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TMI Blog2015 (1) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... selling dealer was not holding valid registration and hence the tax credit on these purchase was not allowable? [2] Whether the Tribunal was right in applying or imposing its general observation (decision) on all the appellants, without considering genuineness and bona fide of individual case? [3] Whether the Tribunal justified in remanding the matter on the issue of penalty and disallowing the appeals on the issue of tax credit? 2. At the outset, it is required to be noted that the assessing officer denied the input credit claimed by the appellant on the goods purchased from its vendor - M/s. Shree Bhavani Ispat, Bhavnagar on the ground that selling dealers from whom the appellant purchased the goods were found indulged only in billing activities and no genuine transactions of sale and purchase were carried out and registration of selling dealer as vendor was cancelled ab-initio. The said order of denying the input credit has been confirmed upto the learned tribunal to the extent of disallowance of input tax credit and interest levied thereon is concerned, however, so far as the levy of penalty is concerned, the learned tribunal has remanded the matter back to the assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respective assessment orders and ought to have restricted the second appeals against the order/s passed by the first appellate authority - Joint Commissioner dismissing the appeal/s on the ground of non-deposit of the pre-deposit. However, in the facts and circumstances of the case, the aforesaid cannot be accepted. At the outset it is required to be noted that as such before the learned Tribunal the respective appellants challenged the Assessing Officer passed by the Deputy Commissioner of Commercial Tax also along with the order passed by the first appellate authority dismissing the appeal. In the second appeal before the learned Tribunal, the appellant made the following prayers. a) The Second Appeal may please be admitted for regular hearing without insisting any part payment and or Security. b) A stay order may please be issued against the recovery of dues. c) The assessment order passed by learned Deputy Commissioner of Commercial Tax, Range-18, Valsad and summarily rejection order passed in appeal by the learned Joint Commissioner of Commercial Tax, Appeals-2, Vadodara may please be modify by holding that- i) The appellant is entitled to tax credit u/s. 11 of VAT Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground of non deposit of pre-deposit and therefore, the the learned Tribunal ought not to have entered into the merits of the case and / or decided the appeals on merits against the order of assessment and the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Smithkline Beecham Co. Holding Limited(supra) is concerned, it is required to be noted that in fact the learned advocate for the appellant made submissions on merits before the learned Tribunal. Even written submissions were submitted on behalf of the appellant, which were on merits of the case and against the assessment order. Therefore, it was the appellant who invited decision on merits. When the written submission was made on merits against the order of assessment and the learned Tribunal dealt with and considered the same and thereafter dismissed the appeals on merits, thereafter having lost on merits, it is not open for the appellant to make aforesaid grievance. If despite submitting the case on merits, the Tribunal had not dealt with the appeals on merits, in that case, the appellant would make the grievance of non consideration of appeal on merits, though submissions have made. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals are on merits against the order of assessment also and more particularly, when the appellants have lost on merits. [5.3] Under the circumstances and in the facts and circumstances of the case, no error has been committed by the learned 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 Deputy Commissioner. At this stage it is required to be noted that as such by impugned judgment and order, the learned Tribunal has partly allowed the second appeals and has quashed and set aside the order of assessment passed by the Assessing Officer insofar as imposing maximum penalty is concerned and has remanded the matter to the Assessing Officer. Thus, the impugned judgment and order passed by the learned Tribunal is partly in favour of the appellant - dealer against which the appellant/s have not made any grievance. In any case as observed hereinabove, 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 Assessing Officer. Under the circumstances, proposed question No.1 is answered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such the appellant/s have failed to prove the physical movement of the goods alleged to have been purchased by them from M/s. Shree Bhavani Ispat and M/s. Madhav Steel Corporation. At this stage it is required to be noted that even their vendors M/s. Shree Bhavani Ispat and M/s. Madhav Steel Corporation have also failed to satisfy and/or prove that they have infact suppressed the goods from other 23 dealers. Thus, when the vendors could not prove their purchase from other 23 dealers, no goods were available with them which could have been sold to the appellants - original dealers herein and infact there was no physical movement of the goods. If there were no goods with the vendors which were alleged to have been sold to the appellants - dealers, naturally there cannot be any physical movement of the goods. The appellants/dealers could prove the genuineness of the transactions not only from the cheques alleged to have been paid to the vendors but as such by proving actual physical movement of the goods, which the appellants/dealers have failed to prove. It cannot be disputed that as such the onus to prove the genuineness of the purchase is on the assessee/dealer. Even the onus to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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, we are of the opinion that no error has been committed by the Assessing Officer as well as learned Tribunal in denying the input tax credit. Under the circumstances, as such the proposed substantial questions of law referred to herein above are answered against the appellant/s - dealer/s and in favour of the Revenue. Consequently, all the tax appeals deserve to be dismissed and are, accordingly, dismissed." 3.2. In the present case also it is not established and proved by the dealer that in fact there was movement of goods from its vendor - M/s. Shree Bhavani Ispat, Bhavnagar. Under the circumstances, no error has been committed in holding that the activities by the selling dealer - vendor were the billing activities only and there was no selling deals. Under the circumstances when there there was no movement of goods and it was only billing activities, the input credit claimed on such transactions is rightly disallowed. 4. In view of the above and for the reasons stated above in the judgement and order passed by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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