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TMI Blog2020 (7) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... reassessment of five years has already been concluded on 31.03.2020. However, since, the petitioner has moved this Court questioning the action of the respondent authority and as it has submitted through the learned Sr. Advocate representing its case that no contention, with regard to period of limitation shall be raised, the same shall not be treated as a ground to hamper the proceedings before the tax authority for its fresh consideration of the show-cause notice issued to the present petitioner. It would be of utmost necessary for the adjudicating authority to independently examine the material, which has been/ shall be placed on record before it by the petitioner and assess the same, on the strength of the substantiating documents, rather than basing its decision, solely on the cancellation of the registration of M/s. Maa Oil Mills, ab initio from the year 2007. This petition succeeds and is PARTLY ALLOWED - The impugned order dated 24.03.2020 is QUASHED and set aside and the matter is REMANDED to the competent authority for its consideration afresh, on merits, the case of the petitioner of ITC, after availing due opportunity to the petitioner, herein. - R/SPECIAL CIVIL AP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on dated 24th March, 2020, a day prior to the imposition of lockdown in the entire Country and thereby raising dues to the tune of ₹ 1,27,45,512/-, inclusive of the interest and penalty. The basis, for levying of the tax so also the penalty with interest, is the cancellation of registration of a vendor, with whom the petitioner had transacted during the years 2014 and 2015. It is averred by the petitioner that such cancellation of registration of the vendor concerned, i.e. M/s. Maa Oil Mills, Gondal, is done on 30.07.2019. M/s. Maa Oil Mills had the registration number 240942971. It is, therefore, urged by the petitioner that neither the copy of the cancellation of the registration of M/s. Maa Oil Mills nor any other materials nor any opportunity has been given to the petitioner to cross-examine a responsible employee or office bearer of the M/s. Maa Oil Mills and that is a complete failure on the part of respondent No.2 to follow the principles of natural justice and the order came to be passed, denying the Input Tax Credit (in short, ITC ) to the petitioner. 3. We have heard the learned Sr. Advocate, Mr. Manish Bhatt, appearing for the petitioner with learned Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls, its registration has been cancelled, with effect from 21.07.2007. He drew the attention of this Court that M/s. Maa Oil Mills is the branch of M/s. Umang Oil Mills. 4.3 It is urged that the petitioner herein, also had dealings with M/s. Maa Oil Mills between the period from 01.04.2014 to 31.03.2015 and the Petitioner has not been given ITC for the said period, the petitioner cannot insist on giving it the input tax credit, since, the authority on inquiry found the bogus billing in the case of M/s. Maa Oil Mills. 4.4 He, further, has urged that so far as the period of reassessment is concerned, it got completed on 31st March, 2020, and therefore, that may also hamper the proceedings of re-assessment, if, the Court remits the matter back to the Assessing Officer. 5. In rejoinder, learned Sr. Advocate, Mr. Bhatt, has replied that these are the oral submissions made by the learned AGP, whereas, the impugned order does not speak of any bogus billing and in fact, it is only on account of cancellation of the registration of the M/s. Maa Oil Mills that the petitioner is not given the tax input credit. He, further, has urged that it is the case of respondent No.2 that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pled with the procurement of goods for transportation, receipts for payment of GST and selling of the very goods to the other parties, make us believe that the order passed by respondent No.2 is in breach of principles of natural justice. The individual merits on the basis of materials furnished are to be determined by the authority and not simply because the registration of M/S. Maa Oil Mills was cancelled ab initio. That being the case, we have chosen to entertain this writ-petition under Article 226 of the Constitution of India. 6.2 Here, apt would be to refer to the decision in VINOD ARVIND VS. INCOME TAX OFFICER , (2011) GLH 2255 , where, this Court has held that the writ-jurisdiction is essentially a discretionary jurisdiction. A writ may not be issued, just because it may be lawful to so do it. Further, merely because an alternative, efficacious remedy is available statutorily that would not mean that the writ jurisdiction cannot be exercised. It is held that it is a self-imposed restriction and such restriction, however, may not apply, if, the alternative remedy is found to be illusory or burdensome, then, the Court may entertain the writ jurisdiction for breach of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enterprises may not be denied or cancelled. 6.4.1 The petitioner, hence, appeared before the First Revisional Authority and produced the bills with respect to purchases made by it from M/s Lucky Enterprises and reiterated and contended that the petitioner dealer had, in fact, purchased the goods from M/s. Lucky Enterprises, for which, the bills were submitted and on which the ITC was claimed. Then, by order dated 28.5.2013, the First Revisional Authority revised the order passed by the Assessing Officer, Dated : 30.12.2010 and raised the demand of ₹ 9,83,465/-, inclusive of tax, interest etc.. Further, while revising the assessment order, the First Revisional Authority disallowed ITC claimed by the petitioner of ₹ 6,49,561/-, on the purchases made from M/s. Lucky Enterprises, whose registration certificate was cancelled ab initio from 22.2.2006. While revising the order passed by the Assessing Officer and raising the aforesaid demand and denying ITC claimed, on the purchases made by the petitioner from M/s. Lucky Enterprises, the revisional authority had observed that as all the transactions by M/s Lucky Enterprises including the transactions between M/s Lucky Enterp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been cancelled ab initio from 22.2.2006 and the transactions/purchases made by the petitioner from M/s Lucky Enterprises are during the interregnum period. That while disallowing the ITC to the petitioner on the purchases from M/s Lucky Enterprises, the first revisional authority has observed that the registration certificate in the case of M/s Lucky Enterprises has been cancelled ab initio from 22.2.2006 by observing and holding that all the transactions by M/s Lucky Enterprises are bogus and not genuine and that said M/s Lucky Enterprises indulged in billing activities only and therefore, even the transactions between the petitioner and M/s Lucky Enterprises are also bogus and non-genuine. To some extent, the first revisional authority can be said to be justified in drawing inference and/or in holding so and/or presuming so. However, the petitioner dealer purchaser was required to be served with the order in case of M/s Lucky Enterprises cancelling its registration certificate ab initio and the findings recorded by the appropriate authority in case of M/s Lucky Enterprises holding the transactions by M/s Lucky Enterprises including the transaction with the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove and establish the actual movement of goods from the place of the seller to the place of the purchaser by leading cogent evidence and mere production of the bills, vouchers etc. is not sufficient to claim the ITC. 9.4 As observed earlier, the impugned order has been passed by the adjudicating authority denying the ITC claimed by the petitioner on the alleged purchases made by the petitioner from M/s Lucky Enterprises on the ground that the registration certificate of M/s Lucky Enterprises on the ground that the registration certificate of M/s Lucky Enterprises seller has been cancelled ab initio on the ground that the seller had involved into the billing activities only and all the transactions by M/s Lucky Enterprises are held to be bogus. The petitioner has been denied the ITC on the ground of the aforesaid activities/alleged transactions between the petitioner and M/s Lucky Enterprises. However, as observed herein above, the petitioner was not served with the copy of the order in the case of M/s Lucky Enterprises. Now, the copy of the order passed in the case of M/s Lucky Enterprises is available with the petitioner. Therefore, after giving an opportunity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and M/s Lucky Enterprises. Rule is made absolute to the aforesaid extent. In the facts and circumstances, there shall be no order as to costs. 6.5 In the matter on hand, we notice that the petitioner has already produced, before respondent No.2, substantiating documents, indicating the actual movement of the goods for proving genuineness of the transaction as also the documents, pertaining to the transport of goods, transport receipts, bills, vouchers etc.. under the circumstances, nonproviding of the material, more particularly, of the cancellation of registration of M/s. Maa Oil Mills ab initio from the year 2007 and holding the entire transaction bogus, shall need to be the act in breach of the principle of natural justice and therefore, we deem it appropriate to remand the matter for adjudication to the competent authority, for it to consider the claim of the petitioner of ITC on the purchases made by the Petitioner from M/s. Maa Oil Mills. 6.6 We are conscious of the fact that the period prescribed for reassessment of five years has already been concluded on 31.03.2020. However, since, the petitioner has moved this Court questioning the action of the respondent author ..... X X X X Extracts X X X X X X X X Extracts X X X X
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