P.R. Rolling Mills Private ... vs Deputy Commissioner
2021 Latest Caselaw 7032 Raj/2

      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

(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

(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

(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

(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

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