TMI Blog2014 (7) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... sions for availing input tax credit, it is hereby held that the respondent herein - dealer shall be entitled to input tax credit on the goods destroyed in flood. However, subject to rider that if such dealer is compensated by the Insurance Company with respect to loss sustained i.e. with respect to the goods destroyed, the same can be given credit, meaning thereby, to that extent the respondent - dealer shall not be entitled to input tax credit, otherwise, it will be giving a double benefit to the respondent - dealer. - as such no error has been committed by the learned tribunal in allowing the appeal preferred by the respondent - dealer and holding that the respondent herein - dealer shall be entitled to input tax credit on the goods destroyed in flood. No question of law much less substantial question of law arises - Decided against Revenue. - TAX APPEAL NO. 1112 of 2013 - - - Dated:- 6-12-2013 - MR. M.R. SHAH AND MR. R.P.DHOLARIA, JJ. Mr. Jaimin Gandhi for the Appellant Mr. A.J. Shaikh for the Respondent JUDGMENT M.R. Shah, J. 1.00. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 4/2/2013 passed by the Gujarat Value Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - dealer preferred an appeal before the Deputy Commissioner of Commercial Tax, Range-5, Surat which came to be dismissed. 2.03 Feeling aggrieved and dissatisfied with the order passed by the first appellate tribunal dismissing the appeal, respondent - dealer preferred Second Appeal before the learned tribunal and by the impugned judgment and order and relying upon the decision of this Court in the case of Rolcon Engg. Co. Ltd. v. State of Gujarat [2009] 21 VST 118 (Guj.), learned tribunal has allowed the said appeal and held that the respondent - dealer shall be entitled to input tax credit on the goods destroyed in flood. 2.04 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned tribunal in allowing the said appeal preferred by the respondent herein - dealer and holding that the respondent - dealer shall be entitled to input tax credit on the goods destroyed in flood, State of Gujarat has preferred the present appeal with the aforesaid proposed substantial questions of law. 3.00. Mr. Jaimin Gandhi, learned Assistant Government Pleader appearing on behalf of the appellant - State of Gujarat has vehemently submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all conditions for availing input tax credit as mentioned in section 11 of the VAT Act are not satisfied and therefore, considering section 11(5) of the VAT Act the claim for input tax credit is not allowable. It is true that sub-section (5) of section 11 mentions certain circumstances under which claim for input tax credit is not available. Clause (5) of section 11 of the VAT Act reads as under : Section 11(5): Notwithstanding anything contained in this Act, Tax Credit shall not be allowed for purchases : (a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (c) xxx xxx xxx xxx (d) xxx xxx xxx xxx (e) xxx xxx xxx xxx (f) of the goods not being taxable goods dispatched outside the State in the course of branch transfer or consignment, which are disposed of otherwise than in sale, resale or manufacture 4.02 However, the question which is posed for consideration of this Court is, in a case where it is established and proved that due to the act of good and/or other circumstances, it is impossible to fulfil the conditions for availing input tax credit, whether the input tax credit can be denied? Ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the policy is framed is fulfilled and the beneficiary is helped. The interpretation must not be such which would frustrate the objective of the policy. The aforestated principle is very well established and has been also accepted by our Apex Court. 36. It is a settled legal position that a person cannot be constrained to do something which is impossible. There is a well known legal maxim Lex non cogit ad impossibilia , which means that law cannot compel a man to do what he cannot possibly do. 37. If there is an impossibility on the part of a person to perform an obligation, law would not expect the person to do that impossible thing. The said maxim, which has been accepted by our judicial system, has been very well explained in 'Broom's Legal Maxims' (10th Edition) as under: . It is then, a general rule which admits of ample practical illustration, that impotentia excusat legem; where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, there the law will in general excuse him (t): and though impossibility of performance is in general no excuse for not performing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the input tax credit due to the act of God - in the present case, the flood, which can be said to be valid excuse for not fulfilling the conditions stipulated for availing input tax credit on the goods destroyed in flood and therefore, interpreting the provisions for availing input tax credit, it is hereby held that the respondent herein - dealer shall be entitled to input tax credit on the goods destroyed in flood. However, subject to rider that if such dealer is compensated by the Insurance Company with respect to loss sustained i.e. with respect to the goods destroyed, the same can be given credit, meaning thereby, to that extent the respondent - dealer shall not be entitled to input tax credit, otherwise, it will be giving a double benefit to the respondent - dealer. 5. In view of the aforesaid facts and circumstances, as such no error has been committed by the learned tribunal in allowing the appeal preferred by the respondent - dealer and holding that the respondent herein - dealer shall be entitled to input tax credit on the goods destroyed in flood. No question of law much less substantial question of law arises. Hence, present appeal deserves to be dismissed and is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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