TMI Blog2024 (2) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 2006 read with TNVAT Rules, 2007 but had failed to pay the tax. This would require a fresh determination. However, it remains unexplained, as to why, by the CMRL having opted to pay tax at compounded rate under Section 6 of the TNVAT Act, 2006, the petitioner would procure Form S from the Commercial Tax Department under proviso to Section 13(1) of the TNVAT Act, 2006 read with 9(2) of the TNVAT Rules, 2007. This require a proper explanation by the petitioner. Therefore, if CMRL had failed to deduct the amounts under Section 13(1) of the TNVAT Act, 2006, machinery under Section 13(8) of the TNVAT Act, 2006, is to be directed only against CMRL. Therefore, to that extent the Impugned Notices are without jurisdiction. The 2% demand proposed in the Impugned Notices is to be directed only against CMRL and not on the petitioner. Therefore the proposed demand in the Impugned Notices are quashed. However, liberty is given to the Commercial Tax Department to complete the assessment if the petitioner was liable to pay tax under Sections 5 and Section 6 of the TNVAT Act, 2006. Petition allowed. - Honourable Mr. Justice C. Saravanan For the Petitioner : Mr. Aparna Nandak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntracts are as under:- FORM S: Contract : UAA 01 and UAA 05 for Rs.25,97,80,50,000/-) Contract Assessment Year Date Date of Form-S Deemed Sale Value Tax UAA 01 2011-2012 23.03.2011 02.08.2011 Rs.13,88,94,931/- Rs.62,40,135/- UAA 01 2012-2013 25.06.2012 27.09.2012 Rs.350,83,62,161/- Rs.23,39,054/- UAA 01 2013-2014 09.04.2013 (Turnover reported on 31.03.2013) 10.04.2013 Rs.273,13,04,860/- Rs.18,02,28,681/- UAA - 05 Rs.219,53,04,882/- Rs.15,64,93,868/- TOTAL Rs.857,38,66,834/- Rs.34,53,01,738 7. In the affidavit filed in support of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted the payment of amount from which the tax has been deducted at source. It is submitted that thus the respondent herein has jurisdictionally erred in issuing the show cause notice to the petitioner herein for the alleged default of the awarder of the contract/works contractee in the alleged non deduction of TDS. It is further submitted that the petitioner herein has discharged its tax liability under Section 5 of the TNVAT Act, 2006 which fact has been accepted by the department. Thus when there is no allegation of default on the part of the petitioner herein in discharging its liability under Section 5 of the TNVAT Act, 2006, the action of the respondent herein in proposing to impose the tax and penalty for non deduction of TDS by the awarder of the contract/works contractee is wholly unjustified. 8. The respondent in their counter has however stated as follows:- It is submitted that however, on verification of Form 'S' issue register maintained in the Respondent office for the year 2012-2013, it does not have entries regarding the issuance of Form 'S' to the Petitioner. It is relevant here to note that i. Form 'S' was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. It is further submitted that in respect of Contract No.(UAA-05) for the assessment year 2013-2014, there are discrepancies in the Form S as per the records maintained by the first respondent and the Form S submitted by the petitioner in their typed set. 12. It is further submitted that the second respondent has failed to submit copies of FORMS R and FORM T to the first respondent as required under Section 13(3) of the TNVAT Act, 2006. 13. In the common counter filed by the respondents, it is submitted that the claim of the petitioner that they have received Form S for the assessment year 2012-2013 is not acceptable since the Form S Register maintained by the respondent office does not have any records regarding the claim of the petitioner. 14. It is submitted in the common counter that the petitioner was requested to furnish any proof / documentary evidences vide Show Cause Notice dated 13.01.2020 in respect of its claim for issuing Form S for Rs.25,97,80,50,000/-. Instead of furnishing the proof the petitioner had approached this Court to quash the Show Cause Notice. 15. It is further submitted that the petitioner failed to furnish any proof / documentary eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (b)transfer of property in goods (whether as goods or in some other form) is involved in the execution of works contract in the course of inter-State trade or commerce or in the course of import; or (c) the dealer produces a certificate in such form as may be prescribed from the assessing authority concerned that he has no liability to pay or has paid the tax under Section 5: Provided further that no such deduction shall be made under this Section, where the amount or the aggregate of the amount paid or credited or likely to be paid or credited, during the year, by such person to the dealer for execution of the works contract including civil works contract does not or is not likely to, exceed rupees one lakh. 22. As per Sub Clause (2) to Section 13 of the TNVAT Act, 2006, Tax deducted at Source has to be deposited with such authority in the prescribed manner within such time as may be prescribed. 23. As per Rule 9(1) of TNVAT Rules, 2007 read with Section 13(2) of TNVAT Act, 2006 any person who makes a deduction under Section 13(1) of TNVAT Act, 2006 has to deposit the amount deducted electronically with the Assessing Authority having jurisdiction along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) or sub-section (2), the whole amount of tax payable shall be recovered from such person and all provisions of this Act for the recovery of tax including those relating to levy of penalty and interest shall apply, as if the person is an assessee for the purpose of this Act 29. As per Sub Section 8 to Section 13 of the TNVAT Act, 2006, if any person contravenes the provisions of Sub Section (1) or Sub Section (2), the whole amount of tax payable shall be recovered from such person and all provisions of this Act for the recovery of tax including those relating to levy of penalty and interest shall apply, as if the person is an assessee for the purpose of this Act. Thus, tax has to be recovered only from the person who was responsible for deducting tax. 30. As per Section 13(4) of the TNVAT Act, 2006, the amount deposited under Sub Section (2) on furnishing of certificate in sub section 3 shall be adjusted by the assessing authority towards tax liability of the dealer under Section 5 or Section 6 of the TNVAT Act, 2006 as the case may be and shall constitute a good and sufficient discharge of the tax liability of the person responsible for making deductions to the extent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of no tax liability under proviso to Section 13(1) of the TNVAT Act, 2006 read with TNVAT Rules, 2007 but had failed to pay the tax. This would require a fresh determination. 37. However, it remains unexplained, as to why, by the CMRL having opted to pay tax at compounded rate under Section 6 of the TNVAT Act, 2006, the petitioner would procure Form S from the Commercial Tax Department under proviso to Section 13(1) of the TNVAT Act, 2006 read with 9(2) of the TNVAT Rules, 2007. This require a proper explanation by the petitioner. 38. Therefore, if CMRL had failed to deduct the amounts under Section 13(1) of the TNVAT Act, 2006, machinery under Section 13(8) of the TNVAT Act, 2006, is to be directed only against CMRL. Therefore, to that extent the Impugned Notices are without jurisdiction. The 2% demand proposed in the Impugned Notices is to be directed only against CMRL and not on the petitioner. 39. Therefore the proposed demand in the Impugned Notices are quashed. However, liberty is given to the Commercial Tax Department to complete the assessment if the petitioner was liable to pay tax under Sections 5 and Section 6 of the TNVAT Act, 2006. 40. These writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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