9911796707
TMI Blog2013 (6) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner are as follows: (a) 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 Input Tax Credit (for short, 'the 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. (b) For the assessment years 2006-07 to 2011-12, the petitioner filed monthly Returns and paid appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed format. When there is no format prescribed under the TNVAT Act, the respondent cannot propose disallowance of exemption on the ground that the details were not given in the prescribed format, and therefore, the revision of assessment is bad in law. (e) The second ground on which the respondent proposed revision of assessment is that the Enforcement Wing Officers noticed defects at the time of inspection. The respondent simply reproduced the statement recorded at the time of inspection and proposed a huge reversal of taxes, despite the fact that 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 Enforcement Wing Officers are not the assessing officer and therefore, revision of assessment cannot be proposed on the ground that invoices/records were not produced before the Enforcement Wing Officers. If at all the respondent wants to peruse the records, the respondent ought to have iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orcement Wing Officers. There will be irreparable harm and hardship to the petitioner, if the respondent confirms the proposal of revision of assessment. Hence, the petitioner has filed these Writ Petitions for the above relief. 4. The petitioner-Company is challenging the impugned notices on the ground that the respondent erred in proposing disallowance of exemption on sales return and exempted sales on the alleged ground that the details regarding the same were not given in the prescribed format, when there is no format prescribed under the TNVAT Act for the same. The action of the respondent in blindly adopting the D-3 proposals is against the law laid down by the Apex Court in the decision reported in 1958 (Vol.IX) STC 428 (Mahadayal Premchandra Vs. Comml. Tax Officer) and the decision of the Division Bench of this Court reported in 2006 (Vol.146) STC 642 (Madras Granites (P) Ltd. Vs. Comml. Tax Officer). 5. On the above background of pleadings, learned Senior Counsel appearing for the petitioner submitted that the impugned notices of revision of assessment are contrary to the established law and not sustainable, because the Enforcement Wing Officer cannot frame the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 8. 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 prescribed under the TNVAT Act and Rule 7 of the TNVAT Rules prescribes that the monthly Return is to be filed in Form I along with proof of payment of tax. The columns in the monthly Returns relating to sales return turnover and exempted sales turnover have been duly filled by the petitioner, which has been accepted by the respondent in the impugned notices. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2013 and also filed all voluminous records on 12.3.2013. The petitioner-Company further claims that their officer 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 petitioner alleges that 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. Since the petitioner alleges that there will be irreparable harm and hardship to them, if the respondent confirms the proposal of revision of assessment, they have filed these Writ Petitions. 11. The legality of the impugned notices, has been called in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, challenging the notices 'simpliciter', without even filing the objections before the respondent, cannot be sustained. 15. At this stage, the learned Senior Counsel appearing for the petitioner pointed out the observations made by the First Bench of this Court in the said W.A.Nos.521 and 522 of 2013, dated 25.3.2013, which are to the effect that "As the communication dated 5.10.2012 is an advisory issued to the respondents, while considering the objections to be filed by the appellant, the appropriate respondent is directed to bear in mind the provision of law and take a decision, without being influenced by the Advisory dated 5.10.2012". 16. Therefore, the impugned proposal of the respondent for revision of assessment, is subject to the consideration of the objections to be filed by the petitioner, and only after receipt of the objections, the respondent could form any opinion in accordance with law. The claim of the petitioner that the Enforcement Wing Officers' report cannot form the basis for the impugned revision of 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 befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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