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TMI Blog2012 (7) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... 42(2) assumed by Tribunal to have been filed by Assessee is not by way of rectifying a mistake or omission in the annual return with reference to the audited figures. Actual suppression of purchase was detected by Assessing Officer and proceedings initiated. The findings of the Tribunal with respect to OTRV No.22/12 section 25 and section 42(2) of the KVAT Act hence cannot be sustained. The question of law hence is answered in favour of the Revenue and against the assessee.The order of remand with respect to the input tax credit is sustained but the setting aside of the best judgment assessment by the Tribunal is overruled. - O.T. Rev. No. 22 of 2012 - - - Dated:- 3-7-2012 - THOTTATHIL B. RADHAKRISHNAN AND VINOD CHANDRAN K., JJ. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -B, wherein the aspect of duplication of bills raised in assessment was directed to be reconsidered by Assessing Officer. Rejection of input tax credit was confirmed and addition was reduced to equal amount of the suppression with similar deduction of gross profit to 10%. 3. Assessee not satisfied with the modification approached the Value Added Tax Tribunal by way of second appeal as provided under the statute. The Tribunal by Annexure-C order remanded the matter, however, making certain observations regarding the action of the Assessing Officer in resorting to best judgment assessment under section 25 of the Act. 4. The Tribunal held that appellant/assessee is entitled to file revised return as contemplated under section 42(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. With respect to the assessment under section 25 of the Act, the remand is futile in so far as the Tribunals findings on subsection (2) of section 42 obliges the Assessing Officer to accept the books of accounts. 5. The only question that would arise for our consideration is as to whether on receipt of notice under section25 of KVAT Act, the dealer would be entitled to file a revised return under section 42(2). The question of law raised by the State is modified as under: 1. Whether a dealer can file revised return under section 42(2) of the Act, after proceedings have been initiated under section 25 of the KVAT Act and after assessment of escaped turnover ? The assessee claims that whatever was notified as escaped turn over ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded then returns are permitted to be revised, however by automatic sufferance of liability to interest and penal interest. 7. The moot question is as to whether in the facts of this case, section 42(2) can be resorted to. Sub section (2) of section 42 specifically speaks of any omission or mistake with reference OTRV No.22/12 to the audited figures. It necessarily postulates a revised return on any omissions or mistakes being noticed in audit. Definitely on such mistakes being noticed by a Chartered Accountant or Cost Accountant in the course of audit; which is also reflected in the audited figures the dealer would be entitled to file a revised return as provided under subsection (2). The omission detected in the present case is not one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1) of section 25 also provide for filing revised return but only in the event of application of incorrect rate of tax. Section 42(2) cannot be imported to wriggle out of assessment proposed under section 25. When action is proposed under section 25, revised return can be filed only in the manner provided therein and in the situation provided thereon. Even going by the facts of the instant case, the revised assessment under section 42(2) assumed by Tribunal to have been filed by Assessee is not by way of rectifying a mistake or omission in the annual return with reference to the audited figures. Actual suppression of purchase was detected by Assessing Officer and proceedings initiated. The findings of the Tribunal with respect to OTRV ..... X X X X Extracts X X X X X X X X Extracts X X X X
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