IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.4583 of 2008 Date of decision: 05.11.2008 Bharat Petroleum Corporation Limited -----Petitioner Vs. State of Punjab and another -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE L.N.MITTAL Present: Mr. Ashok Aggarwal, Sr. Advocate With Mr. JS Bakshi and Mr. Mukul Aggarwal, Advocates for the petitioner. Mr. Piyush Kant Jain, Addl.A.G., Punjab for the State. Adarsh Kumar Goel, J 1. This petition seeks quashing of Rule 21(1) & (2) of the Punjab Value Added Tax Rules, 2005, framed under the provisions of the Punjab Value Added Tax Act 2005 (in short, ‘the VAT Act’) as ultravires, in addition to quashing of notice dated 24.12.2007, Annexure P.1 requiring the petitioner to appear CWP No.4583 of 2008 with record to show that due tax had been paid; assessment order dated 21.1.2008, Annexure P.III rejecting claim for input tax credit on petrol/diesel which evaporated after purchase and before sale and also Show Cause Notice dated 15.2.2008, Annexure P.IV asking the petitioner to show cause why penalty be not imposed. 2. The petitioner is engaged in the business of refining of crude oil and marketing of various petroleum products. It purchases petroleum in the State after paying Value Added Tax. Thereafter, the said products are sold and tax paid at the time of purchase is claimed as Input Tax Credit to be deducted out of the tax liability attracted at the time of sale. During assessment for the assessment year 2005-06, the Assessing Officer allowed Input Tax Credit to the extent of goods sold but claim of the petitioner is that in the natural process, part of petroleum products evaporated on which tax was paid and the petitioner was entitled to Input Tax Credit on the purchase value thereof irrespective of the fact that to that extent, goods were not available for sale. 3. It is the case of the petitioner that the order of assessment disallowing Input Tax Credit to the petitioner on the purchase value of the product which evaporated, was illegal. 2 CWP No.4583 of 2008 Prayer has also been made to declare the Rule 21 of the Rules, which makes Input Tax Credit inadmissible if the goods are lost, destroyed or damaged because of theft, fire or natural calamity, as ultravires. 4. On behalf of the State, a preliminary objection has been taken that there is an alternative remedy by way of appeal and mere fact that 25% of the tax assessed is required to be deposited as a condition precedent, cannot be a ground to hold that the remedy of appeal was not effective in absence of any material to show that the petitioner had any financial hardship in paying the said amount. 5. As regards validity of the rule, it is submitted that under the Scheme of the Act, Input Tax Credit is inadmissible if goods are lost in certain situations. Benefit of Input Tax Credit is available only when goods are sold. If goods purchased are not available for further sale, question of Input Tax Credit could not arise. 6. We have heard learned counsel for the parties and perused the record. 7. Even though, alternative remedy may not be an absolute bar and this Court may, in its discretion, entertain a writ 3 CWP No.4583 of 2008 petition in certain situations, we do not think that this is a case of such an exceptional nature where the petitioner could not take alternative remedy or the issue raised should be considered in a writ petition. We do not find any merit in challenge to vires of the rule. Applicability of the rule or claim of the assessee can be gone into before departmental authorities. 8. We may make a brief reference to the Scheme of the Act. The Act succeeds the Punjab General Sales Tax Act, 1948, which provided for tax on sale and purchase of goods, with reference to Entry 54 of List II of Schedule VIIth to the Constitution of India. Under the Act, there is multi stage tax and at each stage, tax is calculated on sales (outputs) and claim for tax credit in respect of tax paid on inputs (purchases) is allowed. This is done to avoid cascading effect on prices. Object of the VAT regime is to avoid double taxation and also to check tax evasion. The Act is based on recommendations of expert bodies. 9. Under the Scheme of the Act, Section 6 provides for liability to pay tax on taxable turn-over, as defined under section 2(zo). Under Section 15 of the Act, net tax is payable after deducting the amount of input tax available from the output tax. Section 13 provides for claim of Input Tax Credit subject to the 4 CWP No.4583 of 2008 conditions laid down in the said section and subject to such further conditions as may be laid down under the rules. First Proviso to section 13(1) of the Act provides that Input Tax Credit is available when the goods are for sale in the State or in the course of inter-State trade or commerce or in the course of export or for manufacture, processing or packing. Sub Section 5 provides for certain situations in which Input Tax Credit is not available. We are not concerned with the said situation. The said provision cannot be bar to laying down of conditions for availing input tax credit consistent with the Scheme of the Act. Thus, for claiming Input Tax Credit, there has to be liability to pay output tax. If goods which have been purchased are not available and output tax is not attracted, there could be no deduction of Input tax in respect of such goods. Provision in Rule 21 making Input Tax Credit inadmissible where goods are lost or destroyed or damaged, cannot be held to be contrary to the Scheme of the Act. 10. The petition is, accordingly, dismissed without prejudice to availing of alternative remedy in accordance with law. (Adarsh Kumar Goel) Judge 5 CWP No.4583 of 2008 November 5, 2008 (L.N.Mittal) ‘gs’ Judge 6 CWP No.4583 of 2008 7