TaxTMI 
TaxTMI 
2015 (8) TMI 793
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.... authority had summarily rejected the first appeal on the ground of non payment of predeposit? (B) Whether in the facts and circumstances of the case Hon'ble Tribunal is justified in disallowing input tax credit of tax paid on purchases made from M/s. Dev Enterprise without verifying the genuineness of the transactions?" [2.0] Facts leading to the present Tax Appeal in nutshell are as under: [2.1] That the appellant is inter alia engaged in the business of manufacturing of oil. The appellant is also registered under the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "VAT Act") as well as under the Central Sales Tax Act. That during the year 2006-07 the appellant purchased groundnut seeds from one M/s. Dev Enterprise. The appellant claimed Input Tax Credit of Rs. 96,268/- on the said alleged purchases made by the appellant from M/s. Dev Enterprise. That the Assessing Officer denied the said Input Tax Credit claimed on the purchase made by the appellant from M/s. Dev Enterprise on the ground that the registration certificate of M/s. Dev Enterprise from whom the appellant is alleged to have purchased the goods, has been cancelled ab initio as it was found that the sa....
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....the ground challenging the impugned order on the ground that when the appeal before the learned Tribunal was against the order of first Appellate Authority dismissing the appeal on nondeposit of predeposit, the learned Tribunal ought not to have decided the issue on merits, however submitted that now the second question of law i.e. whether the learned Tribunal is right in law and on facts in confirming the order passed by the Assessing Officer disallowing the Input Tax Credit claimed by the appellant on the purchases made by the appellant from M/s. Dev Enterprise is concerned, it is submitted that now the said issue/question is squarely covered by the decision dated 26.03.2015 of the Division Bench of this Court in the case of Shree Bhairav Metal Corporation v. State of Gujarat rendered in Special Civil Application No.2149/2015. It is submitted that the Division Bench of this Court in the similar facts and circumstances of the case has remitted the matter back to the Assessing Officer to consider the documentary evidences on record and consider whether the transactions between the appellant and M/s. Dev Enterprise and the purchases made by the appellant from M/s. Dev Enterprise are....
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..... Dev Enterprise indulged into billing activities only. However, it is required to be noted that the same order has been confirmed by the learned Tribunal relying upon its earlier decision in the case of Madhav Industries which has been confirmed by the Division Bench of this Court and even the Hon'ble Supreme Court. However, it is not in dispute at the relevant time when the Assessing Officer passed the order disallowing the Input Tax Credit claimed by the appellant, the appellant was not served with the copy of the order in the case of M/s. Dev Enterprise canceling its registration ab initio. [5.1] Identical question came to be considered by the Division Bench in the case of Shree Bhairav Metal Corporation (Supra) and dealing with the similar situation the Division Bench of this Court has allowed the said Special Civil Application and remanded the matter to the Assessing Officer to consider the matter / claim of the concerned dealer of Input Tax Credit afresh and in light of the observations made in the said order. Allowing the said Special Civil Application, in paras 9.1 to 10, it is observed, held and directed as under: "9.1 That the Assessing Officer allowed the ITC claimed ....
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....of the purchaser like the petitioner dealer of the ITC on the purchases made from such seller, whose registration certificate has been cancelled ab initio on the ground that such seller had indulged into billing activities only, is required to be considered. However, an opportunity is required to be given to such dealer/purchaser to prove the genuineness of the transaction and/or to justify its claim of ITC. In the present case, the first revisional authority had disallowed the ITC claimed of Rs. 6,49,561/- on the purchases alleged to have been made from M/s Lucky Enterprises relying upon the order passed by the appropriate authority in the case of M/s Lucky Enterprises cancelling its registration certificate ab initio from 22.2.2006 and the finding recorded by appropriate authority while cancelling the registration certificate of M/s Lucky Enterprises ab initio from 22.2.2006 that the transactions by M/s Lucky Enterprises are bogus and nongenuine. However, the petitioner dealer was not served with the copy of the order in the case of M/s Lucky Enterprises cancelling its registration certificate ab initio from 22.2.2006. 9.3 Now, so far as contention of the petitioner that the pet....
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....anded to the adjudicating authority to consider the claim of the petitioner for ITC on the alleged purchases made by the petitioner from M/s Lucky Enterprises. 9.5 While passing the impugned order, the learned Tribunal has not properly appreciated and consider the aforesaid aspect. Under the circumstances, the impugned judgment and order passed by the learned Tribunal is required to be quashed and set aside on the aforesaid ground alone and the matter is required to be remanded to the adjudicating authority to consider the claim of the petitioner of ITC on the alleged purchases made by the petitioner from M/s Lucky Enterprises. 10. In light of the observations made herein above and for the reasons stated above, the petition succeeds in part. The orders passed by the authorities below impugned in the present petition are hereby quashed and set aside and the matter is remitted to the file of the adjudicating authority to consider the claim of the petitioner for ITC claimed on the alleged purchases made by the petitioner from M/s Lucky Enterprises after giving an opportunity to the petitioner afresh in accordance with law and on merits in light of the observations made herein above.....