9911796707
TMI Blog2009 (10) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... W.P. Nos. 10736 to 10739 of 2009 relates to a question regarding input tax credit on the "paper board" used by the petitioner as insole for the shoes exported. The assessment in W.P. Nos. 10736 to 10739 and 17313 to 17316 of 2009 relates to the period January, 2007 to June, 2007 and the assessment with respect to W.P. No. 20185 of 2009 relates to July, 2007 to September, 2007. The contention of the petitioner herein is that the petitioner is a registered dealer carrying on the business in leather goods and exporting the same. The petitioner is an assessee on the file of the respondent under the provisions of the Act. The petitioner states that in respect of the assessment years 2006-07, 2007-08 and 2008-09, while issuing the refund voucher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance of tax payable, paid over and above four per cent. The respondent further referred to section 40(2)(i) of the Act, which is analogous to section 22(2) of the Tamil Nadu General Sales Tax Act, 1959 and submitted that going by the provisions of section 17(2) of the Act, the burden is on the petitioner to prove the claim and the petitioner had not discharged the burden as regards the ITC. Consequently, the petitions have to be rejected. I do not agree with the stand taken by the respondent herein. The provisions of section 18, particularly 18(1) and (2) of the Act reads as follows: "18. Zero rating.-(1) The following shall be zero rate sale for the purpose of this Act, and shall be eligible for input tax credit or refund of the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut tax credit or made a claim for refund within a period of 180 days from the date of accrual of such ITC, the same shall lapse to the Government. Given the fact that the choice of an adjustment of the input tax credit is given to the assessee, the question of a suo motu adjustment by the Revenue, hence, does not arise, more so, when an assessee seeks a refund of the ITC as provided for under sub-section (2). It is admitted that the petitioner had in fact paid the tax at 12.5 per cent which could not be refuted by the seller. If there had been a charging of tax by the seller when effected the sale to the purchaser at the rate over and above what is payable under the Act, all that the Revenue could do is to proceed against the seller of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the fundamental fact of difference between the earlier Act and the present Act that when the ITC claim clearly shows that the purchaser, the petitioner herein, had paid the tax at 12.5 per cent, the question of the seller coming forward before the authority concerned as regards the collection of tax or as to the proof on the passing of liability does not arise. The learned Additional Government Pleader contended that section 18(2) does not have any restrictive words to mean that the "dealer" could refer only a purchaser to grant a refund. I reject this line of contention outright, as going by section 18(2) of the Act, which is very emphatic in its wording, that the dealer referred to therein to claim a refund is one who had paid the tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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