Ald Automotive Private Limited vs. Assistant Commissioner Of

ALD AUTOMOTIVE PRIVATE LIMITED A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT UNIT NO.1802, TOWER-A OF PENINSULA BUSINESS PARK,GANAPTRAO KADAM MARG LOWER PAREL, MUMBAI - 400 013 NC: 2024:KHC:11752 ALSO HAVING OFFICE AT: P.B. NO.11635, NARIMAN POINT 13TH FLOOR, MAKER CHAMBER-IV MUMBAI-400 021 REPRESENTED HEREIN BY ITS ASSISTANT MANAGER-TAXATION BABU B.R. …PETITIONER (BY SRI T. SURYANARAYANA, SENIOR COUNSEL)

ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT-1.5) DGSTO-1, 3RD FLOOR, TTMC, BMTC YESHWANTHAPURA BANGALORE-560 022. …RESPONDENT (BY SRI HEMA KUMAR K., AGA)

Heard learned Senior Counsel for the petitioner and learned Additional Government Advocate for respondents and perused the material on record.

In addition to reiterating the various contentions urged in the petitions and referring to the material on record, learned Senior counsel for the petitioner invited my attention to the re-assessment orders both dated 26.11.2020 at Annexures-'H1' and 'H2' and re-assessment order dated 27.11.2020 at Annexure-'H3' and demand notices both dated 26.11.2020 at Annexures-'J1' and 'J2' and demand notice dated 27.11.2020 at Annexure-'J3' in order to contend that the petitioner has challenged the same before the Joint Commissioner of Commercial Taxes (Appeals) which are pending adjudication. It is submitted that earlier in W.P.No.15057/2021, the petitioner has challenged the demand notices before the Joint Commissioner of Commercial Taxes (Appeals).

It is contended that the said appeals were dismissed by the Joint Commissioner of Commercial Taxes (Appeals) - second respondent on 30.10.2023 and 31.10.2023 on the ground NC: 2024:KHC:11752 that W.P.No.15057/2021 was pending adjudication before this Court. It is submitted that the issue involved in the appeals before the Joint Commissioner of Commercial Taxes (Appeals) is as regards availment of Input Tax Credit by filing belated returns and the said issue stands directly and squarely covered by the judgment of the Division Bench of this Court in S.T.R.P. No.234/2016 (M/s.Bharat Earth Movers Limited vs. The State of Karnataka, disposed of on 22.12.2022 at Bengaluru Bench) which was confirmed by the Apex Court in the case of The State of Karnataka Vs .M/s.Bharat Earth Movers Limited - SLP (C) No.53320/2023 dated 12.01.2024. It is therefore, submitted that in addition to setting aside the impugned orders of the Joint Commissioner of Commercial Taxes (Appeals), the impugned re- assessment orders at Annexures-'H1' to 'H3' and consequent demand notices at Annexures - 'J1' to 'J3' also deserves to be set aside. It is submitted that as a consequence of setting aside the assessment orders and demand notices, W.P.No.15057/2021 may also be disposed of.

Per contra, learned Additional Government Advocate appearing for the respondents does not dispute that the issue as NC: 2024:KHC:11752 regards availment of Input Tax Credit is squarely covered by the judgment of this Court in BEML's case (supra) and appropriate orders may be passed in the present petitions also.

As rightly contended by the learned Senior counsel appearing for the petitioner, in BEML's case (supra), the Division Bench held as under:-

Thus, in view of the above recorded findings, we respectfully agree with the opinion of the Hon'ble Single Judge. The law laid down in Collector of Central Excise, Pune v. Dai Ichi Karkaria Ltd (stated supra), has been time and again followed by the Hon'ble Supreme Court in several cases. Thus, it is settled that the input tax credit is an indefeasible right.

The main issue is whether the assesses who have filed the returns belatedly are entitled for input credit or not. A plain reading of provision of Section 10(3) of the KVAT Act, 2003, shows that no time limit or restriction is prescribed for availing the input tax credit. In Dai Ichli Karkaria Ltd. (stated supra), the Apex Court has held that credit is indefeasible. The Modvat credit is similar to the Input Tax Credit in this case. Therefore, no exception can be taken to the view taken by the Hon'ble Single Judge that the Input Tax Credit cannot be denied on the anvil of the machinery provisions or the provisions relating to the time frame. Hence, in our considered view, the assesses shall be eligible to avail the NC: 2024:KHC:11752 input tax credit as and when the tax is paid by them, without any limitation of time.

Hence, the following: ORDER (a) STRP No.234/2016 is allowed. (b) The questions are answered in favour of the assessee and against the Revenue."

It is an undisputed fact that the aforesaid judgment of the Division Bench of this Court is confirmed by the Hon'ble Supreme Court in SLP (C) No.53320/2023. 8. Under these circumstances, I am of the view that apart from setting aside the impugned orders passed by the Joint Commissioner of Commercial Taxes, the impugned reassessment orders at Annexures-'H1' to 'H3' and consequent demand notices at Annexures- 'J1' to 'J3' also deserves to be set aside.

In the result, I pass the following: ORDER i. W.P.No.3685/2024 is hereby allowed. NC: 2024:KHC:11752 ii. Annexures-'P1' and 'P2' both dated 31.10.2023 and Annexure-'P3' dated 30.10.2023 are hereby set aside. iii. So also Annexures-'H1' and 'H2' both dated 26.11.2020 and Annexure-'H3' dated 27.11.2020 and also Annexures-'J1' and 'J2' both dated 26.11.2020 and Annexure-'J3' dated 27.11.2020 are hereby quashed. iv. In view of disposal of W.P.No.3685/2024, W.P.No.15057/2021 does not survive for consideration any longer and the same is accordingly disposed of. v. The respondents are directed to drop all further proceedings against the petitioner pursuant to this order. vi. Pending interlocutory applications, if any, stand disposed of. JUDGE