J.K. Ranka, J. - (1.) In the instant petition, the Tax Board vide impugned order on the issue of input -tax credit has observed that this court in the case of CTO v/s. Durgeshwari Food Limited, Shri Ganganagar, [2012] 32 Tax Update 3, has reversed the order passed by the Tax Board holding as under: "In the considered opinion of this court, therefore, in view of specific provisions contained in Sec. 18 of the VAT Act of 2003, the ratio of the judgments relied upon by the learned counsel for the respondent -assessee would in fact support the case of the Revenue, and as a necessary corollary, it deserves to be held following these aforesaid judgments, that input -tax credit in the present case, was rightly reduced and was allowed only proportionately to the extent of manufacturing and sale of taxable goods by the assessee in the present case, namely, "aata", "maida" and "suji", manufactured out of raw material (wheat) and such input -tax credit could not be allowed to the extent of sale of VAT exempted goods, namely, wheat bran (Chaff/Chokar), which has been assessed by the assessing authority to the extent of 25 per cent of the input -tax credit and reverse tax has been imposed on the respondent -assessee. Therefore, as far as impugned order of the learned Tax Board dated March 13, 2009 to the extent of setting aside the imposition of reverse tax disallowing the proportionate input -tax credit is concerned, the same cannot be sustained and deserves to be quashed by this court, and to that extent the revision petitions filed by the petitioner -Revenue deserve to be allowed. However, as far as question of penalty under Sec. 61 of the Act is concerned, the imposition of the same by the assessing authority under Sec. 61 of the Act of 2003 to the extent of double the amount of tax is concerned, the same cannot be sustained and deletion of penalty in these circumstances, where a debatable question was agitated by the respondent -assessee before the appellate forums created under the Act, it cannot be said that the assessee deliberately filed wrong returns or particulars of taxable turnover or mala fide claimed 100 per cent input -tax credit. A benefit of doubt in this regard certainly goes in favour of the respondent -assessee." Accordingly, when similar view has already been taken by this court on identical facts, there is no reason to deviate with the judgment rendered in CTO v/s. Durgeshwari Food Limited, Shri Ganganagar, [2012] 32 Tax Update 3.
(2.) At his juncture, counsel for the petitioner canvassed that the honourable apex court in the case of Durgeshwari Food Limited, Shri Ganganagar, has admitted special leave petition and contends that the present petition be kept pending till disposal of appeal by the honourable apex court or in the alternative she contends that whatever order will be passed by the honourable apex court in SLP by the honourable apex court in the case of Durgeshwari Food Limited, Shri Ganganagar, should also govern the fate of the instant revision petition. Accordingly, the revision petition stands dismissed in the light of judgment rendered in the case of Durgeshwari Food Limited, Shri Ganganagar, [2012] 32 Tax Update 3, with a rider that in case the judgment by honourable apex court is decided in favour of the assessee in that case then this revision petition will be governed by the verdict of the honourable apex court in SLP in the case of Durgeshwari Food Limited, Shri Ganganagar.;