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2024 (1) TMI 713 - HC - VAT and Sales TaxSEZ unit - Wrong declaration of turnover - Alleged variance between the amounts declared by the petitioner in Annual Performance Report (APR) in Form-1 under the provisions of the Special Economic Zones Act, 2005 read with Rule 22 of the Special Economic Zones Rules 2006 - HELD THAT - There are indications that the petitioner was engaged not only in intra-state stock transfer to its branch/depot inside the State but also inter-state stock transfer to its branch/depot outside the State apart from the exports from its factory in Special Economic Zone and its warehouse in Special Economic Zone in the State of Tamil Nadu - In the case of intra-state stock transfer to its branch/depot within the state of Tamil Nadu, the petitioner would have generated Delivery Note in form JJ under Rule 15(3), Rule 15(18), Rule 15(20) and Rule 15(21) of TNVAT Rules, 2007. In the case of inter-state stock to its branch/depot, outside the State of Tamil Nadu, such branch/depot would have issued a suitable Form-F to the petitioner. Such inter-state stock transfers/depot to its branch outside the State would have been liable to tax under local VAT enactments on further sale from such from its inter-state branch/depot outside the State of Tamil Nadu. There should have been proper correlation of documents. To the extent, the petitioner was unable to prove intra-state/ inter-state stock transfer to its branch/depot, tax implication would be different under the respective enactments. For inter-state branch/depot transfer outside the State, where the petitioner was unable to produce documents, Section 6(A) 3 of the CST Act, 1956 would be applicable. Denial of exemption on export under the provisions of the CST Act, 1956 will have an impact on assessment under TNVAT Act, 2006. If exports are not proved, such turnovers are liable to be taxed under the TNVAT Act, 2006. Therefore, as sequitur, a revised assessment order under TNVAT Act, 2006 should have been passed by invoking the machinery under the said Act. Demands on such turover cannot be made under CST Act, 1956 in absence of any notice to infer inter-state sale. The impugned assessment orders dated 12.12.2014 passed by the third respondent for the assessment years 2009-10 to 2011- 12 are liable to be quashed - the amount Rs. 423,48,00,000/- which was appropriated vide impugned G.O (MS) No. 32 Industries (MIF.1) Department dated 28.3.2017 is ordered to be refunded subject to final order to be passed by the 3rd respondent - Petition dismissed.
Issues Involved:
1. Quashing of assessment orders dated 12.12.2014 for assessment years 2009-10 to 2011-12. 2. Refund of the subsidy amount transferred to the Commercial Tax Department. Summary: Issue 1: Quashing of Assessment Orders The petitioner sought to quash the assessment orders dated 12.12.2014 for the assessment years 2009-10 to 2011-12 issued by the Deputy Commissioner (Enforcement) South. These orders were passed pursuant to an interim order dated 25.06.2014 in W.A. Nos. 712-714 of 2014. The petitioner had previously challenged the assessment orders dated 28.02.2014 on the grounds of violation of principles of natural justice, leading to their setting aside by the court on 29.04.2014 with a direction to deposit 10% of the disputed tax. The Division Bench later directed the 3rd respondent to re-do the assessment considering new evidence without insisting on the 10% deposit. The dispute arose from the alleged variance between amounts declared in the Annual Performance Report (APR) under the Special Economic Zones Act, 2005 and the turnover declared under the Central Sales Tax Act, 1956. The respondents contended that the turnover declared by the petitioner was higher in the APR compared to the CST returns. The court noted that the impugned orders lacked clarity and proper correlation of documents, making them unintelligible and arbitrary. Thus, the impugned assessment orders dated 12.12.2014 were quashed with a direction to the 3rd respondent to pass fresh orders within six months after hearing the petitioner. Issue 2: Refund of Subsidy AmountIn W.P. No. 30371 of 2019, the petitioner sought to quash G.O(MS) No. 32 Industries (MIF.1) Department dated 28.03.2017, which transferred a subsidy amount of Rs. 423,48,00,000/- to the Commercial Tax Department. This amount was otherwise refundable to the petitioner but was appropriated towards the tax liability confirmed by the impugned assessment orders dated 12.12.2014. The court observed that the petitioner had closed its operations and exited from the SEZ, and thus ordered that the appropriated amount be refunded subject to the final order in the remand proceedings. Consequently, W.P. No. 30371 of 2019 was dismissed with the observation that the amount should be refunded together with interest if the petitioner succeeds in the remand proceedings. Conclusion:(i) The impugned assessment orders dated 12.12.2014 are quashed and remanded back to the 3rd respondent for fresh orders within six months. (ii) W.P. Nos. 764-66 of 2015 are allowed, and miscellaneous petitions are closed with no order as to costs. (iii) The amount of Rs. 423,48,00,000/- is to be refunded with interest if the petitioner succeeds in the remand proceedings. W.P. No. 30371 of 2019 is disposed of with no order as to costs, and connected miscellaneous petitions are also closed.
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