Madras High Court
Tvl.Renaatus Projects Private Limited vs The Appellate Deputy Commissioner (St) on 16 August, 2023
Author: C.Saravanan
Bench: C.Saravanan
W.P.No.2692 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.08.2023
CORAM :
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.2692 of 2021
and
W.M.P.No.3022 of 2021
Tvl.Renaatus Projects Private Limited,
Represented by its Chairman-cum-Managing Director
P.Selvasundaram,
No.156, Mullamparappu, N.O.Palayam Post,
Erode - 638 115. ... Petitioner
Vs.
1.The Appellate Deputy Commissioner (ST),
Erode.
2.The Assistant Commissioner (ST),
Kodumudi Assessment Circle,
Commercial Taxes Building,
North Pradhakshanam Road,
Karur - 639 001. ...
Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, for
issuance of a Writ of Certiorarified Mandamus, to call for the records of the
first respondent notice dated 20.01.2021 in Na.Ka.No.42/2021/A1 and quash
the same to the extend that it requires the petitioner to pay 25% of the
____________
https://www.mhc.tn.gov.in/judis
Page No. 1 of 8
W.P.No.2692 of 2021
disputed tax and consequently direct the first respondent to take the appeal
filed by the petitioner on 18.01.2021 against the second respondent order
dated 18.12.2020 in TIN/33222903520/2015-2016 on file and decide the
same on merits.
For Petitioner : Mr.K.Narayanan
for Mr.Adithya Reddy
For Respondents : Ms.Amirtha Poonkodi Dinakaran
Government Advocate
ORDER
The Writ Petition has been filed for the following relief:-
"to call for the records of the first respondent notice dated 20.01.2021 in Na.Ka.No.42/2021/A1 and quash the same to the extend that it requires the petitioner to pay 25% of the disputed tax and consequently direct the first respondent to take the appeal filed by the petitioner on 18.01.2021 against the second respondent order dated 18.12.2020 in TIN/33222903520/2015-2016 on file and decide the same on merits".
2. The petitioner had suffered an adverse Assessment Order on 18.12.2020 in the hands of the second respondent for the Assessment Year 2015-2016.
____________ https://www.mhc.tn.gov.in/judis Page No. 2 of 8 W.P.No.2692 of 2021
3. Against the aforesaid order, the petitioner preferred an appeal before the first respondent on 18.01.2021. At the time of filing an appeal, the petitioner was entitled for refund of Rs.59,44,262/- out of which, the petitioner wanted to adjust 25% of the tax confirmed by the second respondent vide order dated 18.12.2020 towards pre-deposit.
4. The learned counsel for the petitioner submits that the amounts ought to have been allowed to be adjusted. However, the respondents have not adjusted the same and therefore, the appeal filed by the petitioner on 18.01.2021 has not been numbered.
5. The learned Government Advocate for the respondents has drawn attention to the Counter Affidavit filed by the respondents. Specifically, a reference is made to Paragraph 8 wherein, it has been stated as follows:-
"8. It is submitted that the credit amount mentioned Rs.59,44,262/- is relates to consolidated carry forward amount for the year 2015-2016 as per the Form WW filed and the same has been adjusted in the succeeding year and the provisional unadjusted credit as per Form WW filed for the period 1.4.2017 to 30.06.2017 is Rs.50,74,034/- which is not eligible to claim re-deposit on appeal filed for the assessment year 2015-2016.
____________ https://www.mhc.tn.gov.in/judis Page No. 3 of 8 W.P.No.2692 of 2021 Rule 10(10)(b) specifies : In cases where the input tax credit as determined by the assessing authority for any registered dealer, for a year, exceeds the tax liability for that year, it may adjust the excess input tax credit against any arrears of tax or any other amount due from him. If there are no arrears under the Act or after the adjustment there is still an excess of input tax credit, the assessing authority shall serve a notice in Form P upon such dealer".
Section 42(5) of the Act specifies, "Where the tax paid under this Act is found to be in excess on assessment or revision of assessment, or as a result of an order passed in appeal, revision or review, the excess amount shall be refunded to the dealer after adjustment of arrears of tax, if any, due from him. Where the excess amount is not refunded to the dealer within a period of ninety days from the date of the order of assessment or revision of assessment and in the case of order passed in appeal, revision or review within a period of ninety days from the date of order giving effect to such order passed in appeal, revision or review, the Government shall pay by way of interest, where the amount refundable is not less than one hundred rupees, a sum equal to a sum calculated at the rate of half percent or part thereof of such amount for each month or part thereof after the expiry of the said period of ninety days". Whereas in the petitioner claim, the Assessing Officer has issued Form "O" demanding tax for the assessment year 2015-2016 after making adjustment of all credits in the proceedings issued. Hence the petition was misconceived as not maintainable and there was no case for the issue of a writ of ____________ https://www.mhc.tn.gov.in/judis Page No. 4 of 8 W.P.No.2692 of 2021 mandamus because refunding the tax due on the amount returned and shall issue a voucher in Form-P to the petitioner serve upon the dealer. The petitioner has not proved any refund order for such credit with the department. Hence appeal filed by the petitioner not accompanied by satisfactory proof of payment of the tax admitted is not a valid one."
6. The learned Government Advocate for the respondents has placed reliance on the decision of this Court in Exelan Networking Technologies Private Limited Vs. Commercial Tax Officer, Kilpauk and other rendered by this Court on 04.02.2020.
7. The learned Government Advocate for the respondents further submitted that since the credit has been already adjusted towards tax liability of the petitioner for the succeeding years, the question of allowing adjustment of the aforesaid amount for pre-deposit under Section 51 of the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 does not arise.
8. I have considered the arguments advanced by the learned counsel for the petitioner and the learned Government Advocate for the respondents.
____________ https://www.mhc.tn.gov.in/judis Page No. 5 of 8 W.P.No.2692 of 2021
9. The Writ Petition has to fail as no amounts remains for being adjusted towards pre-deposit in the Input Tax Credit of the petitioner.
10. Considering the above, the Writ Petition fails. However, liberty is given to the petitioner to pay 25% of tax as is contemplated under Section 51 of the TNVAT Act within a period of thirty days from the date of receipt of a copy of this order.
11. Subject to such compliance, the first respondent/Appellate Deputy Commissioner shall number the appeal and dispose the same on merits and in accordance with law in its turn.
12. This Writ Petition is dismissed with the above liberty. No costs.
Consequently, connected Writ Miscellaneous Petition is closed.
16.08.2023 Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order Neutral Citation : Yes/No arb ____________ https://www.mhc.tn.gov.in/judis Page No. 6 of 8 W.P.No.2692 of 2021 To
1.The Appellate Deputy Commissioner (ST), Erode.
2.The Assistant Commissioner (ST), Kodumudi Assessment Circle, Commercial Taxes Building, North Pradhakshanam Road, Karur - 639 001.
____________ https://www.mhc.tn.gov.in/judis Page No. 7 of 8 W.P.No.2692 of 2021 C.SARAVANAN, J.
arb W.P.No.2692 of 2021 and W.M.P.No.3022 of 2021 16.08.2023 ____________ https://www.mhc.tn.gov.in/judis Page No. 8 of 8