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TMI Blog2015 (1) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid important aspect of actual physical movement of the goods alleged to have been purchased by them from M/s. Shree Bhavani Ispat and M/s. Mangal Enterprises and on which the input tax credit have been claimed, the AO as well as the Tribunal have rightly rejected the claim of the respective appellant/s – dealer/s of input tax credit claimed u/s 11. The appellant/s – dealer/s have failed to satisfy / prove the actual physical movement of the goods alleged to have been purchased by them from the two vendors on which the input tax credit have been claimed and when the sale transactions are found to be not genuine and it appears that there were only billing activities, no error has been committed by the AO as well as Tribunal in denying the input tax credit - it is not established and proved by the dealer that in fact there was movement of goods from its vendor – M/s. Shree Bhavani Ispat, Bhavnagar - no error has been committed in holding that the activities by the selling dealer – vendor were the billing activities only and there was no selling deals - when there was no movement of goods and it was only billing activities, the input credit claimed on such transactions is righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant dealer and Mr.Jaimin Gandhi, learned Assistant Government Pleader appearing on behalf behalf of the respondent State. We have perused the impugned orders passed by the learned assessing officer and the learned tribunal. 3.1. It is not in dispute that while passing the impugned judgement and order the learned tribunal has heavily relied upon its decision in the case of M/s.Madhav Steel Corporation, rendered in Second Appeal No.451 of 2011 where on the similar ground and on the similar facts and circumstances of the case, the learned tribunal has confirmed the order disallowing the input tax credit as well as interest. It is not in dispute that as such the learned tribunal considered the decision in the case of M/s.Madhav Steel Corporation (supra) as lead case and the said judgement and order came to be relied in subsequent decision and while passing the impugned order. It is required to be noted that the decision of the learned tribunal in the case of M/s.Madhav Steel Corporation (supra) came to be challenged by the dealer M/s.Madhav Steel Corporation before this Court by way of Tax Appeal No.742 of 2013 and the same came to be heard by the Division Bench of this Court along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est charged u/s. 30(5) of the VAT Act of ₹ 1828540/- and penalities charged of ₹ 2285008/- u/s. 34(7) of VAT Act and ₹ 3728319/- under Section 34(12) of VAT Act are unjustified and not tenable in law. d) Any other just and proper order may be passed as may be deemed fit in the facts and circumstances of the case. [5.2] It is also required to be noted that even the learned advocate appearing on behalf of the appellant made elaborate submissions on merits against the Assessing Officer passed by the Deputy Commissioner. Under the circumstances when the appellant challenged the Assessment Order before the learned Tribunal in the second appeal and they made elaborate submissions on merits against the assessment order passed by the Deputy Commissioner and when the same have been dealt with by the learned Tribunal, it cannot be said that the learned Tribunal has committed any error in considering the appeal on merits against the assessment order passed by the Assessing Officer. Identical question came to be considered by this Court in Tax Appeal No.667/2013. In the case before this Court in the aforesaid tax appeal, the appeal before the learned Tribunal was against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant has fairly conceded that in such case the appellant would not have made such grievance. Under the circumstances, when the appellant made submissions on merits against the order of assessment as if the appeals before the Tribunal were against the order of assessment and when the Tribunal has dealt with and considered the same and decided the appeals on merits and when appellant has lost in the appeals on merits, thereafter it not open for the appellant now to make the grievance that the Tribunal ought not to have decided the appeals on merits. It is also required to be noted at this stage that as such there is no such grievance raised in the appeal and even no substantial question of law is proposed on the aforesaid. However, as the learned advocate for the appellant has made submissions on that we have dealt with and considered the same. 12. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Smithkline Beecham Co. Holding Limited(supra) is concerned, as such there cannot be any dispute with respect to proposition of laid down by the Hon'ble Supreme Court in the said decision. It is true that normally when the appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the learned Tribunal as well as the Assessing Officer have materially erred in not holding the sale transactions to be genuine and in treating the same as billing activities only and the submission / contention on behalf of the appellant that the learned Tribunal has not considered the documentary evidences on record forming part of the paper book such as invoices, weigh bridge, stock register and copy of the account which would prove and establish that the sale transactions were genuine and the learned Tribunal has not dealt with the said documentary evidences are concerned, as the documents which are sought to be relied upon by the appellant/s are on record and the entire paper book is on record, we ourselves have gone through and considered the same. [5.5] The paper book is running into 400 pages, however relevant pages regarding the physical movement of goods are on pages 77, 79 and 81 and pages 83 to 265 are stock register, which is internal evidence. Page 283-349 is bank statement and pages 365 to 373 is bank certificate However, from the aforesaid documents, payments made to M/s. Shree Bhavani Ispat are not proved. From the invoices issued by M/s. Shree Bhavani Ispat - p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Happy Oil Industries (Supra). Under the circumstances, when even considering the documents on record forming part of the paper book, which have been relied upon by the learned advocate appearing on behalf of the appellant/s, the appellant/s - dealer/s have failed to prove the actual physical movement of the goods alleged to have been purchased from the aforesaid two vendors namely M/s. Shree Bhavani Ispat and M/s. Mangal Enterprises. Under the circumstances, when the respective appellant/s - dealer/s have failed to establish and prove the aforesaid important aspect of actual physical movement of the goods alleged to have been purchased by them from M/s. Shree Bhavani Ispat and M/s. Mangal Enterprises and on which the input tax credit have been claimed, the Assessing Officer as well as the learned Tribunal have rightly rejected the claim of the respective appellant/s - dealer/s of input tax credit claimed under Section 11 of the Act. [5.6] Now, so far as the contention on behalf of the appellants - dealers that as, when they purchased the goods from the aforesaid two vendors, both the aforesaid two vendors were having the registration and their registration came to be cancelled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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