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TMI Blog2019 (7) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 08.08.2017 at Annexure A to the writ petitions passed under Section 39(2) of the KVAT Act as well as the consequent notices of demand at Annexure-B to the writ petitions are quashed reserving liberty to the Department to initiate appropriate proceedings in accordance with law. Petition disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... take an independent view, the judgment of the Division Bench in W.A.No.5798/2011 and connected matters (D.D.23.03.2016) is no longer a good law. Secondly, it was argued that during the relevant tax periods, the scope of Section 39(2) of the KVAT Act inasmuch as any further evidence coming to the notice of the prescribed authority ought not to have been enlarged. There was no further evidence which had come to the notice of the Assessing Authority after making the re-assessment order under sub-section [1] of Section 39 of the KVAT Act. It is primarily based on the order of this Hon'ble Court in H.H. Cement Products, supra, the proceedings under Section 39(2) of the KVAT Act were invoked. Period of limitation for reassessment under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Re-assessment of tax: (2) Where after making a re- assessment under this Section, any further evidence comes to the notice of the prescribed authority, it may make any further reassessments in addition to such earlier reassessment." 9. Section 41(1) and (2) of the KVAT Act reads thus: 41. Power of rectification of assessment or re-assessment in certain cases.- (1) Where any assessment or re- assessment or an order of an appellate authority or a revisional authority other than a court or tribunal, is found to be erroneous in so far as it is prejudicial to the interest of the public revenue by a judgement or an order of any court, then notwithstanding anything contained in this Act, authority concerned may proceed to rectify such asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y such opinion. In the said case, proceedings were initiated under Section 41(1) of the KVAT ACT to rectify the re-assessment order on the basis of the judgment of this Court in the case of State of Karnataka vs. M/s Centum Industries (P) Limited which was available to the Assessing Authority at the time of passing of the re-assessment order. 11. In the case of M/s. Simplex Concrete, supra, the Hon'ble Apex Court held that at the relevant time, when the assessment order got completed, the law as declared by the jurisdictional High Court, was that the civil construction work carried out by the assessee would be entitled to the benefit of Section 80HH of the Act, which view was squarely reversed by the subsequent judgment of the Hon'ble Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itly made available under Section 39(2) of the KVAT Act, the source of power to give effect to such order or judgment of the Hon'ble Apex Court is traceable to Section 41 of the KVAT Act. 15. Section 41(1) of the KVAT Act is applicable where the order of re-assessment is found to be erroneous insofar it is prejudicial to the interest of the public revenue by the judgment or order of any Court. 'The Authority concerned' mentioned in the said provision relates to Assessing Authority in case of assessment or re-assessment, Appellate Authority in cases of appellate orders, Revisional Authority in cases of revisional orders. The said Authority concerned is empowered to rectify such orders and determine the tax payable by the dealer in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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