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TMI Blog2020 (9) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... uch an observation has been made and when the assessee-Company has not placed any semblance of material before this Court for having again paid the tax which has not been paid by the defendant, no cause of action arises for the plaintiff to recover the same from the defendant. This Court has already observed that in terms of Exs.P2 and P4, there was a demand and having paid the tax again in terms of Exs.P2 and P4 insofar as non-payment of the tax by the defendant, if any payment is made, then automatically, the plaintiff would get the cause of action to institute the suit against the defendant and no such material is placed for having paid the amount in terms of demand made as per Exs.P2 and P4. When such being the case, there are no error committed by the Trial Judge in appreciating the material available on record. The appeal is dismissed. - RFA.No.2159/2018 (MON) - - - Dated:- 31-8-2020 - THE HON'BLE MR. JUSTICE H. P. SANDESH FOR THE PETITIONER : SRI. RAMESH ANANTHAN, ADVOCATE JUDGMENT This appeal is filed challenging the judgment and decree of dismissal dated 10.08.2018 passed in O.S.No.992/2015 on the file of the Senior Civil Judge and J.M.F.C at An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the person i.e., the plaintiff, who have taken credit of the same. In view of the fact that the VAT credit having been denied and a proposition order having been passed, the plaintiff demanded the recovery of the aforesaid amount from the defendant. When the defendant failed to make good the loss caused to the plaintiff, without any other alternative has filed the suit for recovery of money. On filing the suit, the Trial Court was pleased to issue notice to the defendant and the defendant, after receipt of the suit summons did not choose to appear before the Court and was placed ex-parte. 5. The Trial Court has recorded the evidence of the Senior Executive Officer of the plaintiff as P.W.1 and got marked the documents Ex.P1 to P9. 6. The plaintiff contended that the Trial Court after considering the material available on record has committed an error in dismissing the suit on the ground that there is no cause of action for the plaintiff to file the suit. 7. It is further contended that the Trial Court has committed an error in not considering the pleadings and the evidence and failed to note that Exs.P1 and P3 are the final orders of assessment of the tax paid by the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was due by the defendant. It is erroneously observed that the cause of action would arise only after the plaintiff pays the tax amount to the Department or the concerned Department has collected the tax after initiating the appropriate proceedings and the plaintiff can sue only after payment of tax to the Department which ought to have been paid by the defendant. The very approach of the Trial Court is erroneous. 10. Learned counsel for the appellant, in his argument vehemently contend that Section 38 of the Act is relevant with regard to assessment of tax and when the tax has been paid while purchasing the materials from the defendant-company, the Trial Court ought to have decreed the suit against the defendant and hence, it requires interference of this Court. 11. Having heard the arguments of learned counsel for the appellant and the respondent though served with notice unrepresented, this Court has to re- appreciate the material available on record and on re- appreciation of the same, the point that arises for consideration before this Court is: (1) Whether the Trial Court has committed an error in dismissing the suit in coming to the conclusion that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exs.P7 and P8 disclose that a notice was issued against the defendant and so also one more letter was addressed i.e., Ex.P6 against the defendant with regard to the proposition notice for non-payment of VAT. The defendant also did not respond to the letter and legal notice - Exs.P6 and P7 and also did not contest the suit before the Trial Court. 16. Having perused the material available on record i.e., the plaint averments and also the documents-Exs.P1 to P4, no doubt an order has been passed by the Commercial Tax Department and demand notices were also issued in terms of Exs.P2 and P4. The plaintiff has not placed any material before the Court in pursuance of Exs.P2 and P4, the amount has been again paid in favour of Commercial Tax Department by the plaintiff. No such document is placed before the Court for having paid the VAT amount in favour of the Department when the defendant did not pay the tax in favour of the Department, which has been collected. Hence, I do not find any error committed by the Trial Court in coming to the conclusion that no cause of action arises to institute the suit against the defendant for recovery of the amount of tax which has been paid in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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