Punjab-Haryana High Court
M/S Compass India Food Services Private ... vs State Of Haryana And Others on 24 April, 2024
Author: Sanjeev Prakash Sharma
Bench: Sanjeev Prakash Sharma
Neutral Citation No:=2024:PHHC:055819-DB
CWP-9244-2022 --1-- 2024:PHHC:055819-DB
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
241-2 CWP-9244-2022
Date of Decision: April 24, 2024
M/s Compass India Food Services Private Ltd ......Petitioner(s)
Vs.
State of Haryana and others ......Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Amar Pratap Singh, Advocate
for the petitioner(s).
Mr. Sharan Sethi, Addl. A.G. Haryana.
----
SANJEEV PRAKASH SHARMA.J. (ORAL)
The petitioner by way of the instant petition has assailed the order
dated 09.02.2022 passed by respondent No.3 relying upon the clarification order
dated 20.08.2013 and thereby denying the input tax credit of Rs.1,06,08,225/-.
2. Learned counsel for the petitioner submits that the order impugned
is violative of Article 246 of the Constitution of India and fails to notice the
documents which were produced and were also available with the petitioner.
Learned counsel for the petitioner further submits that the tax charged under the
HVAT Act for services of catering cannot be included and would not form part of
the sale price. The legality of the said Clarification Order dated 20.08.2013 was
challenged in the appeal but the appeal is pending for non-formation of the
Appellate Tribunal. This Court has however, reached to the conclusion that the
service charged as part of the sale price, cannot be included for charging VAT in
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cases relating to catering business and the assessment order dated 25.11.2019
was quashed and set aside by this Court.
3. It is an admitted position by this Court in the case titled as "M/s
Sodexo India Services Private Ltd. Vs. State of Haryana and others" passed in
CWP-1173 of 2023 decided on 18.04.2023 and held as under:-
9. Thus, we find that the issue is no more res integra and we follow
the view already expressed by the Hon'ble Division Bench of this
Court in relation to GSTR No.1 of 2009 decided on 07.09.2010 and
held the action of the respondents in issuing show cause notice for
revision of assessment, Annexure P/2 dated 17.08.2021, to be
unjustified and based on wrongful interpretation of sale in relation
to catering business. We also noticed that the clarification issued in
M/s Renginton has failed to take notice of the judgment passed by
this Court in the case of M/s Cap 'N' Chops Caterers (supra) and
such interpretations may on whims and fancies without taking into
consideration the law as settled by this Court and the amounts to
overreaching the process of the Court and creates unnecessary
litigation before this Court. The clarification is accordingly
quashed, hence, set aside. Henceforth, the law already settled by
this Hon'ble Court in the case of M/s Cap 'N' Chops Caterers
(supra), shall apply to all such like matters. A circular in this regard
is directed to be issued by the Principal Secretary, Excise and
Taxation Department, Haryana, so that, no further litigation arises
on this aspect. A copy of this order is directed to be sent to the
Principal Secretary for necessary compliance."
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4. In view thereof, the imposition of VAT on service tax element shall
stand quashed.
5. That apart from this, it is also an admitted position that the
petitioner had not produced the original tax invoices and form VAT C-4 for
verification at the time of assessment as he was unable to appear before the
authorities. However, learned counsel for the respondent stated that the petitioner
deliberately did not produce the original invoices before the authorities and the
appellate Court had rightly dis-allowed the appeal of the petitioner for
production of documents at the appellate stage.
6. We find that the income tax credit of the petitioner which he is
entitled to, has been rejected simply on account of the failure to produce original
VAT invoice and form C-4 certificate before the assessing officer. However, in
appeal where the said documents were produced, the appellate authority ignored
the same. We feel that once the original VAT invoices and VAT C-4 certificate
have been placed on record, even at the stage of appeal, the same could not have
been ignored or dis-allowed because the process of taxation cannot be said to be
an adversarial adjudication but a civil adjudication to be on the basis of facts.
The appellate authority should have remanded the case to the assessing officer
for fresh adjudication.
7. In the circumstances, we are unable to uphold the order dated
09.02.2022 passed by respondent No.3 and set aside the same with directions to
pass a fresh order after considering the original VAT invoices and VAT C-4 form
certificate. After verifying the same from the supporting documents, the
respondent No.4 shall pass a fresh order.
8. The petitioner would be given liberty to place the original tax
invoices and VAT C-4 form before the authority. Upon such submission,
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speaking order shall be passed expeditiously preferably within a period of three
months.
9. In view of the above, the writ petition is partly allowed. The
imposition of VAT on service tax element is quashed and the authority shall pass
fresh order as per above directions.
10 All pending applications, if any, stand disposed of.
(SANJEEV PRAKASH SHARMA)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
April 24, 2024
sonia arora
Whether speaking/reasoned: Speaking
Whether reportable: Yes / No
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