9911796707
TMI Blog2022 (4) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... of an appropriate writ or a writ in the nature of certiorari for quashing the order dated 19.10.2016 of the Joint Commissioner of Commercial Taxes (Appeal) passed in Appeal Case No. SG-VAT-A-43/2015-16 (Annexure-3 to this petition) which partly dismissed the appeal preferred by the petitioner herein and inter alia confirmed the Assessment order dated 05.10.2015 passed by the respondent No.2 with respect to the part disallowance of the Input Tax Credit to the petitioner. c. For issuance of an appropriate writ or writ in the nature of certiorari for quashing the Assessment order dated 05.10.2015 passed by the Respondent No.2 wherein the Input Tax Credit, amounting to Rs. 15,98,658/- was disallowed to the petitioner (Annexure-2 to this petition) by applying Section 18(8)(ix) of the Jharkhand Value Added Tax Act, 2005. d. For the issuance of an Interim order that till the final disposal of the present writ petition, the operation and effect of the said order and judgment dated 28.07.2021 passed by the Ld. Commercial Taxes Tribunal (Annexure-6 to this petition) the said order dated 19.10.2016 passed by the Joint Commissioner of Commercial Taxes (Appeal) (Annexure-3 to this petition) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te purchases of the scrap batteries made by the petitioner during the relevant period. Accordingly, in order to apply Section 18 (8) (ix) of the JVAT Act, 2005, in the case of the petitioner and to disallow the said Input Tax Credit on purchase of scrap batteries, the Respondent Department had the onus to show that the said scrap batteries were consumed by the petitioner for manufacture of goods in the State of Jharkhand and such manufactured goods were meant for Inter State transfer of stock or for sale outside the State. However, it is clear from the impugned orders that the Respondent Department has not shown or established the above. As such, the Input Tax Credit has been wrongly disallowed to the petitioner for the relevant period. Learned sr. counsel further submits that it can be seen from the Assessment Order that the only factual allegation made to apply Section 18 (8) (ix) of the JVAT Act, in the case of the petitioner is that the petitioner has made an Inter State Stock transfer of Rs. 228,57,82,887/-. He contended that the Assessment Order does not even speaks which goods have been inter-state stock transferred by the petitioner and particularly the Assessment Order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue relying on the counter affidavit contends that the Ld. Tribunal has recorded its finding with regard to the supplementary affidavits filed by the petitioner and reason for not considering the same. He further submits that the petitioner did not produce any document before the assessing officer as well as the appellate authority to show that the goods (scrap batteries) were sold in the same form as it was purchased and only in course of hearing of the revision petition the petitioner filed supplementary affidavits to make out a case in his favour. He further reiterated the stand taken in the counter affidavit and submits that the learned Tribunal has rightly held that the petitioner has failed to produce any document before the assessing officer as well as the appellate authority to show that there was compliance of Rule 26 (12) of the Jharkhand Value Added Tax Rule 2006 to establish that the petitioner was selling the goods in the same form as he had purchased. It would also be relevant to State herein that the plea of interstate sale of scrap batteries was taken after a long delay for first time before the Ld. Tribunal. Further the petitioner has not produced the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of scrap batteries worth Rs. 6,12,45,703/- on which it had claimed Input Tax Credit ("ITC") of Rs. 30,62,285. However, in the assessment order (Annexure-2); the assessing officer, after applying Section 18(8)(ix) of the JVAT Act, 2005, has allowed only a portion of ITC claimed and availed since the Petitioner has made interstate stock transfers. The Assessment order categorically observed that the Petitioner is a trader within the State of Jharkhand. The said assessment order was confirmed by the appellate authority (Annexure-3) and thereafter the Ld. Tribunal (Annexure - 6), again by relying on Section 18(8)(ix) of the Act, confirmed the Assessment order. It further transpires that there was not even a whisper of allegation in the assessment order or the appellate order that the petitioner was involved in manufacturing activities within the State of Jharkhand. 9. Thus, the only dispute in the present case relates to the interpretation and applicability of Section 18(8) (ix) of the JVAT Act in the case of this Petitioner. For brevity, relevant portion of the Act, as it existed during the assessment year 2012-13, is reproduced herein below: "S. 18 Input Tax Credit (8) No i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he did not receive any consideration beyond that declared by him." 25. Taking a cue from Varghese case [(1981) 4 SCC 173 : 1981 SCC (Tax) 293 : (1982) 1 SCR 629], we therefore, hold that Section 143(1-A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee. The burden of proving that the assessee has so attempted to evade tax is on the Revenue which may be discharged by the Revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has, in fact, attempted to evade tax lawfully payable by it. Subject to the aforesaid construction of Section 143(1-A), we uphold the retrospective clarificatory amendment of the said section and allow the appeals. The judgments of the Division Bench [CIT v. Ashok Paper Mills Ltd., 2002 SCC On Line Gau171 : (2002) 256 ITR 673] of the Gauhati High Court are set aside. There will be no order as to costs. 12. By going through the impugned order it further transpires that the Ld. Tribunal has gone a step further and attempted to draw inferences out of Section 18(8) (ix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly look fairly at the language used." It is a rule firmly established that "the words of a taxing Act must never be stretched against a tax-payer". If the legislature has failed to clarify its meaning by use of appropriate language, the benefit must go to the tax-payer. Even if there is any doubt as to interpretation, it must be resolved in favour of the subject. We would, therefore, be extremely loathe to add in Section 5(2)(a)(ii) and the second proviso words which are not there and which, if added, would have the effect of imposing tax liability on the purchasing dealer...." As per the aforesaid reasoning, the language of Section 18(8)(ix) of the JVAT Act cannot be stretched to deduce some non-existent intention that the said section would apply even if the dealer is not a manufacturer. Thus, the findings of Ld. Tribunal are patently erroneous. 14. Further, the finding that scrap batteries could only have been used for processing or manufacturing is also incorrect, inasmuch as, a dealer such as the Petitioner is also free to trade in the said scrap batteries, i.e., sale and re-sale. It is incorrect to presume that scrap batteries can only be used for processing or manufacturin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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