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TMI Blog2010 (8) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... the situation during this interregnum period while passing the final orders. In so far as penalty is concerned, the learned single judge in the afore said writ petition has already quashed the findings recorded by both the authorities and remitted the matter back to the assessing authority for fresh consideration. It is unfortunate that the Tribunal has not noticed the said order of the learned single judge. Therefore, confirming the penalty as on the date of the order was passed is erroneous, illegal and without juris diction. Therefore, that portion of the order of the Tribunal is liable to be set aside and accordingly, it is set aside. Appeal allowed in part. - 25,36,37, 39,40,41, 42,43, 44 of 2010 - - - Dated:- 13-8-2010 - KUMAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 72(3) of KVAT Act, 2003 since the returns filed by the assessee were incor rect and incomplete. Such orders were passed for all the 12 months under the KVAT Act, 2003 falling under financial year 2005-06. Being aggrieved by the same, the assessee approached the Joint Commissioner of Commercial Tax (Appeals) first appellate authority, by preferring an appeal, which came to be dismissed confirming the order of the assessing authority. Aggrieved by the said order, he preferred an appeal to the Karnataka Appellate Tribunal. In the meanwhile, the petitioner also preferred a writ petition before this court challenging the Constitutional validity of section 72(2) of the Act in W. P. No. 6493 of 2009. The writ petition came to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process, they have not collected the tax. Even otherwise, under the provisions of the Act, the assessee has to collect the tax, remit it to the Department and the customer who paid the tax is entitled to refund. Under these circumstances, though there is no exemption for payment of tax, the ultimate result is one and the same. In those circumstances, the authorities have not properly considered the contentions urged by the assessee and by cryptic orders, the contention of the assessee has been rejected. Therefore, a case for interference is made out. In so far as imposition of penalty is concerned, he submitted that, the Tribunal failed to take notice of the judgment of the learned single judge who had set aside the portion of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee is entitled to exemption or not? The authorities on proper appreciation of the statutory provisions have categorically held that, such an exemption is not available to the assessee, no more was required to be done by the authorities in this regard. Therefore, we do not find any justification to interfere with the said finding, which is based on mere interpretation of the provisions of the Act and therefore, the said finding is confirmed. It is brought to our notice that a beneficial circular has been issued by the Commissioner, how the question of penalty is to be imposed in the case of default especially keeping in mind, the change in the law and the jurisdiction, which came in the way of the assessee understanding the ef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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