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2016 (6) TMI 1065 - MADRAS HIGH COURT

2016 (6) TMI 1065 - MADRAS HIGH COURT - [2016] 96 VST 523 (Mad) - Levy purchase tax under Section 12 of the TNVAT Act on the turnover of goods sold to the dealer located in a SEZ - contradiction with the provisions of Tamil Nadu Special Economic Zones (Special Provisions) Act, 2005 - Held that:- Admittedly, the notification granting exemption issued by the Government of Tamil Nadu vide G.O.Ms.No.75, dated 28.06.2005, continued to be in force on the date immediately before the commencement of the .....

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a Government letter, dated 29.12.2006, to the first respondent stating that by virtue of Section 88(3)(i), the notification, granting exemption already issued under TNGST shall continue to be in force under TNVAT Act. - Benefit of exemption to be granted - Decided in favor of assessee. - W. P. Nos. 40283 to 40288 of 2015 - Dated:- 22-6-2016 - T. S. Sivagnanam, J. For the Petitioners : Mr. Aravind P. Datar Senior counsel for Mr. K. Magesh For the Respondents : Mr. V. Haribabu AGP ORDER In these .....

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er the Companies Act, 1956 in 2007 and engaged in the business of supplying Base Transmission Modules and its related IT Telecommunication equipment for use by various telecom service providers both within and outside India. The petitioner is a registered dealer on the file of the second respondent under the provisions of the TNVAT Act. For all the six years, which are subject matter of these Writ Petitions, the second respondent issued notices to the petitioners dated 31.08.2015, stating that t .....

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the turnover relating to the purchase at the rates specified in the schedule appended to the TNVAT Act. It was further stated that the goods mentioned were purchased by the petitioner with payment of tax by virtue of being located in SEZ warrants levy of purchase tax under Section 12 of the TNVAT Act. Therefore, the respondent proposed to levy tax under Section 12(1)(a) of the TNVAT Act and granted an opportunity to the petitioner to file their objections. The petitioners submitted their reply, .....

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EZ Act, it was stated that under Section 12(1)(a) of the TNSEZ Act, reference has been made to the Tamil Nadu General Sales Tax Act, 1958, (TNGST Act), however, as per Section 87 of the TNVAT Act, any reference to TNGST Act is construed to be a reference to TNVAT Act and as per Section 12(1)(a) of the TNSEZ Act, there shall be no levy of tax under TNVAT Act on sale or purchase of goods, which are meant to carry on authorised operations. Therefore, it was contended that they are exempted from pay .....

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s mentioned in the letter of approval. Reliance was also placed on the decision of the Gujarat High Court in the case of Torrent Energy Limited vs. State of Gujarat, reported in 2014 17 VST 582. Thus, by claiming exemption from payment of purchase tax, the petitioner also contended that the basis for computation is erroneous and prayed for dropping all further proceedings and an opportunity of personal hearing before taking any adverse decision. The respondent afforded an opportunity of personal .....

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nted ceases to exist the moment the TNGST Act was repealed. Further, the second respondent proceeded to make certain observations as regards the effect of the decision in the case of Torrent Energy Limited (supra). 4. These Writ Petitions were admitted and interim orders were granted and the respondents were directed to file counter affidavit. From the perusal of the counter affidavit, it is seen that the stand taken therein is by replicating the stand taken in the impugned order. When the matte .....

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r to a registered dealer for the purpose of setting up, operation, maintenance, manufacture, trading, production, processing, assembling, repairing, reconditioning, re-engineering, packaging or for use as packing material or packing accessories in an unit located in Madras Special Economic Zone, Tambaram, Chennai and other Special Economic Zones in the State of Tamil Nadu notified by the Government of India or for development, operation and maintenance of Special Economic Zone by the developer o .....

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y for the aforesaid purposes. 5. This notification came to be issued in the light of the fact that the State of Tamil Nadu enacted a separate legislation for Special Economic Zones namely, TNSEZ Act, 2006. After the repeal of the TNGST Act and coming into force of the TNVAT Act, 2006, the Government passed an order with regard to the effect of the exemption notifications, which were issued, when TNGST Act was in force and by referring to Section 88 of the TNVAT Act, it was stated that notificati .....

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der the tax regime under the TNGST Act would continue. 7. I have heard Mr.Aravind P.Datar, learned Senior counsel for the petitioner, Mr.V.Haribabu, learned Additional Government Pleader appearing for the respondents and perused the materials placed on record. 8. As noticed above, the Government had issued a notification granting exemption as far back as 28.06.2005, making an exemption in respect of sales tax, surcharge, resale tax and additional sales tax payable by any dealer on the sale of an .....

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rnish a certificate in the form appended in the notification duly countersigned by the SEZ authority and the goods purchased are used only for the above mentioned purpose. This amendment came to be notified in exercise of the powers under Section 17(1), as the Government had enacted the Tamil Nadu SEZ Act, Tamil Nadu Act 18 of 2005, which came into force on 08.08.2005. The only reason assigned by the respondent, Assessing Officer is by referring to Section 12(1)(a) of the TNSEZ Act, which reads .....

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the sale or purchase of goods under TNGST Act, if such goods are meant to carry on the authorised operations by the developer or entrepreneur. The respondent does not dispute the fact that the petitioner is a developer or an entrepreneur nor does it dispute the fact that the purchase of goods are meant to carry on authorised operations. The only reason based on which they seek to deny the benefit of exemption is by stating that after the repeal of TNGST Act unless the legislature had amended Sec .....

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any Rule, Notification, proceedings, order, or other instrument made or issued under that Act, shall be construed as reference to Tamil Nadu Value Added Tax Act. Section 88. Repeal and Saving:- (1) The Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959) and the Tamil Nadu Additional Sales Tax Act, 1970 (Tamil Nadu Act 14 of 1970) (hereafter in this section referred to the said Act or 1970 Act ) are hereby repealed. Provided that such repeal shall not affect the previous operation o .....

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to have been valid, during the period the said Act or 1970 Act, as the case may be was in force notwithstanding the repeal of the said Act or 1970 Act as the case may be. 10. By virtue of Section 87 of the Act, wherever there is any reference to TNGST Act i.e., in any Act, Rule, Notification proceedings, order or other instrument made or issued under TNGST Act shall be construed as reference to TNVAT Act. In terms of the proviso under Section 88(1), the repeal of the TNGST Act, shall not affect .....

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