DCW Limited vs The Commercial Tax Officer, Tiruchendur

B. Rajendran, J.—Since the issue involved in all these writ petitions is one and the same, all the writ petitions are taken up together and a common order is passed. All the Writ Petitions have been filed challenging the impugned proceedings passed by the respondent, dated 31.10.2013 in TIN: 33465900009/2006-07, TIN: 33465900009/2007-08 TIN: 33465900009/2008-09 and TIN: 33465900009/2009-10.

The learned counsel for the petitioner would contend that in respect of the very same years viz., 2006-07, 2007-08 and 2008-09 assessment orders have already been passed and the amount has also been paid but again a re-assessment has been made and in respect of the other year viz., 2009-2010, they have paid the very same amount and a certificate has also been issued and therefore, if at all, there is any difference in payment of tax it would only amount to Rs. 1,50,00,000/- (Rupees One Crore and Fifty Lakhs only) and the very assessment itself is wrong. Therefore, in stead of preferring an appeal, they have come forward before this Court by way of Writ Petition. Further, pending writ petition, as per the direction of this Court the petitioner have now deposited a sum of Rs. 50,00,000/- (Rupees Fifty Lakhs only) directly to the respondent department and it is also now mentioned that another sum of Rs. 17,73,707/- has also been appropriated by them. Therefore, the petitioner may now be permitted to file appeal without imposing specific condition of pre-deposit of 25% as they have almost complied with all the earlier demands in full and in this case, the very assessment order itself is wrong.

The learned Additional Government Pleader appearing for the respondent would mainly contend that all these arguments are not open before this Court which can be raised before the Appellate Authority who has to decide the matter on merits. He has also produced a worksheet wherein the department has stated that the total revenue involved is Rs. 6,81,26,505/-. As far as reversal of input tax credit in respect of furnace oil is concerned, the worksheet mentioned as follows:

Thus totalling Rs. 4,90,85,205 (Rupees Four Crore Ninety Lakhs Eighty Five thousand two hundred and five only) (Rs. 4,89,54,955/- + Rs. 1,30,250/-)

Similarly, in respect of the reversal of consignment sales is concerned the worksheet mentioned as follows:

Thus totaling a sum of Rs. 1,69,01,095/- (Rupees One Crore Sixty Nine Lakhs One thousand and ninety five only) stated to be the dues.

If both these were added together the total amount would be Rs. 6,59,86,300/- (Rupees Six Crores Fifty Nine Lakhs Eighty Six thousand and three hundred only). Therefore, the petitioner have to prefer only appeal after payment of 1/4th of the total amount as per the statement. Hence, as against the assessment order, only appeal remedy will lie. Therefore, all the Writ Petitions may be dismissed.

Heard both sides. By consent, the main Writ Petition itself is taken up for final disposal.

No doubt, Writ Court will not interfere with the assessment orders as the appellate authority only has got the power to deal with the same. Therefore, necessarily the Writ Petitioner has to file appeal before the appellate authority. Insofar as this point is concerned, the only grievance of the petitioner is that when appeal is filed, they have necessarily directed to pay 1/4th of the amount as per the provision u/s 51 of the Tamil Nadu Value Added Tax Act, 2006. But, in this case, they would only contend that out of Rs. 6,81,26,505/-, the main objection is in respect of Ineligible ITC and Reversal of Consignment sales totaling a sum of Rs. 4,90,85,205/-, out of which, they have paid a sum of Rs. 3,83,09,388/- (Rupees Three Crores Eighty Three Lakhs Nine Thousand Three Hundred and eighty eight only) in respect of the ineligible ITC. For which, they have also produced a certificate issued by the Commercial Tax Officer, Tiruchendur, dated 23.12.2013 which was given subsequent to the filing of the Writ Petitions under which the department has accepted that they have already collected a sum of Rs. 3,83,09,388/- in respect of the ineligible ITC. This is for the year 2009-2010. Apart from this, as per the Court direction they have deposited Rs. 50,00,000/- (Rupees Fifty Lakhs only) and also another sum of Rs. 17,73,707/- has also been appropriated by them from the bank attachment. Therefore, they would contend that out of Rs. 4,90,85,205/- what the department have now recovered is Rs. 4,50,83,095/- which is beyond 1/4th of the amount. Alternatively, they will also say that for the year 2006-2007, 2007-2008 already assessment orders were passed and against which, a revision was filed and the same was also dismissed. Thereafter, Writ Petitions have been filed and the same are pending in W.P. (MD) No. 13423 and 13424 of 2012. Now, pending that, unfortunately the impugned orders has been issued for the year 2006-2007 and 2007-2008 also. Insofar as these two years is concerned, taxable liability as claimed in the worksheet is approximately Rs. 1,36,86,110/-. So, that could not be added. If that is reduced from Rs. 6,81,26,505/-, again the balance would be around the same amount which is already deposited. In any view of the matter, the petitioner have deposited definitely more than 1/4th of the actual amount due and payable.

In view of the subsequent development and the certificate issued by the Commercial Tax Officer, Tiruchendur, the appellate authority will receive the appeal without insisting the petitioner to pay 1/4th amount. Normally, appeal has to be preferred within 30 days from the date of receipt of the impugned assessment orders and the appellate authority has got power to grant exemption upto another 30 days. But the petitioner has filed these Writ Petitions on 02.12.2013 i.e. within the period 30 days from the date of receipt of the order copy viz., 04.11.2013. Therefore, the petitioner is granted further time till 31.01.2014 to prefer the appeal. When the appeal is preferred on or before 31.01.2014, the appellate authority will entertain the same and pass orders on merits and in accordance with law after affording opportunity to the petitioner.

It is also brought to the notice of this Court that subsequent to the passing of the impugned orders, the department have attached the bank account of the petitioner. In view of the order now passed and the petitioner is permitted to file appeal and they have already deposited a sum of Rs. 50,00,000/- and a sum of Rs. 17,73,707/- was appropriated from the bank account, the order of attachment of bank account will be raised. The Writ Petitions are disposed of with the above observations. No costs. Consequently, connected miscellaneous petitions are closed.