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TMI Blog2016 (12) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... y and has wrongly claimed the ITC and thereafter the registration is cancelled, and thereafter before the Tribunal the assessee / trader agrees to deposit the amount of ITC wrongly claimed, the same can hardly be a ground to restore the registration. Necessary consequences of wrong availment of ITC i.e. cancellation of registration shall follow - it is required to be noted that in the present case the respondent had specifically admitted that it was not entitled to ITC of ₹ 4,45,645/and that he wrongly claimed / availed the ITC of ₹ 4,45,645/ - It is required to be noted that the learned Tribunal has not given any specific finding that the Tribunal does not agree with the finding recorded by the First Revisional Authority on the genuineness of the transactions of sale and purchase by the respondent and that the respondent had indulged into billing activities only. Without giving such finding, the learned Tribunal is not justified in directing to restore the registration - Petition allowed - decided against respondent-assessee. - SPECIAL CIVIL APPLICATION NO. 1122 of 2016 With SPECIAL CIVIL APPLICATION NO. 1159 of 2016 - - - Dated:- 23-11-2016 - MR. M.R. SHAH AND MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent and respondent was called upon to produce the relevant document on 2.12.2014. However, respondent failed to attend the hearing. To meet with the requirement of principles of natural justice, respondent was once again served with the notice personally on 15.05.2015. However, as the premises was closed, the same was served through post. However, again the respondent failed to attend the proceedings. 3.2. From the available record, it was discovered that the respondent had purchased the goods from M/s. Holis Enterprise, M/s. Babulal and Co. and M/s. Mayur Enterprise whose registrations were cancelled abinitio. It was also discovered from returns of the respondent that it had shown purchases from M/s. Navkar Enterprise and M/s. Sun Enterprise, but the returns of the said dealers did not show corresponding sales to the respondent. Therefore, it was observed and evident that respondent had taken registration number only for billing activities. That therefore, the Revisional Authority cancelled the registration number of the respondent both under the Gujarat Value Added Tax Act and Central Sales Tax Act, abinitio w.e.f. 2.2.2012. 3.3. That against the order passed by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in fact Revisional Authority passed the order cancelling registration abinitio on the ground that the respondent claimed ITC of ₹ 4,45,645/illegal and that it had indulged into billing activities only. It is submitted that without assigning any reasons on the finding recorded by the Revisional Authority that the respondent had indulged into billing activities only and that he wrongly availed the ITC of ₹ 4,45,645/, the learned Tribunal has materially erred in quashing and setting aside the order passed by the Revisional Authority cancelling registration abinitio. 4.2. It is submitted that learned Tribunal has not properly appreciated the fact that as such the Revisional Authority after giving fullest opportunity to the respondent and after considering the material on record found that the respondent has shown to have purchased goods from M/s. Holis Enterprise, M/s. Babulal and Co. and M/s. Mayur Enterprise whose registrations were already cancelled abinitio and that from M/s. Navkar Enterprise and M/s. Sun Enterprise, but the returns of the said dealers did not show corresponding sales to the respondent and therefore, having found that the transaction of purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to repay the amount of ITC wrongly claimed, the aforesaid can hardly be a ground to restore the registration. It is submitted that it on the aforesaid ground the registration is restored, in that case, in each and every case the trader who had wrongly availed the ITC and whose registration is cancelled, thereafter make payment subsequently, may get away from the consequences of the wrong claim of ITC. Making above submissions, it is requested to allow the present Special Civil Applications. 5.0. Ms. Vaibhavi Parikh, learned advocate has appeared on behalf of the respondent. She has tried to support the impugned common judgment and order passed by the learned Tribunal. 5.1. It is submitted by Ms. Parikh, learned advocate for the respondent that it was submitted before the learned Tribunal that out of total purchase, 40% purchase were such for which, respondent could not prove the genuineness of the transaction and therefore, to that extent only Input Tax Credit could have been disallowed, but the registration could not have been cancelled. It is submitted that it was further contended / submitted before the learned Tribunal that it had genuine purchase from the said dealers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Tribunal, the respondent deposited the amount of ₹ 4,45,645/which was wrongly claimed as ITC. That thereafter, mainly on the ground that respondent had deposited the entire amount of wrongly claimed, as directed earlier and without assigning any further reasons with respect to the finding recorded by the First Revisional Authority that the respondent had indulged into billing activities and with respect to genuineness of the transaction of sale and purchase by the respondent, learned Tribunal by impugned judgment and order has quashed and set aside the order passed by the First Revisional Authority, cancelling registration and has directed the authority to restore the registrations, which cannot be sustained. 7.0. It is required to be noted that as such the learned Tribunal has not discussed anything with respect to finding recorded by the First Revisional Authority on the genuineness of the transactions of sale and purchase by the respondent and the finding recorded by the First Revisional Authority that the respondent had indulged into billing activities only. No reasons whatsoever have been assigned by the learned Tribunal on the findings recorded by the First Revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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