TMI Blog2022 (12) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the order of cancellation of ITC had recorded a categorical finding to the effect that though all the documents were placed on record by the assessee yet it was found that no evidence was placed on record in regard to the payment made for loading and unloading of the goods. This Court finds that finding recorded by the first Appellate Authority is cryptic as it only states in its order that the registration of the supplier was cancelled, but no date of cancellation has been mentioned so as to demonstrate whether transaction took place prior to cancellation or subsequently - This Court finds that the finding recorded by the first Appellate Authority cannot be sustained and the same is hereby set-aside. The matter is remanded to the first Appellate Authority to record specific finding as to when the registration of supplier i.e. M/s Riddhi Siddhi Enterprises, Agra was cancelled - Petition allowed in part. - Writ Tax No. - 228 of 2021, 229 of 2021, 230 of 2021, 231 of 2021 - - - Dated:- 6-12-2022 - Hon'ble Rohit Ranjan Agarwal, J. For the Petitioner : Pranjal Shukla For the Respondent : C.S.C. ORDER HON'BLE ROHIT RANJAN AGARWAL, J. Heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority is patently erroneous. Sri A.C. Tripathi, learned Standing Counsel, appearing for the department, has submitted that a categorical finding has been recorded by the first Appellate Authority that the registration of the supplier firm was cancelled, as such, no benefit of ITC could be availed by the petitioner. He has invited the attention of the Court to Section 16 of the Act of 2017 which is eligibility and conditions for taking input tax credit as well as Section 74 of the Act of 2017. According to learned Standing Counsel the transaction was fake and no goods had passed on from the supplier to the purchaser i.e. petitioner and only the ITC has been claimed on exchange of documents and, thus, the authorities have rightly rejected the claim of ITC. I have heard learned counsel for the parties and perused the material on record. Before proceeding to decide the case a conspicuous glance of Section 16 and Section 74 of the Act of 2017 is necessary for better appreciation of the case, which reads as under; 16. Eligibility and conditions for taking input tax credit. (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... component of the cost of capital goods and plant and machinery under the provisions of the Income-tax Act, 1961 (43 of 1961), the input tax credit on the said tax component shall not be allowed. (4 ) A registered person shall not be entitled to take input tax credit in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under section 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier. 74. Determination of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised by reason of fraud or any wilful misstatement or suppression of facts. (1) Where it appears to the proper officer that any tax has not been paid or short paid or erroneously refunded or where input tax credit has been wrongly availed or utilised by reason of fraud, or any wilful-misstatement or suppression of facts to evade tax, he shall serve notice on the person chargeable with tax which has not been so paid or which has been so short paid or to whom th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be concluded. (9) The proper officer shall, after considering the representation, if any, made by the person chargeable with tax, determine the amount of tax, interest and penalty due from such person and issue an order. (10) The proper officer shall issue the order under sub-section (9) within a period of five years from the due date for furnishing of annual return for the financial year to which the tax not paid or short paid or input tax credit wrongly availed or utilised relates to or within five years from the date of erroneous refund. (11) Where any person served with an order issued under sub-section (9) pays the tax along with interest payable thereon under section 50 and a penalty equivalent to fifty per cent. of such tax within thirty days of communication of the order, all proceedings in respect of the said notice shall be deemed to be concluded. Explanation 1.-For the purposes of section 73 and this section,- (i) the expression all proceedings in respect of the said notice shall not include proceedings under section 132; (ii) where the notice under the same proceedings is issued to the main person liable to pay tax and some other persons, and such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.12.2019 which was replied by the assessee. The claim was rejected vide order dated 23.01.2020, thereafter, the appellate authority while confirming the order of cancellation of ITC had recorded a categorical finding to the effect that though all the documents were placed on record by the assessee yet it was found that no evidence was placed on record in regard to the payment made for loading and unloading of the goods. Further, the Appellate Authority has recorded a finding to the effect that the registration of supplier of the goods M/s Riddhi Siddhi Enterprises, Agra has been cancelled and said firm was not carrying on any business from the premises as alleged in the documents placed before the authority. This Court finds that finding recorded by the first Appellate Authority is cryptic as it only states in its order that the registration of the supplier was cancelled, but no date of cancellation has been mentioned so as to demonstrate whether transaction took place prior to cancellation or subsequently. Moreover, the first Appellate Authority had discarded the claim of ITC on the ground that no records of payment of loading and unloading of goods were brought before it. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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