Neelam Automobile PVT. LTD And Anr vs. Deputy Commissioner Of Sales Tax And Ors
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Numerous writ petitions were filed by various automobile dealerships against the State of Maharashtra and its revenue authorities. The petitioners challenged assessment orders passed against them. The core of the dispute revolved around the applicability of an Advance Ruling issued by the Advance Ruling Authority, specifically in the case of M/s. B.U.Bhandari Auto. The Assessing Officers had relied on this Advance Ruling to pass their assessment orders against the petitioners. The petitioners argued that if the B.U.Bhandari Auto ruling was subsequently reversed or modified, their own assessment orders should also be reconsidered. The judgment does not specify the tax periods or the exact amounts in dispute for each petitioner.
Held
The Court held that while the Tribunal's decision in M/s. B.U.Bhandari Auto provided relevant legal guidance, it could not be directly applied to quash the assessment orders without an inquiry. The Court agreed with the respondents that it was necessary to conduct an enquiry to determine whether the petitioners could be considered 'similarly situated' persons to the assessee in the B.U.Bhandari Auto case. The reasoning was that the Assessing Officers had based their decisions on the law laid down by the Advance Ruling Authority in M/s. B.U.Bhandari Auto. If this order was reversed or its implications altered by the Tribunal's decision, the impact on each petitioner's case needed to be considered. Therefore, an enquiry was mandated to ascertain if the facts of each petitioner's case warranted similar treatment. The Court quashed and set aside the impugned assessment orders, restoring the assessment proceedings to the concerned Commissioner of Sales Tax for re-examination in light of the Tribunal's decision in M/s. B.U.Bhandari Auto and Section 55 of the Act. The Court explicitly stated that it had not concluded on other aspects of the assessment proceedings and that the contentions of both the petitioners and the department were kept open.
Key Issues
1. Whether the assessment orders passed by the revenue authorities, which relied on an Advance Ruling, can be quashed and set aside if the said Advance Ruling is subsequently subject to review or reversal, particularly in light of the decision in M/s. B.U.Bhandari Auto. (Question of law, concerning the binding nature and implications of Advance Rulings). Petitioner's Contention: The petitioners argued that the assessment orders were based on the Advance Ruling in M/s. B.U.Bhandari Auto. They contended that if this ruling's implications were to be considered in light of the Tribunal's decision in the same case, their assessment orders should not be sustained without further examination. They relied on the principle that if the basis of an assessment order is flawed or subject to change, the order itself should be re-evaluated. Revenue's Contention: The respondents (State of Maharashtra and Ors.) argued that while the Tribunal's decision in M/s. B.U.Bhandari Auto provided relevant legal guidance, it could not be directly applied to quash the assessment orders without an inquiry. They contended that it was necessary to ascertain whether the petitioners were 'similarly situated' to the assessee in the B.U.Bhandari Auto case, and that the Assessing Officers had correctly applied the law as laid down by the Advance Ruling Authority at the time.
Sections Cited
Section 55
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Heard together (4 matters)
Read from the judgment's own cause title. This page is filed under one of them.
Cause title — parties, addresses and appearances
ORAL JUDGMENT : (PER NITIN JAMDAR, J.) avk 17/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc some cases, the Assessing Officer has relied on the Advance Ruling Authority's decision under the MVAT Act of 2002 in the case of M/s. B. U. Bhandari Auto dated 20 June 2018, wherein the Advance Ruling Authority has held that VAT is applicable on these charges. In some of these orders, though there is no direct reference to this Advance Ruling, an identical position of law has been accepted and made the basis thereof.
While these challenges to Petitions are pending, subsequent developments have occurred. That is, order passed by the Advance Ruling Authority in the case of M/s. posed the following question for consideration : “(1) Whether the registration Charges, Insurance Charges, handling charges received and paid on behalf of the customer of a motor vehicle, form part of the “sale price” of such motor vehicle, considering the provisions of Section 2(25) of the MVAT Act ? (2) Whether Incentive and discount, received from the automotive manufacturers form part of the “sale price” or needs to be treated as a “sale price” of the motor vehicle sold to the customer or whether it results in reduction of set off ? avk 18/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc (3) Whether the Applicant is entitled to claim set off, on purchased motor vehicle and used it as “Demo Vehicles”, irrespective of the fact that such vehicle continuing to be “stock-in-trade” or not being treated as “capital asset” in the books of accounts of the Applicants ? (4) Whether the prayer of “prospective effect, considering the fact that the decision of the Hon. High Court of Judicature at Bombay in the case of Sehgal Autoriders Private Limited was rendered on 11th July, 2011 and whereas the decision of the Hon'ble Supreme Court of India in the case of K.T.C. Automobiles was rendered only on 29th January, 2016?”
Tribunal has rendered its decision on 6 March 2023 and has concluded thus : “(b) The impugned Advance Ruling Order in respect of the registration Charges, insurance Charges, handling charges received and paid on behalf of the customer of a motor vehicle, form part of the “sale price” of such motor vehicle, is modified. And, it is held that, these charges cannot fall within the extended meaning of the expression “sale price” considering the provisions of Section 2(25) of the MVAT Act. (c) The impugned Advance Ruling Order in respect of the Incentive and discount, received from the automotive manufacturers form part of the “sale price” or needs to be treated as a “sale price” of the motor vehicle sold to the customer is modified. And, it is held that, the Incentive and discount, received from the automotive manufacturers does not form avk 19/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc part of the “sale price”. And, also it is held that, due to this Incentive, the input tax credit does not reduce to the extent of Incentive.” Unless specifically referred, this decision of the tribunal is henceforth referred to as M/s. B.U.Bhandari Auto.
We note that there has been no challenge to the decision of the Tribunal in M/s. B.U.Bhandari Auto and we have not been informed of any such challenge. Therefore, we proceed based on the Tribunal's decision to consider its implications for the Petitioners. Furthermore, it has not been debated before us that the Tribunal's decision in the case of M/s. B.U.Bhandari Auto has not changed the nature of the litigation following the challenge to the assessment orders passed against each Petitioner, directly or indirectly.
The learned Counsel for the Petitioners place reliance on the order M/s. B. U. Bhandari Auto and contend that this order answers the issue raised by the Petitioners in their favour and the impugned orders of Assessment be quashed and set aside so also the tax demand. The learned Counsel for the Respondent-State contends that the decision of the Tribunal in the case of M/s. B. U. Bhandari Auto cannot be directly made applicable to the case of avk 20/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc the Petitioners as under Section 55 of the MVAT Act, the decision of the Advance Ruling Authority would apply to others only if they are considered as similarly situated, and therefore, without this enquiry, it cannot be held that Petitioners are not liable for levy of VAT.
Section 55 of the MVAT Act reads as follows:
“55. Advance Ruling (1) The Applicant may make an application to the Commissioner for Advance Ruling on the question prescribed. (2) The Applicant desirous of obtaining Advance Ruling under the Section may make an application to the Commissioner in precise form and manner, stating any question prescribed under sub-section(1) on which the Advance Ruling is sought. (3) The Commissioner shall constitute Advance Ruling Authority, comprising three officials, not below the rank of Joint Commissioner by notification in the Official Gazette, for giving Advance Rulings. He may allot any of the questions or as the case may be, all the questions prescribed under sub-section (1) to such Advance Ruling Authority. (4) The Commissioner may also allot any application or question in such application made under section 56 and pending on the date of effect of this amendment or, as the case may be, any class of applications, to such Advance Ruling Authority. avk 21/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc (5) The Commissioner or, as the case may be, the Advance Ruling Authority shall, subject to rules, make Advance Ruling, within ninety days from the date of acceptance of the application by the Commissioner or, as the case may be, the Advance Ruling Authority. (6) The applicant may withdraw his application within thirty days from the date of submission of the application. (7) (a) No application shall be accepted where the question raised in the application,- (i) is already pending before the Tribunal, Bombay High Court or, as the case may be, the Supreme Court in respect of the applicant, or (ii) relates to a transaction or issue which is designed apparently for the avoidance of tax. (b) The Commissioner or, as the case may be, the Advance Ruling Authority, may call for a report from the concerned officer, in the prescribed manner. (c) The communication regarding the acceptance of the application shall be made to the applicant within thirty days from the date of submission of the application. (d) No application shall be rejected under this sub- section unless an opportunity of being heard has been given to the applicant and where the application is rejected, reasons for such rejections shall be recorded in the order. (8) (a) The Advance Ruling of the Commissioner shall be binding on all the officers, including the appellate authority or, as the case may be, on the Advance Ruling Authority in respect of the similarly situated persons. avk 22/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc (b) The Advance Ruling of the Advance Ruling Authority shall be binding on all the officers, including the appellate authority, other than the Commissioner, in respect of the similarly situated persons. (9) The Commissioner or, as the case may be, the Advance Ruling Authority, may direct that the Advance Ruling shall not affect the liability of the applicant or, if the circumstances so warrant of any other person similarly situated, as respects any sale or purchase effected prior to the Advance Ruling. (10) The Appeal against the Advance Ruling Order shall lie to the Tribunal and shall be subject to the conditions prescribed. (11) Notwithstanding anything contained in this Act, no Appeal shall be entertained under any circumstances whatsoever, after the date of expiry of period of thirty days from the date of communication of the Advance Ruling Order to the Applicant. (12) The Advance Ruling order passed by the Advance Ruling Authority shall be subject to any directions or, as the case may be, instructions, issued under sub- section (10) of section 10 by the Commissioner and any order passed by the Commissioner under section 56, as it existed. (13) The Commissioner or, as the case may be, the Advance Ruling Authority may on his own motion, rectify any mistake apparent from the record and may rectify any order passed by it before the order so issued has been given effect to by the officer concerned. The applicant may also bring to the notice of the Commissioner or, as the case may be, avk 23/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc Advance Ruling Authority, any such mistake within thirty days from the date of receipt of the said order: Provided that, no such rectification shall be done unless the applicant has been given a reasonable opportunity of being heard: Provided further that, an order under this sub-section shall be passed within a period of sixty days from the date of receipt of the Advance Ruling by the applicant. (14) (a) The Commissioner may, on his own motion call for the record of any Advance Ruling issued by the Advance Ruling Authority to examine as to whether the said ruling is erroneous in so far as it is prejudicial to the interests of revenue. The Commissioner may, by serving on the applicant a notice in the prescribed form pass such order as he thinks just and proper. (b) The Commissioner may also, for reasons to be recorded in writing on his own motion, review the Advance Ruling passed by him under this section and pass such order as he thinks just and proper. However, before initiating any action under this clause, the Commissioner shall obtain prior permission of the State Government. Such permission shall also be obtained when the Advance Ruling order is proposed to be made contrary to the order passed by the Commissioner under Section 56. (c) The Commissioner may direct that, the order of review shall not affect the liability of the person in whose case review is made in respect of any sale or purchase effected prior to the review and may likewise, if the circumstances so warrant direct avk 24/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc
accordingly in respect of any other person similarly situated. (d) No order shall be passed, - (i) under clause (a), after the expiry of a period of six months from the end of the year containing the date of Advance Ruling; (ii) under clause (b), after the expiry of a period of three months from the end of the month in which the State Government gives permission to initiate action under clause (b): Provided that, no order under this sub-section shall be passed unless an opportunity of being heard is given to the applicant. (15) The regulations regarding the procedure to be followed shall be formulated by the Commissioner.” Thus, Section 55 of the MVAT Act provides for Advance Ruling, which allows an applicant to apply to the Commissioner for Advance Ruling on the specified question. The application must be made in the prescribed form and manner, stating the question on which the Advance Ruling is sought, as prescribed under sub-section (1). The Commissioner will then constitute the Advance Ruling Authority, comprising three officials not below the rank of Joint Commissioner, by notification in the Official Gazette, for giving Advance Rulings. This procedure is provided in Section 55(3) to Section 55(7). According to Section 558(a), the Advance Ruling is binding on avk 25/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc all officers, including the appellate authority and the Advance Ruling Authority, regarding similarly situated persons. Section 55(10) provides that appeal against the Advance Ruling Order shall lie to a Tribunal, and the order passed in such an appeal would be binding on similarly situated cases.
After considering the arguments, we agree with the Respondents that the decision of the Tribunal in the case of M/s. B.U.Bhandari Auto, though it provides relevant legal guidance for the Petitions under consideration, this decision cannot be applied directly to each Petitioner to quash the assessment orders. It is necessary to conduct an enquiry to determine whether the Petitioners can be considered similarly situated persons. The Assessing Officers based their decision on the law the Advance Ruling Authority laid down in the case of M/s. B.U.Bhandari Auto. If this order is reversed, the implication of the order passed by the Tribunal will have to be considered in each case of the Petitioners. Therefore, an enquiry must be conducted to determine whether the facts of each Petitioner case warrant similar treatment.
In light of the above discussion, we dispose of the Writ Petitions by quashing and setting aside the impugned assessment orders in each of these Petitions. The assessment avk 26/27
1-WP-2512-2021 WITH CONNECTED WPs AND 2-WP-5600-2021 WITH CONNECTED WPs.doc proceedings are restored to file before the concerned Commissioner of Sales Tax. The Commissioner would examine the issue pending before the Commissioner in light of the decision rendered by the Tribunal in the case of M/s. B.U.Bhandari Auto and in the context of the provisions of Section 55 of the Act referred to above and take the decisions as per law.
We make it clear that we have not concluded on other aspects that may arise during the assessment proceedings other than the decision of the Tribunal in the case of M/s. B.U.Bhandari Auto and the Commissioner would examine the facts of each case and pass the order as per law. Needless to state, the contentions of the Petitioners and the department are expressly kept open.
In the light of setting aside the impugned assessment orders as above, the consequential effects of the setting aside of the impugned orders would follow and be given effect to by the concerned.
Rule made absolute in the writ petitions in the above terms. No costs. (ABHAY AHUJA, J.) (NITIN JAMDAR, J.) avk 27/27 ARTI VILAS KHATATE KHATATE Date: 2023.04.18 20:22:57 +0530
Reproduced from the public record of the Bombay High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.