Jain Tubes v. The State Tax Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 15.7.2019

CORAM

THE HONOURABLE DR.JUSTICE VINEET KOTHARI AND THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN W.A.No.2217 of 2019 and C.M.P.No.14706 of 2019 Jain Tubes rep. by its Partner Hemant Kumar Jain, 662, T.H.Road, Tondiarpet, Chennai-81.

.. Appellant

Versus

The State Tax Officer, Tondiarpet Assessment Circle, 20, Kummalamman Koil Street, Chennai 600 081.

.. Respondents Prayer:

Writ Appeal filed under Clause 15 of Letters Patent against the order of this court dated 11.6.2019 in W.P.No.15750 of 2019. W.P.No.15750 of 2019:- Writ Petition filed under Article 226 of the Constitution of India, seeking for a writ of certiorarified mandamus calling for the records of the respondent in TIN 33401203593/2013-14 dated 23.4.2019 and quash the same and direct the respondent to pass appropriate orders.

For appellant : Mr.R.Kumar For Respondent : Mr.Haribabu, AGP

JUDGMENT

(Judgment of the court was made by Dr.VINEET KOTHARI, J.) The present intra-court Appeal is filed by the Assessee against the order passed by the learned Single Judge dated 11.6.2019 whereby the learned Single Judge dismissed the Writ Petition filed by the Assessee on the ground of availability of alternative remedy by way of Appeal against the impugned

Assessment Order dated 20.3.2009 passed by the Sales Tax Officer, Tondiarpet Assessment Circle for the Assessment Year 2013-2014.

2. Learned counsel for the Appellant, Mr.R.Kumar urged before us that during the said period in question the Assessee did not carry on any business as would be clear from the notice of the Assessment Officer dated 16.4.2015 whereby he proposed to cancel the Registration Certificate for the said Assessment period in question as no was carried over by the Assessee during the relevant period, however, the Assessing Officer, in the impugned Assessing Order took a view that the Dealers had not produced any proof of original invoice alongwith proof for the movement of goods and therefore, it was proposed to reverse the Input Tax Credit.

The learned counsel for the Appellant/Petitioner would further submit that the case of the Appellant is covered by the decision of a Division Bench in the case of Assistant Commissioner (CT) v. Infiniti Wholesale Limited ((2017) 9 VST 341 (Mad)). Therefore, the Assessment Order passed in the present case was absolutely illegal and deserves to be quashed by this court.

3. The learned counsel for the Revenue supported the impugned order.

4. Having heard the learned counsel for the parties, we are of the clear opinion that no interference is called for in the order passed by the learned Single Judge as the writ petition has been dismissed only on the ground of availability of alternative remedy.

5. The issue raised before this court are questions of fact and unless they are established with proper evidence, the applicability of law cited cannot be made and therefore, the Assessee should establish the facts of the case regarding reversal of Input Tax Credit before the Departmental Authorities concerned .

6. In view of this, we relegate the Appellant/Petitioner to the learned Appellate Authority and if the Appeal against the Assessment Order is filed within 30 days from today, the learned Appellate Authority shall not raise any objection about the limitation part in filing the said Appeal and subject to fulfilment of other conditions for maintaining the Appeal, shall entertain the same and decide the same in accordance with the

law.

With the above observation, the Writ Appeal is disposed of. No costs. The connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar ssk.

To:

1. The State Tax Officer, Tondiarpet Assessment Circle, 20, Kummalamman Koil Street, Chennai 600 081.

+1cc to Mr.R.Kumar, Advocate, S.R.No.59583 +1cc to the Special Government Pleader, S.R.No.60098 W.A.No.2217 of 2019 RGN(CO) CS/13/08/2019