TaxTMI 
TaxTMI 
2026 (8) TMI 5
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....at Value Added Tax Tribunal was right in law in confirming disallowance on Tax Credit of Rs. 12,81,800/- made by the learned Assessing Officer ? (ii) Whether the findings of learned Gujarat Value Added Tax Tribunal that the appellant is not able to prove actual movement of goods can be said to be perverse in light of the independent evidence placed on record? (iii) Whether the Gujarat Value Added Tax Tribunal has erred in law as well as on facts in confirming the order of First Appellate Authority confirming the disallowance of Input Tax Credit of Rs. 12,81,800/- claimed on purchase despite the fact that the assessee had submitted tax invoice, weigh bridge which in itself constitute independent evidence?" 3. The brief facts of the case are as under :- 3.1. For the period from 01.04.2007 to 31.03.2008, the Assessing Officer i.e. the Assistant Commissioner of Commercial Tax, Unit-5, Ahmedabad framed assessment of the appellant - assessee and disallowed the Input Tax Credit (For Short "ITC") for goods received from M/s. Krishna Traders and M/s. Soni Traders, whose registration numbers were cancelled with effect from 01.04.2007 as well as the appellant - assesse....
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...., the tax invoices and payment details are not sufficient evidences. The appellant must produce some independent evidence which can prove that transaction involved actual movement of goods. In our opinion, in the present matter appellant is not able to produce any independent evidence, which proves that goods have actually been involved in these transactions. Hence, we are not allowing the claim of ITC. The order of First Appellate Authority is hereby confirmed." 4. Learned advocate Mr. Vijay Patel appearing for the appellant - assessee submitted that the assessee has placed on record all the documents like name and address of the supplier of the goods; weigh bridge slips; Goods Received Note (GRN) etc. It was also submitted that the appellant had entered into contract with M/s. Vinayak Ginning and Pressing Factory and M/s. Mayur Ginning and Pressing Pvt. Ltd., whose premises were taken on lease by the appellant and the goods were supplied at the said two places which is considered as extended place of business of the appellant. It was, therefore, submitted that the appellant has discharged the burden of proving that the goods were received by the appellant from the above two pa....
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.... weigh bridge slips, Goods Receive Note, and details regarding payment made to the supplier. The Tribunal has considered this evidence placed on record and has arrived at a categorical finding upholding the order passed by the Deputy Commissioner of Commercial Tax that weigh bridge slips though clearly provides the truck numbers in which the goods are alleged to have been received, but the appellant has failed to produce the transport receipt bearing truck number mentioned in the weigh bridge slips. The Tribunal has also considered other evidences provided by the appellant - assessee regarding payment details and thereafter referring to the decision of the Hon'ble Apex Court in case of Ecom Gill Coffee Trading (P) Ltd. (supra), the Tribunal has held that the evidence placed on record by the appellant is not sufficient and in absence of any independent evidence to prove that the transaction involve actual movement of goods the appellant was not entitled to the Input Tax Credit. 7. The Hon'ble Apex Court in the case of Ecom Gill Coffee Trading (P) Ltd. (supra) has held as under :- "8. We have heard learned counsel for the respective parties at length. We have gon....
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....t of such transaction or claim; and (b) in the case of second or subsequent detection, five times the tax due in respect of such transaction or claim. (3) Before issuing any direction for the payment of the penalty under this Section, the prescribed authority shall give to the dealer the opportunity of showing cause in writing against the imposition of such penalty." 9.1 Thus, the provisions of Section 70, quoted hereinabove, in its plain terms clearly stipulate that the burden of proving that the ITC claim is correct lies upon the purchasing dealer claiming such ITC. Burden of proof that the ITC claim is correct is squarely upon the assessee who has to discharge the said burden. Merely because the dealer claiming such ITC claims that he is a bona fide purchaser is not enough and sufficient. The burden of proving the correctness of ITC remains upon the dealer claiming such ITC. Such a burden of proof cannot get shifted on the revenue. Mere production of the invoices or the payment made by cheques is not enough and cannot be said to be discharging the burden of proof cast under section 70 of the KVAT Act, 2003. The dealer claiming ITC has to prove beyond doubt the ....
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....d dealers and on which the ITC have been claimed, the Assessing Officer is absolutely justified in rejecting such ITC claim. 11. In the present case, the respective purchasing dealer/s has/have produced either the invoices or payment by cheques to claim ITC. The Assessing Officer has doubted the genuineness of the transactions by giving cogent reasons on the basis of the evidence and material on record. In some of the cases, the registration of the selling dealers have been cancelled or even the sale by the concerned dealers has been disputed and/or denied by the concerned dealer. In none of the cases, the concerned purchasing dealers have produced any further supporting material, such as, furnishing the name and address of the selling dealer, details of the vehicle which has delivered the goods, payment of freight charges, acknowledgement of taking delivery of goods, tax invoices and payment particulars etc. and therefore it can be said that the concerned purchasing dealers failed to discharge the burden cast upon them under Section 70 of the KVAT Act, 2003. At the cost of repetition, it is observed and held that unless and until the purchasing dealer discharges the burde....
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....017), relying upon by the learned counsel appearing on behalf of the purchasing dealers is concerned, at the outset, it is required to be noted that before the Delhi High Court, Section 9(2)(g) of the Delhi Value Added Tax Act was under consideration, which reads as under: "9(2)(g) to the dealers or class of dealers unless the tax paid by the purchasing dealer has actually been deposited by the selling dealer with the Government or has been lawfully adjusted against output tax liability and correctly reflected in the return filed for the respective tax period." The burden of proof as per Section 70 of the KVAT Act, 2003 was not an issue before the Delhi High Court. How and when the burden of proof can be said to have been discharged to prove the genuineness of the transactions was not the issue before the Delhi High Court. As observed hereinabove, while claiming ITC as per section 70 of the KVAT Act, 2003, the purchasing dealer has to prove the genuineness of the transaction and as per section 70 of the KVAT Act, 2003, the burden is upon the purchasing dealer to prove the same while claiming ITC. 15. In view of the above and for the reasons stated above and in abs....