TMI Blog2020 (3) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the sub-Section (3) may at any time within a period of 6 years [5 years prior to 19.6.2012] from the date of assessment determine to the best of his judgment the turnover which escaped assessment and assess the tax payable on such turnover after making such enquiry as may be considered necessary - Under Section 27(2) of the TNVAT Act, 2006, an assessing officer is empowered to re-open the assessment if he finds that input tax credit has been wrongly availed or where any dealer produced false bills, vouchers, declaration certificate or any other document with a view to support his claim of input tax credit or refund. As per the provision, the assessing authority shall at any time within a period of 5 years from the date of assessment order reverse input tax credit availed and determine the tax due after making such an enquiry, as may be considered necessary. As there was scope for reopening the assessment under Section 27 of the TNVAT Act, 2006, it was incumbent on the part of a registered dealer to retain records until the expiry of period prescribed therein. As the assessment has been deemed to have been completed only on 13.6.2012, the powers of the assessing aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 W.P.No.42548/2016 TIN/33590540639/2008-2009 28.07.2016 2008-09 4 W.P.No.42550/2016 TIN/33590540639/2009-2010 28.10.2016 2009-10 5 W.P.No.42551/2016 TIN/33590540639/2010-2011 28.10.2016 2010-11 3.In the following Writ Petitions, the petitioner has challenged the impugned orders passed for the above mentioned Assessment Years and for the Assessment Years 11-12 to Assessment Years 2015 to 2016 on the ground that the orders have been passed in variance with the demand proposed in the notices:- Table-2 Sl. No W.P.No Impugned Notice No Dated Assessment Year 6 W.P.No.42543/2016 TIN/33590540639/2006-2007 28.10.2016 2006-07 7 W.P.No.42545/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d documents, the petitioner was issued with the 10 different Show Cause Notices dated 28.07.2016 for the Assessment Years 2006-2007 to 2015-2016. Five of these notices are subject matter of the Writ Petitions in Table-1. 8. 10 revision notices culminated in 10 impugned Order dated 28.10.2016 and 31.10.2016 which have been impugned in W.P Nos. 42550 of 2016 as detailed in Table-2. 9. Orders dated 28.10.2016 impugned in W.P.Nos.42543, 42545, 42547, 42549, 42552 of 2016 (Sl.Nos. 6 to 10 of Table-2) are pursuant to impugned notices dated 28.07.2016 in W.P No. 42544 of 2016, 42446 of 2016, 42448 of 2016; 42550 of 2016 and 42551 of 2016 (Sl Nos.1 to 5 of Table-1). 10. Since these impugned orders dated 28.10.2016 (Sl Nos. 6to 10 of Table-2) have been passed pursuant to impugned notice dated 28.07.2016 in W.P.Nos.42544, 42446, 42448, 42550 and 42551 of 2016 (Sl.1 to 5 of Table-1), nothing survived in these writ petitions. W.P.Nos.42544, 42446, 42448, 42550 and 42551 of 2016 were infructuous even on the date of their filing. The said writ petitions are therefore liable to be dismissed and are hereby dismissed. 11. As far as other 10 Writ Petitions in Sl.No.6 to 15 to Tab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Service Tax Appellate Tribunal and Others, MANU/TN/1559/2015, wherein it was observed as under:- 17. The arguments of the learned standing counsel for the Department that all the issues can be trashed out before the adjudicating authority does not find favour with this Court as the Department cannot be allowed to fill up the lacunae in the show cause notices on the basis of an open remand as alleged by appellants 17. It is further submitted that even if the case is remanded back, the respondents cannot be allowed to expand the scope of the dispute which did not form part of the original notice. In this connection reliance is placed on the decision of the Hon'ble Supreme Court in the case of ORYX Fisheries Private Limited Vs Union of India (UOI) and Others , MANU/SC/0921/2010, wherein in the Hon'ble Supreme Court observed as under:- 28. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge sheet, cannot, instead of telling him the charges, confront him with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to have been completed for that year on the 31st October of the succeeding year . Therefore, from 2012 upto the repeal of TNVAT Act, 2006, the assessment was deemed to have been made on 31st day of October of the succeeding year. 25. Returns filed for the Assessment Years between 2006 -07 and 2010-11 which remained unassessed, were deemed to have been assessed on 30.6.2012 in terms of amended Section 22(2) of the TNVAT Act, 2006. 26. Prior to the amendment to Section 22 of the TNVAT Act, 2006, an assessing officer was required to accept the returns submitted by the dealer for the year. The returns were to accompany the proof of payment of tax and the documents prescribed therein. The assessing officer could accept the returns and pass an assessment order. 27. Under Section 27(1) of the said TNVAT Act, 2006, an assessing authority may subject to provisions of the sub-Section (3) may at any time within a period of 6 years [5 years prior to 19.6.2012] from the date of assessment determine to the best of his judgment the turnover which escaped assessment and assess the tax payable on such turnover after making such enquiry as may be considered necessary. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efflux of time and thereby defeat the re-assessment procedure under Section 27 of the TNVAT Act, 2006. 35. In this case the Enforcement Wing of the sales tax department conducted an inspection at the petitioner s Head Office on 7.1.2016. The inspection was carried within the period prescribed for reopening of the assessment under Section 27 of the Tamil Nadu VAT Act, 2006. Notices dated 28.7.2016 to revise the assessments were issued within the period of limitation under Section 27 of the Act. Therefore, neither the notice nor the impugned orders passed pursuant to such notice can be quashed on those grounds. 36. As the assessment has been deemed to have been completed only on 13.6.2012, the powers of the assessing authority under Section 27 cannot be curtailed by giving a skewed interpretation of Section 64(2) Of the Tamil Nadu VAT Act, 2006. 37. If the petitioner wants to justify the input tax credit availed by it during the period in dispute, it has to produce documents called for to substantiate it. Further, under Section 19(5) of the Tamil Nadu VAT Act, 2006, there were certain restrictions for goods cleared as such or which were used in the manufacture of other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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