TaxTMI 
TaxTMI 
TaxTMI 
2022 (3) TMI 746
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.... (O&M) VATAP-54-2020 (O&M) VATAP-56-2020 (O&M) VATAP-55-2020 (O&M) VATAP-57-2020 (O&M) VATAP-58-2020 (O&M) VATAP-64-2020 (O&M) VATAP-60-2020 (O&M) VATAP-62-2020 (O&M) VATAP-65-2020 (O&M) VATAP-59-2020 (O&M) VATAP-61-2020 (O&M) VATAP-14-2021 (O&M) Excise and Taxation Commissioner, Haryana Bhiwani and another Versus M/s Gupta Brother, M/s Munjhal Filling Station, Safidon, Jind and another, M/s H P Mohit Petro Station and another, M/s Kularia Krishi Kendra and another, M/s Shree Jee Service Station and another, M/s Saraswati Filling Station and another, M/s Kissan Filling Station and another, M/s Rana Filling Station and another M/s Gurudev Sudarshan Filling Station and another, M/s H.P. Shri Bankey Bihari Filling Station and another, M/s Ashoka Oil Company and another M/s Hari Ram Filling Station Barwala and another State of Haryana through Excise & Taxation Officer-cum-Assessing Authority, Faridabad Versus M/s Mudrakshi Hytech India Pvt. Ltd. and another, M/s Vijay Kumar Ashok Kumar and another M/s Hisar Filling Service Station, Hisar and another, M/s Kishan Lal Lakhi Ram, Adampur and another M/s Shiva Shankar Petroz and another, M/s Safron Petro Net, Landhari Hisar and another, M/....
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....ee is entitled to ITC under the provisions of the Act on evaporation/handling losses of the petroleum products?" [2] For the sake of convenience, the facts from VATAP-242-2018 are being extracted. Respondent No. 1 is the dealer running a petrol pump and engaged in purchase and sale of petroleum products. For the assessment year 2010-11 [for short 'A.Y.'], assessment was finalized by Excise and Taxation Officer-cum-Assessing Authority, Bhiwani on 23rd December, 2013 allowing the claim of ITC. Revisional Authority revised the assessment vide order dated 19th August, 2016. ITC for evaporation losses was reversed. The Tribunal accepted the contention of the dealer and allowed the appeal on 3rd July, 2017. It was held that Assessing Authority rightly allowed the claim of ITC on evaporation. The review application filed by the State was dismissed by the Tribunal on 4th May, 2018. [3] Mr. Samarth Sagar, Additional Advocate General, Haryana appearing for the State/Appellant argued that disposal of evaporated Petrol and HSD was otherwise than by way of sale hence the dealer was not entitled to ITC as per Entry 5 of Schedule E of the Act. It is contended that issue is covered in favour of ....
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....in respect of goods specified in Schedule E used or disposed of in the circumstances mentioned against such goods: Provided that where the goods purchased in the State are used or disposed of partly in the circumstances mentioned in Schedule E and partly otherwise, the input tax in respect of such goods shall be computed pro rata: Provided further that if input tax in respect of any goods purchased in the State has been availed of but such goods are subsequently used or disposed of in the circumstances mentioned in Schedule E, the input tax in respect of such goods shall be reversed. (2) A tax invoice issued to a VAT dealer showing the tax charged to him on the sale of invoiced goods shall, subject to the provisions of subsection (3), be sufficient proof of the tax paid on such goods for the purpose of sub-section (1). (3) Where any claim of input tax in respect of any goods sold to a dealer is called into question in any proceeding under this Act, the authority conducting such proceeding may require such dealer to produce before it in addition to the tax invoice issued to him by the selling dealer in respect of the sale of the goods, a certificate furnished to him in the p....
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....t of a VAT dealer for a tax period is the aggregate of tax calculated on the sale of taxable goods made by him in the State during the tax period. It shall be represented by total of entries in column (h) in the Day Book (Sale side) prescribed in rule 53. (2) Any goods purchased in the State by a VAT dealer on the sale of which to him no tax is levied or paid under the Act and such goods are used or disposed of by him during a tax period in the circumstances that no tax is payable by him under the Act or the Central Act on them or the goods manufactured therefrom, then he shall, except when such goods not being the goods specified in Schedule F of the Act, or the goods manufactured from such goods are sold in the course of export of goods out of the territory of India, be liable to pay tax on the purchase of such goods at the rate(s) specified in clause (b) of sub-section (1) of section 7. (3) Input tax in respect of a VAT dealer for a tax period is the aggregate of tax paid in respect of goods purchased in the State from other VAT dealer(s) on tax invoice(s) during the tax period, which shall be the aggregate of entries made in column (g) in the Day Book (Purchase side) in res....
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....nder Haryana General Sales Tax Act, 1973 on the goods held in stock by the dealer, on the date of becoming liable to pay tax but shall not include capital goods. The tax paid on the goods mentioned in Schedule E used or disposed of in circumstances mentioned against them in the Schedule will not be included in input tax. [8.1] The first proviso to sub-section (1) Section 8 of the Act provides that input tax shall be computed on pro rata basis where the goods are partially used or disposed of in circumstances mentioned in Schedule E and partly otherwise. [8.2] The second proviso provides for reversal of input tax if the goods purchased in the State after availing input tax are used or disposed of as per circumstances mentioned against those goods in Schedule E. [8.3] As per sub-section (2), the tax invoice showing tax charged from dealer, issued to the VAT dealer shall be sufficient proof of tax paid, subject to the provisions of sub-section (3). [8.4] As per sub-section (3), in case input tax is questioned in the proceedings under the Act, the authority may ask production of certificate (as prescribed) in addition to the tax invoice. The claim would be allowed only after author....
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....or spirit and 0.2% in case of HSD. [12] We may hasten to add that we are dealing with the cases where handling or evaporation losses are within the prescribed limits. [13] As per provisions of Act, the tax paid to the State by the oil companies on the goods sold, would be ITC available to the purchasing dealers. There would be no ITC for tax paid on the goods specified in Schedule E when used or disposed of in the circumstances mentioned against those goods. The circumstances mentioned in Schedule E against petroleum products and natural gas are that when used as fuel or exported out of the State. Entry 5 of schedule E is not dealing with the items mentioned at Entries 1 and 2. In other words, circumstances mentioned against Entry 5 are not applicable to petroleum products and natural gas. [14] The contention raised by learned counsel for the State/appellant has a fallacy, it is based upon circumstances mentioned against Entry 5 i.e. when the goods are disposed of otherwise than by way of sale. If the contention is accepted, it would result in adding circumstance in Entry 1 of Schedule E. Suffice to say no such condition finds mention against Entry 1. [15] Explanation (v) to Se....