9911796707
TMI Blog2015 (4) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? (C) Whether the learned Tribunal has erred in not giving a specific direction requiring us to execute reversal of carry forward of Input Credit in subsequent year? (D) Whether the learned Tribunal erred in deleting levy of interest and penalty? [2.0] The main grievance voiced by Shri Chintan Dave, learned AGP appearing on behalf of the appellant-State is that as the appeal before the learned Tribunal was against the order of first appellate authority dismissing the appeal on the ground of non-deposit of pre-deposit, in light of the decisions of this Court in Tax Appeal Nos.711/2013 dated 30/08/2013; 667/2013 dated 12/09/2013; 688/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 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 and / or amount of pre-deposit only. It appears that the earlier Bench has ordered the learned Tribunal to be joined as party respondent, through the Registrar, so as to draw the attention of the learned Tribunal the orders passed by different Benches in the aforesaid Tax Appeals. Ms. Pragya Joshi, Registrar of the Gujarat Value Added Tax Tribunal has stated at the bar that she has collected the judgment and orders passed by this Court in the aforesaid Tax Appeals and attention of the learned Tribunal shall be drawn to the aforesaid decisions. [4.1] Now so far as the questions of law proposed / raised in the present Tax Appeal and one of the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 considering the aforesaid issue, the relevant provisions of VAT Act and the Rules, 2006 are required to be referred to and considered which are as under: "11. Tax Credit (1)(a) A registered dealer who has purchased the taxable goods (hereinafter referred to as the "purchasing dealer") shall be entitled to claim tax credit equal to the amount of,- (i) tax collected from the purchasing dealer by a registered dealer from whom he has purchased such goods or the tax payable by the purchasing dealer to a registered dealer who has sold such goods to him during the tax period. (ii) ... (iii) ... (b) ... (2) ... to (4) ... (5) Notwithstanding anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit. 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 Credit, in that case, Rule 18 of the Rules, 2006 which provides for calculation of tax would come into play. On conjoint reading of section 11 of the VAT Act read with Rule 18 of the Rules, 2006, a dealer is entitled to adjust its output tax liability against its admissible Input Tax Credit in the current year under consideration. Thereafter and after adjusting the Input Tax Credit against its output tax liability of the current year under consideration, if still there is any Input Tax Credit available to a dealer/assessee, a dealer is entitled to adjust such balance Input Tax Credit against its central sales tax liability of the current year under consideration. If thereafter still there is any Input Tax Credit in the credit of the assessee/dealer, such balance Input Tax Credit is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 against its output tax liability of the current year under consideration and the same is required to be carried forward to the next subsequent year is concerned, the aforesaid has no substance and cannot be accepted. As observed hereinabove, on assessment only the amount of Input Tax Credit is assessed and determined. As observed herein above the claim made by the assessee/dealer towards the Input Tax Credit made while submitting Form No.108 is always subject to the assessment or in a given case reassessment. Therefore, when on assessment the assessee / dealer is held to be entitled to a particular Input Tax Credit, in that case, the assessee/dealer is entitled to the benefit of Rule 18 of the Rules, 2006 and is entitled to adjust such Input Tax Credit against its output tax liability under ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
