Madras High Court
Indo Shell Mould Ltd vs The Assistant Commissioner (Ct) (Fac) on 17 September, 2019
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.No.31819 & 31820 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.09.2019
CORAM
THE HONOURABLE Dr. JUSTICE ANITA SUMANTH
W.P.No.31819 & 31820 of 2006
Indo Shell Mould Ltd.
represented by its Managing Director
K.Jagadeesain
...Petitioner in the above W.Ps
Vs.
1.The Assistant Commissioner (CT) (FAC)
Fast Tract Assessment Circle II,
Coimbatore.
2.The State Industries Promotion
Corporation of Tamil Nadu.,
19-A Rukmani Lakshmipathy Road,
Chennai-600008
...Respondents in the above W.Ps
Prayer:- Writ Petitions filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorari, calling for the records on the
files of the First respondent herein in his TNGST No.1801566/1999-2000 dated
07.04.2003 and CST 286156/1999-2000 dated 07.04.2003 and quash same.
For Petitioner : Mr.N.Inbarajan
For Respondent : Mr.V.Haribabu,
Additional Government Pleader
COMMON ORDER
The petitioner has challenged proceedings dated 07.04.2003 passed by the Assistant Commissioner of Commercial Taxes/first respondent levying interest under Section 24(3) in respect of assessments made under the Tamil Nadu http://www.judis.nic.in General Sales Tax Act, 1959 and Central Sales Tax Act, 1956. 1 W.P.No.31819 & 31820 of 2006
2. The petitioner had applied for Interest Free Sales Deferral and was granted the same in terms of Eligibility Certificate dated 28.11.1998. An agreement was entered into between the petitioner and the territorial Assistant Commissioner on 31.03.1999. The deferral periods as well as the financial years of repayment are set out as follows:
5.1.Conditions:
5.1.The sales Tax deferred will be repaid as follows:- Deferral Period Financial Year of Repayment 1.7.1996-31.3.1997 1.7.2001-31.3.2002 1.4.1997-31.3.1998 1.4.2002-31.3.2003 1.4.1998-31.3.1999 1.4.2003-31.3.2004 1.4.1999-31.3.2000 1.4.2004-31.3.2005 1.4.2000-31.3.2001 1.4.2005-31.3.2006 1.4.2001-30.6.2001 1.4.2006-30.6.2006
3. Since the petitioner had availed of the deferral only for five months i.e. April to August 1999 and did not avail of the same either prior or post the aforesaid period of five months, the Assessing Authority issued a notice dated 07.04.2003 proposing penalty under Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959 (in short 'Act') and the Central Sales Tax Act, 1956. According to him, the amounts of tax have been paid belatedly, attracting the levy of penalty under Section 24(3).
4. A counter has been filed wherein the respondents do not question the eligibility of the petitioner to the deferral sought and granted, throughout the period of deferral. Thus, it is not in dispute that the petitioner is entitled to, and covered by the deferral scheme, though it did not avail the benefits of the same for a substantial portion of the Scheme. Out of a period of 60 months for which deferral was granted, it availed the Scheme only for a period of five months.
http://www.judis.nic.in 2 W.P.No.31819 & 31820 of 2006
5. I am of the considered view that the provisions of Section 17A(2) of the Act would apply in the present case. The provisions of Section 17A(2) read as follows:
Sec.17-A(2) Notwithstanding anything contained in this Act, the deferred payment of tax under sub-section (1) or sub-section(1-A) shall not attract interest under sub-section (3) of section 24 provided the conditions laid down for payment of the tax deferred are satisfied.
6. A reading of the aforesaid provision makes it clear that the deferred payment of tax shall not attract interest under Section 24(3) provided the conditions laid down for payment of the tax deferred are satisfied. The petitioner before me, is admittedly, covered by the provisions of the scheme and the same have not been cancelled by the Assessing Officer. The tax for the months of April to August, 1999 would be liable to be repaid only between the months of April to August of 2004 as per the schedule of repayment. However, the payments have, even as per the annexure to the show cause notice, been paid even prior to the date of re-payment as scheduled. The details of the tax deferred and the dates on which the re-payments were effected are as follows:
TNGST:
Month to which the Amount Due Date Date of Delay Interest deferred tax relates Rs. Payment No. of leviable days U/s.24(3) April' 99 5,42,444- 20.05.99 19.02.00 275 99,503- May' 99 1,86,084- 20.06.99 19.02.00 244 30,270-
4,16,968- .... 20.03.00 273 75,888-
June'99 2,40,632- 20.07.99 20.03.00 243 38,982-
4,70,951- .... 31.12.02 1259 3,95,285-
July'99 5,29,049- 20.08.99 31.12.02 1228 4,33,115-
http://www.judis.nic.in 3,55,183 ... 15.01.03 1243 2,94,320-
3
W.P.No.31819 & 31820 of 2006
Aug'99 6,44,817- 20.09.99 15.01.03 1212 5,21,012-
66,865- ..... 31.01.03 1278 54,740-
______________
Total: 19,43,123-
CST:
Month to which the Amount Due Date Date of Delay Interest
deferred tax relates Rs. Payment No. of leviable
days U/s.24(3)
April' 99 5,43,444- 20.05.99 19.02.00 275 99,631-
May' 99 20,447- 20.06.99 19.02.00 244 3,326-
5,29,561- .... 20.03.00 273 96,380-
June'99 6,937- 20.07.99 20.03.00 243 1,124-
5,06,573- .... 31.12.03 1290 4,35,653-
July'99 5,49,057- 20.08.99 31.01.03 1259 4,60,842-
Aug'99 3,44,576- 20.09.99 31.01.03 1228 2,82,093-
______________
Total: 13,79,049-
7. Thus tax relating to the months of April to August, 1999 have been repaid in 2000, 2002 and 2003, even prior to the scheduled date of repayments. The provisions of Section 17A(2), extracted above, stand attracted in this case. The Scheme does not envisage anywhere that a reduction in the tenure of deferral availed by the petitioner would constitute a breach thereof. Thus and accordingly, the deferral granted has not been cancelled till date. In this case, the benefit of complete deferral has not been availed by the petitioner which, in my considered view, does not militate against the benefit claimed. Had the Department been of the view that the petitioner is disentitled to the scheme granted, an order of cancellation should have been passed, which has not been done. Thus the legal presumption is to the effect that the eligibility of the petitioner to the Scheme of deferral http://www.judis.nic.in 4 W.P.No.31819 & 31820 of 2006 continues until cancelled. The fact that the petitioner has remitted the amounts of tax in advance also does not lead to any inference adverse to the petitioner. Thus, even in a case where only part of the benefit extended by the Scheme has been availed, no interest will be chargeable in terms of Section 17A.
8. The impugned proceedings are quashed and the writ petitions allowed, in the above terms. No costs.
17.09.2019 ska Index: Yes Speaking Order To
1.The Assistant Commissioner (CT) (FAC) Fast Tract Assessment Circle II, Coimbatore.
2.The State Industries Promotion Corporation of Tamil Nadu., 19-A Rukmani Lakshmipathy Road, Chennai-600008 http://www.judis.nic.in 5 W.P.No.31819 & 31820 of 2006 Dr. ANITA SUMANTH, J., ska W.P.No.31819 & 31820 of 2006 17.09.2019 http://www.judis.nic.in 6