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TMI Blog2014 (7) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 36 can be levied. In our understanding and as submitted by learned Additional Government Advocate, the word "subject to" under section 36(1) of the Act can only be to say that levy of interest is in terms of section 36 of the Act notwithstanding levy of penalty under section 72 of the Act. In situation where revised return has been filed within the margin period of three months and the tax also paid, the levy of interest under section 36(1) of the Act being not attracted is in no way affected because of the situation where levy of penalty under section 72 of the Act is attracted - revision petitions dismissed - Decided against assessee. - STRP Nos. 114-131 of 2012 - - - Dated:- 18-7-2013 - SHYLENDRA KUMAR D.V. AND INDRAKALA B.S., JJ. ORDER:- The order of the court was made by D.V. SHYLENDRA KUMAR J. These sales tax revision petitions are by a 1 dealer dealing with purchase of branded motor vehicles from M/s. General Motors Limited and sells it as agent/distributor of these vehicles. Insofar as the present revision petitions are concerned, the petitioner 2 who is a registered dealer under the provisions of the Karnataka Value Added Tax Act, 2003 (for shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.39% May, 2006 77,05,541 1,808 0.02% June, 2006 80,39,398 5,295 0.06% July, 2006 65,09,222 3,370 0.05% August, 2006 78,63,485 25,862 0.32% September, 2006 72,69,876 92,986 1.28% October, 2006 13,46,416 42,456 3.15% November, 2006 27,76,959 26,543 0.95% December, 2006 22,60,913 50,492 2.23% On noticing the difference of tax payable on the turnover which had been omitted to be declared, the assessing authority had levied interest under section 36 of the Act. We are only concerned with this part in these revision petitions and confine to this question. The assessing authority lev ied interest under section 36 of the Act as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht for not to levy any interest before the assessing authority. The assessing authority rejected this argument holding that under section 36(2)(c) of the Act, the registered dealer who fails to declare any tax or interest which should have been declared shall be liable to pay interest in respect of tax and additional tax payable as provided under section 36(1) of the Act and therefore the question of non levy because of the difference being less than five per cent did not arise. The interest as indicated above was levied. Being aggrieved by this order levying interest under section 36 of the 5 Act, the assessee had appealed to the appellate authority-Joint Commis sioner of Commercial Taxes. In the appeal on behalf of the assessee, learned counsel for the assessee reiterated the stand that the provisions of section 36(1) of the Act is subordinate to section 72(2) of the Act and there fore if the difference of tax payable as per reassessment order under section 39(1) of the Act is less than five per cent of the actual liability, the provi sions of section 36(1) of the Act cannot be invoked, etc., and he pointed out that in all these cases, it was actually less than five per cent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act is attracted, levy of interest under section 36(1) of the Act is possible, etc. The Tribunal clarified that the provisions of section 36(1) of the Act being made subject to section 72(2) of the Act is only to make it clear that levy of interest will not come in the way of levy of penalty under section 72(2) of the Act and is independent of it. The Tribu nal found the situation attracted the provisions of section 36 of the Act and therefore sustained levy of interest under section 36 of the Act as per the order dated March 8, 2010 (copy at annexure A). It is aggrieved by these orders sustaining levy of interest, the present revision petitions under section 65(1) of the Act. Appearing on behalf of the petitioner-assessee, the submission of Sri. 10 Thirumalesh, learned counsel, is that the levy of interest in the present case while no doubt is a levy attracting the provisions of section 36(2)(c) of the Act, but even here, the interest that is to be levied essentially is only under section 36(1) of the Act; that in all situations where revised return or return filed earlier is not corrected within three months, levy under section 36(1) of the Act is attracted and the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by reassessment order and not by the assessee having undertaken voluntary correction of the return within three months period. Section 36 of the Act reads as under: 36. Interest in case of failure to furnish returns or to pay tax dec lared on returns or other amounts payable. (1) Every dealer shall be liable to pay simple interest on any amount of tax which should have been declared on a return, but which has been omitted from it, unless that omission is corrected within three months of the omission subject to sub-section (2) of section 72, and such interest is payable from the date the tax should have been declared, and the dealer shall declare his liability to pay that interest in such form and manner as may be prescribed. (2) If a dealer required to furnish a return under this Act, (a) fails to pay any amount of tax or additional tax declared on the return, or (b) furnishes a revised return more than three months after tax became payable, declaring additional tax, but fails to pay any interest declared to be payable under sub-section (1), or (c) fails to declare any tax or interest which should have been declared, or (d) fails to make a return, such dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracted though Mr. Thirumalesh contends that section 36(2)(c) of the Act is also through section 36(1) of the Act, the argument advanced on behalf of the assessee is confined to the limited aspect of the provisions being made subject to section 72(2) of the Act and therefore submits that in a situation where no penalty is leviable under section 72(2) of the Act, no interest is also leviable under section 36 of the Act. We have bestowed our attention to this argument. While it is no doubt 19 true that as contended by learned Additional Government Advocate that section 36(2)(c) of the Act does not mention of section 72(2) of the Act, but it does make a mention of section 36(1) of the Act and not section 72(2) of the Act and by such mentioning cannot be made subject to the provisions of section 72(2) of the Act. We are of the opinion that even understanding a situation within section 20 36(1) of the Act with reference to section 72(2) of the Act cannot be under stood as one importing the requirement of difference being more than five per cent for levy of penalty as an essential condition for levy of interest under section 36(1) of the Act also, then it is a fortiori so for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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