9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (8) TMI 452 - HC - VAT and Sales TaxInput Tax Credit - Reduction in set off - Axis Gold ETF Scheme - denial of ITC as the goods purchased by the petitioner on which input tax credit is claimed are not resold within a period of six months from the date of purchase - Rule 53 of the MVAT Rules 2005 - Separate legal entity of Trust - clubbing of receipts of different schemes of which the same person acts as a trustee - Held that - There is a single Deed of Trust. There may be separate schemes but there was never any intent as is now sought to be culled out and to create separate Trust. This is not a case where separate Trusts were created and hence the principle relied upon by Mr. Sridharan from several works on Law of Trust and to the effect that receipts from Axis Mutual Fund ETF alone have to be considered for there is formation of more than one trust by the Deed of Trust and that is permissible has no application. This is not a case where the settlor has created more trusts under a single Trust Deed. This is a clear case where the Deed of Trust permits floating one or more schemes. That is not equivalent to creation of separate Trusts. It is in these circumstances that the assessing officer the first appellate authority and the tribunal all rightly concluded that the set-off available under Rule 53 has to be reduced. Petition dismissed - decided against petitioner.
Issues Involved:
1. Legality and validity of the impugned orders dated 26th September 2017, 7th November 2017, and 11th April 2018, and the order dated 29th March 2017. 2. Whether the petitioner is eligible to claim input tax credit under Rule 53(6)(b) of the MVAT Rules, 2005. 3. Interpretation of the Deed of Trust and the nature of the schemes under Axis Mutual Fund. 4. Application of Rule 53(6)(b) of the MVAT Rules, 2005 to the petitioner’s case. 5. The tribunal’s interpretation and application of the law in the petitioner’s case. Detailed Analysis: 1. Legality and Validity of Impugned Orders: The petitioner challenged the orders dated 26th September 2017, 7th November 2017, and 11th April 2018, and the order dated 29th March 2017, under Article 226 of the Constitution of India, seeking a writ of certiorari to quash and set aside these orders. The orders pertained to the rejection of the petitioner’s claim for input tax credit under the MVAT Act, 2002, and the subsequent tax demand, interest, and penalties levied. 2. Eligibility to Claim Input Tax Credit: The petitioner claimed input tax credit on the purchase of gold under the Axis Gold ETF scheme, asserting that the purchases were made in compliance with the MVAT Act and SEBI regulations. The petitioner argued that the gold was purchased based on subscription requests from investors and sold after levying appropriate VAT, thus entitling them to input tax credit. 3. Interpretation of the Deed of Trust and Schemes: The petitioner contended that the Deed of Trust dated 27th June 2009 created multiple independent trusts (schemes) under Axis Mutual Fund. Each scheme was argued to have an independent existence, with separate accounting records and liabilities. The petitioner emphasized that only the Axis Gold ETF scheme involved the sale or purchase of goods liable to be taxed under the MVAT Act. 4. Application of Rule 53(6)(b) of the MVAT Rules, 2005: The assessing authority rejected the petitioner’s claim for input tax credit, citing Rule 53(6)(b) of the MVAT Rules, which stipulates that goods must be resold within six months of purchase to claim input tax credit. The petitioner argued that this rule was not applicable to their case, as the gold was sold within the stipulated period and the receipts from the Axis Gold ETF scheme should be considered separately from other schemes. 5. Tribunal’s Interpretation and Application of Law: The tribunal upheld the assessing authority’s decision, stating that the petitioner’s receipts on account of sales were less than 50% of the total receipts, thus disallowing the input tax credit under Rule 53(6)(b). The tribunal relied on the precedent set in the case of Religare Mutual Fund, where it was held that the term “gross receipts” includes receipts from all business activities, not just sales of goods. The tribunal also distinguished the petitioner’s case from the Nizam’s Family Trust case, concluding that the Deed of Trust did not create separate trusts but rather multiple schemes under a single trust. Conclusion: The High Court dismissed the writ petition, agreeing with the tribunal’s interpretation that the petitioner was not entitled to claim input tax credit under Rule 53(6)(b) of the MVAT Rules. The court held that the Deed of Trust created multiple schemes, not separate trusts, and the receipts from all schemes should be considered collectively. The court found no error or perversity in the tribunal’s decision and upheld the disallowance of the input tax credit.
|
