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2015 (1) TMI 233 - GUJARAT HIGH COURTDenial of input tax credit on the ground that registration certificate of the supplier has been cancelled ab initio - Necessary proofs to establish the genuineness and bonafide of purchases – Assessee contended that since vendors' registration was cancelled subsequently, the genuine transactions on which tax credit was claimed in the year 2006-07, could not be disallowed merely because the registration certificate of the said vendor was cancelled retrospectively – Held that:- When the appellant/s – dealer/s have failed to satisfy/prove the actual physical movement of the goods alleged to have been purchased by them from the aforesaid two vendors on which the input tax credit have been claimed and when the sale transactions are found to be not genuine and it appears that there were only billing activities, no error has been committed by the AO as well as Tribunal in denying the input tax credit - the input tax credit has / have been denied also on the ground that the respective appellant/s – dealer/s have failed to prove the actual physical movement of the goods alleged to have been purchased by them from the aforesaid vendors and therefore, it is held that there was no actual physical movement of the goods and therefore, the sale transaction is/are not genuine and it was only billing activities to defraud the government - Decided against petitioner assessee. Dismissal of appeal by JC on account of non-payment of pre-deposit - Whether the Tribunal was right in deciding the appeal when the Joint Commissioner had not passed the appeal on merits but dismissing it only for non-payment of pre-deposit – Held that:- The similar issue has been decided in RG SCRAP TRADERS Versus STATE OF GUJARAT [2015 (1) TMI 221 - GUJARAT HIGH COURT] wherein it was held that the Tribunal ought not to have entered into the merits of the case and / or decided the appeals on merits against the order of assessment - when the appellant made submissions on merits against the order of assessment as if the appeals before the Tribunal were against the order of assessment and when the Tribunal has dealt with and considered the same and decided the appeals on merits and when appellant has lost in the appeals on merits, thereafter it not open for the appellant now to make the grievance that the Tribunal ought not to have decided the appeals on merits – thus, it is not open for the appellant now to raise a grievance that the Tribunal ought not to have entered into the merits of the case and dismissed the appeals on merits, when the submissions were made before the Tribunal as if appeals are on merits against the order of assessment also and more particularly, when the appellants have lost on merits. No error has been committed by the Tribunal in entering into the merits of the case and even considering the appeal/s on merits against the order of assessment passed by the DC - as such by judgment and order, the Tribunal has partly allowed the second appeals and has quashed and set aside the order of assessment passed by the AO insofar as imposing maximum penalty is concerned and has remanded the matter to the AO - the judgment and order passed by the Tribunal is partly in favour of the appellant – dealer against which the appellant/s have not made any grievance - no error has been committed by the learned Tribunal in entering into the merits of the case and decided the appeal on merits and against the order of assessment passed by the AO – Decided against petitioner.
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