2016 (7) TMI 481 - HC - VAT and Sales Tax

Waiver of pre-deposit - assessee submitted that the assessee has already deposited Rs. 40 lacs by way of predeposit. Its financial condition would not permit any further pre-deposit. In any case the department has attached six offices and one open plot belonging to the partners of the firm which could provide adequate security for the departmental dues. He therefore requested that the Commissioner be directed to hear appeals on merits. - Input tax credit - credit was denied on the ground that the dealers from whom the goods were purchased were engaged in bogus billing activities and on that ground their registrations were cancelled ab initio. - GVAT - Held that - we are of the opinion that the department s interest would be sufficiently safeguarded by securing possible dues through immovable properties of the partners of the firm - We are informed that some of the properties belong to the relatives of the partners of the firm. The partners as well as such relatives-owners shall file undertaking before this Court that they have no objection to the attachment continuing and in the eventuality of the tax dues of the firm remaining unpaid they would raise no objection to the department selling said properties for recoveries thereof. - Matter remitted back before appellate authority for decision on merits.

Summary

Issues:
Assessment of input tax credit under Value Added Tax Act, 2003 for the appellant for the assessment year 2006-2007. Disallowance of input tax credit due to alleged bogus billing activities by sellers. Appeal process involving pre-deposit conditions before the Appellate Commissioner and Tribunal. Dispute over valuation of attached properties for securing departmental dues. Decision on whether to allow appeals to be heard on merits by the Commissioner.

Assessment of Input Tax Credit:
The appellant, a registered dealer under the Value Added Tax Act, 2003, was assessed for the year 2006-2007. The Assessing Officer disallowed input tax credit of approximately Rs. 1.31 crores due to alleged bogus billing activities by the sellers, whose registrations were canceled ab initio. The appellant contended that the purchases were genuine and cancellation of sellers' registrations should not result in denial of input tax credit. However, the Assessing Officer raised a total demand of around Rs. 5 crores, including tax, interest, and penalty. The appellant's appeal to the Appellate Commissioner was dismissed for failure to deposit 20% of the total demand as a pre-deposit condition.

Pre-Deposit Conditions and Tribunal Appeals:
The appellant then appealed to the Tribunal, where a similar situation arose for another year with a total principal tax demand of approximately Rs. 2.97 crores. The Tribunal required the appellant to deposit Rs. 3 crores as a pre-deposit, initially setting a pre-deposit of Rs. 40 lacs, which the appellant complied with. However, the Tribunal ultimately dismissed the appeal as the appellant could not deposit the entire Rs. 3 crores. The appellant argued financial constraints and offered attached properties as security, disputing the valuation presented by the department.

Valuation of Attached Properties and Decision:
The appellant claimed that properties attached by the department, valued at over Rs. 25 crores, provided adequate security for the departmental dues. The department disputed the valuation, relying on Jantri rates to estimate the properties' total value at not exceeding Rs. 3.50 crores. The Court found that the department's interest could be safeguarded by securing dues through the partners' immovable properties, especially since the appellant had already deposited Rs. 40 lacs. The Court directed that certain properties remain attached and filed undertakings to ensure no encumbrances or objections to potential sales for recovering unpaid dues.

Final Decision and Disposal of Appeals:
In light of the directions, the Court disposed of both appeals, allowing them to be heard on merits by the Commissioner and setting aside the orders of the Commissioner (Appeals). The properties were to remain attached, with specific conditions and undertakings to secure the department's interests in recovering the unpaid dues of the Value Added Tax assessments.