TMI Blog2015 (6) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessee. - SPECIAL CIVIL APPLICATION NO. 2149 of 2015 - - - Dated:- 26-3-2015 - MR. M.R. SHAH AND MR. S.H.VORA, JJ. MR MANISH K KAJI, ADVOCATE FOR THE APPELLANT MR CHINTAN DAVE, AGP FOR THE RESPONDENT JUDGMENT M.R. Shah, J. 1. Rule. Shri Chintan Dave, learned AGP waives service of notice of Rule on behalf of the respondent. 2. In the facts and circumstances of the case and with the consent of learned advocates appearing for respective parties, the present petition is taken up for final hearing today. 3. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner - dealer has prayed for an appropriate writ, direction and order to quash and set aside the impugned judgment and order dated 26.9.2013 passed by the learned Gujarat Valued Added Tax Tribunal (hereinafter referred to as the Tribunal ) passed in Revision Application No.59 of 2013, by which the learned Tribunal has dismissed the said revision application confirming the order passed by the first revisional authority - Deputy Commissioner of Commercial Tax, Audit I, Ahmedabad dated 28.5.2013, by which the first revisional authority, in exercise of revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner - dealer of ₹ 6,49,561/-came to be taken under suo motu revision by the first revisional authority - Deputy Commissioner of Commercial Tax, Audit 1, Ahmedabad. That the petitioner dealer was served with the show cause notice and was called upon to show cause why the ITC claimed by the petitioner assessee on the purchases made by the petitioner alleged to have been made from M/s Lucky Enterprises may not be denied/ cancelled. That the petitioner appeared before the first revisional authority and produced the bills with respect to purchases made by it and alleged to have been purchased from M/s Lucky Enterprises and reiterated and contended that the petitioner dealer had, in fact, purchased the goods from M/s Lucky Enterprises, for which, bills were submitted and on which the ITC was claimed. Therefore, it was the case on behalf of the assessee that the transactions between the petitioner dealer - assessee and said M/s Lucky Enterprises were genuine. That by order dated 28.5.2013, the first revisional authority - Deputy Commissioner of Commercial Tax, Audit 1, Ahmedabad had revised the order passed by the Assessing Officer dated 30.12.2010 and raised demand of ₹ 9,83, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,561/- on the purchases made by the petitioner from M/s Lucky Enterprises, the petitioner dealer/assessee has preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India. 7. Shri Kaji, learned advocate appearing on behalf of the petitioner has vehemently submitted that both the first revisional authority as well as the learned Tribunal have materially erred in disallowing the ITC of ₹ 6,49,561/- on the purchases made by the petitioner from M/s Lucky Enterprises. 7.1 It is further submitted by Kaji, learned advocate appearing on behalf of the petitioner that as such, the first revisional authority as well as the learned Tribunal disallowed the ITC of ₹ 6,49,561/- claimed by the petitioner - dealer on the purchases made by the petitioner from M/s Lucky Enterprises solely on the ground that the registration certificate of M/s Lucky Enterprises came to be cancelled ab initio from 22.2.2006. 7.2 It is submitted that as such, neither the petitioner was 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 nor was the petitioner-assessee-deale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve submissions and relying upon the decision of the Hon'ble Supreme Court in the case of State of Maharashtra v. Suresh Trading Co. [1998] 109 STC 439 as well as the decision of the Division Bench of this Court in the case of Giriraj Sales Corpn. v. State of Gujarat [2002] 125 STC 369, it is requested to allow the present Special Civil Application. 8. Present application is vehemently opposed by Shri Dave, learned AGP. 8.1 It is vehemently submitted by Shri Chintan Dave, learned AGP that as all the transactions by M/s Lucky Enterprises including the transactions between the petitioner and M/s Lucky Enterprises were found to be bogus and non-genuine and it was found that as such, there was no sale of any goods by M/s Lucky Enterprises and consequently, registration certificate of M/s Lucky Enterprises came to be cancelled ab initio from 22.2.2006 and the petitioner claimed the ITC on the purchases alleged to have been made from the said M/s Lucky Enterprises during the aforesaid period, the first revisional authority had rightly disallowed the ITC claimed by the petitioner - dealer on the purchases alleged to have been made from M/s Lucky Enterprises and the learned Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, the petitioner has failed to establish and prove. 8.4 It is further submitted by Shri Dave, learned AGP that in the present case, even the alleged seller M/s Lucky Enterprises had not paid any tax as in the case of M/s Lucky Enterprises, it has been established and proved that M/s Lucky Enterprises had not paid any tax on the goods sold by it including the goods alleged to have been sold by M/s Lucky Enterprises to the petitioner and therefore, when the seller -M/s Lucky Enterprises had not paid the tax, there is no question of any ITC for which the tax has not been paid at all by the seller. It is submitted that therefore, also, the petitioner - dealer/assessee is not entitled to the ITC on the purchases alleged to have been made/purchased by M/s Lucky Enterprises. However, he is not in a position to dispute and/or disputing that when the first revisional authority and/or when the learned Tribunal passed the impugned judgment and order, the petitioner - dealer was not served with the copy of the order in case of M/s Lucky Enterprises cancelling its registration certificate ab initio w.e.f 22.2.2006, which is now available with the petitioner. 8.5 Now, so far as rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the transactions by M/s Lucky Enterprises are bogus and not genuine and that said M/s Lucky Enterprises indulged in billing activities only and therefore, even the transactions between the petitioner and M/s Lucky Enterprises are also bogus and non-genuine. To some extent, the first revisional authority can be said to be justified in drawing inference and/or in holding so and/or presuming so. However, the petitioner - dealer - purchaser was required to be served with the order in case of M/s Lucky Enterprises cancelling its registration certificate ab initio and the findings recorded by the appropriate authority in case of M/s Lucky Enterprises holding the transactions by M/s Lucky Enterprises including the transaction with the petitioner - dealer as bogus and non-genuine and the finding recorded that M/s Lucky Enterprises had indulged into the billing activities only. After giving an opportunity to the petitioner - dealer - purchaser and confronting it with the findings recorded by the appropriate authority cancelling the registration certificate ab initio in case of seller - M/s Lucky Enterprises, the claim of the purchaser like the petitioner - dealer of the ITC on the purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration certificate of M/s Lucky Enterprises on the ground that the registration certificate of M/s Lucky Enterprises - seller has been cancelled ab initio on the ground that the seller had involved into the billing activities only and all the transactions by M/s Lucky Enterprises are held to be bogus. The petitioner has been denied the ITC on the ground of the aforesaid activities/alleged transactions between the petitioner and M/s Lucky Enterprises. However, as observed herein above, the petitioner was not served with the copy of the order in the case of M/s Lucky Enterprises. Now, the copy of the order passed in the case of M/s Lucky Enterprises is available with the petitioner. Therefore, after giving an opportunity to the petitioner with respect to observations made in the case of M/s Lucky Enterprises insofar as the alleged transactions between the petitioner and M/s Lucky Enterprises and after giving an opportunity to the petitioner to prove the genuineness of the transaction between the et and M/s Lucky Enterprises in light of the observations made herein above, therefore, the matter is required to be remanded to the adjudicating authority to consider the claim of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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