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TMI Blog2024 (2) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... T Act, 2006 read with TNVAT Rules, 2007 but had failed to pay the tax. This would require a fresh determination. However, it remains unexplained, as to why, by the CMRL having opted to pay tax at compounded rate under Section 6 of the TNVAT Act, 2006, the petitioner would procure Form S from the Commercial Tax Department under proviso to Section 13(1) of the TNVAT Act, 2006 read with 9(2) of the TNVAT Rules, 2007. This require a proper explanation by the petitioner. Therefore, if CMRL had failed to deduct the amounts under Section 13(1) of the TNVAT Act, 2006, machinery under Section 13(8) of the TNVAT Act, 2006, is to be directed only against CMRL. Therefore, to that extent the Impugned Notices are without jurisdiction. The 2% demand proposed in the Impugned Notices is to be directed only against CMRL and not on the petitioner. Therefore the proposed demand in the Impugned Notices are quashed. However, liberty is given to the Commercial Tax Department to complete the assessment if the petitioner was liable to pay tax under Sections 5 and Section 6 of the TNVAT Act, 2006. Petition allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... .2013) 10.04.2013 Rs.273,13,04,860/- Rs.18,02,28,681/- UAA - 05 Rs.219,53,04,882/- Rs.15,64,93,868/- TOTAL Rs.857,38,66,834/- Rs.34,53,01,738 7. In the affidavit filed in support of the petitioner, it has been stated that the Impugned Notices are without jurisdiction. Grounds reads as follows:- "It is submitted that the provisions of Section 13(2) of the TNVAT Act, 2006 read with Rule 9(1) of the TNVAT Rules, 2007 mandates the "person" responsible for deducting the TDS to deposit the sum so deducted along with Form R on or before 20th of the succeeding month. Further sub Section (7) of Section 13 of the TNVAT Act, 2006 lays down that the tax or interest under sub Section (1) and (2) under Section 13 TNVAT Act, 2006 would become due without any notice of demand for the payment by the "person". The term "person" has been defined in Explanation to Section 13(1) of the TNVAT Act, 2006. Similarly Section 13(8) of the TNVAT Act, 2006 lays down that if "such person" contravene the provisions of sub Section (1) and sub Section (2) of Section 13 of TNVAT Act, 2006 the whole amount of tax along with penalty and interest would be recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;S' issue register maintained in the Respondent office for the year 2012-2013, it does not have entries regarding the issuance of Form 'S' to the Petitioner. It is relevant here to note that i. Form 'S' was issued on 27.09.2012, but the CMRL made payments of Rs.80,05,71,993/- from (24.05.2012 to 13.09.2012) towards the above said work without deducting VAT-TDS even though Form 'S' was not produced by the Petitioner at the time of payment; ii. Non- Deduction of TDS without Form 'S' certificate is liable for penalty, and iii. That the CMRL made payment of Rs.567.44 Crore during the year 2013-14 without deducting VAT-TDS. Further, it was verified that no Form 'S' certificate was issued to the Petitioner during the years i.e., 2012-2013 and 2013-2014. The Form 'S' certificate to be issued by the assessing authority contains, inter-alia, the details of value of Form 'S' Certificate, details of works contract to be executed and the certificate is valid only till the end of the financial year. It is further submitted that a verification of Form 'S' issue register at the office of the DC (CT), Zone V, als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/-. Instead of furnishing the proof the petitioner had approached this Court to quash the Show Cause Notice. 15. It is further submitted that the petitioner failed to furnish any proof / documentary evidence with regard to renewal of Form S Certificate for the financial year 2013-2014 as required under notice dated 13.01.2020. 16. In support of the plea, the learned counsel for the petitioner relied in the case of Union of India (UOI) and Others vs. Vicco Laboratories, MANU/SC/4450/2007. 17. On behalf of the respondents, learned Government Advocate for the respondents has placed reliance on the following decisions:- i. Union of India and Others vs. VKC Footsteps India Private Limited, (2022) 2 SCC 603; ii. Commissioner of Income Tax, Mysore, Travancore-Cochin and Coorg, Bangalore vs. The Indo Mercantile Bank Ltd., 1959 Supp (2) SCR 256, AIR 1959 SC 713, (1959) 36 ITR 1; iii. Union of India and Another vs. Kunisetty Satyanarayana, (2006) 12 SCC 28; iv. State Bank of India Officers Association (CC) vs.The Assistant Commissioner (ST), W.P.No.2451 of 2020. 18. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Government A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y with the Assessing Authority having jurisdiction along with a Statement in electronic Form R on or before 20th day of succeeding of every month along with the proof of electronic payment. 24. As per Section 13(4) of the TNVAT Act, 2006, the amount deposited under Sub Section (2) on furnishing of certificate in sub section 3 shall be adjusted by the assessing authority towards tax liability of the dealer under Section 5 or Section 6 of the TNVAT Act, 2006 as the case may be and shall constitute a good and sufficient discharge of the tax liability of the person responsible for making deductions to the extent of the amount deposited. 25. However, as per proviso to Sub-Section(4) to Section 13 of the TNVAT Act, 2006, the burden is on the dealer who claims tax has been paid. Section 13(4) of the TNVAT Act, 2006 together with the proviso reads as under:- Section 13(4) of the TNVAT Act, 2006 13(4) On furnishing a certificate a deduction referred to in sub-section (3), the amount deposited under sub-section (2), shall be adjusted by the assessing authority towards tax liability of the dealer under Section 5 or Section 6, as the case may be, and shall constitute a good and sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. However, as per proviso to Sub-Section(4) to Section 13 of the TNVAT Act, 2006, the burden is on the dealer who claims tax has been paid. Section 13(4) of the TNVAT Act, 2006 together with the proviso reads as under:- Section 13(4) of the TNVAT Act, 2006 13(4) On furnishing a certificate a deduction referred to in sub-section (3), the amount deposited under sub-section (2), shall be adjusted by the assessing authority towards tax liability of the dealer under Section 5 or Section 6, as the case may be, and shall constitute a good and sufficient discharge of the liability of the person making deduction to the extent of the amount deposited: Provided that the burden of proving that the tax on such works contract has already been deposited and of establishing the exact quantum of tax so deposited shall be on the dealer claiming the deduction. 32. Sub-Section (6)to Section 13 of the TNVAT Act, 2006 further makes it clear that, if the amount was wrongly deducted or deducted in excess and that the dealer was not liable to pay tax under Section 5, Assessing Authority shall refund the amount back after adjusting the arrears of tax if any of the dealer. 33. In this case, payments ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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