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2020 (11) TMI 393 - HC - VAT and Sales TaxRectification of mistake - error apparent on the face of record - application was dismissed on the short ground that the petitioner ought to have filed an appeal as permitted by this Court in the earlier round of litigation, and the application filed under Section 84, according to the Assessing Officer, was not maintainable - Whether the filing of Section 84 application by the petitioner despite being permitted to file an appeal in the earlier round of litigation is correct and permissible? - Principles of Natural Justice. Whether the filing of Section 84 application by the petitioner despite being permitted to file an appeal in the earlier round of litigation is correct and permissible? - HELD THAT - There is no serious contest to the position that once a challenge under Article 226 of the Constitution of India is rejected and the petitioner/assessee relegated to statutory remedy, it is at liberty to avail of any statutory remedy under the Act, be it appeal, revision or any other. Thus, resort to Section 84 by the petitioner is not misconceived and rejection of Section 84 application by the Assessing Officer solely on the ground that only an appeal should have been filed is erroneous. This issue is answered in favour of the petitioner. Whether the impugned order is vitiated by violation of the principles of natural justice? - HELD THAT - There are no disputes in the facts and all facts as are necessary for the adjudication of the issues on merits are available on record having been filed both by the petitioner as well as by the Department before me. Thus, while accepting the argument that the impugned order is contrary to the principles of natural justice, I refrain from setting aside the order and granting the limited relief of remand and proceed to adjudicate the legal issues raised, on merits. What is the proper scheme of tax deduction under the provisions of the TNVAT Act and whether the scheme has been followed/applied properly in the present case? - HELD THAT - The impugned assessment and demand made upon the petitioner relates to the period 2016-17, wherein the Assessing Officer proceeds on the basis that no Form S has been received by the petitioner and hence all remittances made ought to have been subject to tax deduction at source - the Officer has entirely lost sight of the scheme of tax deduction under Section 13 as the three certificates issued by R2 would show that Simplex has the benefit of Form S certificates for the entirety of the contract value. The impugned order cannot, be holistically appreciated without noticing the totality of facts involved, which also includes the order of assessment dated 28.05.2019. In the light of the three certificates in Form S dated 28.08.2014, 06.05.2015 and 24.06.2016, there is no justification whatsoever for R1 to have passed order of assessment dated 28.05.2019 for the period 2016-17 or the impugned order dated 23.01.2020 - Answered in favor of petitioner. Whether the order dated 28.05.2019 has been passed under Section 13 or under Section 27 of the TNVAT Act? - HELD THAT - While hearing the appeal, the Appellate Authority dismissed the same on the sole ground that the issue involved therein related to tax deduction at source under Section 13 of the Act, which could not be the subject matter of assessment under Section 27 of the Act amenable to appeal under Section 51 of the Act. The appeal was dismissed as not maintainable. While issues on tax deduction would form part of an order of assessment and the computation thereof, as applicable to assessees/dealers under Sections 22 to 27 and amenable to appeal under Section 51 and 52, issues of non-deduction in the case of a non-dealer/non-assessee under the provisions of the Act would form part of an order under Section 13(4) amenable to revision under Section 54 - This issue is answered in favour of the petitioner. Petition allowed.
Issues Involved:
1. Permissibility of filing a Section 84 application after being directed to file an appeal. 2. Violation of principles of natural justice in the impugned order. 3. Proper scheme of tax deduction under the TNVAT Act and its application in the present case. 4. Classification of the order dated 28.05.2019 under Section 13 or Section 27 of the TNVAT Act. Detailed Analysis: 1. Permissibility of Filing a Section 84 Application: The court held that once a challenge under Article 226 of the Constitution is rejected and the petitioner is relegated to a statutory remedy, the petitioner is at liberty to avail any statutory remedy under the Act, including appeal, revision, or any other. Therefore, the resort to Section 84 by the petitioner was not misconceived, and the rejection of the Section 84 application by the Assessing Officer solely on the ground that only an appeal should have been filed was erroneous. This issue was answered in favor of the petitioner. 2. Violation of Principles of Natural Justice: The court found that no opportunity had been granted by the Officer before passing the impugned order, which was contrary to the principles of natural justice. However, since all necessary facts for adjudication were available on record, the court refrained from setting aside the order and proceeded to adjudicate the legal issues on merits. 3. Proper Scheme of Tax Deduction under the TNVAT Act: The court detailed the provisions of Section 13 of the TNVAT Act, which mandates the deduction of tax at source by a contractee/payor to a contractor/payee at stipulated rates. Exceptions include situations where no transfer of property in goods is involved, or the contractor produces a certificate of nil deduction. The court examined the certificates issued to Simplex Infrastructure Limited (R3) and found that the petitioner could remit payments without deducting tax at source based on valid Form S certificates. The impugned assessment and demand for the period 2016-17 were found to be based on a misappreciation of the scheme of tax deduction under Section 13, as the certificates covered the entirety of the contract value. This issue was answered in favor of the petitioner. 4. Classification of the Order Dated 28.05.2019: The court analyzed whether the order dated 28.05.2019 was passed under Section 13 or Section 27 of the TNVAT Act. It was noted that the petitioner, being a trade union and not a registered dealer, was not subject to the provisions of Sections 20, 21, 22, and 27 of the Act. The court concluded that the order was not one of assessment under Section 27 but related to the consequences of non-deduction under Section 13(4), which is amenable to revision under Section 54. The court referenced a Division Bench decision in MI Steel Processing India Pvt. Ltd. v. The Assistant Commissioner (CT), which held that issues of tax deduction at source under Section 13 are not part of the assessment under Section 27 and are subject to revision. This issue was answered in favor of the petitioner. Conclusion: The court quashed both the impugned order dated 23.01.2020 under Section 84 of the TNVAT Act and the order of assessment dated 28.05.2019. The Writ Petition was allowed, and no costs were imposed. The connected Miscellaneous Petition was also closed.
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