9911796707
TMI Blog2018 (8) TMI 1773X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, for revising its returns. 2. The request not considered, the company filed W. P. (C) No. 4665 of 2018. This court, through the exhibit P2 judgment, directed the first respondent to take a decision on the company's request, keeping in view the exhibit P3 : Circular No. 14 of 2017. 3. On February 28, 2018, the Asst. Commissioner issued the exhibit P4 notice. Besides informing the company that its request could not be considered, the notice provides an opportunity of hearing to the company. The Asst. Commissioner felt that the revision would alter the turnover. The company, then, on March 6, 2018, submitted its exhibit P5 reply, explaining that it had requested for the revision as early as on February 1, 2017, just after the company's submitting its audit report-that is on January 31, 2017. 4. Eventually, the Asst. Commissioner issued the exhibit P6 order, rejecting the company's request for revising the returns ; he reiterated his earlier assertion : the likely change of turnover. Aggrieved, eveready filed this writ petition. 4. Submissions : Petitioner's : 5. Sri Joseph Jerard Samson Rodrigues, the company's counsel, has submitted that the Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide whether the permission can be granted. She has also submitted that the company, to prove its good faith, ought to have produced before the Asst. Commissioner the statutory declarations like Forms 8F and 8FA, other transportation documents, and so on. 11. Dr. James has finally submitted that the company has an efficacious alternative remedy : an appeal under section 55 of the Act. According to her, none of the circumstances for invoking the extraordinary jurisdiction of this court under article 226 of the Constitution stands established. 12. Heard Sri Joseph Jarred Samson Rodrigues, the petitioner's counsel and Dr. Thushara James, the Government Pleader, besides perusing the record. 12. Analysis : An overview of the KVAT Act : 13. Kerala value added tax, now moribund, then vigorous, levied tax on sale or purchase of goods. Every dealer whose total turnover for a year is at least ten lakh rupees, among others, will be liable, according to section 6, to pay tax on its sale or purchase of goods. The liability to pay tax, indeed, is on the taxable turnover. Section 8 allows the payment of tax at compounded rates. Chapter IV, covering sections 15 to 19A, deals with regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omission or mistake in the annual return submitted by him with reference to the audited figures, he shall file revise annual return rectifying the mistake or omission along with the audit certificate. Where, as a result of such revision, the tax liability increases, the revised return shall be accompanied by proof of payment of such tax, interest due thereon under sub-section (5) of section 31, and penal interest, calculated at twice the rate specified under sub-section (5) of section 31 : Provided that this sub-section shall not apply to a dealer against whom any penal action is initiated in respect of such omission or mis take under any of the provisions of this Act." (Italics supplied) 17. The proviso to section 42(2) now stands amended. It got a second proviso added to it, and it reads : "Provided further that those dealers who have filed audited statement of accounts and certificates under sub-section (1) will be allowed to revise the returns for the period up to June, 2017, in respect of defects of a technical or clerical in nature, having no effect on the sales turnover already conceded or the tax paid. Such dealers may apply for revision of their returns before the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that this court, on earlier occasions, has examined this issue threadbare. In Syed Ali Rajba Judgment, dated November 16, 2017, in W. P. (C) No. 34709 of 2017, the assessee showed the total invoice amount as Rs. 81,600, but while giving the details of turnover of inter-State purchase in a separate part of the return, he showed it as Rs. 8,01,600. The court found it to be a clerical error. HDFC Bank Ltd. [2018] 58 GSTR 134 (Ker) judgment, dated May 23, 2018, in W. P. (C) No. 13691 of 2018, however, noticed the problem of change in turnover if revision was allowed. The court remanded the matter to be decided under section 42(2). No decision rendered on merits, the case has no precedential value. 23. Alwaye Sugar Agency : 24. In Alwaye Sugar Agency [2017] 5 KHC 638, a learned single judge, in a well articulated judgment, exhorted tax officials to adopt a pragmatic approach. The judgment exemplifies what the noted lawyer Nani Palkhivala once said : "Taxes are the life-blood of any Government, but it cannot be overlooked that that blood is taken from the arteries of the taxpayer and so the transfusion is not to be accomplished . . . but in accordance with the principles of justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t should reward the honest assessee. Such an * The Wit and Wisdom of Nani A. Palkhivala (Kindle Edn.). approach will only augment the state coffers and lessons the consumer burden, too. 29. C. R. Varghese : 30. As we shall see, Alwaye Sugar Agency [2017] 5 KHC 638 was appealed against. A learned Division Bench in the Commercial Tax Officer-I v. C. R. Varghese [2018] 58 GSTR 137 (Ker) ; MANU/KE/1248/2018, has affirmed Alwaye Sugar Agency [2017] 5 KHC 638. In yet another well articulated judgment, the Division Bench has treated the issue exhaustively. In fact, it is a common judgment in appeals arising out of four writ petitions. In all the cases, a few common features were found : (1) The time granted for the revising the returns was over ; (2) the request for revision was not simultaneous with the filing of the audit report ; (3) the Department began no assessment proceedings before it received the assessee's request for revision ; (4) the defects sought to be rectified cannot be strictly labelled technical or clerical ; and (5) the revised returns, if permitted, would alter the sales turnover (this issue not directly presented itself for consideration, though). 31. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make it clear that the time prescribed by the statute, if has elapsed, no such claim is permissible on acceptance of revised return." 34. M. M. Enterprises-Stands apart : 35. C. R. Varghese [2018] 58 GSTR 137 (Ker) ; MANU/KE/1248/2018 has distinguished another co-equal Bench decision in State of Kerala v. M. M. Enterprises [2013] 63 VST 323 (Ker) ; [2012] (0) SCJ Online (Ker) 3193 (DB). The judgment and its authoritative analysis in another judgment, incidentally, came from the same learned judge who authored both. There the issue was this : Whether a dealer can file revised returns under section 42(2) of the Act, after the authorities' initiating the proceedings under section 25 of the KVAT Act and after assessment of escaped turnover ? 36. The respondent-assessee claimed that whatever was notified as escaped turnover under section 25 of the Act was returned as tax suffered. It found favour with the Tribunal. On appeal, the Division Bench reversed it. M. M. Enterprises [2013] 63 VST 323 (Ker) ; [2012] (0) SCJ Online (Ker) 3193 (DB) accepts that the notice under section 25 will not amount to penal action. So the proviso to section 42, as it stood then, would not apply. But t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will cull out from the judicial pronouncements, how section 42(2) and its newly added provisos have been interpreted. 43. True, Alwaye Sugar Agency [2017] 5 KHC 638 has precedentially disappeared, under the doctrine of merger, for C. R. Varghese [2018] 58 GSTR 137 (Ker) ; MANU/KE/1248/2018 is the decision in appeal, involving a few other cases, as well. Still, its telling observations and exhortations remain ringing, if not precedentially, at least persuasively. On the other hand C. R. Varghese [2018] 58 GSTR 137 (Ker) ; MANU/KE/1248/2018 is decisive and binding, too. What the court earlier held ? 44. Alwaye Sugar Agency [2017] 5 KHC 638 and C. R. Varghese [2018] 58 GSTR 137 (Ker) ; MANU/KE/1248/2018 have laid down these propositions, as I gather : (1) Though taxing statutes are construed strictly, the interpretation cannot, however, be a reckless one, mindless of the probable impact that it could have on the tax payer. (2) Unless the dealer wilfully fudged the accounts to evade tax, the tax authorities, in a civilized society, should give due regard to the dignity of the members of the trading community. (3) The mechanical application of procedural provisions, in a taxi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
