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TMI Blog2023 (11) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... AT Department on account of excess input tax credit over-output tax payable for purchases and sale made during AY. 2009-10 AY. 2010-11 - HELD THAT:- This amount of VAT Refund which was written off in this year (AY. 2012-13), was received/refunded to assessee in Nov, 2014. And it was offered by assessee for taxation along with interest in AY. 2015-16 and has already been taxed. In order to demonstrate that assessee has already offered the refund VAT AR drew our attention to the profit loss account which shows that assessee has claimed administrative expenses which included VAT paid/written off. In order to show that assessee had received VAT Refund of FY 2008-09 2009-10 which has been written off by assessee in AY. 2012-13 AR drew attention to profit loss account for AY. 2015-16, which shows that assessee has offered which includes VAT Refund and interest on VAT refund - Thus, it is found that the assessee has offered for tax the VAT refund of Rs. 13,03,839/- which assessee had written off in the relevant assessment year i.e. AY. 2012-13. Therefore, according to the assessee since the assessee has already offered the VAT refund along with interest for taxation in AY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who was pleased to dismiss it by order dated 30.06.2016. 6. Aggrieved by the order of Ld. CIT(A), the assessee has preferred this appeal before this Tribunal, and drew my attention to the fact that the amount (VAT refund) which assessee had written off this year (AY 2012-13) was received in AY 2015-16, and assessee had duly offered the same for taxation in AY 2015-16; and therefore the impugned action of Ld. CIT(A) will tantamount to double taxation [of the refund of MVAT] and therefore pleaded to admit this appeal for the interest of justice. With these background facts in mind, let me look at the reasons for delay. In this regard, it was brought to my notice that the assessee was under the bonafide impression that the Ld. AR Shri Manish Panwar who was entrusted with the filing of appeal before this Tribunal would have filed the same within the prescribed time limit as per the Act. But, according to assessee, Shri Manish Panwar, the Ld AR without informing the assessee, left the country; and this fact, assessee came to know only recently while casually inspecting about the status of appeal. According to assessee, this information of Shri Manish Panwar leaving the country witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itigant does not stand to benefit by lodging an appeal late. Further refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. The Apex Court further held that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 3.2 The Supreme Court in N. Balakrishnan v. M. Krishnamurthy 2008 (228) ELT 162, while condoning the delay of 883 days in filing an application for setting aside the ex parte decree held That the purpose of Limitation Act was not to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare. The primary function of a Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the court that there were sufficient reasons for availing the remedy after expiry of the limitation. Such reasoning should be to the satisfaction of the Court. In the instant case, on account of earthquake and ill health of his wife, the assessee had been facing many problems, simultaneously. According to him, order under section 154 was served upon him at the old address. That communication had also consumed time. Therefore, the assessee could not gain anything by filing the appeal late. There was no mala fide imputable to the assessee. The delay in filing the appeal was the result of ill health coupled with the change of his address thrice in a short span. In every case of delay there can be some lapse of the litigant concerned. That alone is not enough to turn down the plea and to shut the doors against him. If the explanation does not smack of mala fide or it is not put-forth as a part of dilatory strategy, the Courts must show utmost consideration to such litigant. At the most for the inaction or a little negligence, the assessee could be burdened with the cost. But his right of hearing of the appeal on merit ought not to be shut. Therefore, the delay in filing the appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in goods had to obtain registration under Maharashtra Value Added Tax Act, 2002 (MVAT Act). Under MVAT Act, when a taxpayer procures goods locally, it has to remit MVAT to the vendor. Similarly, when a taxpayer sells its goods, it collects MVAT from the customer and deposits the same with the MVAT Authorities. A taxpayer is liable to take credit of the MVAT paid to the vendor on procurement which is called input tax credit. Similarly, a taxpayer is liable to deposit the MVAT collected from the customer on sale of goods which is called output tax liability. And a taxpayer can utilize the said input tax credit to set-off against the output tax liability as well as claim refund of the accumulated balance of the input tax credit at the end of the year. In the assessee's case, it has accumulated MVAT during FY 2008-09 and FY 2009-10 and the assessee claimed such accumulated MVAT as refund. And the MVAT refund claimed pertaining to FY 2008-09 and FY2009-10 is tabulated below;- Sr. No Financial Year Amount (Rs.) 1. 2008-09 19,627 2. 2009-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. AR drew my attention to page 90 which is the profit loss account for AY. 2015-16, which shows that assessee has offered Rs. 55,03,99,782/- which includes VAT Refund of Rs. 13,03,839/- and interest on VAT refund of Rs. 1,33,724/- (refer page no. 96 PB). Thus, it is found that the assessee has offered for tax the VAT refund of Rs. 13,03,839/- which assessee had written off in the relevant assessment year i.e. AY. 2012-13. Therefore, according to the assessee since the assessee has already offered the VAT refund of Rs. 13,03,839/- along with interest of Rs. 1.33 Lakhs for taxation in AY. 2015-16 when assessee received it, the action of the AO in this assessment year (AY. 2012-13) disallowing the same and taxing it would tantamount to double taxation which is not permissible. Since I have noticed assessee has offered the sum of Rs. 13,03,839/- subsequently in AY. 2015-16, the action of AO/Ld. CIT(A) disallowing the same amount of Rs. 13,03,839/- in this AY. 2012-13, cannot be sustained. However, since this fact has not been verified by AO, the impugned order of Ld. CIT(A) is set aside for the limited purpose to the AO to verify whether assessee has offered this amount (Rs.13,03, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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