TMI Blog2016 (8) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition allowed - Impugned orders of assessment stand quashed, and the Assessing Officer is directed to grant „input rebate‟ for the transaction, which infact had taken place during the Assessment Year in question. - Writ Petition No : 6417 of 2015 - - - Dated:- 19-8-2016 - Shri Rajendra Menon and Shri Anurag Shrivastava, JJ. Shri G.N. Purohit, Senior Advocate, with Shri Abhishek Oswal and Ms. Uma Parashar for the petitioner. Shri Samdarshi Tiwari, Deputy Advocate General, for the State/respondents. ORDER In this petition filed under Article 226/227 of the Constitution of India, challenge is made to orders-dated 25.2.2015 passed by the Assistant Commissioner of Commercial Tax, Audit Wing, Bhopal, in the matter of denying benefit of input-rebate‟ to the petitioner for the period 1.4.2012 to 31.3.2013, in the matter of payment of entry tax/Value Added Tax under the MP Value Added Tax Act, 2002 (hereinafter referred to as Act of 2002‟). 2- Petitioner is a proprietary concern registered under the Commercial Tax Act with TIN No.23813600936, and deals in purchase and sale of Iron, Steel and Scrap material. It is stated that petitioner had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d without taking note of the requirement of Section 14 read with Rule 9 and all other documents like gate pass, sale memo etc filed, which clearly show that the transaction had taken place within the Financial Year. 5- Shri G.N. Purohit, learned Senior Advocate, argues that under Rule 9 of the MP VAT Rules, providing for allowing of input rebate‟ under section 14, no specific provision is made for submitting a particular document in a specified form. Learned Senior Advocate argues that a complete reading of Rule 9 with the provisions of Section 14 would indicate that the question of grant of rebate has to be made based on the documents available and if the requirement of section 14 is satisfied showing the transaction during the Financial Year, the input rebate‟ can be allowed. In this case, in an arbitrary manner only because the sale invoice is issued after the Financial Year, the claim has been disallowed, even though Rule 9 does not prescribe for any particular proforma for issuance of the cash memo or invoice. According to Shri Purohit the liability for payment of tax arises on the date the sale is affected and actual payments are made in consideration for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel invites our attention to a judgment of the Supreme Court in the case of Zunaid Enterprises Vs. State of MP and others, 2012 (20) STJ 411 (SC), to say that the petition should not be entertained as efficacious remedy is available. Learned Deputy Advocate General further invites our attention to the requirement of section 9, of the VAT Rules, and Section 14 to say that the copies of the delivery challan even though they indicate the payment and receipt etc, but these cannot be treated as bill, invoice or cash memo as contemplated under Rule 9; and, as the invoice or cash memo are issued subsequent to the Financial Year, learned counsel argues that the Assessing Officer has not committed any error and, therefore, Shri Samdarshi Tiwari prays for dismissal of this writ petition. 10- We have heard learned counsel for the parties and have perused the record. 11- Facts as are detailed hereinabove are not in dispute. Petitioner purchased the scrap material in an e-auction conducted and the agreement for sale was executed in accordance to the terms and conditions stipulated in the Agreement Annexure P/2, that was entered into during the Financial Year in question. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antled and removed as per the conditions stipulated in Clause 6.3 and 6.4 of the Agreement, the installments have been paid before dismantling and removal of the scrap and the payment made includes the tax component. The Delivery Challan, Gate Passes filed as Annexure P/4 is, therefore, a proof of the fact that the transactions which included the payment of installments, taxes, for dismantling of the plant and its removal from the site took place during the period between 17.12.2012 to 29.1.2013. However, the memo of sale invoice Annexure P/3, as already indicated hereinabove, has been issued on 25.4.2013, 3.6.2013, 21.11.2013 and 22.11.2013 respectively. However, if we peruse these invoices, we find that the invoices have been issued on the dates contained therein in favour of the assessee M/s Laxmi Steels, Plot No.22, F Sector, Industrial Area, Govindpura, Bhopal bearing TIN No.23813600936. The sale order for which the invoice is issued is shown as order-dated 6.9.2012. The Delivery Note is shown to have been issued on 21.9.2012 and the dispatch is shown to have been made through motor vehicle. The buyer is shown as the assessee herein and the first installment is shown to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the transactions had taken place during the Financial Year. 15- The question, therefore, would be as to whether based on the ground that invoices were issued after the Financial Year, can the benefit be denied to the petitioner when the transaction did take place during the Financial Year i.e period between 1.4.2012 to 31.3.2013. 16- Section 14 of the VAT Rules contemplates a provision for rebate of input taxes‟. This section contemplates that when a registered dealer purchases any good specified in Schedule III from another such dealer after payment of his input tax‟, then he is entitled to rebate of input tax‟. The method of claiming and allowing the input tax rebate‟ as provided under section 14 is contemplated under Rule 9, and this Rule contemplates that any claim in respect of a tax rebate may be made by the registered dealer under sub-section (1) of Section 14 on the basis of its quantification by a bill, invoice or a cash memo issued by the selling registered dealer indicating therein separately the amount of tax paid under section 9 and collected. In the memo in question, as detailed hereinabove i.e . in the memo dated 25.4.2013 Anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoice evidencing the nature and particulars of the transaction as per the terms and conditions of the contract/agreement for sale. If the bills dated 25.4.2013 and 6.9.2013 are analysed, it would be seen, as already indicated hereinabove, that even though they are issued on 25.4.2013 and 3.6.2013 respectively, they evidence the transaction made on 6.9.2012, the payment made on the day i.e the first and second installments; 13% tax; issue of the delivery note on 21.9.2012 and 15.12.2012; and, removal of the scrap by motor vehicle after issuance of the delivery note on 21.9.2012 and 6.12.2012 respectively. 19- It is, therefore, clear that even if the invoice is of a particular date, may be after the Financial Year, but the invoice did evidence payment of duty and conclusion of the transaction as per the contract during the Financial Year. That being the factual position, there is no reason as to why input rebate‟ cannot be granted, when the transaction has infact occurred during the Financial Year and the duty or tax paid during the Financial Year, which is admissible to a set off or input rebate. 20- The West Bengal Taxation Tribunal also considered somewhat simila ..... X X X X Extracts X X X X X X X X Extracts X X X X
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