2013 (5) TMI 727 - HC - VAT and Sales Tax

Incorrect claim of Input Tax credit - whether the same amount be adjusted towards disputed tax payable - TNVAT Act - Held that - No person shall be entitled to have the appeal numbered without meeting out the statutory requirement of depositing 25% of the disputed tax amount. The stand of the petitioner that it has revised the disputed amount from its input tax credit I.T.C. and this may be treated as payment of the disputed amount of tax cannot be accepted by any stretch of imagination as the provisions in the T.N.V.A.T. Act categorically provides that the input tax credit availed by any registered dealer is only provisional and that the assessing authority is empowered to revoke the same if it appears to him to be incorrect or otherwise not in order. Thus, the decision rendered by the appellate authority in returning the appeal as not maintainable cannot be found fault with. Writ petition stands disposed of with a direction to the petitioner to re-submit the appeal papers along with payment of 25% of the disputed tax, within a period of two weeks from the date of receipt of a copy of this order. On such filing of the appeal by the petitioner, the appellate authority shall take up the matter and proceed to dispose of the same on merits and in accordance with law. Connected miscellaneous petition is closed. There shall be no orders as to the costs.

Summary

Issues Involved:
1. Challenge to the order under Section 27 of the Tamil Nadu Value Added Tax Act.
2. Disallowance of Input Tax Credit (ITC) of Rs. 27,41,385.
3. Maintainability of the appeal due to non-payment of 25% of the disputed tax.
4. Violation of principles of natural justice.

Issue-Wise Detailed Analysis:

1. Challenge to the order under Section 27 of the Tamil Nadu Value Added Tax Act:
The petitioner challenged the order passed by the respondents under Section 27 of the Tamil Nadu Value Added Tax Act, which confirmed the proposal with partial modification, specifically contesting the payment of Rs. 27,41,385.

2. Disallowance of Input Tax Credit (ITC) of Rs. 27,41,385:
The original assessment for the year 2007-08 was completed on 13.05.2011. Subsequently, a notice dated 5.8.2011 proposed to disallow ITC availed by the petitioner for April, May, and June 2007 amounting to Rs. 27,41,385. The petitioner objected to this notice, but the first respondent confirmed the disallowance and issued a demand on 7.10.2011. The petitioner reversed the ITC amount while filing monthly returns for October 2011, which was a compliance measure for the appeal.

3. Maintainability of the appeal due to non-payment of 25% of the disputed tax:
The second respondent dismissed the appeal as non-maintainable because the petitioner did not fulfill the condition of paying 25% of the disputed tax as required by the second proviso to Section 52 of the T.N.V.A.T. Act. The appellate authority initially accepted the appeal without this payment, which was later corrected by dismissing the appeal. The relevant legal provision states that no appeal shall be entertained unless accompanied by satisfactory proof of payment of the tax admitted to be due and 25% of the difference of the tax assessed and the tax admitted by the appellant.

4. Violation of principles of natural justice:
The petitioner argued that the second respondent violated the principles of natural justice by dismissing the appeal on maintainability grounds without hearing the petitioner on the merits. The court acknowledged that the appellate authority should not have numbered the appeal without the required payment and that the petitioner lost an opportunity to present its case on merits due to this procedural lapse.

Conclusion:
The court directed the petitioner to re-submit the appeal papers along with the payment of 25% of the disputed tax within two weeks. Upon such filing, the appellate authority was instructed to dispose of the appeal on merits and in accordance with the law. The writ petition was disposed of with no order as to costs, and the connected miscellaneous petition was closed.