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TMI Blog2018 (9) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... east attempt to do it. We do not find this to be done in the present case. We remand the matter to the Joint Commissioner of Sales Tax, who shall pass a fresh order on merits and in accordance with law, after giving the appellant a full opportunity to produce any documents other than, which are already on record - appeal allowed by way of remand. - Maharashtra Value Added Tax Appeal No. 18 Of 2018 And Maharashtra Value Added Tax Appeal No. 19 Of 2018 - - - Dated:- 4-9-2018 - S.C. DHARMADHIKARI B.P. COLABAWALLA, JJ. Mr. P.V. Surte a/w Mr. S.P. Surte for the Appellant. Smt. Jyoti Chavan, APP for the State/Respondent. P.C. : 1. By these Appeals, the appellant has challenged the order passed on 5th March 2018 in VAT Appeal Nos.41 and 42 of 2017. 2. After perusing this order with the assistance of Mr.Surte and Smt.Chavan, we are of the opinion that the same raises substantial question of law. We admit the Appeals on the following question of law. Whether the Tribunal was justified in confirming levy of tax on the balance amount of profit arising out of expenses, when 1% of the amount was earmarked for meeting the expenses of the consortium and when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the parties and confirmed this assessment by a common order, copy of which is at Exhibit C to the Paperbook. 10. Aggrieved and dissatisfied by the two orders, two Second Appeals were brought before the Maharashtra Sales Tax Tribunal at Mumbai. They were registered as VAT Second Appeal No.254 of 2014 and 255 of 2014. 11. They were disposed of by the Tribunal by a common order dated 5th July 2016. 12. We have carefully perused this common order. The common order recites all the facts, including making a reference to the two tables. Table1 is at running page 58 and thereafter while considering the issue, it refers to Table2 at page 65 and 66 of the Paperbook. It also discusses the legal provisions after crystallization of the issue. It considers the rival contentions and then passes the following order. 22. In view of the aforesaid discussion, we come to the conclusion that assessing officer committed error in calculating turnover of sales liable to tax. Similarly, first appellate authority was also wrong in arriving at the conclusion. Purchase of services and tax paid on the services is liable to be deducted from the entire sale proceeds of the contract. Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistakes was made by the appellant, which also came to be rejected. 15. By the impugned order, the Tribunal has dismissed the Appeal of the appellant, but while dismissing it, curiously it makes no reference to its previous order, which was fairly detailed in recording of the facts, including drawing assistance from the contracts and the stipulations so also the terms and condition thereof. We are, therefore, surprised that when the Joint Commissioner of Sales Tax observes that the appellant has not produced any documentary evidence to claim deduction and there is also no reliable evidence to claim refund, particularly by not referring to the profit relating to labour and services, used in the contract, then, according to the Tribunal, the Appeals must rightly fail. Curiously, in para 15 the Tribunal makes a reference to the labour and services used in the contract. It also makes a reference to judgments of the higher Courts, but says that these judgments are of no assistance. Then, it makes a reference of the judgment of the Hon'ble Supreme Court in the case of M/S Gannon Dunkerley Co. and Others Vs. State of Rajasthan and Others [Appeal (Civil) 486164 of 1992 decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(4) of the MVAT Act. In paragraphs 16, 17 and 18, the ratio of the judgments relied upon and, particularly, in M/S Gannon Dunkerley (supra) is considered. Then it makes a correct calculation of taxable turnover and then makes reference to Table No.2. Therefore it holds in above reproduced para that the Assessing Officer committed an error in calculating turnover of sales liable to tax. What is liable to be deducted and what is liable to be taxed is thus set out. Then there is an order of remand and in the operative directions, it directed that out of balance sale proceeds, appellant is entitled to take deduction on account of profit relatable to service portion of the entire contract. The First Appellate Authority was directed to calculate deduction under Rule 58(1)(h) for both the years and as per the table. The bank charges and interest paid are financial expenses and not the establishment charges of the contract, hence they are not deductible is the conclusion reached. 19. However, when the Joint Commissioner was considering the matter again on remand, he took on record two submissions dated 4th November and 16th November 2016 of the appellant and makes reference to them. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led for by the Tribunal or it could have given an opportunity to the appellant to do so. This is not a satisfactory and happy manner to deal with the Appeals, particularly in tax matters involving complex transactions. In the event tax is payable or any deduction claimed, but has to be disallowed, then, the Tribunal is obliged to consider the matter in a holistic manner. It must not, as a last fact finding authority, leave anything to the parties. If a point is squarely raised or a point is framed by the Tribunal itself on the pleadings, then, on the basis of the record, the Tribunal must render complete justice or atleast attempt to do it. We do not find this to be done in the present case. 21. We would have accepted the request of parties and ordinarily remanded the matter to the Maharashtra Sales Tax Tribunal. However, it is the Joint Commissioner of Sales Tax, the First Appellate Authority, who has faulted the appellant for not producing the relevant documents and other evidence whereas the appellant says that its Chartered Accountant has produced everything that is necessary for determination of the issue. If this was a clear case of seeking clarifications from the Chartere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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