Madras High Court
M/S.Shanmuga Salt & Chemicals vs The Assistant Commissioner (Ct) on 18 February, 2021
Author: C.Saravanan
Bench: C.Saravanan
W.P.Nos.4722 & 4723 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.02.2021
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.4722 & 4723 of 2015
and MP.Nos.1 and 2 of 2015
M/s.Shanmuga Salt & Chemicals,
Rep. by its Proprietor – V.Rajamanickam,
S/o. T.M.Velusamy, 49 years,
No.41, Cheran Street,
Bhavani Main Road,
Erode – 638 004. ... Petitioner in both WPs
Vs
The Assistant Commissioner (CT),
Chithode Assessment Circle,
Erode. ...Respondent in both WPs
Common Prayer: Writ petitions filed under Article 226 of the
Constitution of India to issue a writ of Mandamus to call for the
records on the file of the respondent in his impugned proceedings
made in TIN 33593063027/07-08 and 08-09 respectively dated
13.01.2015 quash the same as illegal and contrary to the scheme of
the Act.
For Petitioner : Mr.S.Rajasekar
(in both W.Ps)
For Respondent : Mr.M.Hariharan,
(in both W.Ps) Additional Government Pleader
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W.P.Nos.4722 & 4723 of 2015
COMON ORDER
By this common order both the writ petitions are being
disposed of.
2. In these two writ petitions, the petitioner has challenged
the impugned orders dated 13.01.2015 passed by the respondent
for the assessment years 2007-08 and 2008-09.
3. The case of the petitioner is that the petitioner effected
sales to 100% EOU which are zero rated sale under Section 18 of
the TNVAT Act, 2006. As per Section 18(2), a “dealer, who makes
zero rate sale, shall be entitled to refund of input tax paid by him on
purchase of those goods, which are exported as such or consumed
or used in the manufacture of other goods that are exported as
specified in sub-section (1) subject to such restrictions and
conditions as may be prescribed”.
4. According to the respondent, the petitioner should have
filed a refund claim in terms of sub clause (2) of Section 18 of the
TNVAT, 2006. On the other hand, it is the case of the petitioner
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W.P.Nos.4722 & 4723 of 2015
that under sub-section (1), a “dealer is eligible for input tax credit
or refund of the amount of the tax paid on the purchase of goods
specified in the First Schedule including capital goods, by a
registered dealer in the State, subject to such restrictions and
conditions as may be prescribed”.
5. The learned counsel for the petitioner submits that the
petitioner has not claimed refund of Input Tax Credit under Section
18(2) and therefore, question of filing a refund claim in Form W
under Rule 11 of Tamil Nadu Value Added Tax, 2007 does not arise.
6. I have considered the argument of the learned counsel for
petitioner and learned counsel for the respondent. I have also
perused Section 18 of the TNVAT, Act 2006. It is very clear. There
are two options available under the scheme of Section 18. In
respect of sale effected to 100% EOU, a dealer is entitled to adjust
the Input Tax Credit or claim refund under sub clause (2) to Section
18. The petitioner has opted to adjust the Input Tax Credit. The
petitioner has not opted to claim the refund of Input Tax Credit
subject on the sale effected to 100% EOU under sub clause (2) to
Section 18.
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W.P.Nos.4722 & 4723 of 2015
7. Under these circumstances, the impugned orders passed by
the respondent holding that the petitioner was not entitled to
refund and consequently not entitled to adjust the Input Tax Credit,
is not sustainable. Accordingly, the impugned orders to that extent
is set aside leaving the other issue open for the petitioner to take it
on appeal before the Appellate Court, if desired.
8. Accordingly, these writ petitions are partly allowed. Since
the limitations for filing appeal before the Appellate Deputy
Commissioner has already expired, a grace period of 30 days is
granted to the petitoner for filing appeal before such appellate
authority within a period of 30 days from the date of receipt of copy
of this order, subject to other requirements of the Act. No costs.
Consequently, connected Miscellaneous Petitions are closed.
18.02.2021
Index: Yes/ No
Internet : Yes/No
drl
To
The Assistant Commissioner (CT),
Chithode Assessment Circle,
Erode.
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https://www.mhc.tn.gov.in/judis/
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W.P.Nos.4722 & 4723 of 2015
C.SARAVANAN,J.
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