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TMI Blog2015 (3) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... at the petitioner as well as the seller both of them have got officially registered godowns in the Tuticorin Port Yard, for which details, documents have been produced to the authority concerned. This vital fact has not at all been considered by the authority. More over, it is an admitted fact that what has not been asked in the SCN cannot be a ground for passing a final order. It is for the purchaser to produce the way-bill. In this case, after the SCN, the petitioner also produced annexure-2 and thereafter, tax has been paid by the selling agent. When that has been produced as early as on 22.01.2015 along with reply, no proper explanation has been given in the order and further opportunity has not been given. The authority should have taken into consideration the tax paid by the seller and as stated supra, even as per the Rule 10(2) of the TNVAT Act, there is no violation. Since both the purchaser and the seller have godowns in Tuticorin Port yard itself, the question of producing way-bill and noting of lorry registration numbers does not arise at all. Petition allowed - decided in favor of petitioner. - W.P(MD).No.3697 of 2015 and M.P.(MD).No.1 of 2015 - - - Dated:- 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly contend that in fact, the pre-revision notice was given on 12.01.2015 and on 02.02.2015 , the petitioner appeared before the respondent and also given his reply along with some documents. Once again, notice was given on 30.01.2015 for personal hearing. On that day of personal hearing, the petitioner has not filed his objections and thereafter, final order was passed on 25.02.2015. Hence, the impugned order is passed in accordance with law. In the impugned order itself, they have clearly stated about the non-production of way-bill, even though the sale process was performed in the yard itself. 6. Heard both the parties. 7. The only point which has to be necessarily considered by this Court is in respect of giving sufficient reasons in the show-cause notice, by the authority. 8. In the show-cause notice, they have not mentioned about the production of way-bill, whereas in the final order, rejection is made on the ground that certain way-bills were not produced. As rightly pointed out by the learned counsel for the petitioner, the reason given in the show-cause notice are not the same as given in the final order and it is totally different. It is against the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 19 of the Tamil Nadu Value Added Tax Act. Going by Section 17 of the Tamil Nadu Value Added Tax Act that the burden on the purchasing dealer rest to the extent of showing that he is not liable to tax under the Act and read in the context of the fact that the assessee had given his seller's TIN number and had also produced the invoices evidencing the purchase of materials of payment of tax, I do not think that the Revenue can successfully canvass its claim that the assessee is not entitled to have the refund. As already pointed out, the circular issued by the Commissioner clearly states that so long as the vendor is found to be a registered dealder on the files of the Revenue, the claim of the assessee for refund could not be rejected nor delayed. As already pointed out, the Revenue does not deny as a matter of fact, that the assessee's vendors are all registered dealers on the files of the Revenue and the assessee had also given the TIN number of these vendors. When such particulars are available, it is for the Revenue to take necessary action against the vendors, who had not remitted tax collected by them to the State. Without taking recourse to that, I do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, for the Department to proceed against the selling dealer for recovery of tax in the manner known to law. The provision under which the present action has been initiated, namely invoking sub-section (16) of Section 19, does not appear to be correct on the admitted facts as above. All the revision orders revising the input-tax credit on the admitted case of tax having been paid to the selling dealer, therefore, are found to be totally incorrect, erroneous and contrary to the provisions of the TNVAT Act and Rules. As a result, all the orders are liable to be set aside. For all the above reasons, the impugned orders are set aside and the writ petitions are allowed. Consequently, M.P.No.1 of 2013 is closed. No costs. 12. A learned Single Judge of this Court also in a writ petition in W.P.No.9265 of 2013, has held as follows: 22. In the case of Althaf Shoes (Pvt) Limited, cited supra, the petitioner was a dealer and exporter of finished leather and other products, who claimed refund of ITC under Section 18(2) of the VAT Act in respect of the exports made. Though the refund was granted, subsequently, notice was issued seeking to withdraw the relief on the ground that its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be said to have wrongly availed of input tax credit wrongly. The Section 19(1) states that input-tax credit can be claimed by the registered dealer, if the registered dealer establishes that the tax due on such purchase has been paid by him in the manner prescribed and that was accepted at the time when the self-assessment was made. The pre-revision notices and the orders clearly stated that the petitioner herein had paid the tax to the selling dealer. If that be the case, the petitioner's case squarely fell under the proviso to Section 19(1) of the Act. Further, it was another matter that the selling dealer had not paid the collected tax. The liability had to be fastened on the selling dealer and not on the petitioner-dealer which had shown proof of payment of tax on purchases made. The orders were thus set aside. 24. This Court is of the view that the above referred decisions squarely cover the case on hand. The only conclusion that could be arrived is the ITC availed by the petitioner could not have been proposed to be reversed or reversed on the grounds stated by the respondent, ie., the selling dealer has not filed returns or not paid taxes or they were unreg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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