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TMI Blog2014 (4) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... AT Act, it was necessary that the revenue should have taken into consideration that clarification to consider the rectification application filed by the petitioner - Merely because machinery sold by the petitioner is mounted on the wheels for mobility would not make it a ‘vehicle’ as defined in the Motor Vehicles Act - It has not been done in the present case the revenue is directed to consider the clarification issued by the Commissioner and examine the nature of goods – Decided in favour of Assessee. - WP Nos.3779-3786/2014 - - - Dated:- 26-2-2014 - Dr. Jawad Rahim, J. For the Appellant : Sri Arvind Kamath K, Adv. For the Respondent : Sri S V Girikumar, Aga For E-1 R-2 JUDGEMENT Per: Jawad Rahim: Petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not covered under the Third Schedule and therefore tax liability should be at the rate of 14%. 7. Petitioner was called upon by the 2nd respondent to answer the proposed assessment. Petitioner has taken the benefit of the opportunity granted and filed its returns and statement claiming it is a company dealing with heavy duty excavators, back-hoe loaders and Vibromax Vibratory rollers and their spares and accessories manufactured and marketed by M/s JCB India Limited, Haryana. For the relevant tax period from August 2011 to March 2012, the assessee company has filed returns in Form VAT 100 in LV0-050. 8. The 2nd respondent had initiated re-assessment procedure by its notice in FORM VAT 275 on 21.6.2013 requiring the petitioner to fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by it, petitioner is in this writ action. 11. Learned counsel with vehemence would submit, 2nd respondent has committed a serious error in not only ignoring that the goods sold by the petitioner were notified by the Government as capital goods and therefore tax liability was only 5%. He would submit, petitioner has already sought rectification permissible under Section 59(4) of the KVAT Act to which the Commissioner has issued clarification clarifying that the goods and machinery sold by the petitioner are in the category of earth moving machinery and other parts and accessories which are liable to tax only at 5%. Learned counsel submits, as that clarification is binding on all concerned, the 2nd respondent was required to accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect. The 2nd respondent has referred to the rectification application and by the impugned endorsement at Annexure- K, has held after verifying the books of account furnished and submission made at the time of hearing and after examining the finding given by the Assistant Commissioner of Turnover Tax-Enforcement 20, in its investigation report, the goods are earth moving equipments are vehicles liable for registration under the Motor Vehicles Act and thus to be construed as a vehicle liable for output VAT at 14%. Being of that opinion, he has justified his earlier opinion to declare the goods sold by the petitioner are earth moving adopted for use on road and to be considered as vehicles, liable for tax at 14%. 14. The grievance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, it was necessary that the 2nd respondent should have taken into consideration that clarification to consider the rectification application filed by the petitioner. Merely because machinery sold by the petitioner is mounted on the wheels for mobility would not make it a vehicle as defined in the Motor Vehicles Act. 17. Since it has not been done, the endorsement issued rejecting the rectification application has to be set aside for the limited purpose of directing the 2nd respondent to consider the clarification issued by the Commissioner and examine the nature of goods in question and decide the merit of the rectification application. With this observation the writ petition is disposed of. Petitioner is directed to appear before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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