9911796707
TMI Blog2024 (10) TMI 1604X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed in Tax Case (Revision) Nos.10 and 11 of 2013 dated 13.12.2018. 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. As per Section 142(6)(a) and (b) of the Tamil Nadu Goods and Services Tax (TNGST) Act, 2017, the amounts paid as pre-deposit has to be refunded back - the Impugned Intimations all dated 25.11.2021 invoking the Circular No.05/2015/MM3/15440/2013, dated 06.02.2015 at this belated point of time seeking to deny refund are liable to be quashed and are accordingly quashed with consequential reliefs. The respondents are therefore directed to refund the amount to the petitioner within a period of thirty (30) days from the date of receipt of a copy of this order - Petition allowed. - Honourable Mr. Justice C. Saravanan For the Petitioner (In all W.Ps) : Mrs. Aparna Nandakumar For the Respondents (In all W.Ps) : Mr. C. Harsharaj Additional Government Pleader COMMON ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% of the tax amount as determined in the impugned order for the assessment years 2004-05, 2005-06 and 2006-07 which the petitioner has agreed to pay the same. If there is excess ITC lying with the respondent, the same can be adjusted towards future years. One more opportunity is given to the petitioner to putforth their objections and thereafter, the respondent shall pass appropriate orders on merits and in accordance with law. 7. The petitioner is directed to appear on 30.04.2015 before the respondent, on which date, the petitioner is entitled to make their verbal and written submissions, if any. In case the petitioner fails to avail this opportunity, the respondent is empowered to pass orders afresh on merits and in accordance with law based on the available records. If there is any excess amount with the department that need not be refunded and may be adjusted towards future years. 8. These writ petitions are disposed of with the above direction. No costs. Consequently, the connected miscellaneous petitions are closed. 6. There is no dispute that the petitioner had also complied with the conditions pursuant to Order passed by this Court on 25.03.2015 in the above mentioned writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal and therefore, liable to be set aside. Unfortunately, the Tribunal did not even make an attempt to consider as to whether the finding rendered by the first Appellate Authority was correct or not. We disapprove the manner in which the Tribunal has decided the assessee's case. 9. The learned Additional Government Pleader appearing on behalf of the respondent would vehemently contend that the decision in the case of Ram Oxygen Private Limited (supra) cannot be applied to the case on hand as the product dealt with by the said assessee was different from that of the product dealt with by the assessee in the case on hand. 10. In our view what is required to be seen from the judgment is the ratio decidendi which has been rendered by explaining the meaning of the word sale price as defined under the provisions of the Central Sales Tax Act, 1956. For better appreciation, we quote paragraph 9 of the judgment. 9. It is clear from a reading of this definition that cost of freight or delivery or cost of installation is excluded from the sale price where they are separately charged. It has been found by the Joint Commissioner that the assessee had in fact separately charged for the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the then Principal Secretary-cum-Commissioner of Commercial Taxes bearing Circular No.05/2015, Ref.No.MM3/15440/2013 dated 06.02.2015 issued pursuant to the Order passed by this Court in W.P.No.7094 of 2013 dated 08.04.2013 whereby, this Court had declined the right of an assessee namely M/s.KSB Pumps Limited to pre-deposit the amount under Section 51 of the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 from and out of the input tax credit. 13. Learned counsel for the petitioner would submit that there is no merits in the Revision Notices as the issue to levy tax on the freight charges and pumping charges for the sale and supply of Ready Mix Concrete (RMC) has been answered on merits by the Division Bench of this Court in Tax Case (Revision) Nos.10 and 11 of 2013 vide its Order dated 13.12.2018 , which also has been accepted by the order of the first respondent for the respective Assessment Years dated 14.09.2021 . 14. Arguing further, the learned counsel for the petitioner would submit that if the input tax credit determined by the Assessing Officer for a year exceeds tax liability for that year, the excess was to be adjusted against any outstanding tax due from the dealer. 15. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l determination and therefore, on this ground, the writ petitions are also liable to be dismissed. 18. That apart, it is submitted that the order passed by this Court on 25.03.2015 in W.P.Nos.8584, 8585 and 8586 of 2006 is categorical. It is submitted that if there was any excess amount with the department, it need not be refunded and can be adjusted only towards future tax liability. 19. That apart, it is submitted that pre-deposit of 10% from and out of the input tax credit cannot be termed as proper compliance of the order of this Court dated 25.03.2015 as the dispute pertains to the tax liability of the petitioner under TNGST Act, 1959 and the input tax credit and its availability was made available under the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 with effect from 01.01.2007 . 20. It is therefore submitted that the amount debited by the petitioner cannot be refunded back as it is clearly contrary to the Circular dated 06.12.2015 bearing Circular No.05/2015, Ref.No.MM3/15440/2013 dated 06.02.2015 of the Principal Secretary/Commissioner of Commercial Taxes pursuant to Order dated 08.04.2013 in W.P.No.7094 of 2013 . 21. That apart, it is submitted that at best, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the same issue before the Appellate Forums for the Assessment Year 1999-2000 and 2000-2001. 28. Revision orders passed by the first respondent on 18.02.2015 were challenged in W.P.Nos.8584, 8585 and 8586 of 2015 . These Writ Petitions were disposed by this Court vide its Order dated 25.03.2015 to pass a fresh order. The Petitioner was however asked to deposit amounts by the Court in its Order dated 25.03.2015 . 29. Amounts were also deposited by the petitioner pursuant to the directions of this Court dated 2 5.03.2015 in W.P.Nos.8584, 8585 and 8586 of 2015. However, the deposit was made by the petitioner by debiting amounts from its Input Tax Credit availed under the Tamil Nadu Value Added Tax (TNVAT) Act, 2006. 30. Meanwhile, the issue regarding inclusion/non-inclusion of the charges into the taxable value of the Ready Mix Concrete (RMC) was answered in favour of the petitioner by this Court in Tax Case (Revision) Nos.10 and 11 of 2013 on 13.12.2018 . 31. Following the order of this Court in Tax Case (Revision) Nos.10 and Tax Case (Revision) No.11 of 2013 on 13.12.2018, three separate Revision Orders dated 14.09.2021 were also passed dropping the demand. In the Revision Orders p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransitional Provisions: (6) (a) Every proceeding of appeal, revision, review or reference relating to a claim for input tax credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of the existing law, and any amount of credit found to be admissible to the claimant shall be refunded to him in cash in accordance with the provisions of the existing law, and the amount rejected, if any, shall not be admissible as input tax credit under this Act: Provided that no refund shall be allowed of any amount of input tax credit where the balance of the said amount as on the appointed day has been carried forward under this Act; (b) Every proceeding of appeal, revision, review or reference relating to recovery of input tax credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of the existing law, and if any amount of credit becomes recoverable as a result of such appeal, revision, review or reference, the same shall, unless recovered under the existing law, be recovered as an arrear of tax under this Act and the amount so reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
