9911796707
TMI Blog2017 (4) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... -2007 and 2007-2008 respectively. The orders were confirmed by the first appellate authority and further appeals were filed before the Tribunal. Since the penalty proceedings were initiated on the basis of the nil returns filed by the assessee, taking note of the revised returns that were subsequently filed by the assessee, the Tribunal passed order dated 11.11.2010 setting aside the impugned orders and remitting the matters to the Intelligence Officer with the following directions: "The appellant shall produce the books of accounts for both the years, all the relevant documents in original and copies of the invoices before the Intelligence Officer within two months from the date of receipt of this Order. Based on the above records produced by the appellant, the Intelligence Officer shall examine the issue afresh and re-fix the quantum of penalty as provided in Section 67(1) of the Act. The Intelligence Officer shall ascertain whether the appellant is legally entitled to avail input tax credit on purchases effected from M/s. Illiyaash Mines and Minerals Pvt. Ltd., Palakkad. The appellant shall prove with the relevant records that it is the coal purchased from Illiyash Mines and Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in complying with the direction of the Tribunal is also evident from the Tribunal's order. The findings of the Tribunal contained in paragraphs 6, 7 and 8 read thus: "6. Coming to the question of entitlement for input credit, we are of the view that First Appellate Authority had committed an error in allowing the claim on the basis of certified duplicate copies of same. Section 11(9) of the Act is quite clear and also the inhibitions under Section 11(5)(m). Original invoices are to be necessarily produced for claiming input credit. Division Bench of Hon'ble High Court of Kerala has observed thus in Mohammed Haji vs. State of Kerala (ILR 2012(4) Ker. 87): 'The principle of strict construction would equally be applicable in the case of input tax credit and the procedural mandate in the provisions of S.11 has to be necessarily satisfied. The tax sufferance proved by invoice, the quantum determinable from the books of accounts etc., are the essence of the claim for the benefit conferred by the Section in availing input tax credit. Input tax credit is in the nature of set-off of tax suffered thus ensuring the liability of the subsequent dealers only on the quantum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of reliable evidence to prove the transactions recorded in the documents produced or in order to cloak the records with reliability to reduce the infraction to a technical lapse in the least, further proof was required which was not adduced. Claim for input is not supported by proper accounts either. Therefore, regardless of the fact that debit notes were belatedly raised, appellant cannot be given input credit as per proviso to Section 11(5). It is pertinent to note that a dealer claiming IPT under the proviso is not exempt from the liability to submit original bills under Section 11(9). First part of Sub-section 5(m) of Section 11 only envisages a situation where a tax invoice in the prescribed form is not with the dealer and not where tax is not separately changed in invoice or where no original is submitted along with claim. Since proper accounts are not there correctness of claim cannot be determined. Therefore, claim for input credit cannot be allowed. First Appellate Authority went wrong in placing reliance upon certified copies of invoices to allow input. 8. Rule 37(5) is with regard to production of duplicate bills in place of originals irrecoverably lost, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplier on 31.03.2007 has been sold to some other party, and that the dealer has failed to establish that it was the coal that was purchased from its supplier, which was sold to Malabar Cements Ltd. The first appellate authority considered this issue and in Annexure E order, it is held that the assessee has proved that there is no difference in the quantity of coal supplied as alleged by the Intelligence Officer. On that basis, the first appellate authority held the penalty levied on the assessee to be unsustainable. It is seen that this issue was considered by the Tribunal and in paragraph 10 of its order, the Tribunal has concluded that on facts it was clear that the assessee had obtained the coal from undisclosed sources and supplied it to Malabar Cements Limited and subsequently the bills and accounts were cooked up to mask the sale to avoid tax liability. The Tribunal also found that in the absence of materials to prove movement of goods from the supplier to the assessee, copy of the bill generated by the supplier in the name of the assessee is not a sufficient proof of the sale evidenced by it and that there was no evidence to prove movement of goods from the assessee to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rward by the assessee was that the dealer from whom the coal was purchased was ignorant of law. This has been considered by the Intelligence Officer as an admission of non-compliance of the statutory provisions. The Intelligence Officer has also taken note of the fact that the assessee has its Headquarters at Nagpur and the accounts are maintained and monthly returns filed by professionals and that the authorised representative who represented them before the Court were also aware of the provisions of law. Therefore, the Intelligence Officer rejected the theory of ignorance of law put forward by the assessee. This contention was considered by the first appellate authority and the Tribunal, and both have confirmed the orders levying penalty. Nothing has been placed on record before us to conclude that these reasoning are illegal for this Court to interfere with the said findings. Therefore, the order passed by the Tribunal pertaining to the assessment year 2006-2007 is only to be confirmed. 11. Turning to the proceedings for the assessment year 2007-2008, we find that the penalty has been levied on the assessee on the basis that the purchases and sales have no correlation with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
