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TMI Blog2015 (5) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... and not the original return filed on 20.02.2009, which had been nullified or obliterated after the filing and acceptance of the revised return. Then, it cannot be said that there was any understatement of the tax liability by the petitioner to any extent in its revised return (which was the only return to be considered), as in terms of the said revised return, the entire tax along with interest, had been paid. In such view of the matter, we are of the opinion that in the facts of the present case, the provision of sub-section (2) of S.72 of the KVAT Act would not be attracted. Imposition of penalty is not being automatic unless the intention to evade tax is made out or any malafide act is made out, the penalty cannot be imposed." Although the reasons for arriving at such conclusion in the aforesaid case were different, but in the said judgment also it has been held that imposition of penalty in the facts similar to the facts of the present case, could not be justified under S.72(2) - Decided in favour of assessee. - Sales Tax Revision petition 171/2014 - - - Dated:- 16-4-2015 - Vineet Saran And S. Sujatha,JJ. For the Appellant : Sri K S Naveen Kumar, Adv. For the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenging the same, petitioner filed an appeal before the Joint Commissioner (Appeals) which was dismissed on 15.2.2013. A second appeal was filed by the petitioner before the Karnataka Appellate Tribunal which was also dismissed by the Tribunal vide its order dated 29.1.2014. Aggrieved by the said orders, this revision petition has been filed under S.65(1) of the KVAT Act. We have heard Sri K S Naveen Kumar, learned counsel for the petitioner as well as Sri K M Shivayogiswamy, learned counsel for the respondents at length and perused the records. The facts as stated above are not disputed by the learned counsel for the parties. The question to be now decided by this Court is as to whether in the facts and circumstances of the case, when the petitioner had itself voluntarily filed the revised return under S.35(4) of the Act and had also deposited the tax along with interest, which was not as a result of any inspection or receipt of information or evidence by the Prescribed Authority, could penalty be still imposed under S.72(2) of the KVAT Act. Learned counsel for the petitioner has submitted that imposition of penalty under S.72(2) of the KVAT Act is not automatic, altho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to sub-sections (2) to (4), every registered dealer, and the Central Government, a State Government, a statutory body and a local authority liable to pay tax collected under sub-sec.(2) of S.9, shall furnish a return in such form and manner, including electronic methods, and shall pay the tax due on such return within twenty days or fifteen days after the end of the preceding month or any other tax period as may be prescribed Provided that .. Provided further that .. (2) . (3) . (4) If any dealer having furnished a return under this Act, other than a return furnished under sub-sec.(3) of S.38, discovers any omission or incorrect statement therein, other than as a result of an inspection or receipt of any other information or evidence by the prescribed authority, he shall furnish a revised return within six months from the end of the relevant tax period except when such revised return is on issue of a debit note under S.30, subject to sub-sec.(2) of S.72. S.42 - Payments and recovery of tax, penalties, interest and other amounts and issuance of clearance certificates: (1) . (2) .. (3) (4) (5) .. (6) .. (7) A registered dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return and therefore, it is only the revised return that has to be taken into account for the purpose of making assessment (viz., CIT Vs Mangalore Chemicals Fertilizers - 1991(59) Taxman 508 (Kar); CCIT Vs Machine Tool Corporation of India Ltd - 1993 (67) Taxman 363 (Kar); Beco Engineering Co. Ltd Vs CIT - 1984 (18) Taxman 44 (P H); Dhampur Sugar Mills Ltd Vs CIT - 1973 (90) ITR 236 (All). Though the said judgments relate to the Income Tax Act but we are of the opinion that for the purpose of the KVAT Act also, on the same principle, the original return would be obliterated once the revised return has been filed by the assessee and duly accepted by the Department. Now what we have to see is as to whether there can be two returns under consideration at the same time. Once a revised return has been filed and accepted by the Department, the original return gets obliterated and the only return which remains for consideration would be the revised return, as there cannot be two live returns pending consideration of the Department. In the present case, as a matter of fact, not only the revised return had been filed by the petitioner, but the same was also accepted by the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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