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VAT and Sales Tax - Case Laws
Showing 21 to 40 of 81 Records
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2020 (2) TMI 1189
Reversal of input tax credit - inputs utilised in the manufacture of internal combustion engine - clearance to SEZ unit - petitioner had effected sale to units located in Special Economic Zones outside the State of Tamil Nadu and therefore the 1st respondent has taken a stand that the petitioner was not entitled to proportionate input tax credit on the inputs used in the manufacture of ICE cleared to such units - Section 19(1) of the TNVAT Act, 2006.
HELD THAT:- From section 19, it is clear that if goods are used for manufacturing or processing of goods in the state, a registered dealer would be entitled to avail credit on the tax paid by the seller - it is evident that input tax credit could be denied only Section 19(5)(a),(b) & (c) of the TNVAT Act, 2006 on inputs.
The restrictions in Section 19(5)(a) of the TNVAT Act, 2006, will apply only to such inputs which are bought and sold as such and not to inputs used in the manufacture of goods. 19(5)(b) is not relevant for the present case.
Under Section 19(5)(c) of the TNVAT Act, 2006, no input tax credit can be allowed on the purchase of goods sold as such or used in the manufacture of other goods and sold in the course of inter-State trade or commerce falling under sub-Section (2) of Section 8 of the Central Sales Tax Act, 1956 - Thus, the sale effected under an exemption in terms of Section 8(6) is not covered by the exception in 19(5)(c ) of the TN VAT Act, 2006.
If the sale in question does not fall under Section 8(2) of the CST Act, 1956, but under Section 8(6) of the CST Act, 1956, the credit cannot be denied - The sale of Internal Combustion Engine by the petitioner to units located in Special Economic Zones, outside the State of Tamil Nadu was not an exempted sale within the meaning of Section 15 of the TNVAT Act, 2006 - Such sale is neither exempted under 4th Schedule of the TNVAT Act, 2006 nor exempted under a Notification of the State Government as the expression of “Government” in Section 15 can only mean the “State Government” has defined Section 2(22) of the said Act.
If Section 19(5) of the TNVAT Act, 2006 is applied plainly to the facts of the case, it is evident, credit cannot be denied on inputs merely because inputs were used in the manufacture of goods and such manufactured goods were sold to a buyer without payment of tax under Section 8(6) of the CST Act, 1956. Unless, there is a specific restriction imposed under the Act, credit cannot be denied.
As there is no provision for denying credit under the circumstances, the demand proposed in the impugned notices may not be correct - this writ petitions is partly allowed by relegating the petitioner to file a reply to the impugned notices within a period of thirty days from date of receipt of a copy of this order - Petition allowed in part.
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2020 (2) TMI 1162
Valuation - supply of Supari - rejection of declared value - Enhancement of value - revisionist has disclosed the sale of Supari at the rate of 44-45 per kg and instead the Assessing Authority was of the view that revisionist has undervalued the price of the said product, which according to him was ₹ 90/- per kg only with a view to evade tax - HELD THAT:- The entire exercise undertaken by the assessing authority in rejecting the books of account and subsequently carrying out best judgment assessment is on the basis that the price of Supari is ₹ 90/-. No material has been disclosed from which the assessing authority could determine the said price. Not only the material should have been duly considered by him in his order, but due opportunity should be provided to the assessee to rebut the same. In absence of due disclosure of the material which resulted in formation of opinion, the order of the Assessing Authority is clearly vitiated, as well as the First Appellate Authority and the Tribunal.
The order Commercial Tax Tribunal, Lucknow deserves to be set-aside and the matter is remanded to the Assessing Authority to pass a fresh order after giving an opportunity of of hearing to the petitioner - Petition allowed by way of remand.
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2020 (2) TMI 1161
Requirement of Revision/Re-assessment - Branch Transfer - non-compliance with the terms under Rule 4 (3-A) of the Central Sales Tax Rules - Form-F duly verified - HELD THAT:- The Tribunal was right in setting aside the order passed by the First Appellate Authority holding that the compliance with the requirement under Rule 4(3-A) of the Rules is mandatory, in view of the Circular issued by the Principal Commissioner and Commissioner of Commercial Taxes, in Acts Cell III/124278/94 dated 23.12.1994 reflected in paragraph 34 of its order of the learned Tribunal.
Petition dismissed.
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2020 (2) TMI 1157
Validity of Assessment/Reassessment order - levy of VAT - Challenge on the ground that their branches or units cannot be treated as separate “legal persons” and therefore supply of goods from one branch to another in the State does not amount to “sale” so as to attract the statutory levy - whether the branches of same corporate body acquire independent “legal personality” on being separately registered as dealers for the purpose of the Act? - whether supply of goods from one unit/branch to another of the very same company amounts to sale for the purpose of levy of tax under the Act?
HELD THAT:- Both the above questions need to be answered in the negative.
In the above circumstances, these writ petitions succeed; a Writ of Certiorari issues quashing the impugned orders; all the monies deposited by the petitioners pursuant to interim orders shall be immediately refunded to them; the securities/bank guarantees furnished by the petitioners pursuant to interim orders shall stand rescinded/dissolved.
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2020 (2) TMI 1112
Waiver of interest on the Interest Free Sales Tax Deferral Amount - petitioner became a sick industrial unit within the meaning of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 by the time when it was required to discharge the tax liability under the agreement - Section 17-A (2) of the Tamil Nadu General Sales Tax Act, 1959 - HELD THAT:- Interest Free Sale TCA Deferral Scheme is a special scheme prescribed under Section 17-A of the Tamil Nadu General Sales Tax Act, 1959 - Under the said provision, the Government may, by a notification defer the payment of the whole or any part of the tax payable in respect of any period of any new industrial unit or sick unit or sick textile mill. Interest Free Deferral of Sales Tax may be given prospectively or retrospectively. It is however to subject to such conditions as may prescribed which are incorporated in the Deferral Agreement.
As per sub-section 2 to Section 17-A of the Tamil Nadu General Sales Tax Act, 1959, no interest is attracted under Section 24(3) of the Act during the deferral period, provided the condition laid down for payment of tax deferred are satisfied.
A plain reading of Section 17A(2) of Tamil Nadu General Sales Tax Act, 1959 would indicate that petitioner is not entitled to waiver of interest even for the period during the deferral period as the petitioner breached the condition of the deferral agreement by not paying the tax in time as agreed - In this case, admittedly, the petitioner has not satisfied the condition for payment for deferred payment of tax and therefore interest is payable by the petitioner after the specified date.
There is no basis on which the interest liability can be waived. The interest liability which could be waived by the respondent would have been be only in terms of 17-A (2) of the Tamil Nadu General Sales Tax Act, 1959 read with the Agreement. Thus at best the tax liability can be deferred. There is no power vested with the respondent to waive interest payable under Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959 - Only when the assessing officer comes to a conclusion that the tax determined and payable by a dealer was less or the return was incomplete or where no returns were filed, a notice under section 13(2) of the Tamil Nadu Gen Sales Tax Act, 1959 is required to be issued to a registered dealer. Thus liability to pay is tax mandatory as long as same is reflected in the returns.
For payment of tax, no assessment order is required and only in case of short payment of tax assessment is required after due notice - but for the deferral in payment of the tax under Section 17A of the Act, the petitioner would have been liable to pay tax irrespective of the assessment of tax liability as per Section 13 of the Act. Liability to pay tax is not dependent on the assessment order. Only in case of short payment such notice and assessment is required. Further, an assessment order merely completes the assessment and nothing more. If there is a deficit in payment of tax, a dealer can be asked to pay tax . If not assessment order will accept the tax paid and shown the sales tax return.
The fact that the petitioner was within the purview of Board for Industrial and Financial Reconstruction and was declared as sick unit by the on 31.5.2006 and was de-registered on 05.12.2013 is of no avail - Petition disposed off.
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2020 (2) TMI 1111
Rate of tax on turnover - Sale of Music/Film Audio Compact Disc, video compact disc, digital video etc. - whether taxable at the rate of 14.5% or not - petitioner had claimed that the music/film audio compact disc/video disc/digital video disc et were liable to tax as Information Technology Product under Serial No.68 of Part B of the 1st schedule to the Tamil Nadu VAT Act, 2006 - HELD THAT:- A notice dated 31.10.2016 was issued to the petitioner. Since the clarification of the Authority for Clarification and Advanced Ruling dated 25.7.2012 was against the petitioner, the respondent was justified in confirming the demand to that extent at the time of passing the impugned order - However, post facto, the above clarification of the Authority for Clarification and Advanced Ruling under section 48A of the T.N. VAT Act, 2006 given earlier on 25.7.2012 to the petitioner clarifying that music/film audio compact disc/video disc/digital video disc etc were liable to tax at 14.5% under Entry 13-A (e) of Part C of the 1st Schedule to the Tamil Nadu VAT Act, 2006 was reviewed and a review order has been passed on 19.11.2018 - the demand confirmed by the impugned order insofar as dispute relating to rate of tax on the sale of these items are concerned are answered in favour of the petitioner and accordingly to that extent the impugned order is quashed.
Reversal of the Input tax credit under Section 19(5)(c) of the Act - HELD THAT:- The period in dispute is 2013-14. The Amendment to Section 19(5) was in the year 2015. It deleted sub-clause (c) to Section 19(5). It was not intended to be retrospective in nature. If it was so, the state legislature would have expressly stated at the time of amendment in 2015 - the amendment cannot be said to be retrospective - That apart the amounts involved are too meagre - impugned order upheld.
Petition disposed off.
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2020 (2) TMI 1065
Imposition of penalty u/s 54(1)(14) of UP VAT Act, 2008 - detention of goods on the ground that goods being carried as well as weighing is different from the details of goods and weight disclosed in the documents produced by the revisionist - HELD THAT:- The Tribunal came to the conclusion that the assessee had deliberately not disclosed correct measurement of tiles being carried with intention to evade tax. The Tribunal has clearly mentioned that penalty order was passed only after considering all the documents being carried by the vehicle and even on inspection by the Assessing Authority it was found that the truck was carrying 1598 sq. ft. goods in excess then what was disclosed in the documents accompanying the vehicle. The Tribunal has also been persuaded by the fact that the assessee had voluntarily deposited the penalty amount without raising any objection with regard to the nature and quantity of goods.
From perusal of order of the Tribunal, which is final fact finding authority, it is clear that the goods being carried by the revisionist from Rajasthan to Lucknow the documents had clearly disclosed that the goods were weighing more than what was actually disclosed by the assessee. The weight of the goods was found in excess than that was found declared in the documents accompanying the goods. The Tribunal also recorded that the Assessing Authority found 1598 sq. ft. goods in excess - From perusal of Section 50 read with Section 54(1)(14) of the Act, 2008, it is clear that if any objection is raised that nature and quantity of goods is different then what has been declared, penalty proceedings can be drawn against the assessee. Considering all the facts the Tribunal has recorded that the details of goods being transported by the assessee, have not been disclosed correctly.
This Court do not find any error in the order of the Tribunal, which may require interference - revision dismissed.
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2020 (2) TMI 1059
Validity of Auction Notice - Restraint from Auction of assets - claim of charge towards secured assets - default in repayment of the credit facilities - account having been classified as Non Performing Asset (NPA) -whether the state can put forward its claim of first charge over the secured assets of the borrower or the Bank would have the first charge? - HELD THAT:- The issue is no longer res-integra in view of the pronouncement of this Court in the case of Kalupur Commercial Co-operative Bank Ltd. vs. State of Gujarat [2019 (9) TMI 1018 - GUJARAT HIGH COURT]. This Court has ruled that the Bank will have the first charge over the secured assets of the original borrower & such a claim cannot be defeated by virtue of Section 48 of the VAT Act.
No further adjudication of this writ application is necessary. The Bank was permitted to put the secured assets of the original borrower to auction and the auction proceedings have attained finality - application disposed off.
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2020 (2) TMI 1057
Refund of Amount unauthorisedly deducted as tax under VAT - Whether the amount should be in U.S. Dollars or in Rupees? - HELD THAT:- It is nobody‟s case that the State had directed ONGC to mandatorily carry out deductions under the TVAT Act. Such deductions were carried out by ONGC of its own interpretation of the statute. It could have released the amount to the petitioner - It is out of contractual contract between the petitioner and ONGC.
Hence, to contend that the only currency acceptable by the State towards deposit of tax being Indian currency, ONGC had no option but to deposit the tax amount by converting US Dollars to Indian currency at the prevailing rates and thus ONGC had no role in the collection and deposit of the tax is not correct.
The question of law posed in the present petition, to be no longer res integra. In FORASOL VERSUS OIL & NATURAL GAS COMMISSION (ONGC) [1983 (10) TMI 234 - SUPREME COURT] the Apex Court, under similar circumstances, directed the very same respondent i.e. ONGC to refund the amount in terms of currency agreed upon by the parties.
The petitioner shall be entitled to take credit of the amount in terms of Memorandum dated 16th June, 2017 - The difference in the exchange rate in terms of fluctuation in the Dollar vis-a-vis Indian Rupee, shall however be made good by ONGC. This also has to be in US Dollars, and the rate prevalent as on the date of payment.
Application disposed off.
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2020 (2) TMI 1052
Valuation - inclusion of VAT in the assessable value - inter-State purchasers of High Speed Diesel at the concessional rate 2% of CST, on the basis of Form-C - Sections 47(1)(b) and 48(1) of the Jharkhand Value Added Tax (JVAT) Act, 2005 - HELD THAT:- At this stage, only notices have been issued to the petitioners Companies and they have been asked to satisfy the Commercial Taxes Authorities, with the relevant documents, that they had not committed any breach of the provisions of Sections 47(1)(b) and 48(1) of the JVAT Act - Admittedly, this is not a final action against the petitioners Companies, by which, the petitioners companies are aggrieved. At this stage the petitioners Companies have only to satisfy the concerned authorities, with the help of the documents called for, that they had not committed any violation of Sections 47(1)(b) and 48(1) of the JVAT Act, and in case they are able to satisfy the concerned authorities on these facts, no action is warranted against them, for which, the final decision has to be taken by the Commercial Taxes Authorities, on the basis of the documents, to be produced by the petitioners Companies.
It is directed that the petitioners Companies to appear before the Commercials Taxes authorities with the relevant documents, and their reply to the show cause notices, which shall be considered by the authorities concerned, who may take appropriate action, taking into consideration the fact, whether the petitioners companies had reduced the base price of the High Speed Diesel to the actual price, on which, the same was purchased by them at the relevant point of time, and whether they had escalated or decreased their bills to the actual price of the High Speed Diesel paid by them, as compared to the base price, quoted by them.
Application disposed off.
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2020 (2) TMI 962
Non-payment of security deposit - amendment of registration certificate - Tripura VAT Act - HELD THAT:- The insistence on the part of the department to collect security deposit of ₹ 12,00,000/- from the petitioner for amending the registration certificate is wholly impermissible.
Under Memorandum dated 20th July, 2015 the Commissioner of Taxes in exercise of powers under Rule 12(4) of the Rules of 2005 has prescribed the security deposit amounts required for different classes of re-sellers, importers, manufacturers and transporters - As per this Memorandum thus, the Government could insist on collecting security deposit in two cases namely where transporters of all categories by whatever name called seek registration or when branch office of transporters of all categories are to be registered. However, when it comes to amendment of registration other than inclusion of branch office of transporters as mentioned in Clause (v), the amount of security required is nil.
In the present case, the petitioner only required amendment of the registration certificate by including a go-down. It’s case would therefore fall under Clause (vi) of the said Memorandum. Only if the request of the petitioner was for including the branch office in the registration certificate the security amount of ₹ 12,00,000/- prescribed in Clause (v) of the said Memorandum would have applicability.
What are the rules and regulations for amendment of a registration certificate of a transporter under the new regime is not brought to our notice. Under the circumstances, we permit the petitioner to make a fresh application for amendment of the registration certificate. If such an application is made, the same shall be examined by the GST authorities on the basis of the presently prevailing rules and regulations - petition disposed off.
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2020 (2) TMI 901
Enhancement of turnover - Sodium Silicate - enhancement of turnover on the basis of fuel consumption made by the Assessee - HELD THAT:- In the decision relied upon by the learned counsel for the Assessee, MAHABIR PRASAD JAGDISH PRASAD, VARANASI VERSUS COMMISSIONER OF SALES TAX, UP. [1970 (7) TMI 71 - ALLAHABAD HIGH COURT], the Division Bench of the Allahabad High Court held that merely the high consumption of electricity by the Assessee cannot be held to be a material justifying the rejection of the accounts particularly when the Assessee's accounts had been once accepted during the course of regular assessment proceedings.
The learned Tribunal has not only relied upon the consumption of fuel by the Assessee to arrive at the estimation of the production and escaped turnover, but has also compared the figures of the sister concerns of the Assessee in the present case, whose production was shown to be much higher during the same contemporary period on the basis of fuel consumption only. The units in question whose cases were compared are also located in the same place in Kuthalam, where the Assessee's unit is also established. It cannot be denied that one of the yardsticks to estimate the production and turnover can be made in fuel consumption as well, the other factors like electricity consumption, consumption of raw materials etc. are also relevant, but it cannot be said that estimation on the basis of fuel consumption is per se liable to be rejected, particularly when the Assessee failed to establish that due to that yardstick of fuel consumption applied, it has resulted in a perverse finding by the learned Tribunal.
The learned Tribunal, being the final fact finding body, was entitled to adopt the said criteria in the Second Appeal filed by the Revenue. The said findings of facts unless they are demonstratively shown to be perverse are otherwise binding on this Court, particularly in the writ jurisdiction, invoked by the Assessee - We are not inclined to reverse the view of the Tribunal because we find that the reasons assigned by the learned Tribunal are plausible, reliable and cogent.
Once the best judgment assessment is made by the Assessing Authority or even higher Appellate Authorities rejecting the books of accounts for the declared turnover by the Assessee, they are entitled to adopt one or more of such parameters or yardsticks to estimate the production and turnover of the Assessee.
The basis adopted by the learned Tribunal cannot be said to be per se wrong and estimate of turnover based upon such calculations cannot be held to be perverse - Petition dismissed.
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2020 (2) TMI 900
Levy of penalty u/s 54(1)(14) of the UP VAT Act, 2008 - Unfilled (blank) column No.8 of Form 38 - inter-state sale - intent to evade tax or not - challan number was entered int column 8 of from 38 and challan number and date and number of form 38 was mentioned in the goods receipt and goods were brought not for sale but for use in job work and subsequent return of goods after job work - HELD THAT:- Non-filling up of date in column no. 8 i.e. not mentioning date of bill / cash memo / chalan / invoice number may lead to an inference that in case of non-checking of goods the declaration form may be reused for importing goods of same quantity, weight and value to evade payment of tax but it cannot be the sole ground to impose penalty under Section 54(1)(14) of the Act, 2008. Satisfaction has to be recorded after giving opportunity to the dealer / person and after considering all the relevant materials / evidences on record that there was an intention to evade payment of tax - In the present case also the vehicle was accompanied by Form 38 and all other documents were being carried along with other documents and only due to human error column would remain unfilled. It was the duty of the Officer managing the Check Post who after discovering that some column of Form 38 found unfilled should have filled the same himself in the light of Circular dated 03.02.2009 and should have allowed the vehicle to proceed alongwith the goods.
It is undisputed that the goods transported were the same which were mentioned in the various documents (bill/builty/challan etc.) carried by the driver of the vehicle - The Tribunal has only observed that non-filing of various columns in Form 38 indicates that there was intention to evade tax and only this ground rejected the appeal of the assessee. The Tribunal has not correctly applied the law in this regard, as they have not given any finding about the intention to evade tax, which is a precondition for imposition of penalty.
The impugned order of Tribunal is contrary to settled legal proposition and is therefore set-aside - revision allowed.
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2020 (2) TMI 862
Input tax credit - failure to produce the documents to verify the claim of genuineness of the Input Tax Credit claimed by the Assessee - HELD THAT:- The present writ appeal deserves to be allowed and the matter deserves to be remanded back to the Assessing Officer for enquiry and verification in the matter. Without production of the relevant documents, the Assessee cannot claim the Input Tax Credit and since admittedly the Assessee has not produced the relevant documents, merely because the registration details existed on the rolls of the Revenue Department, it could not per se prove the validity and verification of the transactions in question.
Appeal allowed by way of remand.
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2020 (2) TMI 861
Grant of reimbursement of Commodity Taxes/Value Added Tax paid by the petitioner - Direction to the respondents to issue appropriate notification giving effect to the provisions of Tripura Industrial Investment Promotion Incentive Scheme, 2007 - Tripura VAT Act, 2004 - period from 2008-09 to 2013-14 - HELD THAT:- Where a responsible authority such as the State Government formulates and publishes an incentive scheme making detail provisions for attracting investment, recognizing incentives, laying down conditions of eligibility for claiming such incentives, withdrawing from such scheme only by way of inaction of issuance of notification, would lead to applicability of the principle of promissory estoppel. It would also be a question of credibility of the Government of inviting investments and thereafter backing out from the promise of providing incentives by citing the reason of non issuance of notification, that too without justifying reasons for such inaction.
The ground of the applications of the petitioner not being in proper form or verification is purely technical objection and the defects if any are curable.
The petitioner has made out a case for issuing appropriate directions - it is directed that the respondents shall process the claims of the petitioner for reimbursement of the VAT and other taxes as per the Tripura Industrial Investment Promotion Incentive Scheme, 2007 and pay to the petitioner such sum as found admissible out of the claims of the petitioner for said assessment years - petition disposed off.
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2020 (2) TMI 807
Levy of entry tax - Section 9(4) of the Entry Tax - purchase of cement - HELD THAT:- The Special Leave Petitions need not be interfered with - SLP dismissed.
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2020 (2) TMI 747
Works Contract or not - job of printing of Bill books, receipt books, name pads e.t.c., of the particular institution viz., Arokiya Matha Higher Secondary School - Section 3 (2) of the TNGST Act - HELD THAT:- The Impugned Order passed by the Joint Commissioner (SMR) of Commercial Taxes under revisional jurisdiction is not sustainable. The works carried out by the Assessee, which is a charitable organisation for Women promoting vocational training to Rural youth and women in various discipline is in the nature of the works contract as the goods are supplied to a particular institution on specific orders and as such are not utilised in the course of business of the Assessee for sale otherwise and the property in question stands transferred to the customer as per the specification of the customer and that the specific works contract has been carried out by the Assesee complying with the specific orders and, therefore, the same clearly falls under the Section 3(B) of the TNGST Act, 1959, falling within the charging provision of Section 3 of the Act.
The order of the Revisional authority is liable to be set aside - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 746
Revision of assessment - exemption on turnover - inter-state sales or not sales - Assessing Authority has taken a view that the Sale that had taken place at Pondicherry is Inter-State Sales based on the alleged admission made by the Assessee - HELD THAT:- Since the factual finding has been arrived at by the first Appellate Authority which includes the observation that the Stock Books has been initialed and sealed by the Assessing Authority, there can be no further proof to be filed by the Revenue against such entries made therein. Those factual findings reveal that the Branch at Pondy had sufficient stock of the goods and whenever orders come to Pondicherry Branch, sales has taken place. The finding given by the Tribunal that the sales effected at Pondicherry were only pursuant to the transfer of stocks made then and there by the Tamil Nadu Branch/Dealer has no basis. The Tribunal, being final fact finding Authority, ought to have gone into those factual aspects in detail - We do not feel that the reason given by the Tribunal for taking a different stand for reversing the factual findings of the first Appellate Authority has got any basis and sustainability.
Tribunal has erred in giving such a finding for making a reversal of the order passed by the first Appellate Authority - the order passed by the first Appellate Authority is restored - Petition allowed.
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2020 (2) TMI 745
Service of SCN - Reversal of input tax credit - case of petitioners is that when said notice was issued, the petitioner had already closed down on its business and therefore the said notice remained unserved on the petitioner - TNVAT Act - Principles of Natural Justice - HELD THAT:- Since, the impugned order has been passed without hearing the petitioner there is a manifest violation of principles of natural justice - the impugned order deserves to be quashed on this ground alone.
The case is remitted back to the respondent to pass a speaking order in accordance with law - Petition allowed by way of remand.
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2020 (2) TMI 683
Adjustment of input tax credit for making pre-deposit - fulfilment of condition under 2nd proviso to Section 51 (wrongly mentioned as 52 in the prayer of the Writ Petitions) of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- Input Tax Credit is not intended for being utilised for payment of pre-deposit. At the same time, as per Section 19(18) of the TNVAT Act, 2006, excess input credit, if any, after adjustment under Sub-Section shall be carried forward for the next year or refunded in the manner as may be prescribed. As per Rule 10(10)(b) of the Tamil Nadu Value Added Rules, 2007, in case where Input Tax Credit as determined by the Assessing Officer for any registered dealer, for a year, exceeds the tax liability for that year, it may be adjusted and the excess Input Tax Credit may be adjusted against any arrears of tax or any other amount due from him. If there are no arrears under the Act, or after adjustment there is still an excess of Input Tax Credit, Assessing Authority shall serve Form P upon such dealer. Rule 11 of the aforesaid Rule contemplates the issue of reference of such amounts - excess Input Tax Credit is to be refunded back if after adjustment there is balance available. Therefore, it is evident that if the amount of credit can be refunded, they can also be adjusted towards pre-deposit of the tax liability for the purpose of Section 51 of the TNVAT Act, 2006.
The contention of the petitioner that for the purpose of pre-deposit under Section 51 of the TNVAT Act, 2006 an assessee can utilise the excess Input Tax Credit provided accepted, the aforesaid Input Tax Credit itself is not the subject matter of the dispute or where any notice has been issued to deny such tax credit - To deny such right would amount to improper denial of right of appeal to an assessee - petition allowed.
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