2024-VIL-38-CAL
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VAT High Court Cases

West Bengal VAT Act, 2003 - Denial of Input Tax Credit - Jurisdiction of Special Commissioner to exercise power of suo motu revision under section 85 of the WBVAT Act – Petitioner’s case only the Deputy Commissioner or the Joint Commissioner or the Senior Joint Commissioner can exercise power of suo motu revision against an order of the Assistant Sales Tax Officer or Sales Tax Officer - Denial of Input Tax Credit on account of payment made to third party on behalf of the selling dealer - HELD - for all purposes, Special Commissioner is the Commissioner of Sales Tax - Section 85 of the WBVAT Act which gives power to the Commissioner to exercise the power of suo motu revision. In the light of the definition of Special Commissioner and the No.790-F.T., dated 31.03.2005 issued by the Govt, the Special Commissioner shall be deemed to be the Commissioner for all purposes under Section 85 of the Act - when as against the assessment order the petitioner had filed an appeal and when the matter was fixed at the appellate stage, an authority who is junior than the appellate authority can obviously not exercise this power of suo motu revision - Senior Commissioner who is none other than the Commissioner of Sales Tax being a superior authority has sufficient jurisdiction to exercise the power of suo motu revision – On the issue of denial of Input Tax Credit, it is a well settled legal principle that ITC is a form of concession provided by the legislator and it is available only if the conditions stipulated are fulfilled – When the sub-rule (8) of rule 19 of WBVAT Rules, 2005 makes it clear that the payment has to be made to the selling dealer by means cheque or demand draft or by means of electronic mode, the petitioner is precluded from adding words to a stature to argue that ITC is admissible even though the amount is not paid to the selling dealer but to a third party based on certain instructions. The concession can always come with conditions and if the conditions are not fulfilled the concession is not available - the conclusion arrived at by the tribunal in this regard is confirmed - no grounds made out by the petitioner to interfere with order passed by the ld. tribunal - writ petition is dismissed
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