9911796707
TMI Blog2020 (8) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations with respect to the appeal sought to be filed or on the issue of pre-deposit or, for that matter, whether the view taken by the Appellate Authority for Assessment Years 2013-14 and 201415 was right. It is sufficient for us to observe that the two sets of facts i.e. facts of the present case and facts in the case of Assessment Years 2013-14 and 2014-15, are apparently identical and once there is a finding on identical transactions given by the Appellate Authority in respect of two Assessment Years in the case of an Assessee, unless that is set aside or the order is suspended by a competent court or authority, Respondent No.3 Adjudicating Authority was bound to follow the orders of the Appellate Authority for Assessment Years 2013-14 and 2014-15 for the Assessment Year 2015-2016. The Impugned Order consisting of Assessment order dated 20th March, 2020 and the notice of demand and remand the proceedings back to Respondent No.3 Deputy Commissioner of State Tax, for denovo consideration in accordance with law and after hearing the Petitioner and considering its submissions and passing a speaking order in line with the aforesaid observations and keeping in mind the principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. ASCMPL is also approved as a unit under the SEZ Act and authorized to provide its services to its foreign and domestic clients to hold goods on their behalf. It is submitted that for the earlier Assessment Year 2013-14, the Petitioner directly imported nickel-cobalt from outside India and warehoused the same in the Arshiya FTWZ in a ASCMPL s warehouse or purchased nickel-cobalt already warehoused in Arshiya FTWZ from other vendors and warehoused the purchased goods also in ASCMPL s warehouse. However, for the earlier Assessment Year 2014-15 and the Assessment Year under consideration in this Writ Petition i.e. Assessment Year 2015-16, the Petitioner purchased nickel-cobalt, nickel-cobalt cathodes, nickel-cobalt polymers already imported in Arshiya FTWZ from other vendors and held the purchased nickel-cobalt in the Arshiya FTWZ in ASCMPL s warehouse. The warehoused nickel-cobalt was then either (i) sold by the Petitioner to customers within the Arshiya FTWZ or (ii) sold by the Petitioner to DTA units within the Arshiya FTWZ. It is submitted that the disputes are limited to these sale transactions. According to the Petitioner, these facts are not in dispute and have already been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he review proceedings are pending adjudication and no order has been passed modifying the findings of the Appellate Orders nor the said Appellate Orders have been stayed in any manner. 8. It is submitted on behalf of the Petitioner that when notices in respect of Assessment Year 2015-16 were issued to the Petitioner, submissions on various occasions were made on its behalf before Respondent No.3 Assessing Authority and by letter dated 3rd February, 2020, the submission that Respondent No.3 was bound by Appellate Orders dated 26th April, 2019 and 24th May, 2019 passed by the Joint Commissioner of State Tax (Appeals-V) for Assessment Years 2013-14 and 2014-15, was specifically placed on record, stating that the Petitioner was granted full relief on identical transactions carried out in those years. 9. It is submitted on behalf of the Petitioner that, despite the above, Respondent No.3 has passed the Impugned Order, even though, the transactions carried out by the Petitioner in the present matter are identical to the transactions carried out by it for Assessment Years 201314 and 2014-15. It is further submitted that despite the present matter being identical to the issue and tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not maintainable and the Petitioner has an alternative remedy of filing an Appeal which it has not done only to avoid paying 10% statutory deposit for filing an Appeal. He submits that the authority who has initiated review proceedings for Assessment Years 2013-14 and 2014-15, is superior to the Appellate Authority that has passed the Appellate Orders and therefore the submissions and decisions relied upon by the Petitioner in respect of binding precedent are not applicable. It is submitted that the Assessing Officer had granted hearing to the Petitioner and after hearing the Petitioner, he has passed the said Impugned Order, discussing the Petitioner s submissions in detail. Therefore, there is no violation of natural justice. It is submitted that the Petitioner cannot force the Assessing Authority to interpret the law as per its convenience, submitting that the Impugned Order has been passed after lengthy discussion of provisions and different Courts pronouncements and the Petitioner s say about non-speaking order cannot be accepted. It has been submitted by the Respondent that the Impugned Order has no relation to the Appellate Orders for Assessment Years 2013-14 and 2014- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration is whether MVAT is applicable to the transactions of sale of nickel-cobalt by the Petitioner either to customers within Arshiya FTWZ or to DTA units within Arshiya FTWZ of goods either imported directly by the Petitioner from outside India and held in Arshiya FTWZ in ASCMPL s warehouse or purchased from other vendors in the FTWZ and held in ASCMPL s warehouse in the said FTWZ. The transaction of sale of nickel-cobalt by the Petitioner either to customers within the Arshiya FTWZ or to DTA units within the Arshiya FTWZ are under consideration for levy of VAT for all the three assessment years, 2013-14, 2014-15 and 2015-16. The Appellate Orders for Assessment Years 201314 and 2014-15, subject matter of review by the higher authorities, have neither been stayed nor modified. These facts have not been disputed by the Respondents. Further, although the Respondent submits that the Impugned Order is a speaking order, there is not a word in there with respect to the submissions relating to the Appellate Orders for Assessment Year 2013-14 and Assessment Year 2014-15 nor reference to the Petitioner s submissions dated 3rd February, 2020 with respect to the binding nature of the two A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chaos in administration of tax laws. (emphasis supplied) The above principle, in our opinion, is clearly attracted to the case at hand. Therefore, according to us, Respondent No.3 authority ought to have not only considered the submissions made by the Petitioner with respect to the two appellate orders for A.Y. 2013-14 dated 26.04.2019 and for A.Y. 2014-15 dated 24.05.2019 but should have also borne in mind that the principles of judicial discipline require that the orders of the higher appellate authority should be followed unreservedly by the subordinate authorities even if the order of the appellate authority is not acceptable to the Department. 15. The Original assessment orders for Assessment Years 2013-14 and 2014-15 had proceeded on more or less the same footing as the Assessment Order impugned herein (for Assessment Year 2015-16). The goods were sold by transfer of documents of title to the goods, whilst the goods were within Arshiya FTWZ and were not cleared for home consumption or warehousing by filing a bill of entry under Section 46 of the Customs Act. The argument of the assessee before the Assessing Officer, as in the present case, was that any sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the authority to simply not follow the binding precedent of an Appellate Authority (here in the Assessee s own case for previous years) without distinguishing the same or explaining why it was not following the same. 17. Whether or not, this is a sale in the course of import, is not an issue we would like to go into at this stage, nor are we making any observations on the merits of this case. We are also not commenting on the allegations/ counter allegations with respect to the appeal sought to be filed or on the issue of pre-deposit or, for that matter, whether the view taken by the Appellate Authority for Assessment Years 2013-14 and 201415 was right. It is sufficient for us to observe that the two sets of facts i.e. facts of the present case and facts in the case of Assessment Years 2013-14 and 2014-15, are apparently identical and once there is a finding on identical transactions given by the Appellate Authority in respect of two Assessment Years in the case of an Assessee, unless that is set aside or the order is suspended by a competent court or authority, Respondent No.3 Adjudicating Authority was bound to follow the orders of the Appellate Authority for Assessment Y ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
