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TMI Blog2015 (4) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned judgment and order passed by the learned Gujarat Value Added Tax Tribunal (hereinafter referred to as the Tribunal ) dated 13/09/2013 in Second Appeal No.74/2013 by which in an appeal preferred by the respondent-dealer, against the order passed by the first appellate authority dated 06/02/2013 dismissing the appeal on non-deposit of the amount of pre-deposit the learned Tribunal has allowed the said appeal on merits and has modified the assessment order dated 03/12/2012 passed by the learned Assessing Authority and the first appellate order dated 06/02/2013 and has directed that the tax liability for the current year in question shall be deducted from the available excess Input Tax Credit (ITC) and consequently deleted the interest and penalty imposed, the appellant-State of Gujarat has preferred the present Tax Appeal with the following proposed substantial questions of law; (A) Whether the learned Tribunal erred in adjudicating on merits despite the first appellate authority dismissed only on the ground of predeposit? (B) Whether the learned Tribunal has erred in holding that the Input Tax carried forward is required to be adjusted against the liability of CST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen on merits the issue has been concluded by this Court in favour of the respondent-dealer and against the revenue, it is requested to dismiss the present Tax Appeal instead of remanding the matter to the learned Tribunal or to the learned first appellate authority. [4.0] In response to the notice issued by the earlier Bench (Coram:-Jayant Patel S.H. Vora, JJ.), Ms. Pragya Joshi, Registrar of the Gujarat Value Added Tax Tribunal has appeared. The attention of the Registrar of the learned Tribunal is drawn on various decisions of this Court in Tax Appeal Nos.711/2013 dated 30/08/2013; 667/2013 dated 12/09/2013; 688/2013 dated 30/01/2014; 595/2014 dated 13/08/2014; 1317/2014 dated 11/12/2014 and 104/2015 dated 19/03/2015 by which different Benches have taken the view that when the appeal before the learned Tribunal is against the order passed by the learned first appellate authority dismissing the appeal on non-deposit of pre-deposit, the learned Tribunal need not and / or should not enter into the merits of the case and the learned Tribunal is required to concentrate on the order passed by the learned first appellate authority dismissing the appeal on the ground of pre-deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench of this Court has confirmed the decision of the learned Tribunal by which it was held that the dealer can adjust the tax liability out of the amount in the current year of tax liability out of the Input Tax Credit available in the credit of the dealer. After considering the various provisions of the Gujarat Value Added Tax Act and Rules, 2006, more particularly Sections 11, 12 13 and Rule 15 and 18, the Division Bench of this Court in paras 7 to 8 has observed and held as under; [7.0] Heard learned advocates appearing on behalf of respective parties at length. A short question of law which is posed before this Court to be considered in the present Tax Appeals is whether the learned Tribunal has committed any error in declaring and holding that an assessee/dealer is entitled to the Input Tax Credit adjustment against its output tax liability under the VAT Act under the current year under consideration and whether the learned Tribunal has committed any error in quashing and setting aside the order passed by the Assessing Officer as well as the first Appellate Authority in directing to carry forward such Input Tax Credit to the next subsequent year? [7.1] While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) the same shall be adjusted against tax liability, if any, under the Central Sales Tax Act (hereinafter called central sales tax liability ) for the said tax paid and the remaining amount of central sales tax shall be payable : or (b) if there is no Central Sales Tax liability or if the central sales tax liability for the said tax period is less than the said negative amount, then no tax under the Act as well as under the Central Act will be payable and the net amount, after adjusting the Central Sales tax liability, shall be carried forward to the next tax period of the same year or, as the case may be, the subsequent year. Section 11 of the VAT Act provides for an Input Tax Credit admissible and Rule 18 of the Rules, 2006 provides for calculation of the Input Tax Credit. It cannot be disputed that for the purpose of claiming Input Tax Credit, an assessee/dealer is required to submit its claim in the required format i.e. in Form No.108 and on that the assessment order is required to be passed and on assessment the Input Tax Credit admissible to an assessee/dealer is determined. Once on assessment it is found that dealer is entitled to a particular Input Tax C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tput tax liability of the current year under consideration, after permitting to adjust such Input Tax Credit against its output tax liability of the VAT Act of the current year under consideration, the assessee/dealer is liable to pay the interest on such balance due amount of output tax liability and on such amount the assessee/dealer is liable to pay the interest as provided under the VAT Act and the Rules, 2006. Under the circumstances, while declaring / holding that the appellant is entitled to adjustment of admissible Input Tax Credit towards its output tax liability of the current year under consideration, the learned Tribunal has rightly observed and held that the assessee is liable to pay interest only on the dues rising on assessment after adjusting the admissible Input Tax Credit towards its tax liability. [7.2] So far as the submission by Shri Dave, learned AGP appearing on behalf of the State/Revenue that while submitting the Form No.108, the assessee with malafide intention claimed more/excess Input Tax Credit than it was entitled to and/or admissible under the VAT Act and the Rules, 2006 and therefore, the assessee is not entitled to adjust such Input Tax Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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