TMI Blog2022 (4) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... s the registration certificate of the Petitioner. For the Respondent authorities, to apply Section 18(8)(ix) of the JVAT Act in the case of the petitioner; the burden was on them to establish that the Petitioner was engaged in manufacturing activity in the State of Jharkhand. However, such burden was not discharged by them. Moreover, it has not been alleged that the Petitioner is a manufacturer in the State of Jharkhand - It is well settled that in a taxing statute there is no room for intendment - Further, the finding that scrap batteries could only have been used for processing or manufacturing is also incorrect, inasmuch as, a dealer such as the Petitioner is also free to trade in the said scrap batteries, i.e., sale and re-sale. It is incorrect to presume that scrap batteries can only be used for processing or manufacturing. If the interpretation of the Ld. Tribunal is accepted, then several traders would be debarred from eligible ITC since all products are ultimately processed or manufactured. The word trader would itself lose its meaning. It is held that Section 18(8) (ix) of the JVAT Act is not applicable in the case of this Petitioner. Consequently, the instant Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 2005 (hereinafter referred as JVAT Act ) for the financial year 2012-13 vide Assessment Order dated 05.10.2015 passed by the respondent no.2. By the said assessment order inter alia the petitioner was disallowed the Input Tax Credit amounting to ₹ 1,28,617/- for the reason that the petitioner could not produce Form JVAT-404 in support of the said amount of ₹ 1,28,617/- as Input Tax Credit. Further, in the said Assessment Order, the Input Tax Credit amounting to ₹ 15,98,657.48/- was disallowed to the petitioner on the basis of Section 18(8) (ix) of the JVAT Act. It further transpires that the Joint Commissioner of Commercial Taxes (Appeal), vide its order dated 19.10.2016, partly allowed the said appeal of the petitioner on the issues which are not involved in the instant writ petition and partly disallowed the said appeal of the petitioner by disallowing the Input Tax Credit, amounting to ₹ 15,98,658/- to the petitioner by confirming the Assessment order dated 05.10.2015 in respect to the same by applying Section 18(8)(ix) of the JVAT Act. It further transpires that the petitioner had filed its supplementary affidavit dated 03.12.2019 before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that the Assessment Order has not even alleged that the petitioner is engaged in the activity of manufacturing within the State of Jharkhand. Similarly the Appellate Order dated 19.10.2016 has also erroneously applied Section 18 (8) (ix) of the JVAT Act to the case of the petitioner and disallowed the relevant Input Tax Credit. There is not even a whisper in the said order that the petitioner is indulged in manufacturing activities so as to attract the provisions of Section 18 (8) (ix) of the JVAT Act. Even the Ld. Commercial Taxes Tribunal in its revision order dated 28.07.2021 has erred in making a finding that the petitioner did not produce any documents to show that the petitioner was not a manufacturer in the State of Jharkhand. Admittedly; the petitioner is not engaged in manufacturing activities within the State of Jharkhand and is only engaged in trading activities which is also evidently clear from the Registration Certificate of the petitioner under the JVAT Act, 2005 which is an unimpeachable document. Thus, the Ld. Tribunal erred in not considering that the facts which are undisputed are not required to be proved. He contends that the Ld. Tribunal has misinterpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny evidence before the Assessing Officer that the scrap batteries on which it was claiming ITC were not inter-state stock transferred but were sold during the course of inter-state trade and commerce during the period 2012-13. Mr. Pati lastly submitted that at best the matter can be remanded back to the Ld. Tribunal to verify the averments made in the supplementary affidavit and the documents annexed therein, inasmuch as, the petitioner heavily relies upon the supplementary affidavit and contends that the same should have been considered by learned tribunal while deciding the issue. 6. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein it appears that the Petitioner is a battery manufacturing and trading company. It has its manufacturing unit in the States of West Bengal, Tamil Nadu, Haryana and Maharashtra; however, no manufacturing activity is carried out in the State of Jharkhand and the Petitioner only engages in trading activity. Reference in this regards may be made to the registration certificate of the Petitioner which at Serial No.9 indicates the Nature of Business as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of stock or for sale outside the State. 10. From bare perusal of the aforesaid provision, it manifest that Section 18(8)(ix) of the JVAT Act is only applicable in case when some manufacturing activity is undertaken by the dealer. In the present case, admittedly, no manufacturing activity is carried out by the Petitioner in the State of Jharkhand. It is only a trader and hence Section 18(8)(ix) cannot be applied in the case of the Petitioner. The categorical averments made in paragraph 22, 29 30 of the writ application to the extent that petitioner is not a manufacturer has not been denied by the respondent authority. Further, the fact that the Petitioner is not a manufacturer is also admitted in the assessment order, appellate order and the revisional order. The unimpeachable evidence in this regard is the registration certificate of the Petitioner. 11. For the Respondent authorities, to apply Section 18(8)(ix) of the JVAT Act in the case of the petitioner; the burden was on them to establish that the Petitioner was engaged in manufacturing activity in the State of Jharkhand. However, such burden was not discharged by them. Moreover, it has not been alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such goods which are even likely to be used as raw materials for manufacturing / processing, are not eligible to be taken into account for the purpose of ITC. Therefore, even if a person is not a manufacturer , Section 18(8)(ix) would be applicable. (ii) Scrap batteries could only have been used for manufacturing or processing of goods and hence 18(8)(ix) would be applicable. As regards the first finding, the same is ex facie contrary to the express language used in Section 18(8)(ix) of the JVAT Act. The said section, in unequivocal terms, stipulates that goods purchased should be consumed for manufacture. The finding of the Ld. Tribunal that it seems to be the intent of the legislature that even goods that are likely to be used in manufacture (and hence the said section will apply even if a person is not a manufacturer), is contrary to the mandate of Section 18(8)(ix) of the Act. 13. It is well settled that in a taxing statute there is no room for intendment. In the quoted words of Rowlett, J. in Cape Brandy Syndicate v. Inland Revenue Commissioner, (1921) 1 KB 64, In a taxing Act one has to look merely at what is clearly said. There is no room for any in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce all products are ultimately processed or manufactured. The word trader would itself lose its meaning. 15. The arguments of the learned counsel for the Revenue that at best the matter can be remanded back to the Ld. Tribunal to verify the averments made in the supplementary affidavit and the documents annexed therein; is not acceptable to us for following reasons: (i) The stand of the respondent department, throughout in the assessment proceeding, appellate proceeding and revisional proceeding, has been that Section 18 (8) (ix) of the JVAT Act, 2005 is applicable in the case of the Petitioner and accordingly full input tax credit cannot be allowed to the Petitioner. (ii) In order to apply Section 18 (8) (ix), the first mandatory condition is that there has to be a manufacturing activity undertaken by the Assessee within the State of Jharkhand. It is only when there is a manufacturing activity that the second condition that such manufactured goods are stock transferred comes into play. If there is no manufacturing activity by the Assessee then it is futile to ascertain whether the goods have been stock transferred or not. (iii) In the instant case, there is in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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