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TMI Blog2020 (1) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... ch have been challenged in the other writ application, for no fault on part of the petitioner, but solely due to the fault of the selling dealer. We are satisfied that the petitioner had discharged its liability under the VAT Act, and there being no mechanism under the JVAT Act, by which, the petitioner could compel the seller also to discharge their duty, it was not within the competency of the petitioner to compel the selling dealer to file the return within the stipulated time, and deposit the tax collected from the petitioner in the Government Treasury - We do not intend to enter into the challenge to the vires of Section 18(8) sub-clause (xvii) brought by way of amendment, or into the questions of limitation, or defect in the notice, if any, as we are satisfied that due to the bona fides on part of the petitioner, no punitive action was required to be taken, or warranted against the petitioner. Application allowed. - W.P. (T) No. 773 of 2018 I.A. No.1495 of 2018, W.P. (T) No. 5978 of 2018 - - - Dated:- 17-12-2019 - HON BLE MR. JUSTICE H.C. MISHRA And HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mr. M.S. Mittal, Senior Advocate Mr. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er firm made certain purchases in the financial Year 2015-16, from M/s Sanatan Enterprises, for the total amount of ₹ 1,08,91,031.81, on which the petitioner also made the payment of VAT to the seller, amounting to ₹ 11,89,744.13, for which the tax invoices were also issued to the petitioner firm by the selling dealer, i.e., M/s Sanatan Enterprises. In the return filed by the petitioner firm, the said amount of ₹ 11,89,744.13 was claimed as ITC. However, during the scrutiny of the returns, it was found that the said amount did not reflect in the MIS as regards the return filed by M/s Sanatan Enterprises, from which, purchases were made. Accordingly, the notice under Section 33 of the JVAT Act was issued to the petitioner firm on 21.08.2017. In reply to the notice, the petitioner produced all the necessary documents, including tax invoices supplied to it by the selling dealer, in order to the satisfy the Assessing Authority that while making the purchases, the petitioner had discharged all the tax liabilities, and it was the selling dealer, who had not deposited the tax in the Government Treasury, for which the petitioner firm was not at all at fault. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision, submitting that there is no mechanism available in the JVAT Act, so as to enable the purchaser to ensure that the selling dealer deposits the tax realised from the purchasing dealer in the Government Treasury. 9. The respondent No. 5 M/s Sanatan Enterprises has also appeared upon notice, and filed their counter-affidavit, in which it is an admitted fact that the purchases were made by the petitioner from this respondent, and VAT was also paid to the tune of ₹ 11,89,744.13, but in paragraph-7 of the counter affidavit, it is stated that due to the circumstances beyond its control, the answering respondent could not file its statutory return under the provisions of the VAT Act, within the stipulated time. In paragraph-8 of the counter-affidavit, it is further stated that due to non-filing of the statutory return within the statutory time, online portal / registration granted to the answering respondent was blocked by the State of Jharkhand, due to which the answering respondent could not file its return even belatedly. Further, in paragraph-11 of the counter-affidavit, it is stated that the answering respondent is always willing to pay the admitted tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Learned counsel for the State, on the other hand, has submitted that there is no illegality in the impugned action, inasmuch as, Section 40(2) JVAT Act entitles the authorities under the Act, upon being satisfied that any registered dealer has concealed any sales or purchases or furnished incorrect information in its return, to impose interest / penalty for such concealment or furnishing incorrect information in the return. It is also submitted by learned counsel for the State, relying upon the decision of the Bombay High Court in M/s. Mahalaxmi Cotton Ginning Pressing and Oil Industries, Kolhapur Vs. The State of Maharashtra Ors. (W.P. No. 33 of 2012, decided on 11.05.2012), that the legislature never intended to grant of a set off without any tax being received into the Government Treasury, as the grant of a set off without the receipt of tax into the treasury would result in a loss of revenue to the State Exchequer. It is also submitted by learned counsel for the State that the entitlement to ITC is created by the taxing statute and the terms on which a ITC is allowed by the legislation must be strictly followed. Accordingly, learned counsel submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the stipulated time, and deposit the tax collected from the petitioner in the Government Treasury. 14. In the backdrop of these facts, we do not intend to enter into the challenge to the vires of Section 18(8) sub-clause (xvii) brought by way of amendment, or into the questions of limitation, or defect in the notice, if any, as we are satisfied that due to the bona fides on part of the petitioner, no punitive action was required to be taken, or warranted against the petitioner. We are also at a loss, upon going through the impugned order dated 20.11.2017 passed by the respondent Assistant Commissioner of Commercial Taxes, Jamshedpur, as to when he was satisfied upon the documents, produced by the petitioner firm that it was the selling dealer, which had defaulted in filing its return or depositing the tax collected from the petitioner in the Government Treasury, how the punitive action could be taken against the petitioner firm, only for the reason that the JVAT Act provided for such action against both the dealers. We are not entering into the questions of vires etc., as in appropriate cases, it may be necessary for the State authorities to invoke the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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