TMI Blog2016 (8) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 - - - Dated:- 1-8-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr. N. Murali For the Respondent : Mr. Manokaran Sundaram ORDER Heard Mr.N.Murali, learned counsel appearing for the petitioner in all Writ Petitions and Mr.Manokaran Sundaram, learned Additional Government Pleader, appearing for the respondent in all Writ Petitions. 2. The petitioner, who is a registered dealer under the provisions of the Tamil Nadu Value Added Tax, 2006 (hereinafter referred as TNVAT Act ) and Central Sales Tax Act, 1956 (hereinafter referred as CST Act ), has filed all these Writ Petitions challenging the orders of assessment for the relevant years. Since the legal issues raised in all these Writ Petitions are identical, the Writ Petitions are heard together and are disposed of by a common order. 3. At the time of filing these Writ Petitions in 2014, several issues were raised, challenging the impugned assessments. However, in the light of the decision of this Court in the case of INTERFIT TECHNO PRODUCTS Vs. PRINCIPAL SECY. reported in (2015) 81 VST 389 (Mad), all those issues stood answered by the said decision and this position is clearly admitted by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic and without jurisdiction. It is pointed out that preference of Set-off of apportionment ITC relating to Export must be given priority since under Section 18 deals with Zero Rated Sale . Further, it is submitted that Section 18(3) is the only provision under TNVAT Act, which provides time limit of adjustment of ITC relating to Zero Rated Sale i.e., within 180 days from the date of accrual and such credit (upto 31.03.2010) and 180 days from the date of making Zero Rated Sale (from 01.04.2010). It is further submitted that after exhausting the proportionate ITC in export the other apportionment of proportionment ITC may be set-off against CST / local sale. Further, the learned counsel submits that Section 18 as well as Rule 11 of the TNVAT Rules do not specify any separate procedure regarding preference for set off of ITC in respect of Zero Rated Sale . Therefore, the contention raised is that, the respondent has no jurisdiction to adopt a preference for Set-off in order to deny the carry forward of ITC which is detriment to the interest of the petitioner. By referring to the decision of the Hon'ble Division Bench of this Court in the case of M/s.Jayam and Co., reported in 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C on CST Sales 64,08,193 Stage 3 The balance available ITC has been carry forwarded to the Next year Available ITC on CST Sales 64,08,193 Less: CST LIABILITY ADJUSTED (59,07,069) BALANCE ITC ON CST Available 5,01,124 Add: ITC on VAT Available 9,09,400 BALANCE ITC CARRY FORWARDED TO NEXT YEAR 14,10,525 *** AS PER DEPARTMENT Total Eligible 1,32,78,320 Adjusted out of VAT ITC 9,09,400 Adjusted out of export ITC 11,99,627 Total 21,09,027 (21,09,027) Adjusted out of CST ITC 64,08,193 Adjusted out of export ITC 33,50,575 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this juncture, it would be beneficial to refer to the decision of the MAXWROTH PLYWOODS P. LTD. Vs. ASST. COMMR. reported in (2013) 62 VST 573 (AP). In the said case, the petitioner claimed Input Tax Credit, relatable to the Assessment years 2005-06 and 2006-07 and, as in the instant case, adjusted Input-Tax Credit against Output payable on its trading activity, and the remaining Input-Tax Credit against the output tax payable by its manufacturing unit. The petitioner's (therein) case was that adopting any other method would result in they not being able to avail of the tax deferment benefits, as the period stipulated for tax deferment came to an end by March, 2007. However, the Assessing Officer issued a notice proposing that Input-Tax Credit should be adjusted first against the output tax payable by the petitioner's (therein) manufacturing unit, and the balance alone should be utilized for adjustment against the output tax payable on their trading activity. The petitioner raised their objections to the said proposal and ultimately, the Assessing Officer did not accept the objections raised by the petitioner and confirmed the proposal. This was put to challenge before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is contrary to the Statute, then the question would be as to why the petitioner should not be permitted to adopt the preference of Set-off as done by them in the Returns for the relevant assessment years. Even in the contentions raised by the respondent as set out above, the respondent does not dispute the fact that under Section 18 of the TNVAT Act, no procedure has been prescribed with regard to the method of preference of Set-off of ITC. Therefore, prima-facie, this Court is of the view that the procedure adopted is favourable to the assessee, more particularly, in the light of the object behind the VAT regime. However, in the instant case, this Court does not propose to render a specific finding, because the impugned order does not discuss this issue, though the same was raised in the objection appears to have not been emphasised by the dealer as well as the Assessing Officer, as there were other issues for consideration. Since the other issues have now been settled in the light of the decision in the case of INTERFIT TECHNO PRODUCTS Vs. PRINCIPAL SECY. (referred to supra), the respondent should redo the assessment with regard to the presence of Set-off and examine as to whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is to be ascertained as to whether the representation made by the dealer is justified and is not hit by any any of the restrictions and conditions contained in Section 19 and in particular Section 19(9) of the VAT Act. (4) It is held that the Assessing Authorities are not justified in adopting uniform percentage as invisible loss and calling upon the dealer to reverse the input tax credit availed to that extent. Consequently, all notices issued to the petitioner for reopening and all consequential order passed reversing the input tax credit to the extent of either 4% or 5% or on adhoc per centage stands set aside. However, liberty is granted to the concerned Assessing Officer to issue appropriate show cause notices to the petitioners clearly setting out under what circumstances they propose to revise or call upon the petitioner to reverse refund sanctioned and after inviting objections proceed in accordance with law. (5) The undertaking given by the dealer in Form W is with regard to information furnished for the purpose of verification by the Assessing Officer under Rule 11(2) of the VAT Rules for being entitled to refund under Section 18(2). Therefore, it is not as i ..... 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