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TMI Blog2017 (7) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... unit sale price of the goods in issue with the unit purchase price. The inclusion of the opening stock, to our minds, has led to an erroneous conclusion that the appellant has sold the goods at a price lesser than the price at which they had been purchased by him. Before concluding a best judgment assessment, the Assessing Officer is required to reach a satisfaction in this behalf. Clearly, such an exercise has not been carried out by the Assessing Officer. Furthermore, a perusal of the provisions of Section 19(20) would also show that, only if, the Assessing Officer comes to the conclusion that the price of the goods sold is lesser than the price at which they were brought, can he, obtain jurisdiction to adjust the ITC, to the extent the amount of ITC exceeds the output tax on the goods. As indicated herein above, the appellant has not availed of ITC in respect of the subject goods i.e., cement. Therefore, there was no occasion for the Assessing Officer, in any event, to invoke the provisions of Section 19(20) of the 2006 Act. The Assessing Officer is, therefore, directed to redo the assessment - appeal allowed - decided in favor of appellant. - W.A.No. 585 of 2017 and C.M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount obtained by the appellant), at the rate of 14 = %. Consequently, the appellant has been called upon to pay, in effect, tax, in a sum of ₹ 16,80,697/-. Curiously, in the notice of demand, which is in Form-O, wherein, the details with regard to tax payable by the appellant is shown, there is a reference to ITC, when, the appellant has not, admittedly, availed of ITC. ITC reversal u/s27(2) Determined Tax determined Total Due Rs 16,80,697 25,397 17,06,094 6. Mr.Annamalai, the learned counsel, who appears for the Revenue admits as much that it is not a case of 'ITC reversal'. 7. Before we proceed further, the following brief facts are required to be noticed: 7.1. The appellant, who is a dealer in cement, had filed his monthly returns for the relevant year, i.e. 2014-15. The Assessment of the appellant was completed as deemed assessment under Section 22(2) of the 2006 Act. Evidently, on 30.11.2016, the Respondent issued a notice whereby he proposed to include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant being aggrieved by the directions contained in the Assessment Order dated 30.12.2016, proceeded to challenge the same by way of writ petition filed under Article 226 of the Constitution. 8. As stated at the very outset, the learned single Judge dismissed the writ petition on the ground that alternative remedy was available to the appellant. 9. Ms.Hemalatha, who appears on behalf of the appellant, says that the order of the learned single Judge is erroneous as various issues, which had been raised in the writ petition, which have not been dealt with in the impugned judgment. The learned counsel submits, in brief, that the learned single Judge was called upon to decide as to whether the Assessment Order passed by the respondents could be sustained under the provisions of Section 19(20) of the 2006 Act. Furthermore, the learned counsel submitted that the other error, which was, in particular, adverted to, but was not discussed in the impugned Judgment, was that, which pertained to determination of the market price of like goods. 9.1. It was submitted by the learned counsel that the respondent could not have taken recourse to invoke the provisions of Section 19(20) or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty in the sum of ₹ 38,096/- will be paid by the appellant. Therefore, as indicated above, we only require to deal with one aspect of the matter, which is, as to whether discount could have been included in the taxable turnover of the appellant, the facts not being in dispute. For this purpose, we may set out in the first instance, the definition of turnover as given in Section 2(41) of 2006 Act, which is as follows: (41) turnover means the aggregate amount for which goods are bought or sold, or delivered or supplied or otherwise disposed of in any of the ways referred to in clause (33), by a dealer either directly or through another, on his own account or on account of others whether for cash or for deferred payment or other valuable consideration, provided that the proceeds of the sale by a person of agricultural or horticultural produce, other than tea and rubber (natural rubber latex and all varieties and grades of raw rubber) grown within the State by himself or on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, shall be excluded from his turnover. Explanation I....................... Explanation II.- S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 31st March 2015 is ₹ 8,60,68,851/-. The total purchases made during the year is a sum of ₹ 8,55,23,004/-. Though not articulated clearly, it appears that the Assessing Officer has come to a conclusion that the sale price is lesser than the price at which the appellant has purchased the goods by including in the purchase turnover, the opening stock amounting to ₹ 10,96,475/-. Thus, the total purchase turnover, has been calculated by the Assessing Officer by pegging the same at ₹ 8,66,19,479/-. 15. According to us, the very basis of the calculation is flawed. The Assessing Officer was required to compare the unit sale price of the goods in issue with the unit purchase price. The inclusion of the opening stock, to our minds, has led to an erroneous conclusion that the appellant has sold the goods at a price lesser than the price at which they had been purchased by him. This apart, as conceded by Mr.Annamalai, the exercise, which is contemplated under Section 24 of the 2006 Act, has not been carried out by the Assessing Officer. 16.For the sake of convenience, the provisions of Section 24 are set out hereafter: 24. Assessment of sales shown in accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods shall be reversed. 18. Thus, having regard to the aforesaid, in our view, the Assessment Order contains errors which are palpable and discernible on the face of the order. Having coming to this conclusion, according to us, the fact that an alternate remedy was available to the appellant would not detain us from exercising jurisdiction in the matter. It is well settled that the fact that alternate remedy is available to assessee cannot prevent the Court from interceding in the matter, if, it is otherwise, of the view that the matter requires intercession. In our opinion as alluded to above, the fact that the Assessing Officer has taken recourse to those provisions of the 2006 Act which were not clearly available to him, in our view, gives us sufficient reasons to intercede in the matter by way of writ jurisdiction. Thus, having regard to the foregoing discussion, the Assessment Order is set aside to the limited extent that it seeks to include the discount quantified at ₹ 1,15,91,011/-, in the taxable turnover of the appellant. The Assessing Officer is, therefore, directed to redo the assessment, bearing in mind the aforesaid discussion. 19. The captioned Writ Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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