Rajasthan High Court

Assistant Commissioner vs M/S Roshan Motors Pvt. Ltd on 17 January, 2024

Author: Sameer Jain

Bench: Sameer Jain

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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Sales Tax Revision / Reference No. 222/2020

M/s Roshan Motors Private Limited, 2-A, Govind Marg, Adarsh
Nagar, Jaipur.
----Petitioner
Versus
1. The Assistant Commissioner, Commercial Taxes Deptt.,
Anti -Evasion, Rajasthan Circel-First Kar Bhawan,.
Ambedkar Cirlce Jaipur
2. The Appellate Authority-Second, Commercial Taxes
Department, Jaipur.
----Respondents
Connected With
S.B. Sales Tax Revision / Reference No. 223/2020
M/s Roshan Motors Private Limited, 2-A , Govind Marg, Adarsh
Nagar, Jaipur.
----Petitioner
Versus
1. The Assistant Commissioner, Commercial Taxes Deptt.,
Anti-Evasion, Rajasthan Circle-First, Kar Bhawan,
Ambedkar Circle, Jaipur.
2. The Appellate Authority-Second, Commercial Taxes
Department, Jaipur.
----Respondents
S.B. Sales Tax Revision / Reference No. 224/2020
M/s Roshan Motors Private Limited, 2-A, Govind Marg, Adarsh
Nagar, Jaipur.
----Petitioner
Versus
1. The Assistant Commissioner, Commercial Taxes Deptt.,
Anti -Evasion, Rajasthan Circel-First Kar Bhawan,.
Ambedkar Cirlce Jaipur
2. The Appellate Authority-Second, Commercial Taxes
Department, Jaipur.
----Respondents
S.B. Sales Tax Revision / Reference No. 225/2020

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Assistant Commissioner, Commercial Taxes Department, Anti
Evasion, Rajasthan-1, Jaipur.
----Petitioner
Versus
M/s Roshan Motors Pvt. Ltd., Govind Marg, Adarsh Nagar, Jaipur.
----Respondent
S.B. Sales Tax Revision / Reference No. 226/2020
Assistant Commissioner, Commercial Taxes Department, Anti
Evasion, Rajasthan-1, Jaipur.
----Petitioner
Versus
M/s Roshan Motors Pvt. Ltd., Govind Marg, Adarsh Nagar, Jaipur.
----Respondent
S.B. Sales Tax Revision / Reference No. 227/2020
Assistant Commissioner, Commercial Taxes Department, Anti
Evasion, Rajasthan-1, Jaipur.
----Petitioner
Versus
M/s Roshan Motors Pvt. Ltd., Govind Marg, Adarsh Nagar, Jaipur.
----Respondent

For Petitioner(s) : Mr. Vikram Gogra
Mr. S.N. Asawa
For Respondent(s) : Mr. Punit Singhvi

HON'BLE MR. JUSTICE SAMEER JAIN

Order

REPORTABLE
RESERVED ON : 01/11/2023
PRONOUNCED ON : 17/01/2024

1. The present Sales Tax Revisions / References (for short

"STRs"), filed under Section 84 of the Rajasthan Value Added Tax

Act, 2003 (for short "RVAT Act") being aggrieved of the order

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dated 03.03.2020 passed by the Rajasthan Tax Board, Ajmer (for

short "RTB"), were admitted on following questions of law:
In STR Nos. 222-224/2020, preferred by the assessee:

"1. Whether targeted discounts/rebates (off Take
Discount and Early Bird Off Take Discount) received on
purchase of vehicles can be considered as subsidy
under Section 18(3a) of RVAT Act-2003?
2. Whether provisions of Section 18(3A) of RVAT Act-
2003 can be shifted on the transactions of purchases?"
In STR Nos. 225-227/2020, preferred by the revenue:

"1. Whether in the facts and circumstances of the case
of Rajasthan Tax Board was justified in law and has
not acted perversely in confirming the order of
appellate authority deleting the penalty under Section
61(2)(b) of the Act when the fact of availing wrongful
ITC has been not dispute?
2. Whether in the facts and circumstances of the case
of Rajasthan Tax Board was justified in law in treating
the provisions of Section 61(2)(b) as per Section
61(1) of the Act and deleting the penalty not
appreciating that the provision of the Section 61(2)
are independent and the provision starts with non
obstante clause?"
Since the issue involved is common, with the consent of the

parties, all these STRs were heard together and are now being

decided by way of this common order.

SUBMISSIONS OF ASSESSEE

2. Learned counsel for the assessee submits that the assessee

is a registered dealer under the provisions of RVAT Act dealing in

automobiles and having dealership agreement of automobile

manufacturing company Tata Motors Limited (for short "TML"). The

vehicles purchased by the assessee from TML are as per various

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targeted schemes provided from time to time by the supplier

company, i.e. TML. TML allows the benefit in the shape of

discounts/rebates, e.g. 'Off Take Discount', 'Early Bird Off Take

Discount' from basic purchase value providing book adjustment

entries in the party ledger account. IN other words, the payments

required to be made to TML are shortly made by the assessee.

The tax charged by TML at the time of effecting sales to the

assessee do not change its nature and whatever tax is charged in

the tax invoices by the supplier company (TML) is paid to the

State Treasury without having any relation with the targeted

discounts/rebates. The revenue has made out a case of reversal of

input tax credit (for short "ITC") as per provisions of Section

18(3A) of the RVAT Act whereby the sales of the vehicles have

been considered as sold on lesser price in comparison to purchase

price. Therefore, treating them as sales of vehicles at subsidized

rates, the assessee has been held responsible to reverse the ITC

claimed as per Tax Account reflected in their books of accounts.

Vide the impugned assessment order dated 06.12.2016, the

revenue converted the discounts/rebates into subsidized sales and

thereafter created demand of reversal of ITC with levy of interest

and further imposition of penalty. Upon appeal, the appellate

authority, vide order dated 17.02.2017, confirmed the reversal of

tax and interest but set aside the penalty. The RTB, vide its order

dated 03.03.2020, also confirmed the order of the appellate

authority without properly appreciating the position of law and

material on record. Being aggrieved, the present STRs are filed.

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3. The primary contention of learned counsel for the assessee is

that Section 18(3A) has wrongly being invoked and has no

application in the facts and circumstances of the present case. In

support of this contention, learned counsel made the following

submissions:

3.1. The first submission of learned counsel for the assessee is

that while granting benefit of discount/rebates, the supplier

company did not change the status of the tax account and without

passing any benefit of tax component. The benefit has been

granted only in the basic purchase price, which do not otherwise

affect the nature of ITC or sales of goods at subsidized sale prices

in comparison of purchase price.

3.2 The second submission of learned counsel for the assessee is

that the present is not a case of any sale of vehicle at subsidized

rates. Rather it is a case of availing the discounts/rebates without

disturbing the quantum of tax charged by the supplier company at

the time of effecting the sales to the company as being buyer of

the goods under the provision of RVAT Act, 2003. Therefore, the

same is a revenue neutral excise.

3.3. The third submission of learned counsel for the assessee is

that denial of ITC is specifically provided under Section 18(3) of

the RVAT Act and since none of the conditions mentioned therein

have been violated by the assessee, the assessee is fully eligible

to get the benefit of ITC.

3.4. The fourth submission of learned counsel for the assessee is

that the amendment in Section 18(3A) has been made with the

object and reason to check the tendency of claiming refund by the

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dealer. It is contended that Section 18(3A), accordingly,

exclusively deals with situations which arose in sale transactions,

hence the same has no application in the facts of the present case

as the assessee never demanded the refund from department,

rather the adjustment of tax under ITC account has been made in

the ordinary course of business.

3.5. The fifth submission of learned counsel for the assessee is

that even though the constitutional validity of Section 18(3A) has

been upheld by Division Bench of this Court in Panwar Trading

Corporation vs. State of Rajasthan (D.B. Civil Writ Petition

No. 5521/2014; decided on 12.11.2014) reported in (2015)

81 VST 228 (Raj.), but simultaneously, the Division Bench has

kept open the issue of applicability of the said provision on each

case to case based on the factual matrix.

3.6. On the issue of setting aside of penalty, learned counsel for

the assessee submits that the assessee has neither concealed any

particulars from any returns furnished by him nor deliberately

furnished inaccurate particulars therein. All transactions were

declared in the returns and were also available in the books of

records. The matter being of interpretation, the imposition of

penalty was rightly set aside by both the authorities below.

Reliance in this regard is placed on Sree Krishna Electricals vs.

State of Tamil Nadu and Ors. reported in (2009) 11 SCC 687.

3.7. In support of his contentions, learned counsel for the

assessee has placed reliance on Hon'ble Supreme Court

judgments of Maya Appliances (P) Ltd. vs. Addl.

Commissioner of Commercial Taxes and Ors. reported in

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(2018) 2 SCC 756, and Collector of Central Excise Vs. Dai

Ichi Karkaria Ltd. reported in (1999) 7 SCC 448.

SUBMISSIONS OF REVENUE

4. Per contra, learned counsel for the revenue submits that the

case of the assessee squarely falls within the four corners of

Section 18(3A) of RVAT Act, the validity of which has been upheld

by Division Bench of this Court in Panwar Trading Corporation

(supra). It is submitted that the assessee has sold automobiles at

a price lower than the purchase price and yet claimed credit of

total input tax paid on total purchase of the automobile, which is

impermissible as per the plain language of Section 18(3A) of RVAT

Act. It is further submitted that the assessee is only entitled to

avail the benefit of ITC to the extent of Output Tax Payable upon

such goods. Learned counsel for the revenue has also relied on

Hon'ble Supreme Court judgment of Jayam and Co. vs.

Assistant Commissioner and Ors. (2016) 15 SCC 125, and

ALD Automotive Pvt. Ltd. vs. CTO reported in (2019) 13 SCC

225 to submit that ITC is a form of concession and not a vested

right, which can only be availed in accordance with statutory

provisions. Therefore, it is contended that the revenue had rightly

directed for reversal of ITC wrongly availed by the assessee along

with the statutory interest.

5. Aggrieved by the setting aside of penalty, learned counsel for

the revenue submits that penalty under Section 61(2)(b) of the

RVAT Act is a statutory penalty and is mandatorily to be imposed.

Moreover, there is no discretion vested with the revenue under the

RVAT Act to waive off the said penalty. Reliance is this regard is

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placed on Hon'ble Supreme Court judgment of State of Gujarat

and Ors. vs. Saw Pipes Ltd. reported in AIR 2023 SC 2113

and Union of India and Ors. vs. Dharamendra Textile

Processors and Ors. reported in (2008) 13 SCC 369.

ANALYSIS

6. Heard the arguments advanced by both the sides, scanned

the record of the STRs and considered the judgments cited at Bar.

7. The assessee in the present case is a dealer of Tata Motors

Limited. The assessee has admittedly sold automobiles at a price

lower than the purchase price of the automobiles and claimed

credit of total Input Tax paid on total purchase price of the

automobiles. The revenue has directed for reversal of the ITC in

excess of the Output Tax payable on such automobiles. The said

direction of the revenue has been affirmed by both the appellate

authority as well as the RTB. Therefore, the moot question is

whether the assessee will be entitled to avail the benefit of ITC for

the entire purchase value when the goods were sold at a

discounted price? To appreciate this controversy, this Court is

required to consider the necessary statutory provisions, which are

reproduced as under:

"Section 2(17) "input tax" means tax paid or payable
by a registered dealer in the course of business, on the
purchase of any goods made from a registered dealer;
Section 2(24) "output tax" means the tax charged or
chargeable under this Act by a registered dealer in
respect of the sale of goods in the course of his
business;
Section 2(33) "reverse tax" means that part of the
input tax for which credit has been availed in
contravention of the provisions of section 18;
Section 2(36) "sale price" means the amount paid or
payable to a dealer as consideration for the sale of any
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goods less any sum allowed by way of any kind of
discount or rebate according to the practice normally
prevailing in the trade, but inclusive of any statutory
levy or any sum charged for anything done by the
dealer in respect of the goods or services rendered at
the time of or before the delivery thereof, except the
tax imposed under this Act;
Explanation I.-In the case of a sale by hire
purchase agreement, the prevailing market price
of the goods on the date on which such goods are
delivered to the buyer under such agreement, shall
be deemed to be the sale price of such goods;
Explanation II.-Cash or trade discount at the
time of sale as evident from the invoice shall
be excluded from the sale price but any ex
post facto grant of discounts or incentives or
rebates or rewards and the like shall not be
excluded;
Explanation III.-Where according to the terms of a
contract, the cost of fright and other expenses in
respect of the transportation of goods are incurred
by the dealer for or on behalf of the buyer, such
cost of freight and other expenses shall not be
included in the sale price, if charged separately in
the invoice;

Section 18- Input Tax Credit
...

(3A) Notwithstanding anything contained in this Act, where any goods purchased in the State are subsequently sold at subsidized price, the input tax allowable under this section in respect of such goods shall not exceed the output tax payable on such goods.

(emphasis supplied)"

8. It has been held by the Hon'ble Supreme Court in Jayam &

Co. (supra) that ITC is not a vested right but in the form of

concession provided by the statute and can only be claimed in

accordance with statutory provisions and in the manner prescribed

therein. When the statute therefore describes certain conditions

on the availment of ITC, the assessee cannot bypass the said

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conditions. Section 18(1) prescribes that ITC shall only be allowed

to registered dealers to the extent and manner as may be

prescribed. Taxing statutes have to be construed/interpreted

strictly. The Courts have to stick to literal rule of interpretation

when interpreting a taxing statute. A bare perusal of Section

18(3A) of the RVAT Act makes it absolutely clear that benefit of

ITC can only be availed to the extent of outward tax payable upon

said goods. The assessee is not correct in contending that Section

18(3) is the only provision which is empowered to disentitle the

claim of ITC. Section 18(3A) was inserted into RVAT Act when it

was discovered that the dealers were availing credit in-spite of

negative value addition between the purchase price and sale price,

causing not only loss to the revenue but also defeating the

purpose of RVAT Act. Section 18(3A), in unambigious terms, lays

out that assessee is only entitled to avail benefit of ITC to the

extent of the output tax payable upon said goods. Further, the

non-obstante clause in Section 18(3A) gives an overriding effect

to it over other provisions.

9. A Division Bench of this Court, in Panwar Trading

Corporation (supra), while upholding the validity of Section

18(3A) of the RVAT Act, also considered the meaning of the word

subsidized and held that the term 'subsidized' was not limited to

subsidy provided by the government. The relevant portion of the

said judgment is reproduced as under:

"11. It is submitted that Section 18(3A) would lead to disastrous results. Many times, price of a commodity goes down, on account of market conditions, economic conditions, or perishable nature of the product. A dealer may be required to sell his goods at lesser

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price, or concessional price than its purchase price. In such a situation, if Section 18)3A) is applied, and the input tax credit is confined to the selling price, it would lead to a double loss to the assessee.

17. In the reply given to the show cause notice, in pursuance to the survey conducted at the business premises of the assessee on 14.5.2014, it was stated by him that he had not sold the goods at a price, below the purchase price. He stated that the amount of carried forward input tax credit is very low. In the trading account, in Form VAT 10A, he has given the net amount of purchase, after making the adjustments of discounts, purchase returns, and other direct expenses. The amount so shown in purchase, is by way of net purchase, just to calculate the landing cost of the material, after adjusting all types of expenses and incentives. There is no provision in the VAT Act, 2003 about the charging of tax on trading loss. The reversal of Input Tax Credit is indirectly the levy of VAT on trading loss, because of discounts and schemes received by the assessee from the company, and is not the amount, which was reduced by him in sale bills from the sale price. In fact, it was not received from the cement company, in compliance to the various schemes. The Supreme Court has not accepted the stand of the Department in the Special Leave Petitions, that the sales tax can be levied on discount in a judgment delivered for the period, prior to 9.3.2011. As an alternative, it was stated in the reply that as per the trading results, if there is any loss in the trading account, it is because of the cut throat competition in the market. The assessee has managed the profits from the schemes and discounts received from the company, in the form of various discount schemes. The trading loss is a normal business phenomena, and it is very usual in the type of trade carried on by the assessee. In case, the input tax on the trading account is reversed, the assessee will get double loss, namely, that the assessee has passed the benefits of schemes and discounts on to the customers to get the sales, to achieve the target of the company, and further, he is not getting the benefit of entire input tax paid on purchase.

27. The availment of ITC is creature of Statute. The concession of ITC is granted by the State Government so that the beneficiaries of the concession are not required to pay the tax or duty which they are otherwise liable to pay under Rajasthan VAT Act. In extending the concession, it is open to the Legislature to impose conditions. Section 18 is one such condition imposed making it mandatory for the registered dealer to claim ITC within 90 days under sub-section (2),

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from the date of issuance of invoice, and no ITC will be allowed on certain purchases under sub-section (3). The entitlement to claim Input Tax Credit is credit by Rajasthan VAT Act and the terms on which Input Tax Credit can be claimed must be strictly observed.

31. There is no force in the contention that Section 18(3A) would operate as an embargo to the registered dealer in claiming ITC causing prejudice to the registered dealer. The condition stipulated in Section 18 effectuates the scheme of the Act and more in the nature of beneficial to the registered dealer.

37. We do not agree with the contention advanced by learned counsel appearing for the petitioner that the word 'subsidize' would mean the price to be subsidized by the government, under any scheme. The word 'subsidize', in sub-section (3A) of Section 18, has not been used in a sense, in which the goods are sold on any concession, exemption, or subsidy, given by the State Government under any scheme. The word 'subsidize' has been defined in the New Shorter Oxford English Dictionary, as follows:-

"Subsidize:- 1. Pay money to secure the services of (mercenary or foreign troops); provide (a country or leader) with a subsidy to secure military assistance or neutrality. 2. Support (an organization, activity, person, etc.) by grants or money. Also, reduce the cost of (a commodity or service) by subsidy."

39. In any case, we are not expressing any final opinion, as to whether the goods were sold by the petitioner on subsidy, at a cost lower than the cost of purchase. The question, in this regard, is not a question, which is required to be decided, in considering the constitutional validity of the amendment, which we have upheld. The fact whether the goods were subsidized by lowering the price, or on any incentive given by the Cement Company to the petitioner, is the question of fact to be considered in appeal against the order of assessment, provided such question was argued in the proceedings for assessment, and a ground has been taken in appeal.

40. For the aforesaid reasons, we uphold the constitutional validity of sub-section (3A) of Section 18 of the Rajasthan VAT Act, 2003."

10. The Hon'ble Supreme Court, in Jayam & Co. (supra), while

considering the provisions of Tamil Nadu Value Added Tax Act,

2006, has categorically held that ITC is a form of concession and

is not admissible to all kinds of sale and the same is subject to

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conditions imposed in the statute. The relevant portion of the said

judgment is reproduced as under:

"6. From the aforesaid, it is clear that the dealer had paid to the vendor VAT of Rs. 10/-. However, at the time of re-sale VAT actually allowed was Rs.9.50. That is the effect of sub-section (20) of Section 19, which reads as under:

"S. 19(20) Notwithstanding anything contained in this section, where any registered dealer has sold goods at a price lesser than the price of the goods purchased by him, the amount of the input tax credit over and above the output tax of those goods shall be reversed."

...

11. From the aforesaid scheme of Section 19 following significant aspects emerge:-

(a) ITC is a form of concession provided by the Legislature. It is not admissible to all kinds of sales and certain specified sales are specifically excluded.

(b) Concession of ITC is available on certain conditions mentioned in this Section.

(c) One of the most important condition is that in order to enable the dealer to claim ITC it has to produce original tax invoice, completed in all respect, evidencing the amount of input tax.

12. It is a trite law that whenever concession is given by statute or notification, etc. the conditions thereof are to be strictly complied with in order to avail such concession. Thus, it is not the right of the "dealers" to get the benefit of ITC but it is a concession granted by virtue of Section 19. As a fortiori, conditions specified in Section 10 must be fulfilled. In that hue, we find that Section 10 makes original tax invoice relevant for the purpose of claiming tax. Therefore, under the scheme of the VAT Act, it is not permissible for the dealers to argue that the price as indicated in the tax invoice should not have been taken into consideration but the net purchase price after discount is to be the basis. If we were dealing with any other aspect dehors the issue of ITC as per Section 19 of the VAT Act, possibly the arguments of Mr Bagaria would have assumed some relevance. But, keeping in view the scope of the issue, such a plea is not admissible having regard to the plain

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language of sections of the VAT Act, read along with other provisions of the said Act as referred to above.

13. For the same reasons given above, challenge to the constitutional validity of sub-section (20) of Section 19 of the VAT Act has to fail. When a concession is given by a statute, the legislature has power to make the provision stating the form and manner in which such concession is to be allowed. Sub-section (20) seeks to achieve that. There was no right, inherent or otherwise, vested with dealers to claim the benefit of ITC but for Section 19 of the VAT Act. That apart, we find that there were valid and cogent reasons for inserting Section 19(20). Main purport was to protect the Revenue against clandestine transactions resulting in evasion of tax."

11. In view of the above, and relying upon judgments of

Panwar Trading Corporation (supra), and Jayam & Co.

(supra), this Court is of the considered view that case of the

assessee does squarely falls within the four corners of Section

18(3A) of the RVAT Act.

12. So far as the levy or setting aside of the penalty is

concerned, in the opinion of this Court, the same is leviable only

when there is a deliberate and conscious attempt to evade tax. In

the case in hand, all the transactions were duly recorded by the

assessee in the books of accounts, everything was on record and

there does not appear to be any deliberate or conscious attempt

on part of assessee to evade tax. The judgment relied upon by the