@JUDGMENTTAG-ORDER
V. Dhanapalan, J.@mdashBy consent of the learned counsel appearing for the parties, the writ petition is taken up for disposal. Heard Mr. C.
Baktha Siromoni, learned counsel for the petitioner and Mr. A.R. Jaya Prathap, learned Government Advocate appearing for the respondents.
2. What is challenged in this writ petition is the notice, dated January 21, 2013 in TIN No. 33210940197/2011-2012 issued by the first
respondent, informing that input-tax credit is eligible only for the purchasers from the registered dealers as per section 19(2) of the Tamil Nadu
Value Added Tax Act, 2006 (for short, ""the TNVAT Act""), thereby calling upon the petitioner to remit the tax of Rs. 43,14,452 immediately and
if the petitioner has objections on the defects noticed, they may furnish the details along with documentary evidence and connected records within
seven days from the date of receipt of the said notice, failing which, appropriate action would be initiated as per law, seeking to quash the same.
3. It is the case of the petitioner that it is a private limited company, duly incorporated under the Companies Act, 1956 and manufacturing and
selling locally and also exporting machinery to the other countries. The petitioner-company has registered the business activities under the TNVAT
Act and also under the Central Sales Tax Act, 1956 (for short, ""the CST Act"") and the petitioner''s sales tax registration number is TIN No.
33210940197 and they are filing monthly returns and paying tax promptly every month before the respondents. For the year 2009-10, the
petitioner purchased iron tubes from another registered dealer Tvl. Kings Iron Trading Pvt. Ltd., Chennai 600 001 (TIN No. 33470061234) as
per three sales invoice Nos. 198, dated March 18, 2010, 192 dated March 17, 2010 and 205 dated March 19, 2010 and the total value of
purchases for the above three purchase bills works out to Rs. 10,73,66,617 and utilised the goods in manufacturing of machinery and exported the
machinery to other countries. The petitioner accounted for the above three purchases in the monthly returns in form I in annexure I, showing local
purchases in the State and claimed input-tax credit for the taxes paid in the State for such local purchases.
4. While so, the petitioner subsequently claimed refund of input taxes paid in the State for the goods purchased for manufacturing of machinery in
the State, as the machinery so manufactured is exported to other countries as per section 5 of the CST Act. The second respondent issued refund
of input taxes paid after getting confirmation from the third respondent that the seller, M/s. Kings Iron Trading Pvt. Ltd., Chennai 600 001, are
alive and they have paid the taxes due for their sales in the month of March 2010. Subsequently, after 2011, the sales tax registration of the above
seller M/s. Kings Iron Trading Pvt. Ltd., Chennai 600 001, was cancelled retrospectively from January 5, 2010 by the third respondent and the
second respondent has confirmed the sales tax registration and payment of tax by the seller M/s. Kings Iron Trading Pvt. Ltd., Chennai, from the
third respondent in January 2011 and then issued the refund of amount of corresponding input-tax credit to the petitioner, but the third respondent
cancelled the sales tax registration of the said seller from January 5, 2010, retrospectively.
5. It is the further case of the petitioner that the first respondent issued the notice by rejecting the sales made by the seller to the petitioner during
March 2010 and the third respondent has given the date of cancellation of registration of the seller as January 5, 2010. The input-tax credit
available for the petitioner in respect of the purchases, was disallowed by the first respondent because of the retrospective cancellation of their
sales tax registration. The respondents have noted deemed cancellation of seller with effect from January 5, 2010, whereas the seller has not
actually stopped their business on that date, but did business till March 2010. The seller filed monthly returns every month and paid taxes every
month till March 2010 and for the month of March 2010, the seller M/s. Kings Iron Trading Pvt. Ltd., Chennai 600 001 paid tax to the Sales Tax
Department at the rate of Rs. 86,902 and reported the sales in annexure II for that month. When the seller filed monthly returns and paid taxes to
the Department under the TNVAT Act, the buyer is entitled to claim such taxes paid while purchase of goods as input tax.
6. Also the petitioner alleges that the seller filed monthly returns and paid taxes in their assessment circle even after the dates noted as deemed
cancellation by the third respondent till March 2010 and hence, when the taxes are paid by the seller to the Department, the buyer is entitled to
claim such taxes collected by the seller from the petitioner. VAT tax = Output tax - Input tax, i.e., the difference of taxes paid on purchases and
taxes to be paid on the sales, is the VAT tax payable. Such retrospective date of cancellation proceedings of registration of the seller alone is to be
taken to shift the tax burden on the buyer and not any earlier dates. The first respondent has taken earlier date January 5, 2010 as cancellation date
and not the actual date of cancellation of registration of the seller. The mistake committed by the third respondent makes the petitioner to pay more
taxes, as the petitioner''s claim for input-tax credit for the purchases effected in the period in March 2010, is prior to the date of actual cancellation
of registration of the seller.
7. The impugned notice is challenged by the petitioner on the ground that the first respondent not being the assessing authority, has no authority to
issue the impugned notice demanding tax and as per section 2(5) of the TNVAT Act, only the assessing authority is entitled to levy and collect any
tax.
8. The learned Government Advocate appearing for the respondents, by relying on the decision of this court reported in Heinz India Private
Limited Vs. Commissioner of Commercial Taxes and Another, , submitted that this court took a view that the petitioner therein has got every right
to place all the material evidence before the competent authority to prove their claim by filing objections and though the petitioner therein claims
that they have sufficient evidence to prove their claim, the prayer in the writ petition cannot be answered at that stage, as the said writ petition was
not maintainable in the absence of any objection filed by the petitioner therein and this court accordingly disposed of the writ petition with a
direction to the petitioner therein to approach the competent assessing authority and, contest the matter by filing objections, agitating all the issues
contended before this court within a time-limit and on receipt of such objections, the assessing authority was directed to consider the same for the
assessment year 2007-08 therein u/s 22 of the TNVAT Act and pass final assessment orders in accordance with law within a time-limit.
9. I have heard the learned counsel appearing for the parties and perused the material documents available on record.
10. From the facts pleaded, it is seen that the petitioner is a private limited company manufacturing and selling locally and also exporting machinery
to other countries and the petitioner-company purchased iron tubes from Tvl. Kings Iron Trading Pvt. Ltd., Chennai and claimed for input-tax
credit for the taxes paid in the State for such purchase. The only plea raised before this court is that as per section 2(5) of the TNVAT Act, only
the assessing authority is entitled to levy and collect any tax. The definition of ""assessing authority"" as per section 2(5) makes it clear that ""assessing
authority"" means any person authorised by the Government or by the Commissioner to make any assessment in this Act.
11. A reading of the impugned notice reveals that the first respondent-Commercial Tax Officer, Group-VI/Enforcement (South), Greams Road,
Chennai, is the officer authorised by the Government and the Commissioner to make the assessment and the first respondent is the competent
authority to issue the impugned notice. Except raising a plea regarding the competency of the authority, nothing is submitted before this court by the
learned counsel for the petitioner to prove his case that the first respondent is not the assessing authority as defined u/s 2(5) of the TNVAT Act,
and therefore, the plea of the petitioner is rejected on this ground.
12. However, looking into the impugned notice, it is seen that the petitioner is called upon to explain as to what are all their grievances, by filing
objections, and such an opportunity having been already provided in the impugned notice itself, without availing of the same, the petitioner has
rushed to this court challenging the said notice.
13. In the light of the above-stated legal position as well as the fact that the notice under challenge is only calling upon the petitioner to make
payment of the tax immediately and stating that if the petitioner has any objection, they may furnish the details along with documentary evidence
and connected records. When such a course is available to the petitioner to approach the concerned authority, it does not require any interference
by this court in the stage of notice. Therefore, the challenge made by the petitioner to the said notice, is rejected.
14. However, the petitioner is directed to approach the competent assessing authority and make detailed objections to the impugned notice, dated
January 21, 2013, and such objections shall be filed along with documentary evidence and connected records. Learned counsel for the petitioner
submitted that the petitioner-company has already submitted their objections before the competent assessing authority. If such objections are
already filed before the competent assessing authority, the competent assessing authority is directed to consider the same, after giving an
opportunity of hearing to the petitioner and pass appropriate orders, on the merits and in accordance with law, within a period of four weeks from
the date of receipt of a copy of this order. With the above observations and direction, the writ petition is disposed of. No costs. The miscellaneous
petition is closed.
