9911796707
TMI Blog2017 (3) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... saction took place, is an aspect, which attains criticality - The petitioner's/assesse's transaction cannot be impacted by subsequent cancellation of registration. Petition disposed off - The respondent/Assessing Officer will, thereafter, redo the assessment - petition allowed by way of remand. - W.P.Nos. 1814 to 1820 of 2017 and WMP Nos. 1801 to 1807 of 2017 - - - Dated:- 13-2-2017 - MR. RAJIV SHAKDHER, J. For The Petitioner : Mr.N.Prasad, for M/s.K.Senguttuvan, Mr.K.Venkatesh, Government Advocate COMMON ORDER Prefatory Facts : 1. These are seven (7) writ petitions pertain to Assessment Years (AY) 2009-10 to 2015-16. 1.1. By virtue of the captioned writ petitions challenge is laid to seven (7) separate orders of even date, i.e., 04.11.2016. 2. The notices, in these writ petitions, were issued on 27.01.2017, when I had recorded that the cumulative value of tax sought to be imposed on the petitioner was a sum of ₹ 2,16,47,414/- (Rupees two crores sixteen lakhs forty seven thousand four hundred and fourteen only). 2.1. It had been further recorded by me, that, out of the said sum, a sum of ₹ 2,05,84,001/- (Rupees two crores five lakhs eig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79,140 53,905 1,33,045 Sub-Total 19,17,183 2,58,183 8,46,319 7,97,707 5,74,930 25,10,020 136,79,659 205,84,001 Interest Cancellation of Dealers 40,793 47,837 15,634 557 1,04,821 Penalty u/s 27(3) of TNVAT Act 9,58,592 9,58,592 Sub-Total 9,58,592 -- -- 40,793 47,837 15,634 557 10,63,413 TOTAL 28,75,775 2,58,183 8,46,319 8,38,500 6,22,767 25,25,654 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel says that this is, especially so, as despite being given an opportunity, no objections were filed by the petitioner. Reference, in this regard, was made by Mr.K.Venkatesh, to the pre-assessment notice dated 29.07.2016 and 07.10.2016. 6.2. Thus, in effect, Mr.K.Venkatesh, submitted that no interference was called for by this Court, while exercising power under Article 226 of the Constitution. 7. I have heard the learned counsel for the parties and perused the record. Supplementary facts : 8. In order to adjudicate upon these writ petitions, the following brief facts are required to be noticed : 8.1. The petitioner claims to be in the business of manufacture and sale of automobile electrical parts. It is the claim of the petitioner that the majority of its sales is made to an entity by the name Hyundai and/or its subsidiaries. The petitioner claims that purchases were made for the purpose of its business and, accordingly, information with regard to the same, along with Inputs Tax Credit (ITC) claim, was disclosed in its monthly returns, as required under the 2006 Act. 8.2. It appears that the Enforcement Wing of the Sales Tax Department inspected the books ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead to the conclusion that the transactions were bogus and/or were not genuine. Disallowance of ITC on this ground to the extent of ₹ 1,83,36,064/- was not merited. 10.2. In support of the aforesaid submissions, reliance was placed on the following judgements : i) Sri Vinayaga Agencies V. Assistant Commissioner (CT), [2013] 60 VST 283 (Mad); ii) The Assistant Commissioner (CT) V. M/s.Althaf Shoes (P) Limited, passed in W.A.Nos.1367 and 1368 of 2016, dated 10.11.2016; and iii) Infiniti Wholesale Limited (formerly known as Woolworths Wholesale (India) Private Limited) V. Assistant Commissioner (CT), [2015] 82 VST 457; iv) International Flavours and Fragrances India Pvt. Ltd., V. The Assistant Commissioner (CT)., passed in W.P.No.1009 of 2017, dated 12.01.2017. 10.3. Furthermore, counsel for the petitioner submitted that even retrospective cancellation of the registration certificate could not impact the ITC claimed by the petitioner, as the petitioner would have no control over the actions of the selling dealers. In support of this submission, reliance was placed on the decision rendered by this Court in Indian Products Ltd., V. The CTO, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed on the petitioner on account of tax, interest and penalty relates to reversal of ITC. The reversal of ITC, is on account of two major issues. Firstly, due to mismatch in information, that is, qua information which is available with respect to sellers on the website of the Department, as against the details vis-a-vis subject transaction reflected in the monthly returns filed by the petitioner. Secondly, on account of cancellation of registration certificate of the sellers. 13.1. Apart from the fact that both these issues are covered against the respondent/Assessing Officer, by the judgements rendered by this Court, to which, reference has been made, hereinabove, neither the pre assessment notices nor the assessment orders advert to the sellers qua whom there is a mismatch in the available information. Clearly, there is an absence of material particulars both in the pre-assessment notices, and, in the assessment orders. Admittedly, the bulk of tax liability, amounting to ₹ 1,83,76,064/-, is attributable to this issue. 14. In so far as the other aspect is concerned, i.e., cancellation of registration certificate of the sellers, the tax liability is considerably less ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1109 26.02.2013 -do- 1110 26.02.2013 -do- 2013-14 51 17.04.2013 31.03.2013 1144 18.03.2013 07.09.2013 1161 23.05.2013 -do- 1188 01.07.2013 -do- 1251 23.08.2013 -do- 1282 24.09.2013 -do- 1299 11.10.2013 -do- 1309 30.10.2013 -do- 191 30.04.2013 29.04.2013 198 2.5.2013 -do- 213 4.5.2013 -do- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 702 30.8.2013 -do- 748 4.9.2013 -do- 774 7.9.2013 -do- 784 10.9.2013 -do- 822 13.9.2013 -do- 878 20.9.2013 -do- 919 25.9.2013 -do- 928 26.9.2013 -do- 940 27.9.2013 -do- 928 28.9.2013 -do- 928 30.9.2013 -do- 2014-15 1162 06.05.2014 01.05.2014 185 30.07.2014 15.10.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be supplied to the petitioner. 15.2. The observations, in this regard, were made in the order dated 01.02.2017, passed in W.P.No.2325 of 2017, titled : Tvl.Sun Powers rep. by its Proprietrix V. The Commercial Tax Officer. The relevant observations are extracted hereafter : ...... 7. The respondent i.e., Assessing Officer, in my view, could have only come to a conclusion that the subject transactions were bogus, based on substantive material, and not that because objections were not filed by the petitioner, the assertions made in the pre-assessment notice would have to be deemed to be correct. Furthermore, if, material was available with respondent to come to the conclusion that the transaction were bogus, adequate opportunity had to be given to the petitioner to meet the charge. The impugned order shows that there is no discussion on this aspect of the matter. The respondent i.e., Assessing Officer has merely proceeded to confirm the proposal on the ground that no objections were filed by the petitioner i.e., assessee. This approach cannot be countenanced in law. 16. Therefore, for the foregoing reasons, the impugned assessment orders are set aside, subject to the p ..... 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