have to be held afresh. In the said enquiry, Charles and his wife Shanthi will have to be examined as witnesses. Parallely, the respondent will also initiate recovery action against Charles and his wife Shanthi." 18. In Paragraph No.15, the Writ Court did in....
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....t availed by them on account of purported non-supply of "goods" namely "rubber" and "rubber sheets" to the respective petitioners by the three proprietary concerns registered in the name of the couples namely the said Charles and his wife Shanthi. It is the case of the respondents that there are no documents to substantiate supply and movement of goods to the petitioners. 25. It has to be borne in mind that the decision in W.P.(MD) Nos.2127, 2117, 2121, 2152, 2159, 2160, 2168, 2177, 2500, 2530, 2532, 2534, 2538, 2539, 2540, 2503 & 2504 of 2021 was rendered by the Court on 24.02.2020 in the earlier round of litigation. There, a reference was made to the decision of this Court rendered in Shri Vinayaka Agencies Vs. The Asst Commissioner, CT Vadapalani, 2013 60 VST 283, wherein, this Court had earlier held that the Commercial Tax Department does not have jurisdiction to reverse the input tax credit availed by on the ground that the selling dealer had not paid tax. In Paragraph No.8, the Writ Court in its order dated 24.02.2021 in the case of these petitioners had rightly concluded that the said decision in Shri Vinayaka Agencies Vs. The Asst Commissioner, CT Vadapalani, 2013 60 VST....
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.... be denied. 101. We have to state that ratio of this Court both in Jinsasan Distributors vs. Commercial Tax Officer, Chennai, MANU/TN/1771/2012 : (2013) 59 VST 256 and Sri Vinayaga Agencies vs. Assistant Commissioner (CT), Vadapalani-I Assessment Circle, Chennai and Another, MANU/TN/1386/2013 : (2013) 60 VST 283 (Mad) are no longer a good law in the light of the recent decision of the Court in The State of Karnataka vs. M/s.Ecom Gill Coffee Trading Private Limited, dated 13.03.2023 in Civil Appeal. No. 230 of 2023. We shall deal with the same in due course of discussion. 102. The ratio in Sri Vinayaga Agencies vs. Assistant commissioner (CT), Vadapalani-I Assessment Circle, Chennai and Another, MANU/TN/1386/2013 : (2013) 60 VST 283 (Mad) cannot be applied in all cases. Likewise, the ratio in Jinsasan Distributors Vs. Commercial Tax Officer, Chennai, MANU/TN/1771/2012 : (2013) 59 VST 256, cannot be applied any longer in view of the recent decision of the Hon'ble Supreme Court in The State of Karnataka vs. M/s.Ecom Gill Coffee Trading Private Limited, dated 13.03.2023 in Civil Appeal. No. 230 of 2023. 103. While placing reliance on the aforesaid decisio....
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....urden of proof required to be discharged under Section 17(2) of the TN VAT Act, 2006." 27. The said decision was rendered in the context of Section 19 of the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 and Rule 10 of the Tamil Nadu Value Added Tax (TNVAT) Rules, 2007. 28. The details of the transactions of the respective petitioners were undertaken to be furnished by the respective counsels. However, they were not furnished by the respective counsels, despite sufficient lapse of time, since the case was reserved "for orders". 29. As far as generation of e-Way Bills are concerned, Notification No. 9/2018 dated 31.05.2018 reads as under:- ''In exercise of the powers conferred by clause (d) of sub-rule 14 of Rule 138 of the Tamil Nadu Goods and Services Tax Rules, 2017, Commissioner of State Tax, Tamil Nadu, hereby notifies that no e-way bill is required to be generated for the transport of following goods, for the values mentioned therein for intra-State movement i.e., within the State of Tamil Nadu: (a) Consignment with value of goods not exceeding Rupees One lakh. (b) The consignment of goods as listed out in the Annexure (serial No.1 to....
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....erwise, before or during movement of goods, either by way of transfer of documents of title to goods or otherwise; (c) subject to the provisions of section 41, the tax charged in respect of such supply has been actually paid to the Government, either in cash or through utilisation of input tax credit admissible in respect of the said supply; and (d) he has furnished the return under section 39: 32. To avail Input Tax Credit validly, a recipient of goods has to satisfy the condition under Section 16(2) of the respective GST enactments. It is a sine qua non for availing Input Tax Credit validly. The recipient has to be in possession of not only tax invoice or debit note issued by the registered supplier or such other taxpaying documents as may be prescribed but also documents to establish physical supply of goods and receipt of goods. 33. The expression "Supply" is defined in Section 7 of the respective GST enactments. For the sake of clarity, Section 7 of the Central Goods and Services Tax (CGST) Act, 2017 is reproduced below:- "7. Scope of supply. (1) For the purposes of this Act, the expression "supply" includes-- (a) all forms of supply of g....
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....x is payable on reverse charge basis, the recipient will not be entitled to claim Input Tax Credit on the payment made towards the value of Supply. 36. This is also made clear in Rule 37 of the respective GST Rules of 2017. As per Rule 37 of the respective GST Rules of 2017, in case no consideration is paid to the supplier, no Input Tax Credit can be availed. Rule 37 of the respective GST Rules of 2017 read as under:- "Rule 37 : Reversal of input tax credit in the case of non-payment of consideration:- (1) A registered person, who has availed of input tax credit on any inward supply of goods or services or both, but fails to pay to the supplier thereof the value of such supply along with the tax payable thereon within the time limit specified in the second proviso to sub-section (2) of section 16, shall furnish the details of such supply, the amount of value not paid and the amount of input tax credit availed of proportionate to such amount not paid to the supplier in FORM GSTR-2 for the month immediately following the period of one hundred and eighty days from the date of issue of invoice. Provided that the value of supplies made without consideration as sp....
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....voice issued by the supplier of goods or services or both in accordance with the provisions of section 31; (b) an invoice issued in accordance with the provisions of clause (f) of sub-section (3) of section 31, subject to the payment of tax; (c) a debit note issued by a supplier in accordance with the provisions of section 34; (d) a bill of entry or any similar document prescribed under the Customs Act, 1962 or rules made thereunder for the assessment of integrated tax on imports; (e) an Input Service Distributor invoice or Input Service Distributor credit note or any document issued by an Input Service Distributor in accordance with the provisions of sub-rule (1) of rule 54. 46. Tax invoice.- Subject to rule 54, a tax invoice referred to in section 31 shall be issued by the registered person containing the following particulars, namely,- (a) name, address and Goods and Services Tax Identification Number of the supplier; (b) a consecutive serial number not exceeding sixteen characters, in one or multiple series, containing alphabets or numerals or special characters- hyphen or dash and slash symbolised as --? and -/? respe....
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....e the movement of goods, every registered person who causes the movement of goods with a consignment value exceeding fifty thousand rupees whether related to a supply, for reasons other than supply, or due to inward supply from an unregistered person must electronically provide the required information about the goods as specified in Part A of Form GST EWB-01 on the common portal. Additionally, any other necessary information should also be submitted on the portal, and a unique number will be generated. 47. As per Rule 138(2) of the respective GST Rules, if the goods are being transported by the registered person, either as consignor or consignee, whether using their own vehicle, a hired one, or a public transport vehicle, by road, they must generate the e-way bill electronically in FORM GST EWB-01 on the common portal after providing the necessary details in Part B of the form. 48. Rule 138 of the respective GST Rules has undergone minor changes during the period in dispute which is reproduced below:- "Rule 138. Information to be furnished prior to commencement of movement of goods and generation of e-way bill. - (1) Every registered person who causes movem....
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....cordance with the provisions of section 15, declared in an invoice, a bill of supply or a delivery challan, as the case may be, issued in respect of the said consignment and also includes the central tax, State or Union territory tax, integrated tax and cess charged, if any, in the document and shall exclude the value of exempt supply of goods where the invoice is issued in respect of both exempt and taxable supply of goods. (2) Where the goods are transported by the registered person as a consignor or the recipient of supply as the consignee, whether in his own conveyance or a hired one or a public conveyance, by road, the said person shall generate the e-way bill in FORM GST EWB-01 electronically on the common portal after furnishing information in Part B of FORM GST EWB-01. (2A) Where the goods are transported by railways or by air or vessel, the e-way bill shall be generated by the registered person, being the supplier or the recipient, who shall, either before or after the commencement of movement, furnish, on the common portal, the information in Part B of FORM GST EWB-01: Provided that where the goods are transported by railways, the railways shall....
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.... except in the case of movements covered under the third proviso to sub-rule (3) and the proviso to subrule (5). (4) Upon generation of the e-way bill on the common portal, a unique e-way bill number (EBN) shall be made available to the supplier, the recipient and the transporter on the common portal. (5) Where the goods are transferred from one conveyance to another, the consignor or the recipient, who has provided information in Part A of the FORM GST EWB-01, or the transporter shall, before such transfer and further movement of goods, update the details of conveyance in the e-way bill on the common portal in Part B of FORM GST EWB-01: Provided that where the goods are transported for a distance of upto fifty kilometers within the State or Union territory from the place of business of the transporter finally to the place of business of the consignee, the details of the conveyance may not be updated in the e-way bill. (5A) The consignor or the recipient, who has furnished the information in Part A of FORM GST EWB-01, or the transporter, may assign the e-way bill number to another registered or enrolled transporter for updating the information in....
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.... Provided that an e-way bill cannot be cancelled if it has been verified in transit in accordance with the provisions of rule 138B: Provided further that the unique number generated under sub-rule (1) shall be valid for a period of fifteen days for updation of Part B of FORM GST EWB-01. (10) An e-way bill or a consolidated e-way bill generated under this rule shall be valid for the period as mentioned in column (3) of the Table below from the relevant date, for the distance, within the country, the goods have to be transported, as mentioned in column (2) of the said Table:- Sl.No. Distance Validity Period (1) (2) (3) 1 Up to [200 km.] One day in cases other than Over Dimensional Cargo [or multimodal shipment in which at least one leg involves transport by ship] 2 For every [200 km.] or part thereof thereafter One additional day in cases other than Over Dimensional Cargo [or multimodal shipment in which at least one leg involves transport by ship] 3 Up to 20 km One day in case of Over Dimensional Cargo [or multimodal shipment in which at least one leg involves transport by ship] 4 For every 20 km. or part thereof....
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.... (13) The e-way bill generated under this rule or under rule 138 of the Goods and Services Tax Rules of any State or Union territory shall be valid in every State and Union territory. (14) Notwithstanding anything contained in this rule, no e-way bill is required to be generated- (a) where the goods being transported are specified in Annexure; (b) where the goods are being transported by a Non-motorised conveyance; (c) where the goods are being transported from the customs port, airport, air cargo complex and land customs station to an inland container depot or a container freight station for clearance by Customs; (d) in respect of movement of goods within such areas as are Notified under clause (d) of sub-rule (14) of rule 138 of the State or Union territory Goods and Services Tax Rules in that particular State or Union territory; (e) where the goods, other than de-oiled cake, being transported, are specified in the Schedule appended to Notification No 2/2017- Central tax (Rate) dated the 28th June, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 674 (E) dated the 2....
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....he case may be." 49. Any person transporting goods for a value exceeding Rs.50,000/- has to generate e-way Bills. The e-way Bills were to be generated by the consignor or the consignee himself even if the transportation was being done in their own/hired conveyance or by the railways, or by air. If the goods are to be handed over to a transporter for transportation by road, e-Way Bills were to be generated by the transporter inasmuch as details of Part B was done by the transporter. Part A details must be filled out by the registered person. However, it has been clarified that the transporter can generate Part A after obtaining authorization from the Consignor or consignee, as applicable, on the common portal for the e-way Bill. 50. In exercise of powers conferred under Clause (d) of Sub-Rule 14 to Rule 138 of the Tamil Nadu Goods and Services Tax (TNGST) Rules, 2017, the Office of the Principal Secretary / Commissioner of Commercial Taxes Tamil Nadu has also issued Notification No.9/2018 dated 31.05.2018. As per the said notification, no e-Way Bill is required to be generated for transportation of the goods specified therein for intra-state movement i.e., within the State of ....
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....n physical or electronic form for all inter-State and intra-State movement of goods. (2) The Commissioner shall get Radio Frequency Identification Device readers installed at places where the verification of movement of goods is required to be carried out and verification of movement of vehicles shall be done through such device readers where the e-way bill has been mapped with the said device. (3) The physical verification of conveyances shall be carried out by the proper officer as authorised by the Commissioner or an officer empowered by him in this behalf: Provided that on receipt of specific information on evasion of tax, physical verification of a specific conveyance can also be carried out by any other officer after obtaining necessary approval of the Commissioner or an officer authorised by him in this behalf. (1) A summary report of every inspection of goods in transit shall be recorded online by the proper officer in Part A of FORM GST EWB-03 within twenty four hours of inspection and the final report in Part B of FORM GST EWB-03 shall be recorded within three days of such inspection. Provided that where the circumstances so warrant, the Commissioner, or an....
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....to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed: Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods. (2) The provisions of sub-section (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances. (3) The proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) or clause (c). (4) No tax, interest or penalty shall be determined under sub-section (3) without giving the person concerned an opportunity of being heard. (5) On payment of amount referred in sub-section (1) all proceedings in respect of the notice specified in sub- section (3) shall be deemed to be concluded. (6) Where the person transporting any goods or the owner of the goods fails to pay the amount of tax and penalty as provided in sub-section (1) within [fourteen days] of such detention or seizure, further proceedings shall be....
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....including tax payable in accordance with the provisions of sub-section (3) and sub-section (4) of section 9), tax collected and paid, input tax, input tax credit claimed, together with a register of tax invoice, credit notes, debit notes, delivery challan issued or received during any tax period. (5) Every registered person shall keep the particulars of (a)names and complete addresses of suppliers from whom he has received the goods or services chargeable to tax under the Act; (b)names and complete addresses of the persons to whom he has supplied goods or services, where required under the provisions of this Chapter; (c) the complete addresses of the premises where goods are stored by him, including goods stored during transit along with the particulars of the stock stored therein. (6) If any taxable goods are found to be stored at any place(s) other than those declared under sub-rule (5) without the cover of any valid documents, the proper officer shall determine the amount of tax payable on such goods as if such goods have been supplied by the registered person. (7) Every registered person shall keep the books of account at th....
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....(a) the names and addresses of the persons on whose behalf the works contract is executed; (b)description, value and quantity (wherever applicable) of goods or services received for the execution of works contract; (c) description value and quantity (wherever applicable) of goods or services utilized in the execution of works contract; (d) the details of payment received in respect of each works contract; and (e) the names and addresses of suppliers from whom he received goods or services. (15) The records under the provisions of this Chapter may be maintained in electronic form and the record so maintained shall be authenticated by means of a digital signature. (16) Accounts maintained by the registered person together with all the invoices, bills of supply, credit and debit notes, and delivery challans relating to stocks, deliveries, inward supply and outward supply shall be preserved for the period as provided in section 36 and shall, where such accounts and documents are maintained manually, be kept at every related place of business mentioned in the certificate of registration and shall be accessible at every related place ....
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.... my view, failure on the part of the Department to facilitate cross-examination of the couples namely Charles and his wife Shanthi is not fatal. Although the statements of these persons have been relied upon, it is to be noted that the statements were recorded in presence of the petitioners. They are signatory to the Statement dated 05.11.2019 of the said Charles. 64. It would have been different if the Statements were obtained behind the back of the petitioners and they were unaware of the Statements recorded on the said date and were being relied upon, in which case it may have been necessary to allow cross-examination of said Charles and his wife Shanthi in the light of the decision of the Hon'ble Supreme Court in Andaman Timber Industries Vs. Commissioner of Central Excise, Kolkata, (2016) 15 SCC 785. 65. Since the Statements were obtained in presence of the petitioners herein, it is not open for the petitioners to insist for cross-examination although such a permission was granted by this Court earlier in its Order dated 24.02.2021. 66. That apart, the adjudication before the quasi-judicial authority like the respondent under the provisions of the respective GST e....
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....ress of the selling dealer, details of the vehicle which has delivered the goods, tax invoices and payment particulars etc. The aforesaid information would be in addition to tax invoices, particulars of payment etc. In fact, if a dealer claims Input Tax Credit on purchases, such dealer/purchaser shall have to prove and establish the actual physical movement of goods, genuineness of transactions by furnishing the details referred above and mere production of tax invoices would not be sufficient to claim ITC. In fact, the genuineness of the transaction has to be proved as the burden to prove the genuineness of transaction as per Section 70 of the KVAT Act, 2003 would be upon the purchasing dealer. At the cost of repetition, it is observed and held that mere production of the invoices and/or payment by cheque is not sufficient and cannot be said to be proving the burden as per Section 70 of the Act, 2003." 69. In the light of the above discussion, I find no merits in these Writ Petitions. Therefore, these Writ Petitions are liable to be dismissed. 70. Although the petitioners herein have taken a calibrated risk by challenging the Impugned Assessment Orders before this Court, the....
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