9911796707
TMI Blog2012 (12) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... (28) defines return which includes revised returns. Hence, the question of imposing penalty by the Assessing Authority for filing the revised returns has to be re-examined. The issue regarding the jurisdiction of passing the order under Section 64 has not been taken before the Revisional Authority or the Assessing Authority. Hence, the Assessing Authority has to reconsider the matter afresh. With regard to the interest is concerned, the Assessing Authority has not levied any interest. However, the revisional authority has directed the Assessing Authority to levy interest on the differences of the tax paid by the assessee. The specific contention taken by the assessee is that he has already paid the differences of the tax with interest, hence the question of paying interest does not arise. This issue is also to be considered by the Assessing Authority. Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... g Authority imposing penalty preferred an appeal before the Joint Commissioner for Commercial Taxes contending that the Act came into force w.e.f. 1-4-2005 there was lot of confusion with regard to the new enactment. The percentage of tax payable was also not made known to the assessee and the Government has also not framed the rules. In view of that, there is a mistake in filing the returns. Subsequently, revised returns has been filed by paying interest. Hence, the Assessing Authority cannot invoke Section 72 of the Act and impose penalty. The Appellate Authority after considering the matter by its order dated 24-10-2008 allowed the appeal, setting aside the order of penalty imposed under Section 72(2) of the KVAT Act. The Revisional Authority after verification of the records found that the order passed by the Appellate Authority is contrary to law and prejudicial to the interest of the Revenue. Accordingly, the Revisional Authority issued notice under Section 64(1) of the KVAT Act calling upon the assessee to file his objections. The assessee filed objections to the notice issued under Section 64(1) of the KVAT Act. The Revisional Authority without considering the objections fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visional Authority and contended that under Section 64 of the KVAT Act, the revisional authority has got power to revise any order on his own motion, after calling for examination of the records, if it is prejudicial to the interest of the revenue, he can pass the order. In the instant case, the assessee has claimed exemption in respect of the goods which is taxable at 4% and paid tax at the rate of 4% whereas the assessee has to pay tax at the rate of 12.5%. Though the goods which was meant for export has been sold in the local market and claimed exemption which is contrary to law. Only after the inspection of the books of accounts, the assessee has filed the revised returns, thereafter second revised returns. The differences of tax paid and tax payable is more than 5%. Accordingly, the revisional authority has rightly revised the order passed by the Appellate Authority. There is no infirmity or irregularity in the said order. With regard to the jurisdictional issue raised by the appellant, passing of the order by the Additional Commissioner is covered by the order passed by the Division Bench of this court in STA No.64/2009 and other connected matters. Further, the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 72 of the Act is erroneous in law and prejudicial to the interest of the revenue. 8. The main contention urged by the assessee is that under Section 35(1) of the Act, the assessee has to file the returns within 15 days after the end of preceding month. Further Section 35(4) of the Act provides for filing of the revised returns within six months from the end of the relevant tax period. In the instant case, the assessee has filed the revised returns within a period of three months. Hence, the Assessing Authority cannot impose penalty. 9. The Assessing Authority levied penalty on the ground that the assessee on his own has not filed the revised returns, only after inspection of the factory premises on verification of the records found that the returns filed by the assessee is not in accordance with law, then only revised and second revised returns has been filed. Hence, the assessee is liable to pay penalty. Further, Section 35(4) of the Act is subject to Sub-section 2 of Section 72 of the Act. Hence, even though the assessee filed revised returns, if it is filed in consequences of inspection, then the assessee has to pay penalty. 10. The records clearly disclose that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
