Allowed

Simplex Infrastructures v. the Assistant Commissioner

Madras HC20 Sept 2019WP/8801/2014

Case brief

AI extract

What is this about?

This High Court quashed a tax assessment order imposing liability for purchase suppression regarding machinery movements. The court held that transfers of owned assets between project sites were not sales and the assessment was flawed due to lack of reasoning.

What did the court decide?

Impugned assessment order set aside. Petitioner to appear before Assessing Officer with audited financials and evidence to explain stand. New assessment to be framed within 4 weeks of hearing.

Simplex Infrastructures Vs the Assistant Commissioner — Writ and Judicial Review | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 20.09.2019

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CORAM

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THE HONOURABLE Dr. JUSTICE ANITA SUMANTH

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Writ Petition No.8801 of 2014

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M.P.Nos.2, 3 & 4 of 2014

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Simplex Infrastructures Limited, Represented by its Management Advisor, J.S.Raghavan ... Petitioner

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vs. The Assistant Commissioner (CT) Egmore-II Assessment Circle, 88, Mayor Ramanathan Salai, Chetpet, Chennai-600031 ... Respondent

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Prayer:- Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records on the files of the respondent herein in TIN:33110540224/2010-11 dated 28.02.2014 and quash the same.

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The petitioner is a dealer in terms of the Tamil Nadu Value Added Tax Act, 2006 (in short ‘Act’) as well as the Central Sales Tax Act, 1956, (in short ‘CST Act’), engaged in the execution of works contracts.

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The impugned assessment relates to the period 2010-11 and has been completed pursuant to an audit conducted by the officials of the enforcement wing on 18.09.2012 and 13.12.2012. Based on the audit, a pre-revision notice dated 18.09.2013 was issued proposing to bring to tax several transactions on the ground that verification of the check-post movements indicated

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https://hcservices.ecourts.gov.in/hcservices/

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that the turnover from some transactions had escaped assessment and were thus, liable to brought to tax as purchase suppression. This stand of the revenue emanated from the opinion of the enforcement officials indicated at the time of inspection.

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The petitioner responded that the movement noticed by the revenue wase in relation to machinery and equipments owned by it that were being shunted from its own stock yard/work sites to other stock yards/work sites and there was no sale involved in such transfer. The equipment was being transferred for the execution of works contract in various project sites and such transfer has not generated any turnover liable to the levy of tax.

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The pre-assessment notice reiterated the issue as raised at the time of inspection, as follows:

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7.Purchase suppression by way of checkpost movement:

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On verification of chek post movement details (As consignee) along with Interstate Purchase bills for the year 2010-11, it was pointed out that the following Interstate bills were not accounted for in the returns as Interstate Purchase of Timber Iron & Steel and hence tax due is worked out as below:

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Name of the	Inv.No./Da te	Bill Value	Gross Profit	Deemed sale Value	Tax due
Supplier		4%	at 15%
Simplex Infrastru	3523/23.05 .10	780000	117000	897000	35880
cture
Bangalore
Simplex Infrastru cture Kolkata	94/28.09.1 0	545351	81803	627154	25086
P.S.Steel Tubes	756/5.10.1 0	668833	100325	769158	30766
Skipper Ltd., Howrah	1013/20.9. 10	616500	92475	708975	28359
Skipper Ltd. Howrah	1275/17.11 .10	629463	94419	723882	28955
Simplex Infrastru cture, Cochin	1241/4.1.1 1	1405760	210864	1616624	64665

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https://hcservices.ecourts.gov.in/hcservices/

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Simplex	1240/4.1.1	1043200	156480	1199680	47987
Infrastru cture,	1
Cochin
Simplex Infrastru	1242/5.1.1 1	721600	108240	829840	33194
cture
Simplex Infrastru cture, Kolkatta	5752/20.1. 11	150000	22500	172500	6900
			Total	75,44,813	3,01,792
12.5%
Simplex Infrastru cture	2945/21.4. 10	8000000 0	1200000 0	9,20,00,00 0	11500000
, Cochin
Tikitar Industrie	65/4.5.10	494949	74242	5,69,191	71149
s
Simplex	2944/7.5.1	5000000	7500000	5,75,00,00	7187500
Infrastru	0	0		0
cture,
Cochin
Indofrenc	2/12.8.10	150000	22500	1,72,500	21563
h
Engineers
Simplex	354/9.8.10	100000	15000	1,15,000	14375
Infrastru cture,
Bangalore
Madras	2885/31.8.	62467	9370	71,837	8980
Hand	10
Tools
Simplex	24889/2.12	100000	15000	1,15,000	14375
Infrastru	.10
cture,
Cochin
Simplex	24888/2.12	200000	30000	2,30,000	28750
Infrastru	.10
cture,
Cochin
Simplex Infrastru cture,	77934/3.1. 11	100000	15000	115,000	14375
Cochin
Simplex	55602/20.1	150000	22500	1,72,500	21563
Infrastru cture, Cochin	.11

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https://hcservices.ecourts.gov.in/hcservices/

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Simplex Infrastru cture, Cochin	516/20.1.1 1	150000	22500	1,72,500	21563
Simplex Infrastru cture, Cochin	1404/3.12. 11	100000	15000	1,15,000	14375
BASF Chemical	23.3.11	376871	56531	4,33,402	54175
			Total	15,17,81,9 30	1,89,72,7 43

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The proposal is seen to proceed on identical lines as the query raised by the inspecting officer. The petitioner responded on 17.01.2013, 16.12.2013 and 16.12.2013 circulating documents in support of its stand that there was no taxable sale or purchase suppression as alleged by the revenue. After affording personal hearing the impungd order came to be passed confirming the pre-assessment proposals challenging which the petitioner is before me by way of the present writ petitions.

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A counter has been filed by the respondent to the effect that the writ petition is devoid of merit, the petitioner has an efficacious statutory appellate remedy available and that the impugned order of assessment contains no legal fallacy or error and has taken into account all factual and other submissions made by the petitioner. The Revenue argues that if at all, the equipment was being transferred from one project/stock yard to another, such transfer ought to have been covered by statutory forms (Form F), in the absence of which this contention of the petitioner was not liable to be accepted. They also draw support from the position that according to them the equipments in question were not seen to have been reflected in the balance sheet of the petitioner.

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7. Heard learned counsel in detail.

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That the petitioner had transferred equipment from one State to another is not in dispute. What has to be determined is whether these equipments were owned by the petitiomer and were being deployed in the business of piling and other civil works in different locations/projects or whether they constituted capital assets that were being sold, generating taxable turnover.

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The case of the petitioner is that the equipment/capital assets constituted its own assets and were being deployed as per requirement at various projects sites. According to it, the movement was occasioned only for this purpose. Two transactions

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https://hcservices.ecourts.gov.in/hcservices/

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have been picked out by the learned counsel for the petitioner to illustrate this contention, relating to an asset transferred from Simplex Infrastructure, Cochin to its location to Chennai and back and Simplex Infrastructure Cochin to Chennai and onward to an alternate destination.

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Learned counsel for the petitioner states that various documentary evidences have been produced in support of the position that the equipment had travelled only for the petitioners' own use, such as lorry receipts and statutory Forms evidencing delivery under the Kerala Value Added Tax Rules Form JJ (delivery notes), a certificate issued by the project office of the petitioner company declaring that the assets were being transferred for own use and a certificate issued by the companys’ Chartered Accountant to the effect that the petitioner is the owner of specified equipment, reflected ‘as on date’ in the fixed assets register maintained by the company as required in terms of the provisions of the Companies Act.

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The reasoning of the Assessing Officer, as extracted from the order of assessment in regard to one sample transaction, is as follows:

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The dealers have not filed these records before the Enforcement Officers at the time of Audit, to substantiate their claim, though the transaction was said to be held on 10.07.2010 itself. Hence, the records now produced by the dealers seems to be fabricated on a later date after the Audit was over. More over, they have not also furnished the Form F Declarations duly obtained from their Karnataka Branch for the receipt of the Machine in question. The Form F Declaration is the “Statutory Form” prescribed for the proof of record for the Stock Transfer of goods, under the CST Act.

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The Certificate of the Auditor to the effect that the goods are still in their ownership is also not acceptable for the reasons explained above.

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In the absence of valid records, it is treated as purchase suppression. And the machine is treated as sold in Tamil Nadu. The corresponding sale turnover will be arrived and assessed to tax under the Act. The contention of the dealer is not acceptable.'

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According to the Officer, the supporting evidences produced by the petitioner before him were ‘fabricated’ as such evidences were not produced at the time of enforcement audit.

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https://hcservices.ecourts.gov.in/hcservices/

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However, he brings on record no other material to disavow or disbelieve the transactions in question. Even according to the officer the records only ‘seem’ to be fabricated and I am of the considered view that an assessment cannot be completed on the basis of a mere assumption. This is one aspect of the matter.

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A declaration in Form F is required to establish stock transfer of goods under the CST Act. However, the production of an F form is not mandatory to establish the petitioners’ case. We are concerned with a State tax assessment where other materials are available to assist the officer in arriving at a proper conclusion regarding the true purpose abd purport of movement of goods. Thus, while a Form F would, had the same been filed in the CST assessment, support the petitioners’ stand, the absence of such Form cannot be fatal to the petitioners’ case if the petitioner is in a position to establish its case otherwise, on the basis of other evidences. The certificate of the Chartered Accountant has been rejected though unsupported no reasons have been attributed for such rejection.

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The reasoning in the order of assessment is not castiron as it should be particularly, in the light of some material that has been produced by the Assessee. It is too well settled a proposition that an order of assessment that casts a substantial liability upon an assessee should contain valid and acceptable reasons for effecting modifications/additions to the returned turnover and should speak for itself, in casting such liability. In the present case, I find the order of assessment bereft of such reasoning.

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I this set aside the impugned order and allow this writ petition. The petitioner will appear before the Assessing Officer on 1^st of October, 2019 at 10.30 AM to explain its stand with evidences in support thereof. No further notice need be issued in this regard. The audited financials of the company for the years in question including balance sheet and depreciation statement shall be placed before the Assessing Officer as well. After hearing the petitioner, an order of ssessment shall be passed denovo, within a period of four (4) weeks from date of conclusion of personal hearing. Consequently, connected miscellaneous petitions are closed. No costs.

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//True Copy//

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Sub Assistant Registrar

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ska

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https://hcservices.ecourts.gov.in/hcservices/

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The Assistant Commissioner (CT) Egmore-II Assessment Circle, 88, Mayor Ramanathan Salai, Chetpet,Chennai-600031

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+1cc to Mr.N.Inbarajan, Advocate, S.R.No. 80865

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+1cc to the Special Government Pleader(Taxes), S.R.No. 81490

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Writ Petition No.8801 of 2014
M.P.Nos.2, 3 & 4 of 2014
EV(CO)
GN(01/10/2019)

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https://hcservices.ecourts.gov.in/hcservices/

Simplex Infrastructures v. the Assistant Commissioner

Case brief

What is this about?

What did the court decide?

Simplex Infrastructures v. the Assistant Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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