9911796707
TMI Blog2015 (8) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... -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; 688/2013 dated 30/01/2014; 595/2014 dated 13/08/2014; 1317/2014 dated 11/12/2014 and 104/2015 dated 19/03/2015, the learned Tribunal ought not to have entered into the merits of the case and/or ought not to have decided the issue on merits and/or considered the legality and validity of the original assessment order and, therefore, it is requested to quash and set aside the impugned order passed by the learned Tribunal and remand the matter either to the learned Tribunal or to the learned first appellate authority. 3. However, Ms.Desai, learned A.G.P. appearing on behalf of the appellant-State has fairly conceded that even otherwise and so far as the merits of the case is concerned, the learned Tribunal, by passing the impugned judgment and order, has relied upon the decision of the Tribunal in the case of Cosmos International Ltd. V/s. State of Gujarat and, therefore, now, the substantial question No.2 which is on merits, is squarely covered against the Revenue. It is not disputed that against the decision of the Tribunal in the case of Cosmos In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the peculiar facts and circumstances of the case narrated hereinabove and without citing the same as precedent. 6. Now, so far as the substantial question of law proposed on merits i.e. question No.2 is concerned, the aforesaid question is squarely covered against the Revenue in view of the decision of the Division Bench of this Court dated 20/03/2015 passed in Cosmos International Ltd. (Supra). In the aforesaid decision, the Division 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 holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under section 13 by a registered dealer, other than the dealer who has been granted permission to pay lump sum tax under Section 14, 14A read with clause (bb) of subrule (8) of rule 28, 14B, 14C or 14D shall be determined in Form-201. (2) If the amount calculated as per sub rule (1) has a negative value- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is entitled to such Input Tax Credit and on such Input Tax Credit the assessee is entitled to adjust such Input Tax Credit against its output tax liability under the VAT Act of the current year under consideration. Only in a case where the admissible available Input Tax Credit is less than the output 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruitful purpose shall be served to remand the matter to the learned Tribunal and/or to the first Appellate Authority, as even otherwise on remand also the learned First Appellate authority is bound to follow the decision of the Division Bench of this Court in the case of Cosmos International Ltd. (Supra) and is bound to take the same view, which has been taken by the learned Tribunal i.e. permitting and/or allowing the dealer to adjust the tax liability in the current year out of the Input Tax Credit available in the credit of the dealer. From the impugned judgment and order passed by the learned Tribunal, it appears that the input tax credit in the account of the dealer was more than tax liability for the current year in question and, therefore, if the said input tax credit available in the account of the dealer is appropriated towards the tax liability of the current year, there shall not be any further tax liability and, therefore, the learned Tribunal has rightly deleted the interest and penalty. 8. Accordingly, we dismiss the present tax appeal. No costs. Civil Application (OJ) No.388 of 2015 In view of the dismissal of the tax appeal, no order in the civil application and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
