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TMI Blog2020 (12) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has prime facie case on merits, we direct the petitioner to make pre-deposit of 25% of tax and further some amount towards interest, which would make a total deposit ₹ 7.5 Crore towards the condition of pre-deposit for hearing of the three appeals for assessment years concerned. We make it clear that petitioner shall make deposit of ₹ 7.5 Crore within one month from the date of receipt of certified copy of this order and it would be in respect of Assessment years 2010-11, 2011-12 and 2012-13 - On furnishing of proof of deposit, First Appellate Authority i.e. Deputy Excise and Taxation Commissioner (Appeals) shall hear and decide appeals preferably within three (03) months - petition disposed off. - Civil Writ P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o render services of designing, engineering and erection/commissioning of the plant. The supply of goods and services was spread over different assessment years. As per terms and conditions of contract, the petitioner was supposed to buy goods from suppliers approved by NFL and property in goods had to transfer by way of endorsement/transfer of title, in the course of Inter State Trade or Commerce. The buyer i.e. NFL was supposed to supply C Form for concessional rate of tax, after obtaining them from ETO-Nangal / VAT Authorities. 3. The petitioner as per contract during 2010-11, 2011-12 and 2012-13 procured materials/equipment from vendors specified/approved by NFL. As the said goods were always meant for M/s. NFL , the selling party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d assessment for the year 2010-11, 2011-12 and 2012-13 respectively. The Assessing Authority formed an opinion that ownership of goods did not transfer to NFL till completion of the project and petitioner remained owner of goods till their utilisation. The property in goods did not transfer to NFL though concededly invoices were issued to transfer the title of goods while in movement. The Assessing Authority for all the years in question, cumulatively taken, created additional demand of ₹ 20.22 Crore towards tax, ₹ 24.54 Crore towards interest and ₹ 40.45 Crore towards penalty. As per Section 62 of PVAT Act, Appellate Authority can entertain appeal if the Appellant makes pre-deposit of 25% of additional demand. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition of pre-deposit in deserving cases. On the question of quashing of impugned assessment orders, he contended that petitioner had already filed appeals before Appellate Authority assailing assessment orders, thus petitioner cannot challenge same order before this Hon ble Court. On the question of alternative prayer of the petitioner, Mr. Gupta contended that court may show indulgence if there is prime facie case on merits or financial hardship is proved whereas in the case of petitioner no financial hardship is even pleaded except oral plea of COVID-19. The judgments cited by petitioner are not applicable because it was a Turnkey Project so property was transferred on completion of project. 9. Having heard arguments of both sides an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of goods till completion of the Turnkey Project. 11. On perusal of terms and conditions of contract, documents submitted by petitioner including Form C and judgments cited, we are of the opinion that petitioner has prime facie case on merits. The respondent issued Form C for all the years in question and in case of doubt must have stopped as well initiate appropriate steps instead of waiting for framing assessment at fag end of limitation period. It would be harsh if petitioner is required to deposit 25% of tax, interest and penalty. Penalty imposed is 200% and it is a case of interpretation and not fraud. Keeping in mind that petitioner has prime facie case on merits, we direct the petitioner to make pre-deposit of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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