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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 ..... ability, could be accepted or not. Hence, considering the peculiar facts and circumstances of the case, the contention that the simultaneous power could not have been exercised by the revisional authority, holds no merit and hence, not accepted. The contention that the revisional authority ought not to have exercised the suo motu power under section 64 when the appeal was pending before the Tribunal, does not deserve to be accepted, hence, the same is rejected. Appeal dismissed. - S.T.A. Nos. 126/2016 and 127-137/2016 - - - Dated:- 17-8-2016 - Jayant Patel and S. N. Satyanarayana, JJ. Mallahar Rao. K for S. Parthasarathi for the appellant T.K. Vedamurthy, Additional Government Advocate, for the respondents ORDER As the appeals arise from the common order passed by the Additional Commissioner of Commercial Taxes (hereinafter referred to as revisional authority for the sake of convenience), they have been considered simultaneously. 2. The short facts of the case are that the appellant-assessee filed the returns for the assessment year 2005-06 and a particular amount of tax payable was shown in the returns. The assessee did not file revised retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the order of first appellate authority is already set aside. The Tribunal further expressed its view on the question of acceptance of revised return after the expiry of a period of six months and ultimately, the appeals were dismissed. 7. The appellant being aggrieved by the order of the Tribunal preferred revision petition in STRP. Nos. 117 of 2016 and 119 of 2016 to 129 of 2016 (Manasa Electricals Co. v. State of Karnataka [2016] 95 VST 47 (Karn)) before this court. The appellant has also simultaneously preferred the present appeals before this court against the order of the revisional authority dated March 24, 2010 roughly after a period of about more than five years. 8. It may be recorded that this court in STRP. No. 117 of 2016 and allied matters vide order dated April 28, 2016 (Manasa Electricals Co. v. State of Karnataka [2016] 95 VST 47 (Karn)), since the Tribunal in the impugned order had travelled beyond the scope of main appeal itself before it, set aside the order of the Tribunal with a further direction that the appeals before the Tribunal shall stand restored to the file of the Tribunal. How- ever, it was also directed that the Tribunal shall await th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shows that as per clause (b) of sub-section (4), the revised return has to be filed within the outer limit of six months, if so permitted by the prescribed authority. 13. At this stage, we may usefully refer to the decision of this court in STA. No. 2 of 2016 and allied matters, decided on February 22, 2016 in the caseof Jones Lang Lasalle Property Consultant India (P.) Ltd. v. State of Karna- taka [2016] 92 VST 214 (Karn). In the said decision, it was brought to our notice that the Commissioner has issued a circular dated July 7, 2008, whereby the revised return could be accepted after the expiry of six months, if it was to result in additional tax liability. In said case to revised tax return was partly accepted so far as additional tax liability was concerned, but was not accepted for the credit of input tax. In the said case, the revised return, ultimately, even after the additional input-tax credit was resulting into the net additional tax liability, this court at paragraphs 5 to 15 observed thus (pages 216 to 219 in 92 VST): 5. There are mainly two aspects of the matter. One is the binding effect of the circular issued by the Commissioner dated July 7, 2008 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrive at the additional tax liability. In our view, the interpretation put forward on behalf of the Revenue to the circular dated July 7, 2008 cannot be accepted. 10. On the second aspect, while dealing with the decision of this court, the observations are made by the revisional authority in the impugned order that in the case of Infinite Builders and Developers v. Additional Commissioner of Commercial Taxes, Zone II, Bangalore [2014] 68 VST 24 (Karn), the observations were made otherwise for the credit of the input tax and therefore the claim made by the assessee of input tax cannot be accepted when the revised return is filed beyond the period of six months. 11. We may first refer to the decision of the learned Single Judge of this court in the case of Federal Mogul Goetze (India) Ltd. v. Assistant Commissioner of Commercial Taxes (Audit) 52, Bangalore reported in [2011] 42 VST 439 (Karn). It was observed by the learned Single Judge that the Commissioner's circular is absolutely sustainable. Further, the learned single judge did observe that filing of the belated revised returns and their acceptance by the concerned officer would not put the exchequer to any preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered the above referred decision of this court in Centum Industries Private Limited [2015] 77 VST 117 (Karn); [2014] 80 KLJ 65. 15. If the matter is examined in the light of the aforesaid two aspects and the reasons recorded by the revisional authority are considered, we find that the order cannot be sustained in the eye of law. Broadly, there are two reasons. One is that the correct interpretation of the circular as observed by us hereinabove has not been made nor the revisional authority has properly considered the decisions of this court even if the principles of law of binding nature of the precedent to be followed. 14. If the provision of section 35(4) of the KVAT Act is read and considered with the above referred decision of this court, it may be said that if the revised return is filed after the expiry of a period of six months, but is to be ultimately resulting into net additional tax liability even for a single rupee, the same can be accepted irrespective of the fact that the input-tax credit claimed is of the higher amount or not. 15. It is an admitted position that in the present case, the revised tax return was for claiming higher input-tax credit, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the appeal was pending before the Tribunal preferred by the assessee under section 63 of the KVAT Act, if the Department was aggrieved of the order of the first appellate authority, they ought to have filed a cross-objections and having not filed the cross-objections, suo motu the revisional powers are exercised and as per him, the resultant effect is that the appeal proceedings before the Tribunal are nullified, which can never be the purpose or intent of the Scheme of the Act. 21. The learned counsel appearing for the appellant also submitted that in the Appellate Tribunal, one of the member is having a judicial background of the cadre of former district judge, whereas suo motu revisional powers are available with the revisional authority, who is an officer of the rank of Commissioner or Additional Commissioner in the Department. He submitted that if such a course is permitted to be adopted by the revisional authority, it would have unsafe atmosphere for the assessee for proper adjudication of the matter. 22. Whereas Mr. Vedamurthy, learned Government Advocate appearing for the respondents submitted that as per the provisions of section 63A of the KVAT Act, the power u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power is altogether different, then in such circumstances, the cross-objection may not be filed, but if the said aspect is coupled with the circumstances of prejudicial to the interest of the Revenue, then only the revisional power may be exercised. 25. At this stage, we may also record that the adjudication by the Appellate Tribunal comprising one of the members as judicial officer as against the only officer of the rank of Commissioner or Additional Commissioner may be better and in the larger interest of the system of administration of justice and there cannot be any second opinion on the said aspect. But at the same time, when the express provision of the statute is made by the Legislature, it may not be given effect to, unless the constitutional validity of any the provision of the statute is under consideration and the section or the statute is read down or strike down. As such contingencies do not call for consideration in the present matter, we leave it at that without making any further observation. But suffice it to observe that no revisional power would be available to the Additional Commissioner or the Commissioner, as the case may be, under section 64 of the KVAT A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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