(Prayer: Appeal under Clause 15 of the Letters Patent against the order dated 13.10.2020 made in W.P.No.3163 of 2016.)
T.S. Sivagnanam, J.
1. We have heard Mr.R.Senniappan, learned counsel for the appellant and Mrs.G.Dhanamadhri, learned Government Advocate (Taxes) accepting notice for the respondent.
2. This appeal is directed against the order dated 13.10.2020 in W.P.No.3163 of 2016 filed by the appellant herein.
3. The learned Single Judge, by the impugned order, dismissed the writ petition on the ground that the appellant should avail the alternate remedy available to them under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (for short, the Act).
4. The issue involved in this appeal lies in a very narrow compass and therefore, the writ appeal itself is taken up for final disposal.
5. The appellant €“ dealer is engaged in garment business and it is a proprietorship concern. The proprietor of the appellant was also a partner of one M/s.Essa Hosiery Mills, which was also carrying on business in the very same address of the appellant €“ dealer, but was holding a separate registration and tax payer identification number.
6. The case of the appellant is that the said M/s.Essa Hosiery Mills closed down its business during the assessment year 2011-12 and as on the date of closure, the said dealer was entitled for a refund of Rs.15,66,596/-. However, the said M/s.Essa Hosiery Mills was liable to pay a sum of Rs.81,906/- towards central sales tax liability and after deducting the said amount, they claimed that they were entitled for refund of excess input tax credit of Rs.14,84,690/-. Since the appellant was also carrying the business within the same assessment circle, it appears that they made a request that the amount, which was refundable to the tune of Rs.14,84,690/-, might be adjusted towards sales tax arrears payable by the appellant for the assessment years 2009-10 and 2010-11. This request was favourably considered by the Assessing Officer and an adjustment was effected. Thus, the matter attained finality and it appears that the said M/s.Essa Hosiery Mills also surrendered their registration.
7. While so, on 20.2.2015, the Assessing Officer issued a notice to the said M/s.Essa Hosiery Mills stating that the adjustment done towards the sales tax dues payable by the appellant herein could not be made in the light of Section 19(17) of the Act. Hence, the said M/s.Essa Hosiery Mills filed W.P.No.6640 of 2015 challenging the said notice and a learned Single Judge of this Court allowed the same by order dated 10.3.2015 and the said notice dated 20.2.2015 was quashed.
8. In the meantime, the appellant herein was served with an order dated 16.2.2015 under the provisions of the Central Sales Tax Act, 1956 and this was challenged by filing W.P.No.13239 of 2015. Another learned Single Judge of this Court found that the reversal of the input tax credit granted to the appellant could not have been done without providing an opportunity and the said order 16.2.2015 fell foul of Section 84 of the Act. Accordingly, the said order dated 16.2.2015 was quashed by order dated 29.4.2015 and the matter was remitted back to the Assessing Officer for a fresh decision.
9. Pursuant to that, an order dated 05.12.2015 was passed. Though, at the first blush, it appears to a detailed order, the finding rendered by the Authority was only in the penultimate paragraph of the order and the remaining paragraphs were the contentions advanced by the appellant in their written submissions. The Assessing Officer referred to Section 19(14) of the Act and stated that transfer of excess input tax credit from the said M/s.Essa Hosiery Mills to M/s.Essa Garments could not be made. This order was put to challenge by filing W.P.No.3163 of 2016, which was dismissed by the impugned order.
10. The learned Government Advocate would vehemently contend that the appellant should avail the alternate remedy, which is provided under the Act and that the learned Single Judge rightly refused to entertain the present writ petition.
11. The learned Government Advocate is right in her submission that this Court would be slow in interfering especially with cases arising under the Taxation Statute. However, this is a self imposed restriction since there is no absolute bar for interference under Article 226 of The Constitution of India if it is found that the action is wholly unreasonable and unsustainable. Further, in the instant case, there is no necessity to examine any disputed questions of fact and therefore, this Court would be well justified in exercising discretion under Article 226 of The Constitution of India.
12. At the first instance, the amount of input tax credit, which was lying in excess to the credit of the said M/s.Essa Hosiery Mills, was adjusted by the Department in respect of the arrears payable by the appellant. This adjustment took place much prior to February 2015. Probably such adjustment might have been on a request made by the appellant. However, nevertheless, it is the Department, which has done the adjustment. The reason for proposing to reverse that adjustment was by referring to Section 19(17) of the Act stating that the appellant is a separate dealer and adjustment from another dealer's account could not have been done. This notice was quashed by a learned Single Judge of this Court by order dated 10.3.2015 in W.P.No.6640 of 2015 filed by the said M/s.Essa Hosiery Mils. Thereafter, the question of reopening the matter by the Department by invoking its jurisdiction against the appellant does not arise.
13. Assuming for the sake of argument that if we are to accept the submission of Mrs.G.Dhanamadhri, learned Government Advocate appearing for the respondent, the consequence, which would follow is that the Department has to refund the amount of Rs.14,84,690/- together with interest from January 2015 i.e when the adjustment was made till the date it is paid and the interest should be definitely compensatory. From the facts placed before the Court in the two earlier writ petitions as well as before the learned Single Judge in the impugned order, it is clear that the excess input tax credit, which accrued to the said M/s.Essa Hosiery Mills is not in dispute. Therefore, it will be too late in the day for the Department now to reopen the entire issue and conduct an autopsy of the matter especially because the adjustment was at the behest of the Department.
14. Even assuming that the adjustment was erroneous and it had to be reversed, then the dealer would
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have to be refunded the entire amount with interest, which, in our opinion, should be not less than 18% per annum. Thus, considering the factual situation and bearing in mind the interest of the Revenue, we are of the considered view that the order dated 04.12.2015 impugned in the present writ petition has to be quashed. We make it clear that this judgment is rendered in the peculiar facts and circumstances of the case and shall not be treated as a precedent. 15. For the reasons stated above, the writ appeal is allowed, the impugned order dated 13.10.2020 is set aside, W.P.No.3163 of 2016 is allowed and the order dated 04.12.2015 impugned in W.P.No.3163 of 2016 is quashed. No costs. Consequently, the connected CMP is closed.