IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 OT.Rev.No. 7 of 2011() ---------------------- AGAINST ORDER IN TAVAT.216/2010 of KERALA VAT APPELLATE TRIBUNAL, ERNAKULAM .................... REVISION PETITIONER/APPELLANT/ASSESSEE : ---------------------------------------------------------- SASIKUMAR B, PROPRIETOR, VIJAYA SAW MILL ADOOR, PATHANAMTHITTA (DIST). BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMAR RESPONDENT(S): RESPONDENT/REVENUE --------------------------------- STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. MR.MOHAMMED RAFEEQ, GOVERNMENT PLEADER THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ---------------------------------- O.T.Revision No.7 of 2011 --------------------------------- Dated, this the 29th day of March, 2011 J U D G M E N T Ramachandran Nair, J. This Revision case is filed against the order of the Tribunal confirming diallowance of input tax credit on a consignment of timber purchased by the petitioner from another dealer in Kulanada. The main reason for disallowance of input tax credit is that the bill raised by the supplier is a consumer bill in Form 8B as against the bill required for a dealer to purchase, which is in form 8. 2. The contention of the learned counsel for the petitioner is that the supplier committed a mistake in raising the bill in wrong form. However, learned Government Pleader opposed the contention stating that the supplier is well aware of the nature of the bill, which is issued only to end users of the commodity and not for a dealer buying commodity for resale, wherein he is entitled to input tax credit. 3. After hearing both sides, we feel, if the petitioner proves O.T.Rev.No.7/2011 -2- that the bill is raised in the wrong form by way of mistake, input tax credit cannot be declined. However, at the same time, the petitioner should not be permitted to claim input tax credit if the bill produced from the supplier does not represent petitioner's purchase. The transaction value is above Rs.10 lakhs and so much so the timber purchased is of a full truck load. The Assessing Officer has noticed that the petitioner has not used delivery note for the transport, which gives rise to a serious suspicion because goods would have been detained on the road, if it was transported only with a bill that too not in the prescribed form. While the petitioner contends that delivery note is not required for transport of timber, learned Government Pleader submitted that timber is notified goods, which can be transported only with support of delivery note. No evidence is also produced showing the cash book about the availability of funds for the purchase as on the date of purchase. Further, not only delivery note but lorry bill also was not produced towards proof of transport. In these circumstances, we feel one more opportunity can be given to the petitioner to prove the claim, which the Assessing O.T.Rev.No.7/2011 -3- Officer will examine onceagain, and if the petitioner is able to prove transaction as genuine and found eligible, input tax credit will be given. However, we make it clear that the transaction should be critically examined and only if the Assessing Officer is satisfied after verifying all the records pertaining to the transaction including payment and documents used for transport, if required after calling for records from the supplier, the Officer should allow the claim. The O.T. Revision case is therefore disposed of directing the Assessing Officer to reconsider the matter and if the Officer allows the claim, the orders issued by appellate authorities including the Tribunal will stand cancelled thereafter. (C.N.RAMACHANDRAN NAIR, JUDGE) (BHABANI PRASAD RAY, JUDGE) jg