Court No. - 7
Case :- SALES/TRADE TAX REVISION No. - 109 of 2017 Applicant :- Jotindra Steel & Tubes Limited, Ghaziabad Opposite Party :- The Commissioner, Commercial Taxes, U.P. Lucknow Counsel for Applicant :- Shubham Agrawal,Shri Bharat Ji Agrawal Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. The present revision has been directed against the order of Commercial Tax Tribunal, Ghaziabad dated 21.02.2017 passed in Second Appeal No. 48 of 2017 (A/2010-2011).
2. By the aforesaid order, the Tribunal has rejected the appeal filed by the assessee and affirmed the dis-allowance of ITC claimed against certain purchases of iron and steal from two registered dealers i.e. M/s Pacific Sales Corporation, Ghaziabad and M/s G.P. Trading Company, Ghaziabad. The case of the assessee appears to be that it had made purchase during the period 18.03.2011 to 28.03.2011 against valid tax invoice authenticated by the assessing authority of the selling dealers as also against valid form 21 issued by the selling dealers. It was, therefore, claimed that the applicant was fully entitled to the benefit of ITC and the same could not have been denied merely because the registration certificate of the selling dealers may have been suspended and later cancelled.
3. In the first leg of proceedings, the matters was dealt by First Appeal Authority in Appeal No. GHA-1/0461/2015. That appeal was allowed by order dated 31.08.2015 and the assessment order was set aside. The matter was then remanded to the assessing authority to decide afresh after making inquiries and verification as had been indicated in that order. It was further provided that only in the case of finding being recorded against the assessee as to collusion between the assessee and the selling dealers that the benefit of ITC may be denied.
4. The Assessing Officer passed the fresh order on 29.10.2016. The assessee claiments be aggrieved by that order since without making the inquiries on the points indicated in the order dated 31.08.2015 (passed by the First Appeal Authority), the Assessing Authority rejected the claim of ITC on the reasoning that the registration certificates of the selling dealers M/s Pacific Sales Corporation, Ghaziabad and M/s G.P. Trading Company, Ghaziabad had been suspended on 18.01.2011 and 16.01.2011 respectively. Those registrations were further claimed to have been cancelled on 31.05.2011 and 16.05.2011. The Assessing Officer, therefore, proceeded on the reasoning that in absence of registration certificate, no benefit of ITC could ever have arisen and, therefore, the inquiry directed to be conducted by the First Appeal Authority byorder dated 31.08.2015 was concluded against the assessee.
5. The assessee carried the matter in appeal against the order dated 29.10.2016 to the First Appeal Authority as also to the Tribunal and it has lost at both the forum. Hence, the present revision.
6. While the present revision had been entertained and the proceedings has thus remained pending, today a supplementary affidavit has been filed by the assessee/applicant containing copy of certificate claimed to have been issued by the Deputy Commissioner, Sector 17, Ghaziabad who is the assessing authority of the aforesaid two selling dealers M/s Pacific Sales Corporation, Ghaziabad and M/s G.P. Trading Company, Ghaziabad. The said document reveals that the actual date of suspension of the registration certificates of those dealers was 23.04.2011, whereas, those registrations were first cancelled by orders dated 31.05.2011 (in the case of M/s Pacific Sales Corporation, Ghaziabad) and 16.05.2011 (in the case of M/s G.P. Trading Company, Ghaziabad).
7. Sri B.K. Pandey, learned Standing counsel fairly states that in view of such fact having been stated during the course of earlier hearing in the matter, he has also obtained instructions which confirmed the stand taken in the supplementary affidavit filed today.
8. Accordingly, it is seen that the only factual premise of the assessment order dated 29.10.2016 that has given rise to the present revision, does not exist. Once it has been admitted by the department that the registration certificate of the selling dealers was valid and continuing on the date of purchase performed by the present application, the short ground on which the assessment order dated 29.10.2016 has been passed does not exist.
9. Further in view of such fact, it becomes imperative that the assessing authority may conduct an inquiry and seek verification and pass necessary orders in compliance of the directions issued by the First Appeal Authority by his order dated 31.08.2015 since that order was admittedly not challenged by either of the parties.
10. Learned counsel for the assessee further states that even the order of the First Appeal Authority dated 31.08.2015 was on the premise that the registration certificates of the selling dealers stood suspended on the date of sale and, therefore, in the light of the subsequent fact being admitted between the parties that those registration certificates were valid, no lis survives and, therefore, the present revision may be allowed.
11. Learned Standing Counsel submits that whether or not the assessee would be entitled to the benefit of ITC is a matter that is yet to be adjudicated by the fact finding authority and no conclusion may be drawn in this regard prematurely in the present revision procedings.
12. Having considered the arguments advanced by the learned counsel for the parties while on one hand the impugned order cannot be sustained as that factual premise for the same with respect to the date of suspension of the registration certificate of the selling dealers does not exist at the same time, it has to be left open to the Assessing Authority to pass appropriate assessment order in accordance with law in the light of directions issued by the First Appeal Authority by his order dated 31.08.2015.
13. Consequently, without deciding the question on law the present revision in the peculiar facts noticed above is disposed of. The impugned order of the Tribunal is set aside and the matter is remanded to the Assessing Authority to pass fresh order.
Order Date :- 30.10.2018 sailesh