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TMI Blog2013 (5) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... unds raised in support the same is tenable - Assessee Appeal is Dismissed . - W.P.(C) No. 20770 of 2006 - - - Dated:- 29-3-2012 - P.R. RAMACHANDRA MENON, J. PETITIONER: BY ADVS. SRI.VIJAYAN. K.U. SRI. K.N. SREEKUMARA RESPONDENT: BY GOVT. PLEADER SRI. SHAIJ RAJ JUDGMENT Whether the petitioner partnership firm is entitled to have the benefit of input tax credit on the opening stock of the goods as on 1-4-2005, in respect of the petroleum products other than petrol and diesel, despite the fact that, the petitioner firm came into existence only much after the relevant period, is the issue to be considered and dealt with in this case. 2. The petitioner firm is a dealer and distributor of the petroleum products marketed by M/s. Bharath Petroleum Company Limited. Earlier, the outlet was being operated as a 'proprietor-ship concern' belonging to one Mr. K.K Abraham, who took his last breath on 23-11-2004. On demise of the owner, the legal heirs took over the business as a running concern, by forming a partnership. Present petitioner is a different entity, as five of the earlier partners were subsequently excluded and the firm is now being run just by two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the above writ petition, taking note of the lapse on the part of the petitioner, the assessment was finalised as per Ext.P13 and the liability was accordingly sought to be realised by issuing Ext.P4 demand notice . This made the petitioner to amend the writ petition by filing I.A No 1698 of 2008, which was allowed and matter is now taken up for final hearing. A counter affidavit has been filed on behalf of the respondents 1 and 2, rebutting the averments in the writ petition, particularly as to the eligibility of the petitioner and the statutory prescription in this regard. It is stated that the proceedings pursued and finalised by the concerned respondents are perfectly within the fours walls of law and not liable to be intercepted on any count. 5. The learned Counsel for the petitioner however submits that the idea and understanding of the respondents is not correct, and that the petitioner is entitled to have the benefit as a matter of right; more so, since the law does not specifically mention that 'registration' is mandatory to have the benefit of input tax credit. Reference is made to Section 11(12) and 11(13) of the KVAT Act which are extracted below. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner was given to understand that the defect could be rectified; which made the petitioner to deposit the 'registration fee' along with the 'compounding fee' for the delay, thus remitting a total sum of ₹ 35,000/-. The learned Counsel for the petitioner also places reliance on two decisions rendered by this Court reported in Sales Tax Officer vs. Kerala Curry House (2010 (36) VST 126) and Chandra Interiors vs. State of Kerala (2011 (44) VST 100) in support of the case. 7. With regard to the statutory prescription, in so far as Section 11 (12) and Section 11 (13) are categoric, there cannot be any ambiguity in this regard and if at all any benefit is to be obtained, the parameters specified under the provisions have to be complied with. Since, the provision clearly says that the benefit is available only to the 'registered dealers' as on the relevant date and since the petitioner admittedly does not have any case that the petitioner firm was a registered dealer as on 31-3-2005, there cannot be any doubt in this regard and stands outside the ring. The only question is regarding the applicability, if any, of the judicial precedents cited above. 8. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2007. This was vehemently opposed by the appellant/department, which in turn was virtually accepted by the Division Bench in principle. However, analysing the scope of the 'proviso', it was made clear that, as per the new proviso, the registration granted will have retrospective effect from the date of commencement of the business, only for the purpose of 'clauses (a) and (b)' of the said proviso which enabled the eligible dealer to pay the tax on presumptive basis under Section 6(5) of the Act, and also dealers eligible for payment of tax under Section 8, irrespective of the fact whether the dealer was carrying on business during that year without registration. Subject to the said limited benefit conferred under clauses (a) and (b) of the proviso, it was categorically held that, a dealer had no right to claim retrospective registration, by making an application for correction of the certificate of registration. From the above, it is clear that the above decision does not come to the rescue of the petitioner, who claims the benefit of input tax credit without being a registered dealer as on 31-3-2005. 10. Coming to (44) VST 100, it was a case where the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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