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TMI Blog2013 (6) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment and he has no role to act as Assessing Officer and the respondent cannot simply adopt the D-3 proposal, are all matters for concern before the respondent on filing the objections by the petitioner. At this stage, the petitioner stated that the petitioner has already filed objections dated 26.2.2013 before the respondent with regard to the impugned notices these Writ Petitions are disposed of, with a direction to the respondent to consider the said objections, dated 26.2.2013 filed by the petitioner, afford an opportunity of hearing to the petitioner to take a decision uninfluenced by the report of the Enforcement Wing Officers and pass appropriate orders, on merits within a period of four weeks from the date of receipt of a copy of this order. X X X X Extracts X X X X X X X X Extracts X X X X ..... t Wing Officers prepared a statement that the petitioner is ineligible for ITC on capital goods, that the petitioner has to reverse the ITC on goods purchased within the State for non-production of purchase bills, that there was a difference between sales turnover as per Balance Sheet and that reported in the monthly Return, that the sales made on the strength of the certificate issued by the Development Commissioner, MEPZ cannot be claimed as exempted sales, etc. and instead, the petitioner signed the said statement as if it was correct and with an endorsement that the statement was "not accepted to be reconciled, signed under protest". The petitioner has not accepted the alleged defects pointed out by the Enforcement Wing Officers. Even at the time of inspection, the petitioner produced the original purchase bills and the Inspection Officers made tick marks on the same and signed on the bills. (d) The respondent issued the impugned notices on two grounds, namely that the claim of exemption on sales return and exempted sales is proposed to be disallowed on the ground that the petitioner had not furnished the details in the prescribed format. There is no format prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verse the ITC which the petitioner is legally entitled to. (f) The petitioner-Company duly filed their Returns, maintained their accounts properly and paid appropriate taxes. To the impugned notices issued by the respondent, the petitioner filed their reply/objections on 26.2.2013 and also filed all voluminous records on 12.3.2013. The officer of the petitioner-Company also personally met the respondent several times and requested them to verify the records that are lying in their office and that if further details are required, further time may be granted. However, the respondent has not verified the records and insisting on the petitioner to make payment as per the report of the Enforcement Wing Officers without any independent adjudication whatsoever. In the impugned notices, the respondent clearly stated that, "During the time of Surprise inspection by the Officers of the Department, it was noticed that the dealers had not produced the original purchase invoices for which ITC availed by them...", which clearly shows that the original assessment is now sought to be reopened on the basis of the D-3 proposals received from Enforcement Wing Officers. (g) The re-assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed to this Court by filing these Writ Petitions, which are not maintainable. 7. It is seen that the petitioner-Company is a registered dealer on the file of the respondent and engaged in the manufacture of cement tiles. They purchase raw materials for the same on payment of tax from registered dealers within the State. The petitioner uses the raw materials in the manufacture of cement tiles and sells the cement tiles to various persons within the State as well as outside the State and claims ITC on the amount of tax paid on the purchase of inputs in accordance with Section 19 of the TNVAT Act. The petitioner purchased capital goods like strapping machines, weighing scale, racking system, etc., that are necessary for manufacture of the cement tiles from registered dealers within the State on payment of tax. If the petitioner purchased these capital goods from the other States, they have to pay the tax @ 2% / 3% only, but the petitioner paid tax @ 4% under the TNVAT Act and purchased these capital goods from registered dealers within the State in order to avail the ITC under Section 19(3) of the TNVAT Act. The petitioner's place of business was inspected by the officers of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioner had not subscribed to the said statement at the time of inspection. The respondent proposed to disallow the entire ITC on the local purchases on the ground that the original purchase invoices were not produced. Such an allegation has been made despite the fact that the Enforcement Wing Officers verified the purchase invoices. The petitioner alleges that the Enforcement Wing Officers are not the assessing officers and therefore, revision of assessment cannot be proposed on the ground that invoices/records were not produced before the Enforcement Wing Officers. The petitioner contends that if at all the respondent wants to peruse the records, the respondent ought to have issued a summons for production of the books of accounts and thereafter, if the respondent finds any defects, they could issue a proposal for revision of assessment and they cannot directly propose the revision of assessment on the basis of the report of the Enforcement Wing Officers without independently examining the issue and propose a huge assessment simply to harass the petitioner and with the sole aim of following the instructions of the Enforcement Wing Officers. The petitioner duly maintained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file objections within a time frame, it is for the person/dealer to file objections, and only thereafter, the relevant proposal stated in the said notice will be implemented. (b) Before taking recourse to file a Writ Petition challenging a notice, when an opportunity is given to the person/dealer to file objections to the notice in respect of a proposal, the same has to be availed of by the person/dealer aggrieved by the said notice. (c) It is trite law that if the notice issued by the authority is in violation of the fundamental rights guaranteed under the Constitution of India; violation of the principles of natural justice; ultra-vires the provisions of the relevant law; grave error in the notice and miscarriage of justice, then the question of waiving the alternative remedy will arise and this Court, under Article 226 of the Constitution of India, could invoke the Writ jurisdiction and interfere with such notice issued by the authority. 13. In this case, no grave injustice is meted out to the petitioner and there is not even any infringement of fundamental rights. Even in respect of the following the principles of nature justice, it is seen that the respondent rightly off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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