TaxTMI 
TaxTMI 
2022 (2) TMI 89
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....gal Taxation Tribunal in Case No. R.N 1540 of 2017 dated 22.12.2017. In MAT No 1911 of 2017, the assessee has challenged the correctness of the order in WP No. 23339 (W) of 2017 dated 11.09.2017 by which the writ petition filed by the assessee challenging the notice of assessment under Section 46 of WBVAT was dismissed. 3. The facts giving rise to both the matters are as hereunder. The revenue issued a notice under Section 46 read with Section 66 of WBVAT dated 16.08.2017. By the said notice the revenue was of the opinion that an assessment is required to be made under Section 46 of WBVAT as the assessee has carried forward excess ITC over Rs. 5,00,000/- to the next financial year. The said notice was challenged before the tribunal in Case No. R.N 1540 of 2017 on the ground that it is without jurisdiction as none of the grounds mentioned in the said provision are attracted for initiating assessment proceedings under Section 46. It appears that the tribunal disposed of the application at the admission stage by observing that, on going through the provisions of Section 46, it is found that none of the grounds for initiating assessment proceedings under the said provision were made o....
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.... this Court upheld an identical notice issued by the assessee in its order dated 11.09.2017, however on 13.09.2017, the tribunal quashed an identical notice and merely because the order passed by the High Court was not brought to the notice of the tribunal, the tribunal cannot be stated to be without jurisdiction to entertain the review applications. Therefore, the tribunal held that having regard to the observation made by this Court in the said writ petition and having regard to the judicial discipline and proprietary and that the order passed in the writ petition has ample persuasive force on the tribunal and therefore the order passed by the tribunal dated 13.09.2017 has to be recalled as there was a mistake apparent on the face of the said order. Challenging the correctness of the order passed by the tribunal in the review petition filed by the revenue, the assessee has filed WPTT No. 02 of 2018. The order passed by the Learned Single Bench has been challenged in MAT No. 1911 of 2017 on the same grounds which are canvassed in WPTT No. 02 of 2018 by contending that carry forward of input tax credit to the next year is not one of the reasons specified in Section 46 of the WBVAT ....
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....46(1)(b) provides that the Commissioner must be prima facie satisfied before issue of notice of assessment and such prima facie satisfaction must be on the basis of material before the issue of notice by the revenue. It is further submitted that the phrase "prima facie" is akin to the phrase "reasons to believe" and such reasons to believe must be based on some rational basis for the revenue to form a believe that an assessment has to be made under Section 46 of the Act. It is submitted that the impugned notices do not reveal any prima facie satisfaction on the part of the authority before issuing the said notice. Therefore, the notices are liable to be set aside. Further it is submitted that the decision rendered by the Learned Single Bench of this Court while refusing to set aside an identical notice issued under the CST Act cannot be pressed into service by the revenue to review the order passed by the tribunal dated 13.09.2017. Further it is submitted that, unless and until the revenue is able to point out any mistake which is apparent from the record, the review jurisdiction of the tribunal cannot be invoked. On the above grounds, the Learned Counsel seeks for setting aside th....
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....espondents submitted that Section 46 of the Act of the WBVAT should not be read in isolation and it is important to take note of Section 22 (4) of the Act which states that subject to the other provisions of the said Section, ITC or input tax rebate shall be allowed to the extent of the amount of tax paid or payable by the purchasing dealer on his purchase of taxable goods, other than such taxable goods as specified in the negative list appended to the said Section. It is further submitted that subsection (4) has various clauses which are required to be fulfilled for the assessee to be entitled to ITC and it cannot be stated that whatever claim of ITC made by the assessee would be automatically allowed. It is submitted that subsection (6) of Section 22 would also to be relevant which states that if input tax credit or input tax rebate available to a registered dealer for a year exceeds output tax for that year, the excess input tax credit or input tax rebate shall be carried forward to the next year in the manner as may be prescribed. Therefore, it is submitted that subsection (6) of Section 22 is not to be read in isolation but has to be read in conjunction with Section 22 (1) (2)....
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....the matter was heard and disposed of on 13.09.2017 as the writ petitioner and the petitioner before the tribunal is the same dealer and the matter relates to the very same excess ITC which has been carried forward. Therefore, the Tribunal was fully justified in reviewing its order and it is well within its jurisdiction as provided for under Section 16 of the relevant Act. Further the error committed by the tribunal in its order dated 13.09.2017 is manifest on the face of the order and the tribunal rightly entertained the review application and recalled its earlier order. 9. With regard to the scope of review, the Learned Government Pleader placed reliance on the decision of the Hon'ble Supreme Court in Satyanarayan Laxminarayan Hegde & Ors. Vs. Mallikarjun Bhavanappa AIR (1960) SC 137. 10. On the above grounds the Learned Government Pleader seeks to sustain the order passed by the Learned Single Bench as well as the order passed by tribunal in the review application. 11. We have elaborately heard the Learned Counsels for the parties and perused the materials placed on record. 12. The first aspect which strikes our mind is with regard to the similarity of both notices, one which....
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....ed parameters. We note that the tribunal has rightly entertained the review on acceptable and settled parameters and no error can be attributed to the tribunal for entertaining the review. 14. The next aspect is whether there was a mistake apparent on the face of the order. If an order which was passed in the assessee's own case which was decided against the assessee and such order having being passed before the tribunal took a decision and upon failure of the assessee in not placing the order and the tribunal having subsequently coming to know of it by way of a review application, taking note of the binding effect of the decision of the High Court is entitled to review its decision and it would fall within the scope of mistake apparent on the face of the order. One more aspect which we note is that the order passed by the tribunal dated 13.09.2017 quashing the notice dated 16.08.2017 was devoid of reasons. Though the revenue pointed out that certain provisions of Section 47 would apply, the tribunal in a single line stated that they are not satisfied with the explanation offered by the revenue. It appears that the tribunal allowed the application at the admission stage without ca....
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.... to assess the registered dealer, as he is prima facie satisfied that there has been short payment of net tax or excess claim of net tax credit by such dealer, or that the State Government has suffered loss of revenue on account of such dealer, or for any other reason to be recorded in writing, including for the purpose of refund of tax: Provided that- (a) ..................................................................... 17. On a reading of the provision, it is seen that the Commissioner after giving notice to the dealer assess to the best of his judgment an amount of net tax or any other tax payable or net tax credit of such dealer in respect of a year or a part there of when circumstances enumerated in Clause (a) and (b) are attracted. Clause (a) of Section 46 (1) is not applicable to the case on hand. The revenue seeks to sustain the notices by seeking to bring the same within the ambit clause (b) of Section 46(1). The argument on behalf of the assessee is that the words "or for any other reasons to be recorded in writing" shall have reference to cases where there is short payment of net tax or excess claim of net tax credit or when the Government has suffered loss of r....
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....ed to claim an input tax credit or input tax rebate as defined in clause (19) of Section 2 and in such manner and subject to such conditions and restrictions as may be prescribed. Subsection (4) of Section 22 states that input tax credit or input tax rebate shall be allowed to the extent of the amount of tax paid or payable by the purchasing dealer on his purchase of taxable goods, other than such taxable goods as specified in the negative list, made in the state from a dealer when such goods are purchased for the sale or resale or uses as specified in clauses (a) (i) of Section 22 (4) of the Act. Subsection (5) of Section 22 places an embargo on to the assessee not to make a claim for input tax credit until he fulfills the conditions in clauses (a) of Subsection (5) of Section 22. Subsection (6) of Section 22 states if the input tax credit available to a register dealer for a year exceeds the output tax for that year, the excess input tax credit or input tax rebate shall be carried forward to the next year in the manner as may be prescribed. Thus, firstly, the correctness of the entitlement of the ITC availed by the assessee has to be examined. If the entitlement has been done in....
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.... are relevant and have nexus with the formation of the believe regarding the escaped assessment or excess availment, the assessing officer would have jurisdiction to take action. The show cause notice clearly states the allegation against the assessee namely excess carry forward of ITC over Rs. 5,00,000/- and the notice cannot be faulty as the assessing officer was prima facie satisfied that there were relevant material based on which he proposes to initiate assessment proceedings under Section 46 (1) of the Act. 19. One of the arguments of the Learned Counsel for the assessee was that the legislation does not waste words or say anything in vain or for no purposes. This submission is to support the contention that the theory of "ejusdem generis" could be applicable. This contention has been negatived by us for the reasons set out above. Further we have held that Section 46(1) (b) cannot be read in isolation and bearing in mind the scheme of the Act the words or "for any other reasons to be recorded in writing, including for the purpose of refund of tax" makes the provisions an inclusive provision and widest interpretation is required to be given. Thus, we hold that the notices whi....
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....to give the words their larger meaning, unless you find something which plainly shows that they were intended to be read in a more restricted sense." 23. It is settled legal principle that the rule of ejusdem generis has to be applied with care and caution. It is not an inviolable rule of law, but it is only permissible inference in the absence of an indication to the contrary and where context and the object and mischief of the enactment do not require restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give those words their plain and ordinary meaning. [Bhel Vs. Globe H. Fabs Ltd. (2015) 5 SCC 718]. 24. Thus, we hold that the rule of ejusdem generis is inapplicable to the case on hand as Section 46 (1) (b) does not contain enumeration of specific words; the circumstance enumerated in clause (b) does not constitute a class or category; contingencies mentioned therein is not exhausted by enumeration; the general terms do not follow the enumeration and there is clear indication of a different legislative intent. 25. In State of West Bengal Vs. Jindal India Limited, (2000) 9SCC 369, was a case where the assessee challenged by way of a....