TMI Blog2017 (9) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... . substantial portion of the sales, which were in the form of DVDs have been returned to the petitioner, for which, the petitioner has given credit notes. The said credit notes have been placed in the typed-set of papers filed in support of this Writ Petition, to substantiate the case of the petitioner. Therefore, it is the case of the petitioner that the turnover, which was reported in the month of March, 2015, vide their returns, is the turnover, which was determined after giving due credit to the sales returns. The petitioner sought to demonstrate the factual position by referring to a tabulated statement filed in page No.22 of the typed-set of papers. However, even the tabulated statement was not placed before the Assessing Officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned counsel on either side and perused the materials placed on record. 4. The petitioner had filed monthly returns under the provisions of the TNVAT 2006, for the assessment year 2014-15 on a total and taxable turnover of ₹ 8515544/-, and after adjusting Input Tax Credit (ITC) available, the petitioner had paid tax of ₹ 674516/-, and the respondent issued a revised notice, dated 24.08.2015, stating that, on verification of the returns filed by the other dealer, it was noticed that the other dealer claimed ITC on the basis of the invoices issued by the petitioner, and the details of which were furnished. Further, it was stated that, on verification of the sales details, reported in Annexure II filed by the other end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ITC on the purchase of weighing scales and packing machine was proposed to be reversed as ineligible. The respondent proposed to levy penalty under Section 22 (5) of TNVAT Act at 150% of the difference of tax assessed and tax paid as per the returns after duly deducting the tax assessed as per the explanation to Section 22 (5) of the TNVAT Act. The petitioner was granted 15 days time to file their objections and personal hearing was fixed on 07.09.2015 at 11.30 a.m. 6. It is an admitted fact that the petitioner did not file their objections within the time permitted. The petitioner would state that, they appeared before the respondent/Assessing Officer. However, the learned Government Advocate is instructed to state that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posing to reverse the input tax credit availed of by the dealer lacking valid or sustainable basis. If the sales effected to the dealer were not disclosed by such a seller, either in the form of returns filed monthly, or the tax collected from the dealer was not made over to the Department by such seller, action would lie against such defaulting seller and not against the purchaser. Instead of trying to cross verify the input tax credit availed of by the dealer with specific reference to each component, action was directed by the Assessing Officer against the dealer. Therefore, it is held that the learned Single Judge rightly set aside the order of the assessing officer, which was prima facie against the principles of law. 9. If the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been no enquiry done by the Assessing Officer, before coming to the prima facie conclusion that the monthly returns filed by the petitioner is liable to be rejected as incorrect and incomplete. 11. In Sri Vinayaga Agencies's case (supra) it is held that, if the selling dealer has not paid tax, liability has to be fixed on the selling dealer, however, it cannot be mulcted on the purchasing dealer, who had shown the proof of payment of tax on purchase made. 12. The case on hand, is a converse case. According to the petitioner, whatever sales effected by them, i.e. substantial portion of the sales, which were in the form of DVDs have been returned to the petitioner, for which, the petitioner has given credit notes. The said cre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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