9911796707
TMI Blog2017 (10) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... to waive tax component on sale of such specified goods by the certified manufacturer dealers. In whatever manner the accounting treatment may be given to such tax component, the loss to the ex-chequer would be limited to 4+1% of the tax which, under the said notification, Government had decided to forgo. If the contention of the Assessing Officer is that the assessee having shown to have collected the tax from the purchaser and not deposited with the Government refund by granting refund of such amount, the Government revenue would suffer double loss, such contention is plainly erroneous. The decision of the Assessing Authority to deny the tax remission to the petitioner is set aside. The Assessing authority shall pass fresh order granting such benefit to the assessee with further statutory benefits if any available - petition allowed by way of remand. - Special Civil Application No. 14118 of 2017 - - - Dated:- 9-10-2017 - MR. AKIL KURESHI AND MR. BIREN VAISHNAV, JJ. For The Petitioner : Mr Saurabh Soparkar, Sr Adv With Mr Uchit N Sheth, Advocate For The Respondent : Mr Pranav Trivedi, Agp ORAL JUDGMENT ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree Shiv Shakti Oil Mill in Tax Appeal No. 444 of 2015 and connected writ petitions by order dated 22,29/07/2016 held that the VAT Tribunal was justified in holding that the renewal of certificate of entitlement by the Commercial Tax Officer was contrary to the notification of the State Government but was of the opinion that the cancellation of certificate of entitlement granted to the various industries could not have been cancelled with retrospective effect. 3. The petitioner's assessment under the VAT Act for the assessment year 2012-13 was thereafter taken-up by the competent authority. Before the said authority, the petitioner raised the claim of exemption of the tax on the sales made by the petitioner and sought refund of the tax paid on its purchases relying on the judgement in case of Shree Shiv Shaki Oil Mill (supra). The respondent No.2, by the impugned order, accepted the petitioner's claim for refund of an amount of ₹ 21,33,684/- of the tax on purchases. He, however, refused to grant refund of such amount making it adjustable against the petitioner's other demands. However, with respect to the tax on the sales, he was of the opinion that the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inviting VAT. Such seller could not have collected tax from the purchaser. Having collected the tax, the assessee had to deposit it in the Government revenue. With respect to the refund of ₹ 21,33,684/-, the counsel clarified that the Assessing Officer did not delay the refund of the amount to be adjusted in the future assessments or assessment of other assessment years of the assessee but adjusted the same against the Government's claim of the tax collected by the petitioner on the sale of the products which was much larger than the refund amount. 6. Section 40 of the VAT Act pertains to refund of tax for certain categories. Sub-section (1) of section 40 provides that subject to such terms and conditions as the Government may impose, if the Government considers it necessary so to do in public interest, may issue notification in the official gazzete authorizing the Commissioner to grant refund of the amount of tax separately charged by any registered dealer to any class of persons who have purchased the goods from such dealer. On the other hand, section 41 of the VAT Act pertains to remission of tax, penalty or interest and reads as under: 41. Remission of tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility certificate. Whichever event occurs earlier. 3. The certified manufacturer shall issue tax inovice or retail invoice in accordance with the provisions of the Act and the rules made thereunder. 10. For better and uniform implementation of the scheme, the Government issued a circular dated 07.03.2009 making certain clarifications. In such circular, it was provided that the eligible units would be granted benefits in two modes. One would be by way of the refund on the tax paid on its purchases and the second one would be by way of remission of the tax on the sales. On the purchase side, it was provided that 90% of the refund would be provided by way of a provisional exercise. The rest would be paid after the final assessment. On the sales side, it was clarified that the eligible unit would be granted remission of tax upon sale of the goods through tax invoice or retail invoice. The order for remission would be passed after the unit produces necessary evidence. 11. The Assessing Officer noticed that the assessee on the sale of its specified goods had computed tax @ 4+1% the tax credit of which came to ₹ 58,89,531/-. The assessee had collected a total tax of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the look out of the Government. In plain terms, the Government scheme envisaged that the product upon its sale by the petitioner would carry no VAT or additional tax. At the same time, the purchasers of the product could not be burdened by paying tax on the value addition which he did not contribute to. This could be ensured only by allowing the seller i.e. the assessee, to issue tax invoice or retail invoice at the time of the sale. This would create a deeming-fiction where the assessee would not have charged tax but would issue a tax invoice which would enable the purchaser to take tax credit as if such tax was collected and duly paid in the Government revenue. This would be the essence of a remission scheme as compared to the scheme for refund. 13. The sole objection of the Assessing Officer in granting the remission as per the Government notification was that the assessee had shown the tax component as having been collected separately in the invoices. Basically, his stand was that no tax should have been collected. If the assessee had merged this additional component of 4+1% of the tax in the sale price itself, the Assessing Officer could not have and would not have rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
