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2013 DIGILAW 1341 (MAD)

Sri Ram Pharma, Chennai Rep. by its Manager A. N. Selvam v. Commercial Tax Officer, Tambaram

2013-03-14

V.DHANAPALAN

body2013
Judgment :- 1. By consent of the learned counsel appearing for the parties, the Writ Petition itself is taken up for disposal at the stage of admission. 2. Heard Mr. R.Vasudevan, learned counsel for the petitioner and Mr. Manoharan Sundaram, learned Government Advocate who took notice for the respondents. 3. What is challenged in this Writ Petition is a notice, dated 29.1.2013 issued by the first respondent, calling upon the petitioner-M/s. Sri Ram Pharma to file their objections, if any, against the proposal to reverse and recover the excess claim of ITC of Rs.1,38,914/- under Section 25 of the Tamil Nadu Value Added Tax Act (for short, 'the TNVAT Act') and also to levy penalty under Section 27 of the TNVAT Act, in writing, along with documentary evidence, within seven days from the date of receipt of the said notice, failing which, it is stated therein that orders will be passed confirming the proposal, seeking to quash the same. 4. The petitioner-Pharmaceutical Company is an assessee under the TNVAT Act and distributor of various pharmaceutical products. They purchase finished products from various sellers or manufacturers. It is the claim of the petitioner that they are entitled to claim input tax for the purchase made, as they are taxed under Section 3, as defined in Section 2(24) of the TNVAT Act. The petitioner purchased finished pharmaceutical products from one Bharath Pharma from 2002 to 2010 and the said concern changed its entity into a Private Limited in September 2010 as stated by the respondents. Till September 2010, the petitioner purchased the products from the said Bharath Pharma and claimed input tax for the respective bills. 5. It is the grievance of the petitioner that though it is not their duty to verify the validity of the Registration Certificate or cancellation of the Certificate of any business entity with which the petitioner is dealing, the petitioner periodically verified about the authenticity of the validity of the companies. The petitioner checked the official Web-Site of the Commercial Tax Department and came to know that the cancellation of the TIN of the said Bharath Pharma was only from 15.2.2011. The petitioner checked the official Web-Site of the Commercial Tax Department and came to know that the cancellation of the TIN of the said Bharath Pharma was only from 15.2.2011. The first respondent sent a notice, dated 20.4.2012 quoting Section 19 of the TNVAT Act, stating that the TIN of M/s.Bharat Pharma was cancelled with effect from 2.9.2010 and hence, the petitioner is liable to be reversed with the tax benefit which they have claimed and availed on the payment of tax, to which, the petitioner replied to the respondents on 7.5.2012, stating that according to the Web-Site of the respondents, the cancellation of the R.C. of the said Bharath Pharma was with effect from 15.2.2011 and not on 2.9.2010 as alleged by the respondents in their notice. 6. The petitioner further states that it is not the case of the respondents that the petitioner purchased the invoices after the cancellation of the R.C. of the selling concern. When the petitioner purchased, there was a valid licence with the seller; even otherwise, it is claimed by the petitioner that they cannot be held responsible for the act committed by a seller, when the seller prints the R.C. number in the invoices raised against the petitioner, as if the R.C. is valid. After a lapse of eight months, the respondents sent the impugned notice, dated 29.1.2013 raising the same issue. Hence, the petitioner has filed this Writ Petition for the above relief. 7. On the above background of pleadings, I have heard the learned counsel appearing for the parties and perused the material documents available on record. 8. The petitioner pleaded that they have already filed their objections/reply, dated 7.5.2012 to the earlier notice, dated 20.4.2012 sent by the first respondent, stating that the respondents mentioned in the notice that the cancellation of the Registration Certificate of the said Bharath Pharma was with effect from 2.9.2010, but in the Web-Site of the respondents, it is mentioned that their Registration Certificate was cancelled on 15.2.2011 (S.No.125692) and the petitioner further stated that during October 2010, the Company was reconstituted as M/s. Bharath Formulations P. Ltd., upto September 2010, the petitioner received the supply in the name of Bharath Pharma and the entire payment was made to the supplier through the petitioner's Cheque Nos.772562, dated 13.9.2010 and 772570, dated 25.9.2010. The petitioner also enclosed the copies of the invoices to their abovesaid reply/objections, dated 7.5.2012. Thus, it is the contention of the learned counsel for the petitioner that the said reply/objections, dated 7.5.2012 and the invoices enclosed therein have not been looked into by the respondents, and therefore, the impugned notice is legally infirmed. 9. Law is well settled that if a challenge is made to a notice calling upon a person to file objections, if any, along with necessary documentary proof and evidence, within a time limit, without availing of the said liberty given to the person to file objections, he cannot rush to the Court by filing Writ Petition invoking Article 226 of the Constitution of India. Such a remedy of filing Writ Petition is available to a person only when there is violation of fundamental rights, if principles of natural justice have not been followed and if any action/order/notice is ultra-vires the relevant Act/Rules. 10. In the present case, the course adopted by the petitioner is unwarranted at this stage, as they have challenged only the notice calling upon them to file their objections, if any. Hence, the Writ Petition challenging the notice is not maintainable. It is for the petitioner to approach the respondents by filing appropriate objections whatsoever they claim in respect of the impugned notice and thereafter, the respondents will take a decision in accordance with law. 11. In the light of the above stated factual matrix as well as the settled legal position, this Writ Petition is disposed of, with liberty to the petitioner to file their objections to the impugned notice, along with necessary documentary proof and evidence, within a period of two weeks from the date of receipt of a copy of this order and on receipt of such objections, the respondents are at liberty to proceed further in the matter and pass appropriate orders on merits and in accordance with law, within a period of four weeks thereafter. No costs. The Miscellaneous Petition is closed.