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M/s New Devi Grit Udyog, Raiseena, Gurgaon Versus State of Haryana and others

2015 (12) TMI 182 - PUNJAB & HARYANA HIGH COURT

Disaollowance of Input tax credit - appellant failed to produce original purchase invoices and VAT C4 certificates before the respondent during the assessment proceedings. The invoices in possession of the appellant did not have its name, TIN number mentioned by the seller on them at the time of issue which is mandatory requirement under Rule 54 of the Haryana Value Added Tax Rules, 2003 - Held that:- The non mentioning of the buyer's name or TIN number as it is issued by the seller cannot be ta .....

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dence to show that the transaction was genuine and it had made payment of VAT to the seller. Moreover, it is not within the control of the purchaser to ensure that the tax invoice contains his name and TIN No. as it is issued by the seller. Unless a mandatory duty is cast on the seller to issue tax invoice with such particulars, the purchasers cannot be penalized for no fault of theirs. - Assessing Officer was not justified in declining the benefit of input tax credit only on the ground that .....

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iso to Section 8 of the Advocates Act, 1961 and consequent validity of elections held by KBC during the extended term. - Matter remanded back - Decided in favour of assessee. - VATAP No.37 of 2014 - Dated:- 8-9-2015 - Mr. Ajay Kumar Mittal And Mr. Ramendra Jain, JJ For the Petitioner : Shri Rajiv Agnihotri, Avneesh Jhingan, Sandeep Goyal andAnil Kumar Rana, Advocates For the Respondent : Ms. Mamta Singla Talwar, DAG, Haryana with Shri Saurabh Mago, AAG, Haryana. ORDER Ajay Kumar Mittal,J. 1. Aff .....

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35, 241, 242, 247 to 251, 258, 215, 224, 225, 239 and 240 of 2014 as learned counsel for the parties are agreed that the issue involved in all the appeals is identical. However, the facts are being extracted from VAT Appeal No.37 of 2014. 3. VAT Appeal No.37 of 2014 has been preferred by the assessee-appellant under Section 36 of the Haryana Value Added Tax Act, 2003 (in short, the HVAT Act ) against the orders dated 26.3.2007, 30.6.2008, 7.6.2012 and 27.8.2013, Annexures A.1, A.2, A.4 and A.7 r .....

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disallowed claim as if no document produced the appellate authority entertained such documents though rejected the same, and further Tribunal passed orders against itself and then finally without going into the record it being an apex fact finding authority rejecting the appeal? iii)Whether the order passed by the Haryana Tax Tribunal was right in not providing an opportunity to the appellant to avail statutory benefits? iv)Whether the order passed by the Haryana Tax Tribunal Annexure A.4 was r .....

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be noticed. The assessee is a proprietorship concern registered under the HVAT Act and the Central Sales Tax Act, 1956 (in short,. the CST Act ) having TIN No.06951817261. It is engaged in the manufacturing and trading of crushing stones material rori bajri and stone dust etc. The appellant purchases boulders from within the State of Haryana from one seller M/s Faridabad Gurgaon Minerals Limited, Faridabad who has been allotted the area on lease by Mines and Geological Department Haryana after p .....

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s were initiated by way of issuance of notice in Form N2 and as per the claim of the appellant, it produced invoices as well as C.4 certificates. Presence of Mr. D.V.Taneja, Advocate was marked who produced books of account. The assessment was framed vide order dated 26.3.2007, Annexure A.1, disallowing input tax of 3,68,935/- as the original purchase invoices and certificates in Form C4 were not submitted by the appellant. Aggrieved by the order, the assessee filed appeal before the Joint Excis .....

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essee went in appeal before the Tribunal. Vide order dated 7.6.2012, Annexure A.4, the Tribunal dismissed the appeal. The review petition filed by the appellant also met the same fate vide order dated 27.8.2013, Annexure A.7 passed by the Tribunal. Hence the instant appeals by the assessee-appellants. 5. We have heard learned counsel for the parties. 6. Learned counsel for the assessee-appellants submitted that the Assessing Officer had never doubted the transaction. Further, tax charged by the .....

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ealers thereon. There is no evasion and the documents are issued by the seller dealer, in such circumstances, the denial of input tax credit to the appellant was totally unjustified. Reliance was placed on judgments in Standard Concrete & Stone Agency, Faridabad and others vs. State of Haryana and others,(1998) 12 PHT 185 (SC), CWP No.11495 of 2012, M/s SPL Industries Limited vs. Union of India and others, decided on 31.1.2013 (P&H), State of Punjab and another vs. City Petro, (2009) 021 .....

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rs vs. Bar Council of Kerala and others, (1999) 3 SCC 422. 8. It would be advantageous to reproduce the relevant statutory provisions which read thus:- Section 2(w) (w) input tax means the amount of tax paid to the State in respect of goods sold to a VAT dealer, which such dealer is allowed to take credit of as payment of tax by him, calculated in accordance with the provisions of section 8; Section 2(zl) 'tax invoice' means an invoice required to be issued according to the provisions of .....

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se of sub-section (1). Section 28(2) 28(2) Every dealer required to furnish returns under subsection (2) of section 14 shall, - (a) in respect of every sale of goods, effected by him (i) to any dealer; (ii) to any other person on credit; (iii) to any other person on cash, where the sale price of the goods exceed one hundred rupees or such other amount not exceeding five hundred rupees, as may be prescribed, compulsorily, otherwise, on demand by such person, issue to the purchaser, where he is a .....

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a period of time, he may issue a delivery note showing the prescribed particulars at the time of dispatch of the goods, every time such dispatch is made, and when the delivery of the goods is complete or a month closes in between, he shall issue a consolidated tax invoice or retail/other sale invoice, as the case may be, showing the prescribed particulars, in respect of the goods sold during the month or part thereof, as the case may be; (b) maintain, in the prescribed manner, account of all sal .....

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elivery note shall at least contain the following particulars - Tax invoice/Retail invoice/Sale invoice/Delivery Note Serial Number: Date: DD:MM:YY Time: HH:MM Note: - Time is to be mentioned by stone crusher owners, quarry contractors/lessees in every case, and by other dealers in case the value of goods exceeds ten thousand rupees. (i) Full name and address of the selling dealer/consignor with his TIN, if any (ii) Nature of transaction - whether sale, consignment transfer or job work etc. (iii .....

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a consumer.) (viii) Vehicle number (Where the goods are carried in a vehicle.) (ix) Name of the person carrying the goods (Where the goods are carried in a vehicle.) Signature of the selling dealer/consignor or his authorized signatory. Name in full and status 9. A combined reading of the aforesaid provisions shows that under Rule 54(3) of the HVAT Rules, the buyer is required to produce the tax invoice, its name and TIN number entered on it. However, the question would be whether the purchaser .....

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onfer any substantive right. In the event of non-mentioning of the name and TIN No. of the buyer, a heavy onus is cast on the said dealer to produce material to discharge the said onus by producing other sufficient evidence to show that the transaction was genuine and it had made payment of VAT to the seller. Moreover, it is not within the control of the purchaser to ensure that the tax invoice contains his name and TIN No. as it is issued by the seller. Unless a mandatory duty is cast on the se .....

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he supplier has purchased duty paid goods before resale and passed on the credit of duty, there is no reason why the benefit should be denied. Once the object for which a provision is enacted is satisfied merely venial or technical breach by itself should not permit the authorities to adopt a stand which frustrates the object for which the entire scheme of modvat has been framed. The endeavour must be to ensure that the scheme is made effective and not frustrated. In other words, the goods , whi .....

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it, the petitioner having done all that was possible within its powers and nothing further remained to be done so far as the petitioner was concerned.' 11. Similarly, the Bombay High Court in Marmagoa Steel Limited's case (supra) recorded thus:- 10. For availing the credit of duty, what is required to be established under Rule 57G is that the inputs received are infact duty paid. The procedure set out in Rule 57G of the Central Excise Rules is to ensure that the credit is taken on the ba .....

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y. In the present case, it is established that the duty paid goods are received as inputs, however, the credit is denied on the ground that the Bill of entry is not endorsed in the name of the appellant. Rule 57G does not require that for taking credit of duty, the bill of entry should be endorsed in the name of the claimant. Counsel for the revenue could not point out any provision of law in the Act or the Rules regarding the endorsement of bills of entry. In the absence of any provision regard .....

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Surat and Goa clearly show that the goods imported and cleared under the bills of entry on payment of duty were received and utilized by the appellant as inputs in its factory and that the importer has not utilized the credit of duty paid on the said goods. Thus, the appellant has established that the inputs received under the bills of entry were duty paid and therefore, the authorities below were not justified in denying the credit of duty to the appellant. The two decisions relied upon by the .....

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