2016 (10) TMI 748 - HC - VAT and Sales Tax

Recovery of input tax credit - imposition of penalty u/s.27 4 a of the TNVAT Act, 2006 - denial of input tax credit on the goods purchased from M/s.AMI Enterprises on the ground that M/s.AMI Enterprises have filed NIL returns, thereby alleging that no sales made by M/s.AMI Enterprises - petitioner while producing prove presented original purchase documents and also stated that M/s.AMI Enterprises have filed revised return and also enclosed copies of the revised returns submitted by the Selling Dealer to his Assessing Officer - whether denial of input tax credit on the ground that selling dealer filed NIL returns valid? - Held that - decision in the case of Althaf Shoes (P) Ltd. Versus Assistant Commissioner (CT), Valluvarkottam Assessment Circle, Chennai-6 2011 (10) TMI 567 - Madras High Court relied upon where it was held that if the Selling Dealer has not collected tax, that liability has to be fastened on the Selling Dealer. That apart, merely because the Selling Dealer had filed incorrect particulars, will not be a reason to reverse the ITC availed by the Purchasing Dealer. Opportunity of being heard - in the notice dated 08.07.2016, the respondent stated that the petitioner can file objections to the notice and they will be heard in person at his office at 11.30 a.m. on any working days from within 15 days from the date of receipt of the notice. This Court is of the view that the wordings mentioned in the notice dated 08.07.2016 is not proper since after the objection is received, there may be cases where the Assessing Officer will be fully convinced with the objections and he may even drop the proposal. - Held that - the proper thing for the officer would be to specifically fix the date for personal hearing after receipt of the objections and after going through the same. Rejection of the revised return filed by the Selling Dealer before his Assessing Officer - Held that - the respondent is not the Assessing Officer of the Selling Dealer. Therefore, he has no jurisdiction to reject the revised return filed by the Selling Dealer as an after-thought. If at all it can be done only by the Assessing Officer of the Selling Dealer. Petition allowed - matter remanded to the respondent for fresh consideration who shall ascertain full particulars from the Assessing Officer of the Selling Dealer, viz., M/s.AMI Enterprises, and thereafter, put the petitioner on notice, invite their objections, hear them in person and re-do the assessment in accordance with law.

Summary

Issues:
1. Alleged wrong availment of Input Tax Credit (ITC) by the petitioner.
2. Failure to afford an opportunity of personal hearing to the petitioner.
3. Proposal to reverse ITC solely based on Selling Dealer's NIL Returns.
4. Disbelief in the revised return filed by the Selling Dealer.

Analysis:
1. The petitioner, a registered dealer under the TNVAT Act, 2006, was issued a notice for allegedly wrongly availing ITC for the Assessment Year 2013-14. The issue arose from the petitioner's purchase of goods from a Selling Dealer who had filed NIL Returns, leading to the proposed recovery of ITC and penalty imposition. The petitioner submitted objections, emphasizing the legality of their purchases and the Selling Dealer's revised returns, requesting the proposal to be dropped.

2. The respondent failed to provide a specific date for a personal hearing, as mentioned in the notice, leading to a procedural error. The court noted that the Assessing Officer should have fixed a date for a personal hearing after receiving objections to ensure a fair assessment process.

3. The respondent erred in proposing to reverse the entire ITC based on the Selling Dealer's actions. Legal precedents highlighted that the liability should rest with the Selling Dealer for tax collection discrepancies, and the Purchasing Dealer should not suffer due to the Selling Dealer's errors. The court emphasized the importance of a personal hearing in such cases, as reiterated in previous judgments.

4. Another mistake was the respondent's disbelief in the revised return filed by the Selling Dealer, as the respondent lacked jurisdiction over such matters. The court clarified that only the Selling Dealer's Assessing Officer could reject the revised return, indicating a procedural flaw in the assessment process.

In conclusion, the court allowed the writ petition, setting aside the impugned order and remanding the matter for fresh consideration. The respondent was instructed to gather full particulars from the Selling Dealer's Assessing Officer, provide the petitioner with a fair opportunity for objections and a personal hearing, and conduct the assessment in line with legal principles and precedents cited in the judgment.