9911796707
TMI Blog2017 (11) TMI 1876X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of goods specified in the First Schedule - HELD THAT:- This Court is of the considered view that the assessing officer should re-consider the matter afresh taking note of the factual issues, as to whether the assessment for the years 2007-08 to 2010-11 is barred by limitation, the advance ruling dated 25.07.2012 in ACAAR 14/2012-13, the clarification issued by the Commissioner of Commercial Taxes dated 28.06.2007 - Petition allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... uty alone. Therefore, it was observed that if input tax credit is allowed to the petitioner, the benefit that they claim becomes double benefit. In other words, it was stated that the petitioner cannot claim input tax credit unless he satisfies that the tax paid or payable was in respect of goods specified in the First Schedule. The respondent, while not disputing the fact that the DEPB licences are goods, would state that they do not fall under the First Schedule and in the light of the decision of the Hon'ble Division Bench of this Court, in the case of Sha Kantilal Jayantilal vs. The State of Tamil Nadu reported in (2017) 97 VST 295 (Mad), the purchase of DEPB licence is not eligible for availing input tax credit. Therefore, the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her in the hands of the importer or trader, irrespective of its usage is not eligible for input tax credit, for the reason that it does not fall under the First Schedule. With a view to afford one more opportunity to the petitioner, the respondent fixed a date for personal hearing on 06.09.2017, at 11:00 a.m. The petitioner submitted their further objections dated 14.09.2017, to the final notice dated 23.08.2017, pointing out that the DEPB licence fall under the heading "Intangible goods like copy right, pattern, REP licence" specified in Entry 70 of Part B of First Schedule to the TNVAT Act. The petitioner placed reliance on the Proceedings of the Authority for Clarification and Advance Ruling, issued under Section 48-A of the TNVAT Act, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d since DEPB licences are not falling under First Schedule of the TNVAT Act, the question of granting input tax credit does not arise. The respondent in the written instructions given by the learned Government Pleader (Taxes), reiterated the stand taken in the impugned order, after referring to Section 22(2) and Section 27(2) of the TNVAT Act. 7. Two aspects, which are very important in the case on hand have been failed to be considered by the respondent. As pointed out earlier, the respondent while issuing the first notice dated 01.08.2017, would accept that DEPB licences are considered as goods. It denies the relief to the petitioner on the sole ground that the goods do not fall under the First Schedule. If that is so, how the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, as it cannot be re-opened after a lapse of five years and the five years period came to an end on 30.10.2017. 10. I find that this issue has not been considered by the respondent while passing the impugned orders dated 28.09.2017, for those 4 years. 11. In the light of the above discussion, this Court is of the considered view that the assessing officer should re-consider the matter afresh taking note of the factual issues, as to whether the assessment for the years 2007-08 to 2010-11 is barred by limitation, the advance ruling dated 25.07.2012 in ACAAR 14/2012-13, the clarification issued by the Commissioner of Commercial Taxes dated 28.06.2007, and the decision in the case of Jakridi Plastics Limited (supra) and re-do the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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