Madras High Court
Rajesh Kumar Nahar vs The Government Of Tamil Nadu on 28 August, 2014
Author: M.Sathyanarayanan
Bench: Sanjay Kishan Kaul, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.08.2014
CORAM
THE HON'BLE MR.SANJAY KISHAN KAUL, CHIEF JUSTICE
and
THE HON'BLE MR. JUSTICE M.SATHYANARAYANAN
W.P.Nos.23324 to 23326 of 2014
and M.P.Nos.1 to 1 of 2014
Rajesh Kumar Nahar,
Proprietor, E-World, Gems Court,
BS-27, No.14, Khadar Nawaz Khan Road,
Nungambakkam, Chennai. .. Petitioner in all WPs.
vs
1.The Government of Tamil Nadu,
Rep. By The Principal Secretary to
Government, Commercial Taxes
Department, Secretariat,
Fort St. George, Chennai.
2.The Principal Secretary /
Commissioner of Commercial Taxes,
Commercial Taxes Department,
2nd Floor, Ezhilagam, Chepauk,
Chennai.
3.The Assistant Commissioner (CT)
Nungambakkam Assessment Circle,
Commercial Taxes Department,
No.88, Mayor Ramanathan Salai,
Chennai. ..Respondents in allWPs.
Petitions filed under Article 226 of the Constitution of India praying for issue of Writ of Declaration declaring Section 19(11) of the Tamil Nadu Value Added Tax, 2006 (for short TN VAT Act) which prescribes time frame as regards claim of the Input Tax Credit as per the proceedings of the 3rd respondent in TIN: 33740461938/2011-12, TIN: 33740461938/2012-13 and TIN: 33740461938/2013-14 respectively dated 10.06.2014 as being inconsistent with Section 3 and the general scheme of TN VAT Act and being arbitrary and irrational infringing the rights of the petitioners under Article 14 and 19(1)(g) of the Constitution of India.
For Petitioner .. Mr.R.Rajendran
For Respondents .. Mr.S.Kanmani Annamalai
Addl. Govt. Pleader (Taxes)
* * * * *
O R D E R
(Order of the Court was made by The Hon'ble Chief Justice) We have heard the learned counsel for the petitioner, who submits that the petitioner is seeking to assail the provisions of Section 19(11) of the Tamil Nadu Value Added Tax Act, 2006, in the context of the charging provision of Section 3 (3) of the said Act, in a different perspective, the same not being appreciated in the judgment of a Division Bench of this Court in USA Agencies vs. Commercial Tax Officer, 2013 (6) MLJ 142.
2.However, on perusal of the judgment, we are of the view that all the aspects stand dealt with and in this context, we may refer specifically to paras 28 and 29 of that judgment, which read thus:
"28. Section 3(1)(a) deals with persons, who are liable to pay tax under TN VAT Act i.e. every resident dealer whose turnover is above Rs. 5 lakhs shall pay tax under the Act. As per Section 3(1)(b), every dealer, who purchases goods within the State and effects sale of those goods within the State shall pay tax under the Act, if his turnover is more than Rs. 10 lakhs. Sub-section (2) of Section 3 is the Charging Section. As per sub-section (2) of Section 3, subject to the provisions of sub-section (1), in case of goods specified in Part-B or Part-C of the First Schedule, the tax under TN VAT Act shall be payable by a dealer on every sale made by him within the State at the rate specified therein. Sub-section (3) of Section 3 provides for availing Input Tax Credit by a registered Dealer to the extent of tax paid on his purchase of goods specified in Part-B or Part-C of the First Schedule, inside the State to the registered Dealer, who sold the goods to him. The charging provision in the Statute is sub-section (2) of Section 3.
29. Learned Senior Counsel for Petitioners contended that sub-sections (2) & (3) of Section 3 are the Charging Section and sub-section (3) of Section 3, which provides for availing Input Tax Credit is an integral part of sub-section (2) of Section 3. Learned Senior Counsel submitted that while tax payable under sub-section (2) of Section 3 by a dealer on every sale made by him is mandatory, the dealer as of right is entitled to claim Input Tax Credit and therefore, the Input Tax Credit provided under sub-section (3) of Section 3 is not a concession, but is an indefeasible right. Learned Senior Counsel further contended that the substantive right of claiming Input Tax Credit under sub-section (3) of Section 3 of the Act cannot be curtailed by imposing restrictions like Section 19(11) of TN VAT Act.
3.We are, thus, of the view that the matter sought to be raised by the petitioner is no more res integra and thus, we dismiss the writ petitions in view of the aforesaid judicial pronouncement. Consequently, connected miscellaneous petitions also stand dismissed.
(S.K.K., CJ.) (M.S.N.,J.)
28.08.2014
Index : Yes/No
Internet : Yes/No
sra
To
1.The Principal Secretary
Commercial Taxes Department, Secretariat,
Fort St. George, Chennai.
2.The Principal Secretary /
Commissioner of Commercial Taxes,
Commercial Taxes Department,
2nd Floor, Ezhilagam, Chepauk, Chennai.
3.The Assistant Commissioner (CT)
Nungambakkam Assessment Circle,
Commercial Taxes Department,
No.88, Mayor Ramanathan Salai,
Chennai.
The Hon'ble Chief Justice
and
M.Sathyanarayanan, J.
(sra)
W.P.No.23324 to 23326 of 2014
28.08.2014