9911796707
TMI Blog2019 (12) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 6 of the Act because the Assessee had filed the regular monthly returns in Form 'L' and had satisfied the condition of Section 6 of the Act to the effect that it had not made any purchase of the goods from outside the State of Tamil Nadu. 2. The learned Single Judge, in the order impugned before us by the Revenue, has held as under. "It is evident from the above that the petitioner has not purchased the goods from other States and there is no need to file separate application under Section 6 of the Act. Admittedly, the respondent has not made any purchase of the goods outside the country. The impugned order dated 09.02.2015 is set aside. Writ Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed." 3. Learned counsel for the Revenue Mr.Shafiq submitted that the specific provision in Section 6(2) of the Act requires the dealer, who executes the Works Contract, to apply to the assessing authority for opting to pay the tax at compounded rate as prescribed under Section 6 of the Act as contra distinguished from the payment of regular tax on Works Contract under Section 5 of the Act. He submitted that even though the Assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority, which is the mandatory condition as prescribed under Section 6 of the TNVAT Act, 2006 does not hold good. They have not filed the evidence of filing option letter, neither to the Enforcement Wing at the time of inspection nor to the Assessing Officer at the time of filing their objections. It shows that they had not fulfilled their mandatory requirement. Hence, the dealer is not eligible to file monthly returns under Form 'L' but has to file under Form 'I' only. Therefore, their request to drop the proposal is not substantiated with evidence and is overruled." 7. There is no dispute before us that the Assessee also filed monthly returns in terms of Section 6 in prescribed Form 'L' and not in Form 'I' applicable to the payment of regular tax under Section 5 of the Act. 8. The Honourable Supreme Court, in the case of "Commissioner of Central Excise -Vs- Hari Chand Shri Gopal and Others (2011) S.C.C.236", while dealing with the Excise Laws in similar circumstances, made a fine distinction between 'subtantial compliance' and 'intended use' in the Fiscal Statutes in the following manner. We quote Paragraphs 32 to 34 from the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that an earnest effort at compliance should be accepted. 34. The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance of those factors which are considered as essential." 9. A similar view was taken by this Court also in the case of "GE T & D India Ltd -Vs- Commissioner of Central Excise & Service Tax" in C.M.A.No.2032 of 2019 dated 06.12.2019, wherein it was held as under. "10. We do not find anything in the order of the learned Tribunal, which could deny the benefit of the Composition Scheme to the Assessee and therefore, the order of reman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted. (2) Any dealer, who executes works contract, may apply to the assessing authority along with the first monthly return for the financial year or in the first monthly return after the commencement of the works contract, his option to pay the tax under sub-section (1) and shall pay the tax during the year in the monthly instalments and for this purpose, he shall furnish such return within such period and in such manner as may be prescribed. (3) The option exercised under sub-section (1) shall be final for that financial year. (4) A dealer, exercising option under sub-section (1) shall, so long as the option remains in force, not be required to maintain accounts of his business under this Act or the rules made there under except the records in original of the works contract, extent of their execution and payments received or receivable in relation to such works contract, executed or under execution. (5) The dealer, who pays tax under this section, shall not 1[collect any amount by way of tax or purporting to be by way of tax and shall not ] be entitled to input tax credit on the goods purchased by him. Explanation.- For the purpose of this section "civil works contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
