AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 7
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....s of manufacturing Mustard Oil and Solvent Oil and is not only effecting sales within the State but also inter-State sale in the course of business. On verification/examination of the returns for the second and third quarters of 2006-07 which was furnished in form VAT-10, it was noticed by the Assessing Officer that on purchase of Mustard seed and DOC (De Oiled cake), the assessee has claimed input tax credit after extraction of Solvent Oil Whereas u/Sec.18 of the RVAT Act, the input tax credit can be claimed on sale of taxable goods only and not on exempted goods and accordingly being not satisfied with the claim of the assessee, a show cause notice was given by the Assessing Officer as to why input tax credit be not disallowed. A detailed reply was filed on behalf of the assessee, however, the Assessing Officer being not satisfied, allowed only input tax credit at Rs. 18,84,959/- and was disallowed to the extent of Rs. 20,50,517/-. 4. The assessee assailed the said order by filing an appeal before the Dy. Commissioner (A), who however was satisfied with the explanation offered by the assessee and directed the Assessing Officer to allow the same taking into consideration the valu....
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....ll Vs. Deputy Commissioner, Commercial Taxes, Nellore & Another (1977) 39 STC 100, Madras Rubber Factory Limited Vs. The State of Tamil Nadu (1978) 41 STC 55, P.S.N.S. Ambalavana Chettiar and Co. Private Limited Vs. Commissioner of Commercial Taxes, Board of Revenue, Madras (1963) 14 STC 760, Brihan Maharashtra Sugar Syndicate Ltd. & Another Vs. P.R. Joglekar, Dy. Commr, of Argl. Inc.-Tax and Others (1987) 165 ITR 279. However, ld. counsel for assessee conceded that judgment of this Court in M/s. Durgeshwari Food Ltd. (supra) is applicable on facts of the instant case. 7. Per-contra, ld. counsel for the respondent vehemently contended that the claim could not have been allowed contrary to the provisions of law and the claim of the assessee was not in accordance with law, therefore, the Assessing Officer disallowed input tax credit u/Sec.18 of the Act. Counsel further contended that even the judgment rendered by this Court in the case of M/s. Durgeshwari Food Ltd. (supra) is squarely applicable on the facts and circumstance of the instant case and this court has clearly held that the input tax credit could not be allowed to the extent of sale of VAT exempted goods and the judgment ....
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.... packing material of goods, other than exempted goods, for sale; or (e) being used as raw material [except those as may be notified by the State Government] in the manufacture of goods, other than exempted goods, for sale within the State or in the course of interstate trade or commerce; or (f) [being used as packing material or goods or as raw material in manufacture of goods for sale] in the course of export outside the territory of India; or [(g) being used in the State as capital goods in manufacture of goods other then exempted good,] however, if the goods purchased are used partly for the purposes specified in this sub-section and partly as otherwise, input tax credit shall be allowed proportionate to the extent they are used for the purposes specified in this sub-section. [(2) The input tax credit under sub-section (1) shall be allowed only after verification of the deposit of tax payable by the selling dealer in the manner as may be notified by the Commissioner.] (3) Notwithstanding anything contained in this Act, no input tax credit shall be allowed on the purchases- (i) from a registered dealer who is liable to pay tax under sub-section (2) of section 3 or w....
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....cer or incharge shall file such appeal under his signatures within one hundred and eighty days of the date on which the order sought to be appealed against is communicated in writing to the Commissioner or the Deputy Commissioner (Administration). (4) The respondent may, on receipt of notice that an appeal against an order referred to in sub-section (1) has been preferred by the appellant, notwithstanding that he may not have appealed against such order, within one hundred and twenty days in the case of an officer of the Commercial Taxes Department and within sixty days in the case of a dealer, of receipt of the notice, file a memorandum of cross-objections verified in the prescribed manner, against any part of the said referred order and such memorandum shall be disposed of by the Tax Board as if it were an appeal within the time specified in sub-section (2) or (3). (5) The Tax Board may admit an appeal or permit the filing of memorandum of cross-objections after the expiry of the limitation provided in sub-sections (2), (3) and (4), if it is satisfied that there was sufficient cause for not presenting the same within that limitation. (6) An appeal to the Tax Board shall be ....
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....ommercial Taxes Officer or Junior Commercial Taxes Officer of Incharge of a check-post or barrier is either erroneous, or prejudicial to the interest of the State revenue, he may after having made or after having caused to be made such enquiry as he considers necessary, and after having given to the dealer a reasonable opportunity of being heard, pass such order or issue such direction as he deems proper under the circumstances of the case. (2) No order or direction under sub-section (1) shall be passed or issued by the Commissioner if a period of five years has already elapsed from the date on which the order sought to be revised was passed." 10. It would also be appropriate to quote the relevant para Nos.20 & 21 of the judgment rendered by this Court in the case of M/s. Durgeshwari Food Ltd. (supra) which reads as under:- "20. In the considered opinion of this Court, therefore, in view of specific provisions contained in Section 18 of the VAT Act of 2003, the ratio of the judgments relied upon by the learned counsel for the respondent-assessee would in fact support the case of the Revenue, and as a necessary corollary, it deserves to be held following these aforesaid judgmen....
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....ed (supra), the claim was not required to be allowed and for the purposes of calculating as to how much input tax credit is to be allowed/disallowed, the matter could have been restored back to the Assessing Officer. 14. Be that as it may, in my view, the powers of the Tax Board are wide enough. On perusal of section 83 quoted herein before and sub-section (10) of section 83 states that the Tax Board after opportunity of being heard shall pass such order "as it thinks fit" which in my view, gives power to the Tax Board even to direct the Commissioner u/Sec. 85 to revise an order. In my view, even the inherent power is available with the Tax Board to pass an appropriate order "as it thinks fit" which would mean even directing the Commissioner u/Sec.85 to pass an appropriate order. Admittedly, the Commissioner is an Authority subordinate to the Tax Board and the Tax Board can certainly give directions to correct a wrong undone in the matter. 15. Even u/sec.85, the Commissioner may "suo-moto or otherwise"......, would mean that the Commissioner can on his own or on receiving certain information from any source that is even Tax Board can take recourse of invoking provisions of sectio....