9911796707
TMI Blog2024 (10) TMI 1604X X X X Extracts X X X X X X X X Extracts X X X X ..... is that post-sale activities was accepted by the Assessing Officer. 4. Assessment Orders for the Assessment Years 2004-2005, 2005-2006 and 2006-2007 were sought to be revised by issuance of Revised Notices dated 07.04.2014, 05.02.2015. The petitioner had replied to these notices on 12.02.2015 for these Assessment Years. Ultimately, by Revision Orders dated 18.02.2015, the Assessing Officer/the first respondent herein confirmed the proposals in the Revised Notices dated 07.04.2014 and 05.02.2015. 5. The petitioner thus challenged the Revision Orders dated 18.02.2015 before this Court in W.P.Nos.8584, 8585 and 8586 of 2015, which came to be partly allowed vide order dated 25.03.2015 by quashing the Revision Orders dated 18.02.2015 with the following observations:- "5. The learned counsel for the petitioner submitted that pursuant to the notice issued by the respondent, the petitioner raised objection and sought time to attend the personal hearing and requested the respondent to grant personal hearing to explain with some more documents for the assessment years 2004-05, 2005-06 and 2006-07, without considering the reply made, the respondent passed the impugned order dated 18.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 531 and the decision of the Division Bench of this Court in Ram Oxygen Private Limited Vs. Joint Commissioner (SMR) of Commercial Taxes, (1999) 115 STC 629 and few other decisions and answered the question of law in favour of the petitioner. 8. Paragraphs 8 to 12 of the Order dated 13.12.2018 of the Division Bench of this Court reads as follows:- "8. Further, the first Appellate Authority found that the sale price on ex-works as per invoice on record is being credited to sale account as per books of accounts and the other charges to freight and unloading charges as per the books of accounts. Reference was made to the decision in the case of State of Karnataka v. Bangalore Soft Drinks (P) Ltd. reported in (2000) 117 STC 413 and the decision of the Division Bench of this Court in Ram Oxygen Private Limited v. Joint Commissioner (SMR) of Commercial Taxes [(1999) 115 STC 629]. Further, the first Appellate Authority relied on the decision of the Hon'ble Supreme Court in the case of Vinod Coal Syndicate reported in 73 STC 317, wherein, it was held that where the cost of freight was charged separately, that amount cannot be included in the taxable turnover of the assessee. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame in the cost of the goods. Further, the purchase order also clearly says that the delivery is ex-RMC Works. Further, the Assessing Officer has not pointed out even a single instance of collection of consolidated amount and that the sale is completed only after delivery of RMC at the site of the customer and not even a single buyer was enquired and there was no material available with the Assessing Officer. Thus, we are of the firm view that the Tribunal committed a serious error in deciding the questions against the assessee. 12. For the above reasons, the appeals filed by the assessee are allowed and the substantial questions framed for consideration are decided in favour of the assessee. No costs." 9. Following the Order of the Division Bench of this Court, the first respondent has passed separate Revision Orders all dated 14.09.2021 for the respective Assessment Years in which, the first respondent also ordered refund of the amount deposited by the petitioner from and out of its input tax credit during 2015-2016 pursuant to Order dated 25.03.2015 in W.P.Nos.8584, 8585 and 8586 of 2006. 10. Along with the aforesaid Revision Orders dated 14.09.2021, the petitioner was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) of the Tamil Nadu General Sales Tax (TNGST) Rules, 1959, after making the final assessment under sub-rule (5) or revision of assessment under Rule 18-A, the assessing authority shall examine whether any and, if so, what amount was due from the dealer towards tax liability after deducting any amount paid in advance. It is submitted that if any amount is found to be due from the dealer after the final assessment or revision of assessment, the assessing authority shall serve upon the dealer a notice in Form B-3 and the dealer shall pay the sum so demanded at the time and in the manner specified in the notice. If the amount due on the final assessment or revision of assessment is lower than the amount already paid and if there are any arrears of amount due under the Act from the dealer, the officer has to serve upon the dealer a notice in Form-C notifying the dealer of the adjustment of excess amount towards such arrears. If there are no arrears of amount due under the Act from the dealer, or if after such adjustment there is still an excess, the officer shall serve upon the dealer a notice in Form-C for refunding the excess amount and along with such notice, he shall also send to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional Government Pleader for the respondents has reiterated the submission that the input tax credit was not available for discharging the tax liability that crystallized under the provisions of the Tamil Nadu General Sales Tax (TNGST) Act, 1959. 22. By way of rejoinder, the learned Additional Government Pleader for the respondents once again drew attention to Section 88(3)(b) of the Tamil Nadu Value Added Tax (TNVAT) Act, 2006. 23. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents. 24. Ready Mix Concrete (RMC) manufactured in the plants of the petitioner were transported to the sites of the customer by the petitioner. 25. The petitioner considered freight and pumping charges collected form its customers as post sale activity and therefore did not include the same into "taxable value" of the Ready Mix Concrete (RMC). Earlier, Assessment Orders dated 25.05.2012 were also passed accepting the stand of the petitioner that these charges were not includible into the taxable value of Ready Mix Concrete (RMC) supplied. 26. A dispute arose on account of non-inclusion of the freight an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king the Circular No.05/2015/MM3/15440/2013 dated 06.02.2015. The Court is of the view that refund of the aforesaid amounts cannot be denied, since the substantial questions of law now has been answered in favour of the petitioner in terms of the order passed in Tax Case (Revision) Nos.10 and 11 of 2013 dated 13.12.2018. 33. Further, having accepted the pre-deposit of input tax credit through a debit in the VAT Returns and having considered the Revision Orders passed on 14.09.2021, it is not open for the Commercial Tax Department now to turn around and deny the refund stating that the petitioner had not complied with the Order dated 25.03.2015 passed by this Court in W.P.Nos.8584, 8585 and 8586 of 2015. 34. Further, during the interregnum, the Tamil Nadu Value Added Tax (TNVAT) Act, 2006, stood repealed and replaced by the Tamil Nadu Goods and Services Tax (TNGST) Act, 2017 with effect from 01.07.2017. Further, the petitioner could not have transitioned the amounts after GST enactments which was rolled out with effect from 01.07.2017. The amount that was debited towards pre-deposit by the petitioner under the VAT regime towards the purported tax liability under the Tamil Nadu Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
