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TMI Blog2015 (8) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... al No. 411 of 2014, Civil Application (OJ) No. 280 of 2014 - - - Dated:- 30-4-2015 - M. R. Shah And S. H. Vora, JJ. For the Appellant : Mr Uchit N Sheth, Adv. For the Respondent : Mr Chintan Dave, Asstt. Govt Pleader JUDGMENT (Per : Honourable Mr. Justice M. R. Shah) [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.10.2013 passed by the learned Gujarat Value Added Tax Tribunal, Ahmedabad (hereinafter referred to as Tribunal ) in Second Appeal No.837/2011 by which the learned Tribunal has dismissed the said appeal preferred by the appellant and has confirmed the order passed by the Assessing Officer denying Input Tax Credit claimed by the appellant on purchase made from one M/s. Dev Enterprise, the appellant has preferred the present Tax Appeal requesting to consider the following substantial questions of law. (A) Whether in the facts and circumstances of the case Hon ble Tribunal is justified in disposing the second appeal on merits even when the learned first appellate authority had summarily rejected the first appeal on the ground of non payment of predeposit? (B) Whether in the facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it only. [2.3] Feeling aggrieved and dissatisfied with the order passed by the first Appellate Authority dismissing the appeal on the ground of nondeposit of predeposit as well as challenging the original assessment order of raising the demand and disallowing the Input Tax Credit claimed by the appellant, claimed on the alleged purchases made by the appellant from M/s. Dev Enterprise, the appellant preferred appeal before the learned Tribunal and by impugned judgment and order, the learned Tribunal has dismissed the said appeal confirming the order passed by the Assessing Officer disallowing the Input Tax Credit claimed by the appellant on alleged purchases made by the appellant from M/s. Dev Enterprise. [2.4] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Tribunal, the appellant has preferred the present Tax Appeal to consider the aforesaid substantial questions of law. [3.0] Shri Urchit Shah, learned advocate appearing on behalf of the appellant has stated at the Bar that the appellant does not press question No.(A) and/or the ground challenging the impugned order on the ground that when the appeal before the learned Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of this Court in the case of Shree Bhairav Metal Corporation (Supra) and in view of that the matter is to be remanded to the Assessing Officer for afresh adjudication and in light of the observations made by the Division Bench of this Court in the case of Shree Bhairav Metal Corporation (Supra). [5.0] Heard learned advocates appearing on behalf of the respective parties at length. Considered and perused the impugned judgment and order passed by the learned Tribunal as well as the order passed by the Assessing Officer. That the appellant claimed the Input Tax Credit on the alleged purchases made by the appellant, made from one M/s. Dev Enterprise. The Assessing Officer disallowed the said Input Tax Credit doubting the transactions of sale between M/s. Dev Enterprise and the appellant. The Assessing Officer disallowed the Input Tax Credit claimed by the appellant on the purchases made by the appellant from M/s. Dev Enterprise on the ground that the registration certificate in the case of M/s. Dev Enterprise came to be canceled ab initio as it was found that the said M/s. Dev Enterprise indulged into billing activities only. However, it is required to be noted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transactions by M/s Lucky Enterprises are bogus and not genuine and that said M/s Lucky Enterprises indulged in billing activities only and therefore, even the transactions between the petitioner and M/s Lucky Enterprises are also bogus and nongenuine. To some extent, the first revisional authority can be said to be justified in drawing inference and/or in holding so and/or presuming so. However, the petitioner dealer purchaser was required to be served with the order in case of M/s Lucky Enterprises cancelling its registration certificate ab initio and the findings recorded by the appropriate authority in case of M/s Lucky Enterprises holding the transactions by M/s Lucky Enterprises including the transaction with the petitioner dealer as bogus and nongenuine and the finding recorded that M/s Lucky Enterprises had indulged into the billing activities only. After giving an opportunity to the petitioner dealer purchaser and confronting it with the findings recorded by the appropriate authority cancelling the registration certificate ab initio in case of seller M/s Lucky Enterprises, the claim of the purchaser like the petitioner dealer of the ITC on the purchases made from s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion certificate of M/s Lucky Enterprises on the ground that the registration certificate of M/s Lucky Enterprises seller has been cancelled ab initio on the ground that the seller had involved into the billing activities only and all the transactions by M/s Lucky Enterprises are held to be bogus. The petitioner has been denied the ITC on the ground of the aforesaid activities/alleged transactions between the petitioner and M/s Lucky Enterprises. However, as observed herein above, the petitioner was not served with the copy of the order in the case of M/s Lucky Enterprises. Now, the copy of the order passed in the case of M/s Lucky Enterprises is available with the petitioner. Therefore, after giving an opportunity to the petitioner with respect to observations made in the case of M/s Lucky Enterprises insofar as the alleged transactions between the petitioner and M/s Lucky Enterprises and after giving an opportunity to the petitioner to prove the genuineness of the transaction between the et and M/s Lucky Enterprises in light of the observations made herein above, therefore, the matter is required to be remanded to the adjudicating authority to consider the claim of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Appeal is allowed in part. The impugned order passed by the learned Tribunal as well as the Assessing Officer in denying the Input Tax Credit claimed by the appellant on the alleged purchases made by the appellant from M/s. Dev Enterprise are hereby quashed and set aside and the matter is remitted to the file of the adjudicating authority to consider the claim of the appellant for Input Tax Credit claimed on the alleged purchases claimed by the appellant from M/s. Dev Enterprise after giving an opportunity to the appellant afresh in accordance with law and on merits and in light of the observations made herein above. However, it is made clear that there is no question of now allowing and/or permitting the appellant to lead the fresh evidence as it will tantamount to afterthought. The aforesaid exercise shall be completed within a period of three months from the date of receipt of the present order. It is made clear that the impugned order is set aside solely on the ground that it was found to be in breach of principles of natural justice, inasmuch as the appellant was not served with the copy of the order in the case of M/s Dev Enterprise, the basis on which the Input Tax Credit ..... 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