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TMI Blog2015 (6) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... revisional authority - Deputy Commissioner of Commercial Tax, Audit I, Ahmedabad dated 28.5.2013, by which the first revisional authority, in exercise of revisional jurisdiction, revised the order passed by the Assessing Officer dated 30.12.2010 and raised the demand of Rs. 9,83,465/-, which, inter alia, includes tax demand of Rs. 1,92,511/-, interest of Rs. 2,13,418/- and penalty of Rs. 2,88,768/- levied under section 34(7) and 34(12) of the Gujarat Valued Added Tax Act (for short "the VAT Act"). That the petitioner dealer is carrying business of selling Ferrous - Non - Ferrous Metal and is holding registration under the VAT Act. That the petitioner dealer submitted its returns for the year 2006-2007 by working the input tax credit (hereinafter referred to as "ITC") as under: "2006-2007 ITC u/s 11 - on Current Purchases --- Rs.06,49,561/- Total --- Rs.06,49,561/- VAT Payable on Sales - (Out - Put) --- Rs.08,01,727/- Total - VAT Payable Rs.01,52,166/- Vat paid with returns Rs.01,52,167/- Excess --- Rs.----Nil------" It appears that while claiming the aforesaid ITC, the petitioner dealer shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while revising the assessment order, the first revisional authority disallowed the ITC of Rs. 6,49,561/-claimed by the petitioner - assessee on the purchases made by the petitioner from M/s Lucky Enterprises whose registration certificate was cancelled ab initio from 22.2.2006. That while revising the order passed by the Assessing Officer and raising the aforesaid demand and denying the ITC of Rs. 6,49,561/- on the purchases made by the petitioner from M/s Lucky Enterprises, the revisional authority had observed that as all the transactions by M/s Lucky Enterprises including the transactions between M/s Lucky Enterprises and the petitioner are found to be bogus and non-genuine and in the case of M/s Lucky Enterprises, it has been found that the aforesaid M/s Lucky Enterprises had not sold any goods to the petitioner dealer - assessee - M/s Bhairav Metals, the petitioner - assessee - dealer is not entitled to ITC on the purchases alleged to have been made from M/s Lucky Enterprises. 5. Feeling aggrieved by and dissatisfied with the order passed by the first revisional authority - Deputy Commissioner of Commercial Tax, Audit 1, Ahmedabad revising the order passed by the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at as such, except on the basis of the order passed in the case of M/s Lucky Enterprises cancelling the registration certificate ab initio from 22.2.2006, there is no independent finding recorded by the first revisional authority with respect to the transactions/purchases made by the petitioner from M/s Lucky Enterprises. 7.4 It is submitted that as such, there is no independent findings recorded by the revisional authority with respect to the purchases made by the petitioner from M/s Lucky Enterprises considering the material/documents produced by the petitioner. 7.5 It is further submitted by Shri Kaji, learned advocate appearing on behalf of the petitioner that before the Assessing Officer as well as the first revisional authority, the petitioner did produce voluminous materials to prove the genuineness of the purchases made by the petitioner from M/s Lucky Enterprises. It is submitted that both the first revisional authority as well as the learned Tribunal have materially erred in not appreciating the facts that as such, the petitioner did produce the documentary evidences to prove the genuineness of the transactions/purchases made by the petitioner from M/s Lucky Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the learned Tribunal disallowed the ITC on the purchases made from a dealer whose registration certificate came to be cancelled ab initio and the judgment and order passed by the learned Tribunal in the case of M/s Madhav Steel Corporation (supra) has been confirmed by the Division Bench of this Court and also by the Hon'ble Supreme Court. 8.3 It is submitted that therefore, when in the case of M/s Lucky Enterprises, all the transactions made by M/s Lucky Enterprises were found to be bogus and not genuine and it was found that M/s Lucky Enterprises was not genuine dealer at all, but was indulging into billing activities only and consequently, the transactions between M/s Lucky Enterprises and the petitioner were also found to be bogus and non-genuine, the petitioner was not entitled to any ITC on the purchases alleged to have been purchased/made from M/s Lucky Enterprises. It is submitted that as such, there was no movement of goods alleged to have been purchased from M/s Lucky Enterprises by the petitioner - dealer. It is submitted that merely because, the dealer produced the bills, vouchers, weigh bills and/or even the dealer might have alleged to have been paid the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, the aforesaid two decisions shall not be applicable to the facts of the case on hand. It is submitted that in none of the decisions, it is held that even if the dealer/purchaser has failed to establish and/or prove the actual movement of the goods, solely on the basis of the bills/vouchers etc., the dealer is entitled to the ITC. Making above submissions and relying upon the decision of the Division Bench in case of Madhav Steel Corpn. (supra), it is requested to dismiss the present petition. 9. Heard learned advocates appearing for the respective parties at length. We have gone through and considered the order passed by the Assessing Officer; order passed by the first revisional authority as well as the impugned judgment and order passed by the learned Tribunal. 9.1 That the Assessing Officer allowed the ITC claimed by the petitioner - dealer on the purchases made by the petitioner alleged to have been made from one M/s Lucky Enterprises. That in exercise of revisional jurisdiction, the first revisional authority disallowed the ITC of Rs. 6,49,561/-claimed by the petitioner - dealer on the purchases made by it from one M/s Lucky Enterprises and the said order has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove the genuineness of the transaction and/or to justify its claim of ITC. In the present case, the first revisional authority had disallowed the ITC claimed of Rs. 6,49,561/- on the purchases alleged to have been made from M/s Lucky Enterprises relying upon the order passed by the appropriate authority in the case of M/s Lucky Enterprises cancelling its registration certificate ab initio from 22.2.2006 and the finding recorded by appropriate authority while cancelling the registration certificate of M/s Lucky Enterprises ab initio from 22.2.2006 that the transactions by M/s Lucky Enterprises are bogus and non-genuine. However, the petitioner dealer was not served with the copy of the order in the case of M/s Lucky Enterprises cancelling its registration certificate ab initio from 22.2.2006. 9.3 Now, so far as contention of the petitioner that the petitioner produced necessary documentary evidence such as bills, vouchers, weigh bills/slips and the payments were made by cheques and therefore, the first revisional authority ought not have disallowed the ITC is concerned, as such, it cannot be accepted. As held by Division Bench of this Court in case of Madhav Steel Corpn. (supra) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the learned Tribunal is required to be quashed and set aside on the aforesaid ground alone and the matter is required to be remanded to the adjudicating authority to consider the claim of the petitioner of ITC on the alleged purchases made by the petitioner from M/s Lucky Enterprises. 10. In light of the observations made herein above and for the reasons stated above, the petition succeeds in part. The orders passed by the authorities below impugned in the present petition are hereby quashed and set aside and the matter is remitted to the file of the adjudicating authority to consider the claim of the petitioner for ITC claimed on the alleged purchases made by the petitioner from M/s Lucky Enterprises after giving an opportunity to the petitioner afresh in accordance with law and on merits in light of the observations made herein above. However, it is made clear that there is no question of now allowing and/or permitting the petitioner to lead fresh evidence as it will tantamount to afterthought. The aforesaid exercise shall be completed within a period of three months from the date of receipt of the present order. It is made clear that the impugned orders are set aside sol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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