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TMI Blog2014 (7) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (B) Whether the respondent is eligible for Input Tax Credit on goods, which destroyed in flood, for which compensation of the same is awarded by Insurance Company and no Out Put Tax liability is created for the same goods?" 2.00. Facts leading to the present appeal in nutshell are as under :- 2.01. That the respondent - dealer is engaged in the business of trading of safety match box and Pan Masala and a registered dealer under the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "the VAT Act"). That on 7/8/2006 unprecedented flood entered into Surat which affected business premises of the respondent - dealer and the flood water remained in the business premises of the respondent - dealer for the period from 7/8/2006 to 11/8/2006. During that period water level remained upto 8 to 9 feet. in the business premises and their entire goods were damaged and ultimately the same was destroyed. The respondent - dealer also lodged its claim on 12/8/2006 before the Insurance Company. It also appears that the dealer also issued an advertisement in the news paper on 6/9/2006 with respect to damage caused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in flood. It is submitted that in the present case, goods destroyed by flood are not at all sold by the respondent herein and therefore on the said goods input tax credit is not available. It is submitted that if the goods are disposed of by sale, resale or used in manufacture of goods, input tax credit is allowed. It is submitted that in the present case, goods are not disposed by way of sale, resale or used in manufacture and therefore, considering section 11(5)(f) of the VAT Act, respondent - dealer shall not be entitled to input tax credit on the goods which were destroyed by flood. 3.01 Mr.Gandhi, learned Assistant Government Pleader has further submitted that the learned tribunal has materially erred in relying upon the decision of this Court in the case of Rolcon Engg. Co. Ltd. (supra). It is submitted that when the respondent - dealer was compensated by the Insurance Company for the loss sufferred, to that extent the respondent - dealer shall not be entitled to the input tax credit and/or no tax credit is to be restricted with respect to the loss which is not compensated by the Insurance Company. By making above submissions, it is requested to dismiss the present appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case before the Division Bench, the benefits given to the petitioner under the tax incentive scheme for wind power generation were sought to be withdrawn on the ground that the petitioner had committed breach of clause 7(f) of the Gujarat Sales Incentive Scheme for Wind Power Generation, 1993 by not by not keeping the wind farm/windmills in operation for a continuous period of six years after commissioning them. In the said case, it was the case on behalf of the petitioner that due to cyclone in the coastal area windmills which were already installed, came to be destroyed. It was only on account of act of God that the petitioner industrial undertaking could not keep the wind-farm running for a continuous period of six years in commissioning them and therefore, it was not possible for the petitioner to comply with clause 7(f) of the Gujarat Sales Tax Incentive Scheme for Wind Power Generation, 1993. Considering the various authorities, it is held by the Division Bench that a person cannot be constrained to do something which is impossible. It is further observed and held that law cannot compel a man to do what he cannot possibly do. It is further held that if it appears that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one implied by law, impossibility of performance is a good excuse ......." 38. The aforesaid maxim has also been explained in 'Craies on Statute Law' (7th Edition): "Under certain circumstances compliance with the provisions of statutes which prescribe how something is to be done will be excused. Thus, in accordance with the maxim of law, Lex non cogit ad impossiblia, if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God or the King's enemies, these circumstances will be taken as a valid excuse" 39. The Hon'ble Supreme Court has approved the aforestated meaning of maxim "lex non cogit ad impossibilia" in the case of I.F.C.I. Ltd. v. Cannanore Spinning and Weaving Mills Ltd, AIR 2002 SC 1841. 42. We also would like to add that whenever there i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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