2016 (9) TMI 1084 - HC - VAT and Sales Tax

Validity of Assessment order - Tamil Nadu Value Added Tax Act, 2006 - business of promotion and construction of flats - the petitioner claims deduction on 30% of the total turnover in terms of Rule 8(5)(d) of the TNVAT Rules and pays tax at appropriate rate on the balance turnover after availing Input Tax Credit of the tax paid on the purchases. The petitioner is stated to have paid Service Tax on the labour portion of the contract - whether the procedure adopted by the petitioner for the purpose of availing the Input Tax Credit was justifiable, whether it confirms to the procedure under Section 5 or whether there is an infraction of Rule 8(5) etc? Held that - The transactions appear to be complicated and there are several transactions, especially when the project consist of 148 flats, which is stated to have been completed and completion certificate was issued during March 2014. These complicated factual issues has to be adjudicated bearing in mind the legal principle enunciated in the aforementioned judgment. However to adjudicate the factual issues, the petitioner should first furnish adequate information. Input tax credit - with regard to the mismatch, the petitioner can very well establish through records, regarding the payment of sale price etc., and without furnishing specific details with regard to the transactions, the petitioner cannot say that the selling dealer alone has to be proceeded against. The initial burden of proof is on the petitioner and if he discharges the burden to the satisfaction of the Assessing Officer, then only the burden of proof shifts. Therefore, to decide this issue also, the petitioner has to necessarily place additional facts. With regard to the sale of fixed assets, wherein the petitioner s contention is that the Assessing Officer was wrong in construing the deletion of assets in the balance sheet, as sale of assets by the petitioner and ignored the FIR and the insurance documents submitted by the petitioner in support of their case that the deletion of assets in the balance sheet was due to theft of assets. With regard to transfer of construction equipment to the petitioner s group company, resulting in deletion of assets in the balance sheet, the petitioner has reported the same in its monthly returns and stated that they have discharged the appropriate tax liability and only the amount that was paid during the personal hearing, has been considered. Therefore, this issue also requires to be reconsidered. Petition partly allowed - the issues pertaining to deemed sale value, issue arising out of cross verification and issue relating to sale of fixed assets, remanded to the respondent for fresh consideration - The respondent is directed to afford an opportunity of personal hearing, take note of the law laid down by the Hon ble Supreme Court decisions and redo the assessment under the above three heads in accordance with law after perusing the documents which shall be produced by the petitioner.

Issues Involved:
1. Reversal of ITC for non-filing of C forms
2. Reversal of ITC under Section 19(2)(v)
3. ITC on purchases in returns without purchase
4. ITC availed ineligibly on interstate purchases
5. ITC reversal on purchases from RC cancelled dealers
6. Sale of fixed assets
7. Deemed sale value
8. Cross verification

Issue-wise Detailed Analysis:

1. Reversal of ITC for non-filing of C forms:
The petitioner has discharged liabilities concerning this issue and does not raise any contention in the writ petitions.

2. Reversal of ITC under Section 19(2)(v):
Similarly, the petitioner has discharged liabilities for this issue and does not raise any contention.

3. ITC on purchases in returns without purchase:
The petitioner has also discharged liabilities for this issue and does not raise any contention.

4. ITC availed ineligibly on interstate purchases:
The petitioner has discharged liabilities for this issue and does not raise any contention.

5. ITC reversal on purchases from RC cancelled dealers:
The petitioner has discharged liabilities for this issue and does not raise any contention.

6. Sale of fixed assets:
The petitioner contests the finding that the deletion of assets in the balance sheet was due to theft and not a sale. The petitioner claims to have provided FIR and insurance documents to support this claim. The court found that this issue requires reconsideration and remanded it for fresh consideration.

7. Deemed sale value:
The petitioner argues that the tax computed on the deemed sale value of goods involved in the execution of works contract was erroneous. The petitioner cited the Supreme Court's decision in Gannon Dunkerley & Co. vs. State of Rajasthan, emphasizing that the taxable event is the transfer of property in goods at the time of incorporation into the works, not the cost of acquisition. The court acknowledged that the factual issue of how many flats were sold versus unsold at the time of the completion certificate needs thorough examination and remanded this issue for fresh consideration.

8. Cross verification:
The petitioner disputes the reversal of Input Tax Credit (ITC) based on cross-verification of purchases reported with annexure-1 of the selling dealer. The petitioner argues that the purchasing dealer should not be penalized for the fault of the selling dealer. The court noted that the petitioner must provide adequate information to establish their case and remanded this issue for fresh consideration.

Conclusion:
The court has remanded the issues related to deemed sale value, cross verification, and the sale of fixed assets for fresh consideration. The respondent is directed to afford an opportunity of personal hearing and redo the assessment under these heads in accordance with the law after reviewing the documents produced by the petitioner. The other issues have been resolved as the petitioner has discharged the liabilities.

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