Rajasthan High Court - Jaipur
P.R. Rolling Mills Private Limited vs Deputy Commissioner on 30 November, 2021
Bench: Prakash Gupta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 2102/2021
P.R. Rolling Mills Private Limited Having Its Office At Plot No. S-
707, Road No. 6, V.K.I. Area, Jaipur Through its Director Mr.
Praveen Maheshwari Duly Authorized.
----Petitioner
Versus
1. Deputy Commissioner, Commercial Taxes Department,
Circle-E, Office Of Deputy Commissioner Commercial
Taxes, Jhalana Doongri, Jaipur.
2. M/s Tantia Enterprises, Having its Office At L-1/13, Jeevan
Chaya, Sector - 6, Vidyadhar Nagar, Jaipur also At Flat
No. T-224, Rangoli Garden, Maharana Pratap Nagar, Near
Vaishali Nagar, Jaipur, Rajasthan Through Its Proprietor
Smt. Raj Rani Tantia.
----Respondents
For Petitioner(s) : Mr. Gunjan Pathak, Advocate For Respondent(s) : Mr. Ayush Singh for Mr. Punit Singhvi, Advocate HON'BLE MR. JUSTICE PRAKASH GUPTA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI Judgment Date of Judgment :: 30/11/2021 Per : (Prakash Gupta, J.) This writ petition has been filed by the petitioner challenging the order dated 25.1.2021 passed by the Assessing Officer, whereby he denied to give benefit of Input Tax Credit to the petitioner - Company and sought to recover an amount of Rs. 1,16,82,229/- from the petitioner company.
Facts of the case are that some transactions took place between the company and the respondent no.2 - M/s Tantia Enterprises through Letter of Credit. Thereafter the petitioner company filed the returns claiming the Input Tax Credit. The (Downloaded on 02/12/2021 at 09:50:10 PM) (2 of 5) [CW-2102/2021] Assessing Officer disallowed such Input Tax Credit and consequently imposed tax and interest thereon and sought to recover an amount of Rs. 95,44,661/- from the petitioner - Company. The petitioner - company filed an appeal before the Appellate Authority, which vide its order dated 1.6.2016 remanded the matter to the Assessing Officer. Vide his order dated 13.6.2018, the Assessing Officer again denied to give benefit of Input Tax Credit to the petitioner company and sought to recover an amount of Rs. 98,62,385/- (the amount was enhanced due to pilling interest) from the petitioner - company. The petitioner company again filed an appeal before the Appellate Authority, which vide its order dated 8.7.2019 remanded the matter to the Assessing Officer with a direction to decide the matter in the light of the judgment passed by the Division Bench of this Court in the case of M/s. R.S. Infra Transmission Ltd. Versus State of Rajasthan & Ors. - D.B. Civil Writ Petition No. 12445/2016. Thereafter the Assessing Officer vide his order dated 25.1.2021 has again denied to give the benefit of Input Tax Credit to the petitioner - Company and sought to recover an amount of Rs. 1,16,82,229/- from the petitioner company. Hence, this writ petition.
Learned counsel for the petitioner submits that petitioner is a company duly incorporated under the provisions of the Companies Act, 1956. The input required for the business of company is billet bloom, which is procured through various vendors including respondent no.2 - M/s Tantia Enterprises. He further submits that goods were purchased and the payment towards purchases as well as GST and RVAT were duly made to the respondent no.2 - M/s. Tantia Enterprises, but the same was (Downloaded on 02/12/2021 at 09:50:10 PM) (3 of 5) [CW-2102/2021] not deposited by the respondent no.2 - M/s. Tantia Enterprises with the Commercial Taxes Department. He further submits that under Section 18 (1) of the RVAT Act, 2003 (for short, 'the Act of 2003'), Input Tax Credit is allowed to the registered dealer in respect of purchases of any taxalbe goods made within the State from the registered dealer. He further submits that although the aforesaid provision has been substituted by the Rajasthan Finance Act, 2014, but the case in hand pertains to the period prior to the Rajasthan Finance Act, 2014. He further submits that under Section 14 of the Act of 2003, only a registered dealer can collect amount by way of tax. He further submits that as per the scheme of the Act of 2003, the benefit of input tax credit was to be given to the petitioner - company on mere production of the Tax Invoices. He further submits that twice the matter was remanded to the Assessing Officer by the Appellate Authority, but the Assessing Officer did not give the benefit of ITC to the petitioner- company. He further submits that purchase amount was transferred from the petitioner company's bank account in the bank account of the respondent no.2. Thereafter goods were booked from factory and gate passes were issued, which were annexed, but the same were not considered by the AO. He further submits that no tax can be recovered without authority of law. Moreover same amount of tax cannot be recovered from from two persons i.e. the petitioner company and the respondent no.2. He further submits that even if an effective and efficacious alternate remedy is available, it by itself would not bar the High Court from exercising its jurisdiction. He further submits that against the judgment passed by the Coordinate Bench of this Court in the case of R.S. Infra Transmission Ltd. (supra), SLP was filed and (Downloaded on 02/12/2021 at 09:50:10 PM) (4 of 5) [CW-2102/2021] vide order dated 20.8.2018, Hon'ble Apex Court rejected the prayer for stay.
In support of his contentions, he has placed reliance on the following judgments:
i) Magadh Sugar & Energy Ltd. Versus State of Bihar & Ors.
reported in 2021 SCC OnLine SC 801.
ii) R.S. Infra-Transmission Ltd. Versus State of Rajasthan & ORs. (D.B. Civil Writ Petition No. 12445/2016; decided on 11.4.2018 by the Coordinate Bench of this Court at Jaipur Bench, Jaipur)
iii) Arise India Limited Versus Commissioner of Trade & Taxes and Ors. {W.P. (C) No. 2106/2015; decided on 26.10.2017 by the Delhi High Court}
iv) Jindal Saw Limited Versus Sttae of Rajasthan (2021 SCC OnLine Raj. 1297) On the other hand, learned counsel for the Department submits that as the Assessment Order has been passed under RVAT, this D.B. Civil Writ Petition is not maintainable. He has drawn the attention of the Court towards order dated 25.1.2021 (Annexure-9) and submits that the petitioner company failed to produce the transportation bilties of Billet Bloom said to have been purchased from respondent no.2 - M/s Tantia Enterprises before the Assessing Officer. There was no physical movement of the goods, but it was merely a paper transaction. He further submits that judgment passed by the Division Bench of this Court in the case of R.S. Infra-Transmission Ltd. (supra) relied upon by the counsel for the petitioner company is related to Section 18(2) of the Act of 2003. This is not a case under Section 18 (2) of the Act of 2003, but it is a case under Section 18 (3)(v) of the Act of (Downloaded on 02/12/2021 at 09:50:10 PM) (5 of 5) [CW-2102/2021] 2003. He further submits that as per Section 18 (3)(v) of the Act of 2003, where the purchasing dealer fails to prove the genuineness of the purchase transaction, on being asked to do so by an officer not below the rank of Assistant Commercial Taxes Officer authorized by the Commissioner, no input tax credit shall be allowed on the purchases. Even otherwise, the matter is sub- judice before the Hon'ble Apex Court.
He has relied upon the judgment passed by the Delhi High Court in the case of On Quest Merchandising India Pvt. Versus Government of Nct of Delhi & Ors. {W P (C) No.6093/2017 & CM No. 25293/2017} and submits that where the Department is able to come across material to show that the purchasing dealer and the selling dealer acted in collusion, then the Department can proceed under Section 40A of the DVAT Act.
Heard. Considered.
It is well settled principle of law that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution of India.
Admittedly the writ petition has been filed against the order dated 25.1.2021 passed by the Assessing Officer, against which a statutory appeal is provided, but instead of availing that alternate remedy, directly the instant writ petition has been filed.
Since the alternate remedy is available to the petitioner, the instant writ petition is not maintainable and liable to be dismissed, which stands dismissed accordingly. (VINOD KUMAR BHARWANI),J (PRAKASH GUPTA),J DK (Downloaded on 02/12/2021 at 09:50:10 PM) Powered by TCPDF (www.tcpdf.org)