9911796707
TMI Blog2015 (5) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the KVAT Act and has been discharging its tax liability from time to time since its registration on 4.12.2007. The dispute in the present revision petition relates to the month of January 2009. For the said tax period, petitioner had filed a 'nil' return on 20.2.2009, which was within the prescribed twenty days period. It is the case of the petitioner that it was unable to ascertain the turn over for the month in question on account of certain software issues at the Head Office and therefore, to comply with the filing of the return required by the due date, it had filed a 'nil' return. However, subsequently when the correct facts and figures were available with the petitioner, it voluntarily filed a revised ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original return to an extent of over 5%, and the same would attract imposition of penalty under S.72(2) of the KVAT Act. It is further been submitted by the counsel for the respondents that the penalty imposed is civil liability and as such, there is no question of mens rea and once the liability of payment of tax has been accepted by filing a revised return, the imposition of penalty is mandatory. Having heard the learned counsel for the parties and considering the facts and circumstances of the case, we are of the view that the imposition of penalty under S.72(2) of the KVAT Act was not warranted in the present case. For proper appreciation of the facts and law, it would be necessary to consider the provisions of S.2(28) which provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance certificates: (1) ....... (2)........ (3)......... (4)......... (5)........ (6)........ (7) A registered dealer, furnishing a revised return in accordance with this Act which shows a greater amount of tax to be due than was paid or payable in accordance with the original return, shall pay with the revised return the tax so payable in such manner as may be prescribed. S.72 - Penalties relating to returns and assessment: (1) ------- (2) A dealer who for any prescribed tax period furnishes a return which understates his liability to tax or overstates his entitlement to a tax credit by more than five per cent of his actual liability to tax, or his actual tax credit, as the case may be shall after being given the opportunity of sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; is also a 'return'. While dealing with cases under the Income Tax Act, the High Court of Karnataka, Punjab & Haryana and Allahabad have held that once a valid revised return is filed by the assessee, it completely effaces or obliterates the original 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period, the return to be considered was the revised return filed on 16.3.2009 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. A Division Bench of this Court, in the case of State of Karnataka Vs M/s GMR Energy Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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