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TMI Blog2020 (12) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Rules defines tax period to mean a calendar month. Section 35 of the Act requires dealers to file returns for each tax period and as per Section 38 of the Act every dealer is deemed to be assessed to tax based on the return filed by him under Section 35 of the Act. Admittedly, there has been a short payment of tax in respect of tax periods namely April, June, July and August 2005, April, May, August, November and December 2006 and February 2007. It is also not in dispute that the orders of re-assessments have been passed in respect of the periods where there has been a short payment of tax. The Assessing Authority in the light of Section 2(33) of the Act and Rule 37(2) of the Rules has rightly taken each month as separate period of assessment. It is also pertinent to note that Section 35 requires dealers to file returns for each tax period and as per Section 38 every dealer is deemed to be assessed to tax as per Section 35 of the Act. Therefore, deemed assessment applies for each tax period and Assessing Authority while taking up re-assessment proceeding has to consider the tax paid in respect of each month and not for the year as a whole. Section 39(1) of the Act requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner got itself registered as dealer and filed its monthly return in Form VAT-100 from tax period April 2005 under Section 35(1) of the Act and discharged applicable taxes. The petitioner filed audited accounts in the light of Section 31(4) read with Rule 34 of the Karnataka Value Added Tax Rules, 2005 and Form VAT-240 as it stood then for the year ending 2005-06. For the year ending 2006-07, the petitioner apart from filing monthly returns in Form VAT-100 also filed annual statement in Form VAT-115 in terms of newly inserted Section 31(5) read with Rule 34(4) of the Rules. The petitioner also got its account audited and furnished the audit report in newly prescribed Form VAT-240. The petitioner on the advise of statutory auditors also made payment of differential tax amounting to ₹ 12,93,017/- on 20.05.2008 and furnished revised annual statement in Form VAT-115 showing the transactions as reflected in the books of accounts. 3. The Assessing Authority initiated audit proceedings and visited the premises of the petitioner and scrutinized books of accounts pertaining to financial year 2005-06 and 2006-07. A notice under Section 39(1) of the Act dated 21.08.2009 was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess tax paid during subsequent tax period against the short payment of tax in the previous tax period. It was further held that re-assessment could be undertaken only in cases where there was under statement of correct tax liability resulting in additional tax payable and not otherwise. In the result, the appeal preferred by the petitioner was dismissed. In the aforesaid factual background, the petitioner has filed this revision. 5. Learned counsel for the petitioner submitted that Section 39(1) of the Act as it stood prior to 01.04.2007, provided for re-assessment of all the returns that were incorrect. It is further submitted that the authorities have grossly erred in ignoring the provision as it stood during the disputed period and instead considering the amended Section 39(1) of the Act which came into force with effect from 01.04.2007. It is further submitted that in fact, the petitioner had paid the tax in excess. It is also contended that even after expiry of the time period to file the revised return, the statue provides for the mechanism to pay additional tax by filing revised annual statement in Form VAT-115 within a period of nine months and therefore, payment of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 35(4) of the Act which prescribes time periods for filing and revising of returns. It is also contended that interest under Section 36(1) and penalty under Section 72(2) of the Act have rightly been levied as there has been a short payment of tax for the tax periods under consideration. 8. We have considered the submissions made by learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to take note of relevant extract of statutory provisions. Section 39(1)(a) of the Act as it stood prior to 01.04.2007, Section 2(33) and Rule 37(2) read as under- 39(1) Where the prescribed authority has grounds to believe that any return furnished which is deemed as assessed is incorrect or that any assessment issued under Section 38 understates the correct tax liability of the dealer, it - (a) may, based on any information available, re-assess, to the best of its judgment, the additional tax payable and also impose any penalty under sub-Section (2) of Section 72 and demand payment of any interest. Section 2(33) Tax period means such periods as may be prescribed. Rule 37(2) of Karnataka Value Added Tax Rules- The tax p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered to be return and the same would tantamount to doing violence to the provisions of Sections 35(1) and Section 35(4) of the Act, which prescribe time periods for filing and revising of returns. It is pertinent to note that payment of tax due, if any, with Form VAT-115 and Form VAT-240 is only facility to pay the balance of tax, which was not paid in the earlier opportunities of filing the returns connected and revised returns as the case may be so that tax due according to law should be remitted to state in full. The aforesaid provision would not exempt assessee from payment of original tax liability under Section 35(1). The tax has to be assessed as per provisions of the Act, which provide for tax period as a month. Even though, Tribunal may have referred to amended provisions of the Act, however, it is trite law that mere mention of a wrong provision would not invalidate an order so long as power exists with the authority. In the instant case, the re-assessment have rightly been initiated as the power to do so exists even under the un-amended Section 39(1) of the Act. The Tribunal has neither failed to decide any question of law nor has decided any question law erroneously. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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