TMI Blog2019 (9) TMI 1569X X X X Extracts X X X X X X X X Extracts X X X X ..... which contains provisions in parimateria with Section 70 of the Tamil Nadu Value Added Tax Act, in fact even stricter, since the phrase used therein is shall produce a transit pass , interpreting the same to state that non-production of a transit pass was not fatal as the burden of establishing exit of the goods from the State would then revert back to the assessee, who could well prove the same by reference to other supporting material. The presumption that the goods have not exited the State was thus rebuttable, enabling the dealer to draw support of other materials in its possession in this regard. Non-production of a Declaration under section 6(3)(b) is not fatal to the claim of the assessee. Having said so, the Assessing Authority has in the impugned order found that only a supporting statement was filed by the petitioner and had no actual particulars of transactions such as work order, inward delivery challan, quantity received and outward delivery challan were supplied. If at all the petitioner was of the view that its claim was in order, the burden rested upon it to justify such claim with whatever material that it could furnish. Such factual particulars do not appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that Sl.No.67/Part B/First Schedule, deals with industrial inputs for use in manufacturing activity. Rule 6(3)(b) of the Tamil Nadu Value Added Tax Rules, 2007 (in short Rules ) contemplates issuance of a certificate by the purchaser of an industrial input, which certificate, according to the petitioner, is only procedural and not a mandatory requirement. The petitioner had effected sales on the basis of invoices to Hyundai, which reflect clearly the value of the goods transferred. The petitioner had also claimed Input Tax Credit (ITC) on the basis of the tax remitted by the vendor, being 12.5%. 4. Pre-assessment notices were issued for the three years, all dated 23.11.2009, proposing to reverse credit, since the Assessing Officer was of the view that the correct rate of tax in respect of capital goods was 4% and not 12.5% and thus, according to him, excess ITC had been claimed by the petitioner. 5. Other issues were also raised with which I am not presently concerned, since the petitioner states that appeals have been filed challenging the same that are pending before the appellate authorities. 6. While this is so and though the petitioner had filed detailed replies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows: Rule 6 Accounts (1)..... ........ R.6(3)(b) Every registered dealer who is a manufacturer or producer and purchases industrial inputs to use them in manufacture of taxable goods shall issue a certificate to the seller containing the details of his Taxpayer Identification Number, the details of goods purchased, details of goods manufactured and the name and address and Taxpayer Identification Number of the seller. 11. The issue for determination is as to whether the provisions of Rule 6(3)(b) are mandatory such that the certificate mentioned therein is the only method by which a dealer/assessee could support his claim in terms of Section 3(2) of the Act. 12. A plain reading of Rule 6(3)(b) does not support this conclusion as the Rule only states that the purchaser shall obtain a certificate from a registered dealer, who is a manufacturer or producer of industrial input and nowhere states that the same has to be produced in support of the claim of reduced rate by an assessee. 13. The Supreme Court, in the case of M.A.Tulloch (supra) was concerned with the production of a Declaration under Section 5(2)(a)(ii) of the Orissa Sales Tax Act (14 of 1947) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of the opinion that the High Court came to a correct conclusion. The High Court is correct in holding that the production of a declaration under rule 27(2) is not always obligatory on the part of a selling dealer when claiming the exemption. It is open to him to claim exemption by adducing other evidence so as to bring the transaction within the scope of section 5(2)(a)(ii) of the Act. In this case, the Sales Tax Officer was satisfied by a mere statement of the dealer and it has not been shown that in fact the registration certificate of the buying dealer, M / s S. Lal Co., did not contain the statement that the goods were intended for resale by him in Orissa. 16. In the impugned order of assessment, the Assessing Officer proceeds on two grounds: Firstly he states that it was mandatory for the petitioner to have filed Industrial Input Certificates to substantiate the claim of lower rate of tax on the sale of finished goods and these having not been furnished, the proposal for higher rate of tax was confirmed. Secondly, in regard to the rate of tax itself, he states that if sold as industrial input, the commodities were liable to be taxed at the higher rate at 12.5% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under section 6(3)(b) is not fatal to the claim of the assessee. Having said so, the Assessing Authority has in the impugned order found that only a supporting statement was filed by the petitioner and had no actual particulars of transactions such as work order, inward delivery challan, quantity received and outward delivery challan were supplied. If at all the petitioner was of the view that its claim was in order, the burden rested upon it to justify such claim with whatever material that it could furnish. Such factual particulars do not appear to have been filed. 22. Thus while holding that the Declaration in terms of Section 6(3)(b) is not the only evidence in support of the claim of the petitioner and that the petitioner is well entitled to produce any other supporting evidence as it may be in a position to, this issue is remanded back to the Assessing Officer to be re-done after hearing the petitioner, within a period of four weeks from the date of receipt of a copy of the order. 23. With regard to the second ground, the case of the petitioner hinges on the provisions of Section 19(2)(iv) of the Act, as per which, ITC shall be allowed on all purchases of goods made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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