9911796707
TMI Blog2017 (10) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, which is the Joint Commissioner of Commercial Taxes (Appeals), Belagavi Division, Belagavi (for brevity referred to as 'FAA'). The said authority vide its order dated 16-05-2013 passed under Section 62 (6) of the Act, dismissed the appeal. The said order was challenged by the petitioner herein before the Karnataka Appellate Tribunal at Bengaluru in STA Nos.1758/2013 and 1823 to 1845/2013. The Tribunal by its Judgment dated 18.12.2013, dismissed the appeals on merit. Being aggrieved by the said common Judgment of the KAT dated 18.12.2013, the petitioner has filed this Sales Tax Revision Petition under Section 65(1) of the Act. 2. In its memorandum of revision petition, the petitioner has taken a contention that, after initiation of proceeding by the concerned authorities, it has made a payment of a sum of Rs. 19,65,018/- as demanded by the notice under section 82 of the Act and further payments of a sum of Rs. 3,00,000/-, Rs. 5,00,000/-, Rs. 4,00,000/- and Rs. 4,63,709/- and a sum of Rs. 5,00,000/-, thus in total amounting to Rs. 41,28,727/-. Therefore, issuance of protective assessment under section 38(5) of the Act is arbitrary and not sustainable. The petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso recorded statement from the representatives of the petitioner. On 12.06.2009, the said authority issued a notice under section 82 of the Act for the years 2005-06, 2006-07, 2007-08 and 2008-09. On 22-09-2009, the petitioner submitted a reply to the said notice. On 06-01-2010, the said authority issued a notice under section 38(5) of the Act for the years 2005-06, 2006-07, 2007-08 and 2008-09. 8. In response to the said notice, it is stated that the petitioner appeared before the authority and also made small portions of the payment of the tax, amounting to Rs. 3,00,000/- + Rs. 5,00,000/- = Rs. 8,00,000/-. The Assistant Commissioner of Commercial Taxes Enforcement-1, Belagavi, on 11.11.2011 passed an order under section 38(5) of the Act. It is interesting to note that the petitioner has not taken a specific contention before the authority that, since a notice under Section 82 of the Act was earlier issued, the authorities precluded from issuing protective assessment under section 38(5) of the Act. Section 82 of the Act reads as below : "82. Compounding offences (1) Where any dealer has committed an offence under sub-section (1) of Section 77 or Section 70, the prescribed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the case of a dealer registered under this Act or a dealer liable to be registered under this Act, if the prescribed authority has reason to believe that such dealer will fail to pay any tax, penalty or interest or assessed 7[or imposed or payable] and such tax, penalty or interest shall become payable forthwith. (b) On any applicable made within thirty days from the date of receipt of such protective assessment by the dealer or on his own motion within thirty days from the date of issue of such protective assessment, if the Joint Commissioner or Additional Commissioner considers that any protective assessment issued is erroneous, he may after giving the dealer concerned an opportunity of being heard and after making such enquiry as he deems necessary, pass such order thereon as the circumstances of the case may justify". 11. A reading of the above section would go to show that though the prescribed authority is empowered to issue a protective assessment but before issuing such an assessment, the following essentials are to be satisfied. (i) He should have some evidence showing a liability to tax coming to its notice, (ii) He may have to require previous permission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompleted assessment, the Hon'ble Apex Court held that the question of re-opening the assessment by mere change of opinion was entirely impermissible. It is submitted that the said observation was made in a case falling under the Karnataka Sales Tax Act, 1957, whereas, the case on hand is with respect to the Karnataka Value Added Tax, 2003. Apart from that, it is also to be noticed that as observed above, the proceeding under Section 82 of the Act had not reached its finality. As already observed, mere issuance of a notice under Section 82 of the Act cannot be taken as precluding the prescribed authority from initiating any proceeding under Section 38(5) of the Act. As such, the Judgment relied upon by the learned counsel for the petitioner wound not enure to his benefit. 14. The learned counsel for the petitioner further submitted that after issuance of notices to it, the petitioner has paid a total sum of Rs. 41,28,727/- in various fractions. Moreover, it had furnished the details of the immovable properties possessed by its proprietor so also his income tax PAN particulars. As such, there could have been no basis for the prescribed authority to arrive at any belief that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Larsen & Toubro Ltd. (supra) cannot be considered as an excuse for the dealer under the Act for non payment of his tax periodically. In the absence of any specific direction or stay order allowing him to desist or delay from making payment of tax, merely because of an opinion to refer a matter to a larger Bench by the Hon'ble Apex Court cannot be taken as reasonable excuse for the dealer for non-payment of the tax which is a revenue to the State, at the appropriate time. As such, the petitioner since had no valid reasons for non-payment of tax. On the contrary the taxation authorities particularly the prescribed authority in the instant case had every reason to believe that the dealer would fail to pay any tax, penalty or interest. Furthermore, it also cannot be ignored that even after issuance of notice under section 38(5) of the Act, the petitioner has not paid the tax in its entirety and has not cleared its dues in its entirety. The liability under the protective assessment for the year 2005-06 is Rs. 54,39,866/- and for the year 2006-07 it is Rs. 22,17,593/-, the total of which is Rs. 76,57,459/-. Out of which, even according to the petitioner till date it has paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
