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TMI Blog2023 (8) TMI 1312X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner before us is a proprietary concern represented by its proprietor - Radhika Agarwal. Petitioner is engaged in the business of gold and gold jewellery. It was registered as a dealer under the Telangana Value Added Tax Act, 2005 (briefly, 'the Act' hereinafter) on the file of respondent No. 4. It is stated that apart from dealing in gold bullion, petitioner also purchases gold bullion from registered dealers at Hyderabad and after manufacturing jewellery at Hyderabad exports the same from Kolkata airport against purchase orders received by it. 3.1. For the tax period 2014-2015 and 2015-2016 (up to February, 2016), Commercial Tax Officer, Ashok Nagar Circle, Hyderabad, passed an order of assessment on 30.04.2016. In the aforesaid order, refund claim of the petitioner as per input tax credit (ITC) eligibility was determined at Rs.3,54,79,661.00. 3.2. It appears that thereafter Commercial Tax Officer, Ashok Nagar Circle, had issued a notice dated 30.03.2017 addressed to the petitioner (this notice however has not been placed on record) in reply to which petitioner in its letter dated 03.04.2017 stated that it manufactures and exports gold jewellery from the purchase of gold b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to drop the proposal to withdraw the ITC amount. Petitioner also sought for a personal hearing. 3.5. Joint Commissioner (ST), Abids Division, Hyderabad, i.e., respondent No. 3, who in the meanwhile became the revisional authority, issued personal hearing notice to the petitioner on 01.02.2019, after almost two years. In the meanwhile, petitioner also filed additional objection before respondent No. 3 on 08.02.2019. It was thereafter that the impugned order came to be passed on 07.12.2020. 3.6. As per the impugned order, petitioner was held to be operating its business from its branch at Kolkata. Therefore, reiterating the contentions made in the show cause notice, respondent No. 3 confirmed rejection of ITC proposed in the show cause notice. Consequently, the assessment order was found to be prejudicial to the interests of revenue and accordingly revised. 3.7. Following the same, respondent No. 4 passed the effectual order on 29.12.2020 holding that earlier there was incorrect allowance of ITC and therefore the entire amount was disallowed. 4. It is the above two orders dated 07.12.2020 and 29.12.2020 which have been impugned in the present proceedings. 5. This court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Circle, came on the rolls of respondent No. 4, including the petitioner. In the process, respondent No. 3 became the revisional authority of the petitioner under Section 32(2) of the VAT Act. 6.3. Petitioner submitted a reply to the show cause notice and its authorised representative also appeared for the personal hearing on 08.02.2019. It was submitted that gold jewellery manufactured out of gold bullion purchased locally were manufactured at Hyderabad and thereafter exported to foreign countries on the basis of purchase orders. After due consideration, respondent No. 3 rejected the contention of the petitioner and passed the impugned revisional order. According to respondent No. 3, claim of the petitioner of having exported gold jewellery manufactured at Hyderabad from the Kolkata airport was not acceptable as there were no details of manufacturing units which had manufactured the gold jewellery as per specific designs of foreign buyers and the quantity of the gold jewellery manufactured. It was also observed that Hyderabad airport was an international airport having connectivity to different places. Therefore, for a prudent businessman it did not make any sense to carry the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submits that the case projected by the petitioner is totally unbelievable and has rightly been rejected by the revisional authority. Assessing authority had not examined the improbability of the petitioner's case of exporting gold jewellery manufactured at Hyderabad from the Kolkata airport. Therefore, view taken by the revisional authority that such transfer of gold jewellery from Hyderabad to Kolkata was nothing but stock transfer cannot be faulted. He submits that respondent No. 3 has exercised his revisional jurisdiction strictly in terms of the provisions of Section 32(2) of the VAT Act and no interference is called for. In any view of the matter, order of revision being an appealable one, petitioner ought to have filed an appeal. But petitioner did not file the appeal within the statutory limitation period and belatedly approached the court by filing the writ petition. In such circumstances, petitioner is not entitled to any relief under Article 226 of the Constitution of India. 9. Submissions made by learned counsel for the parties have received the due consideration of the court. 10. At the outset, we may advert to Section 32 of the VAT Act which provides for revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsustainable in law. The reasons for seeking to revise the concluded assessment must be expressly stated in the show cause notice. The revisional authority cannot initiate proceedings with a view to start a fishing and roving enquiry and cannot be permitted to begin fresh litigation because of new views he may entertain on facts or new versions as to what should be the inference or proper inference either on facts disclosed or the weight of the circumstances. Merely because the view expressed by the assessing authority is not acceptable to the revisional authority would not render the assessment order to be prejudicial to the interests of revenue. 12. It is true that a revisional order passed under Section 32(2) of the VAT Act is an appealable one under Section 33(1) of the VAT Act. However, as already noted above, the present writ petition was admitted on 07.09.2021 with an interim order. Having admitted the writ petition, we are of the view that it would not be justified to non suit the petitioner on the ground of availability of alternative remedy at the stage of hearing. That apart, the law is well settled that notwithstanding availability of alternative remedy, a petition u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but were exported directly from Kolkata airport. Though petitioner tried to explain its business operation in its reply dated 27.04.2020, the same was not accepted by respondent No. 3, who thereafter passed the impugned order dated 07.12.2020. Respondent No. 3 held as follows: In the present case, the dealer transferred the raw gold purchased from VAT dealers locally to their manufacturing unit situated in Kolkata for manufacturing of gold jewellery to be exported to other countries. On verification of the export invoices the gold jewellery were exported from Kolkata Air Port directly to the foreign countries and not from Hyderabad. Thus, it is clear that the raw gold purchased from VAT dealers is sent to their manufacturing unit situated in Kolkata for manufacturing of gold jewellery which in turn is exported out of the countries from Kolkata Airport. Further the dealer has filed a reply dt: 08-02-2019 wherein they have filed the copies of invoices, purchase orders etc, in support of their claim of not to restrict the ITC. The same are verified and observed as under:- 1. The purchase orders filed by the dealer are verified and noticed that there is no specific instructions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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