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TMI Blog2013 (5) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. - Writ Petition No. 7094 of 2013 &M.P.No.1 of 2013 - - - Dated:- 8-4-2013 - V. Dhanapalan,JJ. For the Petitioner : Mr. N. Sriprakash For the Respondents : Mr. Manoharan Sundaram ORDER By consent of the learned counsel on either side, the writ petition itself is taken up for final disposal. 2. Heard Mr. N. Sriprakash learned counsel appearing for the petitioner and Mr.Manoharan Sundaram, learned Government Advocate appearing for the respondents. 3. A challenge has been made to an order passed by the respondents under Section 27 of the Tamil Nadu Value Added Tax Act, confirming the proposal with a partial modification and seeking to quash to the same in so far as it relates to the payment of ₹ 27,41,385/-. 4. Short facts pleaded by the petitioner are as follows: (a) By an order dated 13.5.2011, the original assessment of the petitioner-Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first respondent. The second respondent, by the impugned order, dismissed the appeal as not maintainable. The said impugned order has been challenged on the ground that the 2nd respondent had violated the principles of natural justice when it had, instead of taking up the appeal on merits, dismissed the appeal on maintainability, without hearing the petitioner at all. 5. The 2nd respondent, in his written instructions addressed to the Special Government Pleader (Taxes) has submitted that consequent to the filing of this writ petition by the petitioner against the order passed by the Joint Commissioner (CT), Appeals, Coimbatore, in A.P. No: 9 of 2011 dated 21.12.2012, remarks have been called for the passing of a non-maintainability order after admitting the appeal under Section 52 of the T.N.V.A.T. Act. The written instruction referred to above reads as under : In this connection, I submit that the appeal petition filed by the Appellants M/s. K.S.B. Pumps against an order passed by the Assessing Officer in the proceedings No: TIN/3390202737/2007-2008 dated 07.10.2011 has been admitted in the month of December 2011 by the erstwhile Joint Commissioner (CT) Appeals, Coimbat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut Tax credit, the same amount cannot be adjusted towards disputed tax payable against the appeal. Moreover there is also no provision under TNVAT Act to adjust the disputed tax payable under the appeal provisions with that of the provisional Input Tax credit available on the hand as per the monthly returns for the month of October 2011. The appellants also not filed a certificate of adjustment of tax towards 2% of the disputed tax obtained from the concerned assessing authority. Further the incorrect adjustment of ITC towards disputed tax was also raised at the time of hearing the appeal for which the learned authorized representative appearing for the appellants has staed that the provision of Section 19 (16) terming ITC as Provisional is itself wrong. In view of the above position, the appeal petition filed by the appellants TVL. K.S.B. Pumps was returned to the appellants by dismissing it as non-maintainable. 6. On the background circumstances and pleadings, I have heard the learned counsel appearing for the parties and perused the material documents made available on record. 7. It is seen that the assessing officer completed the original assessment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the connected records made available for perusal. Perusal of the appeal petition filed by the appellants revealed the fact that the appellants aggrieved against the order of the assessing officer filed an appeal before this forum on 30.11.2011 being 30th day of the receipt of the assessment order. By this way they fulfilled the basic condition required for filing the appeal as prescribed under Section 52 of the TNVA Act '06. The present appeal shall be entertained and taken for hearing only if the appellants fulfilled the conditions prescribed as per second proviso to Section 52 of TNVAT Act '06. The present appeal shall be entertained and taken for hearing only if the appellants fulfilled the conditions prescribed as per second proviso to Section 52 of TNVAT Act '06. As per Second Proviso to Section 52 of TNVAT Act '06,t he appellants are required to furnish proof of payment of tax admitted by the appellants to be due and twenty five percent of the difference of the tax assessed by the assessing authority and the tax admitted by the appellants. Though the appeal petition has been admitted inadvertently, before disposing the appeal petition, it is necessary to verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, in this case, the assessment has been finalized on 13/05/2011 and certain ITC were shown as eligible carry forward for the year 2007-08. But this ITC along with ITC claimed during the year 2008-09, 2009-10, 2010-11 and 2011-12 were all provisional and accordingly the ITC shown as carry forward for the month of October 2011 to the extent of ₹ 70,25,732.00 is only provisional and cannot be put to use for adjustment towards any dues other than output tax due as per the monthly returns. Thus adjusting this ITC carry forward of ₹ 70,25,732.00 towards actual due of ₹ 6,85,346.00 being 25% of ₹ 27,41,385.00 for entertaining the appeal is not correct as the ITC claimed is only provisional and not made final till date. This amounts to non-payment of 25% of the disputed tax while filing the appeal before this Forum as required under Section 52 of TNVAT Act '06. Thus it is crystal clear that the appellants have not fulfilled the conditions specified in the second proviso to Section 52 of TNVAT Act '06. Thus the eligibility of filing the appeal before this forum is not available for the appellants and hence, in view of the above facts, I decline to hear thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner that it has revised the disputed amount from its 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. 11. At this juncture, Mr. N.Sriprakash, learned counsel appearing for the petitioner, looking into the legal position, fairly submitted that the petitioner may be permitted to pay 25% of the disputed tax so that the appeal may be disposed of on merits and this Court may pass appropriate orders to that effect. In my considered opinion, the plea of the learned counsel appearing for the petitioner merits acceptance because, the mistake on the part of the petitioner in not paying the 25% of the disputed tax while filing the appeal can not only be attributed to the petitioner. The 2nd respondent is equally respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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