2020 (9) TMI 113 - HC - VAT and Sales Tax

Power to condone the delay in filing of refund application - Whether the power to condone the delay in filing an application for refund under Section 13 of the Kerala Value Added Tax Act, 2003 is regulated by the prescription under Rule 47 of the Kerala Value Added Tax Rules, 2005 or only to be considered by the Deputy Commissioner under Section 20A of the Act? HELD THAT - Section 20A has been brought in by an amendment made to the KVAT Act with effect from 01.04.2008. Section 20A is an enabling provision, where the Deputy Commissioner has been conferred with the power to condone the delay in applications for refund under the Act and the Rules if limitation is provided. This enabling provision would be applicable only in circumstances where no other officer has been specifically conferred with the power to condone the delay in filing an application for refund. Section 13 speaks of refund being permitted ' in such manner and subject to such conditions as has been prescribed '. The prescription as found in Rule 47 specifically empowers the Assessing Officer to condone the delay in filing the statement (application) or other documents referred to in clauses (i) to (iv). When a clear prescription has been made as per the statutory provision, Section 20A has no application and in such circumstances, the Deputy Commissioner cannot usurp the powers of the Assessing Officer who has been conferred with the power to condone delay in filing applications. Section 20A, in view of the conferment of power to condone delay, by the statutory rules, on the Assessing Officer, is inapplicable to the applications made under Section 13. Decided in favor of assessee.

Summary

Issues:
- Interpretation of the power to condone delay in filing an application for refund under Section 13 of the Kerala Value Added Tax Act, 2003 (KVAT Act) regulated by Rule 47 of the Kerala Value Added Tax Rules, 2005 (KVAT Rules) or to be considered by the Deputy Commissioner under Section 20A of the Act.

Analysis:
1. The case involved an exporter who applied for input tax credit under Section 13 but faced delays, leading to the question of whether the power to condone such delays lies with the Deputy Commissioner under Section 20A or with the Assessing Officer as per Rule 47.

2. The Assessing Officer, first appellate authority, and Tribunal held that only the Deputy Commissioner could condone the delay, emphasizing the need for proper documents as per Rule 47, which the assessee failed to provide in entirety.

3. The appellant argued that Rule 47 empowers the Assessing Officer to condone delays and criticized the authorities for not thoroughly examining the documents submitted, asserting that the delay condonation power lies with the Assessing Officer.

4. The Government Pleader contended that even if delays were condoned, the issue of incomplete documents remained unresolved, suggesting that a remand would serve no purpose unless all required documents were properly filed.

5. The Court acknowledged the dispute over document adequacy and agreed that a detailed examination was necessary if the law favored the appellant, highlighting the Assessing Officer's role in reconsidering the matter if the power to condone delays was not solely vested in the Deputy Commissioner.

6. Section 13 of the KVAT Act addresses refunds for exports or inter-state sales, with Rule 47 outlining the application process and required documents within a specified timeframe, clarifying that the Assessing Officer can condone delays in filing based on the provided rules.

7. The introduction of Section 20A aimed to empower the Deputy Commissioner to condone delays in refund applications, but the Court emphasized that Rule 47 already vested such power in the Assessing Officer, rendering Section 20A inapplicable in cases where the rules explicitly assign delay condonation authority.

8. In light of the legal interpretation favoring the assessee, the Assessing Officer was directed to reevaluate the case, emphasizing the importance of satisfactory reasons for delays and the submission of necessary original documents as per Rule 47 for the refund claims to be accepted.

9. The Court allowed the revision, remanding the matter for fresh consideration by the Assessing Officer, with clear instructions on document requirements and prohibiting the submission of xerox copies, while each party was to bear its respective costs.