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TMI Blog2020 (7) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... y opportunity and in complete breach of the principles of natural justice, the impugned order came to be passed by the respondent No.2. 2. The petitioner is the sole proprietary concern, having its office at the address mentioned in the cause-title. It is engaged in the business of trading edible oil. 2.1 It is averred by the petitioner that, though, it has furnished periodical as well as annual self-assessment reports, as required under Sections 29 to 33 of the VAT Act and the petitioner was not selected for audit assessment, as provided under Sections 34 (2)(b) of the VAT Act, and therefore, it is deemed that the self-assessment reports submitted by the petitioner have been accepted. 2.2 However, a notice came to be issued to the petitioner on 23.12.2019 for re-assessment under Section 35(1) of the VAT Act by the respondent No.2. It is though lamented that no reason is given in the notice issued under Section 35(1) of the VAT Act for re-assessment. 2.3 A detailed reply was furnished by the petitioner on 13.03.2020, where, the Petitioner has sought various details as well as those documents on the basis of which the case of the petitioner is selected for re-assessment so that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Not only that, there are valid evidences of procuring of goods, after payment of GST, but, the same have also been sold, and therefore, there is violation of principles of natural justice, and therefore, writ-jurisdiction needs to be exercised by this Court. 3.3 As for the alternative efficacious remedy, he has urged that the law is well-settled. It is urged that even the communication dated 13.03.2020, which was addressed to respondent No.2, has not been responded and the order impugned came to be passed on 24.03.2020, i.e. the day on which the nationwide lockdown was announced in wake of the outbreak of Covid-19 virus. 4. Learned AGP, Mr. Kathiriya, had appeared, on advance notice, for the respondent-authorities and has assisted this Court. 4.1 He has argued fervently that there is alternative, efficacious remedy available to the petitioner under the law. He, further, urged that Section 73 of the VAT Act provides for the appeal, and therefore, this petition should not be entertained. It is also urged that the cancellation of registration of the vendor- M/s. Maa Oil Mills is the reason for such order and since, such cancellation of registration is now being put on the official ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to cull out the truth, this powers shall be needed to be exercised. 5.3 He, however, urged that the petitioner shall not raise the issue of limitation before the respondent-authority. 6. Having heard the learned Counsels on both the sides, we have chosen to hear and decide this matter in limini at the request of both the sides. 6.1 Noticing the provision of Section 73 of the VAT Act, which provides for appeal before the Assessing Officer against the impugned order, submissions of alternative remedy may look attractive on the face of it, however,it can be noticed that the appellate authority under the VAT Act does not have original powers of assessment or of further inquiry. Again, noticing the glaring and blatant act of denial of the very basic document of cancellation of the registration of M/s. Maa Oil Mills, being No. 240942971,which is the edifice for denying ITC to the petitioner, this court finds the request of invocation of Writ jurisdiction for the purpose of setting aside the impugned order necessary without entering into the merits, on the grounds of non supply of basic documents and non consideration of the case of the Petitioner independently,on its own merits. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted: 26.03.2015, rendered in Special Civil Application No. 2149 of 2015, wh, the petitioner had purchased the material from one M/s. Lucky Enterprise. The petitioner also had produced the bills, with regard to the goods purchased by it from M/s. Lucky Enterprise and the petitioner had claimed certain amount of total ITC on the purchase, allegedly made to have been from M/s. Lucky Enterprise. The Assessing Officer passed the assessment order, allowing ITC claim made by the petitioner in respect of the goods purchased from M/s. Lucky Enterprise. However, later on, the registration of the M/s. Lucky Enterprise came to be cancelled ab initio from 22.02.2006 on the ground that M/s. Lucky Enterprises is not a genuine dealer and had indulged into billing activities only, and therefore, all the transactions made by M/s. Lucky Enterprises were found to be bogus and non-genuine. Thereafter, the order passed by the Assessing Officer, allowing ITC claimed by the petitioner - dealer of Rs. 6,49,561/-, came to be taken under suo motu revision by the first Revisional Authority, i.e. Deputy Commissioner of Commercial Tax, Audit-1, Ahmedabad. Then, the petitioner dealer was served with the show-cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITC of Rs. 6,49,561/- on the purchases made by the petitioner from M/s Lucky Enterprises, whose registration certificate came to be cancelled ab initio from 22.2.2006. 6.4.3 Being aggrieved with the order passed by the learned Tribunal, the petitioner approached this Court, where, after examining the material on record, this Court found that the petitioner was not given an opportunity, as is required under the law, before passing the impugned order by the Assessing Officer. The Court also held that the Tribunal did not properly appreciate the entire aspect and therefore, the judgment and order of the Tribunal came to be set aside and the matter was remanded to the authority concerned to reconsider the claim of the petitioner of ITC on the purchases made from M/s. Lucky Enterprises. The relevant observations of this Court, are profitably reproduced hereunder: "9.2 From the order passed by the first revisional authority as well as from the impugned judgment and order passed by the learned Tribunal, it appears and it is not in dispute that the first revisional authority disallowed the ITC of Rs. 6,49,561/- claimed by the petitioner - dealer on the purchases alleged to have been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration 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 nongenuine. 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 Corporation (supra) in which the Division Bench of this Court had also considered the decision in case of Giriraj Sales Corporation (supra), that while claiming ITC on the purchases made by a dealer, a dealer is also required to prove and establish the actual movement of goods and is required to prove the genuineness of the transaction and then and then only, the ITC can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 solely on the ground that they were found to be in breach of principles of natural justice, inasmuch as the petitioner - dealer was not served with the copy of the order in the case of M/s Lucky Enterprises, the basis of which the ITC has been denied. It is also made clear that this Court has not expressed anything on merits in favour of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach of principles of natural justice, we have chosen to remit the matter back to the concerned authority. None of the findings or observations made herein above shall benefit either side nor prejudice the case of the litigants. 7.2 The respondent-authority shall SUPPLY the material requested for by the petitioner, including the order of cancellation of registration of M/s. Maa Oil Mills and any other materials connected therewith and available with it, for the purpose of re-assessment. 7.3 If, any fresh evidence is needed to be furnished by the petitioner, let the same be done within the period of two weeks from the date of receipt of the documents requested by the petitioner from the respondent- authorities. 7.4 On the basis of the material adduced by the petitioner, the genuineness of the transaction made by the Petitioner with M/s. Maa Oil Mills shall be examined by the authority concerned independently and on the strength of its own merits, without being influenced by any of the findings or observations made in this Petition or in any other proceedings. 7.5 Needless to say that the petitioner shall cooperate in the proceedings of reassessment before the competent author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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