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TMI Blog2016 (8) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... r than the tax payable. The assessing authority assessed the returns, but did not accept the revised return since it was outside the period of six months and hence, the assessment orders were issued, demands were made and the interest and penalty were also imposed. 3. The assessee carried the matter in an appeal before the first appellate authority, namely the Deputy Commissioner of Commercial Taxes. The first appellate authority found that even if the revised return was after the expiry of a period of six months for the claim of input-tax credit, the same was acceptable and hence set aside the order of the assessing authority anddirected to make recalculation of tax amount with proportionate interest and penalty. 4. As per the appellant, against the order of the first appellate authority so far as it related to levying of interest and penalty the appeals were preferred before the Tribunal in STA. Nos. 809-820/2009 on September 17, 2008. When the appeals were pending before the Tribunal, as per the appellantassessee, suo motu revisional powers were exercised by the revisional authority by issuance of a notice on December 30, 2009 on the ground that the revised return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides. 9. Under these circumstances, at this stage, we have to consider the present appeals. 10. We have heard Mr. Mallahar Rao, learned counsel appearing for the appellant and Mr. Vedamurthy, learned Government Advocate appearing for the respondents-Revenue. 11. The first contention raised by the learned counsel appearing for the appellant was that the revised return could be accepted even after the expiry of a period of six months, which is otherwise an outer limit as per section 35(4) of the KVAT Act, whereas the learned Government Advocate appearing for the respondents submitted that the revised return is required to be filed within a period of six months from the end of the relevant tax period unless it is so permitted by the prescribed authority. He submitted that as per the circular issued by the Commissioner, the revised return after the expiry of a period of six months can be accepted only, if the revised return is resulting into additional tax liability, otherwise, such revised return is unacceptable. He, therefore, submitted that in the present case, as the revised return was not resulting into additional tax liability, the revised return could not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide No. VAT/CR-31/2008-09, it has been provided as under: 'Any revised return filed by a dealer beyond six months from the end of the relevant tax period is liable to be rejected. However, if such revised return indicates any additional tax liability, then in such a case, the return filed should be accepted with any payment made and re-assessment proceedings should be got initiated through the jurisdictional JCDVO.' 7. We may, at the outset, record that so far as the binding effect of the circular is concerned, learned counsel for the appellant did assert and the learned Government Advocate for the Revenue has not been able to dispute the binding effect of the circular. 8. It further transpires that the revisional authority considered that the circular refers to the additional tax liability of tax and it does not refer to any credit of input tax. Learned Additional Government Advocate appearing for the Revenue also supported the said say of the revisional authority in the impugned order. 9. On the plain and simple reading of the circular, it transpires that whenever the word is 'any additional tax liability' it would mean 'additional net tax liability' b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Division Bench of this court in Writ Appeal No.4900 of 2011 and allied matters and vide judgment dated April 22, 2015 (Assistant Commissioner of Commercial Taxes v. Federal Mogul Goetze (India) Ltd. [2016] 92 VST 210 (Karn)), the Division Bench of this court did not interfere with the view taken by the learned single judge. 13. In another decision of the Division Bench of this court in the case of State of Karnataka v. Centum Industries Private Limited, Bangalore reported in [2015] 77 VST 117 (Karn); [2014] 80 KLJ 65, itwas a case where no claim of input-tax credit was ever made. In the appeal before the Tribunal, the input-tax credit was granted. When the matter came up for further revision before this court, this court found at paragraph 14 as under (page 123 in 77 VST): '. . . If the assessee is not putting forth a claim for input-tax deduction in the returns filed in July 2006 nor as he put forth such a claim in a revised claim which he could have filed within 6 months there from his right to claim input deduction is lost. He cannot for the first time in the returns filed in February 2007 put forth a claim for input-tax deduction as the said return was not relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. 16. However, the learned counsel appearing for the appellant attempted to rely upon the decision of the learned single judge of this court dated March 29, 2016 passed in W. P. Nos. 22483-22494/2015 and allied matters in the case of Sonal Apparel Private Limited v. State of Karnataka [2017] 97 VST 488 (Karn) for contending that, as per the aforesaid decision of the learned single judge, section 10(3) of the KVAT Act has been read down to enable the assessee to calculate the net tax liability by deducting the input-tax credit paid on its purchase from its output tax liability, irrespective of the month in which the selling dealer raises invoices. He, therefore, submitted that the time-limit is no bar for claiming of the input-tax credit. 17. The learned Government Advocate appearing for the respondents did submit that the State has already filed an appeal against the above decision of the learned single judge and therefore, this court may not rely upon the observations made by the learned single judge in the above referred decision. 18. In our view, even if principally it is accepted that the input-tax credit can be claimed irrespective of the mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the question of the interest and penalty and not in considering the aspects as to whether revised return filed after the expiry of a period of six months can be accepted or not. He, therefore, submitted that there was nothing wrong on the part of the revisional authority in exercising the suo motu jurisdiction, more particularly when this court on merits may not be satisfied with the contentions of the appellant for acceptability of the revised return. 23. Section 63(1) of the KVAT Act does provide for preferring of an appeal by any officer or any person aggrieved by the order of the first appellate authority. Section 63(3) does provide for a cross-objection in the appeal already preferred until the appeal is finally heard. Therefore, one of the option available to the aggrieved party, though may be respondent in the appeal is, to prefer cross-objection in the appeal already preferred by the another party before the Tribunal. Whereas section 64(1) of the Act provides for the revisional power only to the limited extent that the order is erroneous so far as it is prejudicial to the interest of the Revenue. Hence, unless the condition prejudicial to the interest of the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was only for levying of the interest and penalty and not on the point as to whether on merits the revised return filed after the expiry of a period of six months, that too, not resulting into any additional tax liability, could be accepted or not. Hence, considering the peculiar facts and circumstances of the case, we find that the contention that the simultaneous power could not have been exercised by the revisional authority, holds no merit and hence, not accepted. 27. The aforesaid is coupled with the aspect that as per the observations made by us herein above, on merits also we have found that the first appellate authority could not have accepted the revised return filed after the expiry of a period of six months, if not resulting into any additional tax liability. Hence, we do not find that any useful purpose would be served by interfering with the order of the revisional authority on a mere ground thatthe appeal was pending before the Tribunal and the revisional authority could not have exercised the suo motu revisional power. 28. The additional aspect is that when the Tribunal dismissed the appeal of the appellant by order dated October 14, 2015 and when the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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