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TMI Blog2017 (9) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal would not amount to stay of a judgment or order. In the instant case, the appeal is yet to be numbered - the decision in the case of M/s. Everest Industries Limited Versus The State of Tamil Nadu, The Deputy Commissioner (CT) (FAC) [2017 (3) TMI 279 - MADRAS HIGH COURT], where it was held that the limitation provided in the proviso would apply only vis-a-vis the purpose specified in clause (v) and not qua other purposes set out in clause (i) to (iv) and (vi) of Section 19(2) of the 2006 Act. The impugned assessment orders are set aside in so far as the rejection of the petitioner's objections with regard to adjustment of input tax credit - Matter is remanded back to redo the asessment - petition allowed partly by way of remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer rejected the objections of the petitioner in a single line stating that the reply given by the petitioner cannot be considered as per Section 18(3) of the State Act. As noticed above, the impugned orders being devoid of reasons, it is sufficient to set aside the same. 5. The petitioner's specific case is that they have been making the claim in Form No.1 within the period prescribed under Section 19(11) of the State Act and hence, the respondent was not justified in issuing the show cause notices proposing to reverse the input tax credit on the ground that the claim was not made within 180 days as per Section 18 of the State Act. 6. The petitioner has also placed reliance on the decisions of this Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manded the matter to the Assessing Officer to redo the assessment with regard to preference of set off by holding that the finding rendered by the Assessing Officer referring to Section 18(3) of the State Act was erroneous. At this juncture, it will be useful to refer the relevant portions, which read as under : 9. After elaborately hearing the learned counsel for the parties and perusing the materials available on record, the undisputed position is that Section 18 of the TNVAT Act does not prescribe the method of preference of set-off of ITC. Therefore, in the absence of any statutory provision with regard to method of preference, it has to be seen as to whether the procedure adopted by the petitioner is just and proper and subserves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the petitioner to tax. Under Article 265 of the Constitution of India no tax can be levied or collected except by authority of law and in the absence of a procedure, similar to the one adopted by him, being prescribed by law it is not open to the assessing authority to contend that a particular mode should be adopted, or that the procedure adopted by the assessee is not rational. It is the petitioner's case that the method of adjustment of input tax against the output tax payable, adopted by them would enable them to avail of the benefit of the balance tax deferment in its entirety which they would otherwise not be in a position to utilize as the period of availment of tax deferment expired by March, 2007. The assessing authority can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why the petitioner should not be permitted to adopt the preference of Set-off as done by them in the Returns for the relevant assessment years. Even in the contentions raised by the respondent as set out above, the respondent does not dispute the fact that under Section 18 of the TNVAT Act, no procedure has been prescribed with regard to the method of preference of Set-off of ITC. ..... 13. With regard to preference of Set-off, the findings rendered by the Assessing Officer is set-aside and the matter is remanded to the Assessing Officer to redo the assessments on the said head, after issuing notice to the petitioner and after affording an opportunity of personal hearing and in the light of the directions issued in the preceding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is yet to be numbered and it is still in the SR stage. 13. The settled legal position is that mere pendency of an appeal would not amount to stay of a judgment or order. In the instant case, the appeal is yet to be numbered. Therefore, as on date, the decision in Everest Industries Limited holds the field. 14. For all the above reasons, the writ petitions are partly allowed and the impugned assessment orders are set aside in so far as the rejection of the petitioner's objections with regard to adjustment of input tax credit and the matter is remitted back to the respondent to redo the assessment under the said head by taking note of the decision in the cases of R.K.Knits and Xomox Sanmar Limited referred supra. The petitioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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