9911796707
TMI Blog2017 (7) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... iction, inasmuch as it, inter alia relied, upon the provisions of Section 19(20) of Tamil Nadu Value Added Tax, Act 2006 (in short, 'the 2006 Act'). It was further contended that the Assessing Officer had also relied upon a circular dated 30.11.2009, without taking note of the subsequent circulars dated 04.11.2013 and 11.8.2015. 4.1. In sum, the appellant's case in the Writ Petition was that, the Assessing Officer had included the discount obtained by him from the sellers in his taxable turnover, which is, contrary to the provisions of Section 2(41) of the 2006 Act. The appellant says that since, he had not availed of any Input Tax Credit (ITC), no reversal of the same could have been brought about, as is required under the provisions of Section 19(20) of the 2006 Act, in case, the said provisions is triggered, as was erroneously sought to be done by the respondent. 4.2. For all reasons, according to the appellant, the illegality went to the root of jurisdiction of the respondent. The impugned assessment order, according to the appellant, was thus, liable to be set aside. 5. A perusal of the Assessment Order dated 30.12.2016 would show that the Assessing Officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e TNVATACT 2006 for the year 2014-2015. 1. Discount amount received Rs. 1,15,91,011- at 14.5%- Rs. 16,80,697- 2. Sales suppression determined based on purchase suppression found Rs. 1,75,153/- at 14.5%- Rs. 25,397- Rs. 1,17,66,164/- at 14.5% TOTAL TAX determined Rs. 17,06,094/- ITC reversal u/s 27(2) Determined Tax Determined Penalty under Section 27(3)(c) Determined Penalty under Section 27(4)(ii) Determined Total Due Rs 1680697- 25397- 38096- 1680697- 34,24,887- Paid Rs 0 0 0 0 0 Balance Rs 1680697- 25397- 38096- 1680697- 34,24,887- 7.2. The appellant being aggrieved by the directions contained in the Assessment Order dated 30.12.2016, proceeded to challenge the same by way of writ petition filed under Article 226 of the Constitution. 8. As stated at the very outset, the learned single Judge dismissed the writ petition on the ground that alternative remedy was available to the appellant. 9. Ms.Hemalatha, who appears on behalf of the appellant, says that the order of the learned single Judge is erroneous as various issues, which had been raised in the writ petition, which have not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct could not have been invoked as ITC, in the instant case, was not claimed by the appellant. 11. We have heard the learned counsel for the parties and perused the record. 12. Before we proceed further, we may record that Ms.Hemalatha, who appears for appellant, says that, she is restricting the appeal only to the aspect concerning inclusion of discount in the taxable turnover of the appellant and that the other two aspects which relate to suppression of sales and imposition of penalty are not assailed. In other words, Mrs. Hemalatha says that the tax in the sum of Rs. 25,397/- determined on suppression of sales and penalty in the sum of Rs. 38,096/- will be paid by the appellant. Therefore, as indicated above, we only require to deal with one aspect of the matter, which is, as to whether discount could have been included in the taxable turnover of the appellant, the facts not being in dispute. For this purpose, we may set out in the first instance, the definition of turnover as given in Section 2(41) of 2006 Act, which is as follows: (41) turnover means the aggregate amount for which goods are bought or sold, or delivered or supplied or otherwise disposed of in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Purchase Rs. 8,56,64,331 Sale Value Rs. 8,60,68,851 Gross Profit Rs. 404520 % of profit or loss Rs. 0 14. A perusal of the table extracted above, would show that the sales turnover for the period 2014-2015, for the year ending 31st March 2015 is Rs. 8,60,68,851/-. The total purchases made during the year is a sum of Rs. 8,55,23,004/-. Though not articulated clearly, it appears that the Assessing Officer has come to a conclusion that the sale price is lesser than the price at which the appellant has purchased the goods by including in the purchase turnover, the opening stock amounting to Rs. 10,96,475/-. Thus, the total purchase turnover, has been calculated by the Assessing Officer by pegging the same at Rs. 8,66,19,479/-. 15. According to us, the very basis of the calculation is flawed. The Assessing Officer was required to compare the unit sale price of the goods in issue with the unit purchase price. The inclusion of the opening stock, to our minds, has led to an erroneous conclusion that the appellant has sold the goods at a price lesser than the price at which they had been purchased by him. This apart, as conceded by Mr.Annamalai, the exercise, which is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained in this section, where any registered dealer has sold goods at a price lesser than the price of the goods purchased by him, the amount of the input tax credit over and above the output tax of those goods shall be reversed. 18. Thus, having regard to the aforesaid, in our view, the Assessment Order contains errors which are palpable and discernible on the face of the order. Having coming to this conclusion, according to us, the fact that an alternate remedy was available to the appellant would not detain us from exercising jurisdiction in the matter. It is well settled that the fact that alternate remedy is available to assessee cannot prevent the Court from interceding in the matter, if, it is otherwise, of the view that the matter requires intercession. In our opinion as alluded to above, the fact that the Assessing Officer has taken recourse to those provisions of the 2006 Act which were not clearly available to him, in our view, gives us sufficient reasons to intercede in the matter by way of writ jurisdiction. Thus, having regard to the foregoing discussion, the Assessment Order is set aside to the limited extent that it seeks to include the discount quantified at Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
