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TMI Blog2021 (3) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... f accounts issued by the Chartered Accountant/Cost Accountant/Tax Practitioner and it can never be construed as returns to compute the net tax liability under Section 10(3) as rightly held by the learned singe Judge. The substantive provision of the KVAT Act i.e., Section 10(3) has to be read harmoniously with the procedural provision of filing of the returns under Section 35 of the KVAT Act. The learned Single Judge was therefore justified in holding that filing of returns within the time prescribed under Section 35 of the KVAT Act is mandatory and based upon the returns filed by a dealer the tax liability is determined after deducting the input tax from output tax. Form VAT 240 can never be treated to be returns in any manner. The learned Single Judge was justified in dismissing the writ petitions as the appellant was claiming input tax credit based upon Form VAT 240 and by no stretch of imagination Form VAT 240 can be treated as a returns for the purposes of claiming input tax credit, especially in the light of the fact that filing of returns to compute the net tax liability has to take place keeping in view Section 10(3) and 10(4) of the KVAT Act. Appeal dismissed - decided aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant - company accordingly, got the books of accounts audited through a Chartered Accountant and furnished the audited statement of accounts in Form VAT 240 before the concerned LVO. 5. It has been further stated by the appellant - company that the audited statement of accounts in Form VAT 240 furnished by the appellant - company reflected additional output tax payable and the additional input tax allowable under Section 10 in terms of Clause 10 of Form 240. Clause 10 of the prescribed Form 240 specifically provides for 'summary of additional tax liability or additional refund due to the dealer on audit for the year. It has been further stated that immediately after Clause 10, prescribed Form contained a provision enabling the Chartered Accountant to advise the dealer to file revised returns for the months of April to March in order to pay differential tax liability or to claim refund or to revise the opening and closing balance of input tax credit. However, the said provision enabling the Chartered Accountant to advise the dealer to revise the return has been omitted by Notification dated 24.9.2012 w.e.f., 24.9.2012. 6. The appellant - company has furthered stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form No.240 by placing reliance upon the judgment delivered by this Court in the case of Centum Industries Ltd. The appellant has further stated that the Commissioner of Commercial Taxes has passed the order revising the reassessment order to the extent of input tax credit allowed by the Deputy Commissioner of Commercial Taxes on the basis of From 240 without considering the objections filed by the appellant and he has further erroneously directed the Deputy Commissioner of Commercial Taxes to demand the differential input tax rebate allowed on the basis of Form 240 and to initiate proceedings under Section 36 and 72(2) of the KVAT Act. 9. The appellant before this Court has also stated that the Commissioner of Commercial Taxes has denied input tax credit by placing reliance upon a judgment delivered by this Court in the case of State of Karnataka vs. Centum Industries Pvt.Ltd., reported in 2014 (80) KLJ 65 by giving an erroneous interpretation to the said judgment. 10. The appellant being aggrieved by the order of the Commissioner of Commercial Taxes preferred writ petitions before this Court and the learned Single Judge after hearing the parties at length has dismissed the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in calculating the amount of net tax to be paid or refunded wherein it is categorically specified that a tax invoice, debit note or credit note, in relation to a sale, has been issued in accordance with Section 29 and is with the registered dealer taking the deduction at the time, "any return" in respect of the sale is furnished, except paid under Sub-section [2] of Section 3 i.e., from an unregistered dealer. 27. At this juncture, it is beneficial to refer to the Division Bench judgment of this Court in the case of Infinite Builders and developers V/s. Additional Commissioner of Commercial Taxes [2014] 68 VST 24, the relevant paragraphs of which are quoted hereunder: "44. The assessee never filed any revised return in respect of the period from April 2005 to March 2006 nor claimed any input credit return, but, on the other hand only filed nil tax liability return. The assessee persisted and did not file any revised return or anything at all even after inspection, notice etc. In this view of the matter, there was nothing at all before the assessing authority to provide any input tax deduction in favour of the assessee for the entire period from April 2005 to March 2006. So it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order cannot be said to be suffering from any illegality or want of jurisdiction and therefore, the appeals to that extent are dismissed. The Judgments relied cannot further the case of the appellant/assessee, as when a statutory provision mandates compliance in a particular manner in examining as to whether the compliance is secured or otherwise a broad based approach is not called for, more so in tax matters, where the liability is strictly as per the sections and compliance, both on the part of the revenue and on the part of the assessee, also should be strictly in terms of the statutory provisions. An assessee pays penalty if it violates the statutory provision and likewise the revenue also loses revenue unless it adheres to the requirements of the statutory provision. It is for this reason we are not impressed by the submission on behalf of the assessee that there was no need for taking a technical approach or hyper technical approach and if the appellate authority had taken a pragmatic and plausible view, the revisional authority should not have disturbed the same or interfered with the same, is not accepted." 28. In the judgments referred to by the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he net tax liability under Section 10[3] and 10[4] of the Act. 30. It is apparent that all the registered dealers are not required to file such Form VAT 240 but only depending on the total turnover for the year, Form VAT 240 has to be filed. In cases where no such VAT 240 is filed, it would certainly result in discrimination if VAT 240 has to be accepted as the basis for determining the input tax credit. VAT Form 240 cannot replace the "return". 31. At the cost of repetition, it is reiterated that none of the judgments referred to, by the learned counsel for the petitioners would permit the registered dealer to claim the input tax credit on the basis of the VAT Form 240 without filing the return. When the statutory provision mandates compliance in a particular manner, it should be done in that particular way alone not by any other method. "Expressio unius est exclusio alterius" is the well settled legal maxim followed by the Hon'ble Courts without any exception. Hence, this Court is of the considered view that no input tax credit can be availed independent of the claim in the returns merely filing Form VAT 240. For the aforesaid reasons, the writ petitions are dismissed." 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ler claiming the deduction at the time of furnishing the returns in respect of the sale. It has been further contended that once the appellant has satisfied that he was in possession of the tax invoice issued in accordance with Section 29 at the time of filing of the returns and that the taxes paid to a registered dealer, it would be sufficient compliance and there is no mandatory requirement that the said input tax rebate is to be claimed in the returns of turnover filed. 15. It has been further argued that the learned Single Judge has erred in law and on facts in not appreciating that filing of returns of turnover is in order to declare the total and taxable turnover and the net tax payable by a dealer. The correct tax liability if any is allowed to be modified or declared in the audited annual statement to be furnished in terms of Section 31 r/w 34. Once it is so declared in the audited annual statement in Form Vat 240 the correct tax liability shall be determined by the Additional Commissioner of Commercial Taxes in the reassessment proceedings after considering the books of accounts, the returns filed and also declarations made in the annual audit statement in Form VAT 240. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly returns. 20. Reliance has also been placed upon the judgments delivered in the case of Anantha Refinery Private Limited vs. The Assistant Commissioner of Commercial Taxes (Audit)-2, Davanagere and Ors., reported in 2016 (4) TMI 136 - Karnataka High Court [in WP.Nos.49867-49878/2015 (T-RES)]; in the case Corporation Bank vs. Saraswati Abharansala and Another (paragraphs 25 and 26), reported in 2010 (68) Kar.L.J 62 (SC); in the case of Collector of Central Excise vs. Dai Ichi Karkaria Ltd.,(paragraph 17), reported in (1999) 112 ELT 353 SC; in the case of Fertilizer Corporation of India vs. State of Bihar, reported in 1988(Sup) SCC 73; in the case of Giridharlal Parasmal vs. State of Mysore, reported in (1967) 20 STC 64 and in the case of Assistant CIT vs. Rajesh Javeri Stock Borkers (P) Ltd., (paragraph 19), reported in (2007) 291 ITR 500 and a prayer has been made to set aside the order passed by the learned Single Judge dated 6.12.2019 as well as the order passed by the Commissioner, by which he has denied the input tax credit, which was claimed based upon Form VAT 240. 21. Learned Additional Government Advocate appearing for the respondents - State has drawn the attention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d dealer in respect of the financial year 2009-2010 filed its returns of turnover claiming the deduction allowable under the provisions of KVAT read with KVAT Rules. The company had claimed input tax credit to the extent of ₹ 4,22,34,730.00. The company, as it exceeded a turnover of ₹ 100 lakhs during the year 2009-2010, was under an obligation to get its books of accounts audited by a Chartered Accountant and to submit a copy of the audited statement of accounts in the prescribed manner in terms of sub-section (4) of Section 31 of KVAT Act read with sub-rule (3) of Rule 34 of KVAT Rules. Sub24 Rule (3) of Rule 34 of KVAT Rules provides nine months time after the end of relevant year for the purposes of submission of the audited statement of accounts. The appellant - company accordingly, got the books of accounts audited through a Chartered Accountant and furnished the audited statement of accounts in Form VAT 240 before the concerned LVO. The Deputy Commissioner of Commercial Taxes concluded the assessment vide order dated 27.2.2012 based upon Form VAT 240 and accepted the additional tax liability and also allowed the input tax rebate to the tune of ₹ 4,98,45,046 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) shall be four per cent from Eighth day of April, 2011 to Eleventh day of April, 2011. (2) Where goods sold or purchased are contained in containers or are packed in any packing material liable to tax under this Act, the rate of tax applicable to taxable turnover of such containers or packing materials shall, whether the price of the containers or packing materials is charged for separately or not, be the same as the rate of tax applicable to such goods so contained or packed, and where such goods sold or purchased are exempt from tax under this Act, the containers or packing materials shall also be exempt. (3) The State Government may, by notification, reduce the tax payable under sub-section (1) in respect of any goods (subject to such restrictions and conditions as may be specified in the notification). (3-A) Any notification issued under sub-section (3), shall be valid until it is cancelled or varied, notwithstanding that the tax payable in respect of any such goods is modified by amendment to this Act. (4) Notwithstanding anything contained in subsection (1) subject to such conditions as may be prescribed, a registered dealer, if he so elects, may pay tax on the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, restaurateur, caterer (or dealer running a sweetmeat stall or in ice cream parlour) (or bakery or any other class of dealers as may be notified by the Government]; or (d) who is a mechanized crushing unit producing (granite or any other metals) may elect to pay in lieu of the net amount of tax payable by him under this Act by way of composition, an amount at such rate not exceeding five per cent on his total turnover or on the total consideration for the works contracts executed or not exceeding two lakh rupees for each crushing machine (per annum as may be notified by the Government). (2) Notwithstanding anything contained in sub-section (1), a dealer whose nature of business is of a type falling under more than one clause of sub-section (1), shall be eligible to opt for composition under the said sub-section in respect of tax payable on his turnover relating to any or all of such types of business subject to the condition that.- (a) such dealer maintains separate account of each type of his business; (b) the total turnover in a year in respect of all types of business of such dealer falling under clause (a) of sub-section (1) does not exceed the amount as may be notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to production of proof that such sub-contractor is a registered dealer liable to tax under the Act and that such amounts are included in the return filed by such sub-contractor; (c) in the case of a dealer executing works contracts, after opting for composition of tax under sub-section (1), (who) effects sale of any goods liable to tax under the Act other than by transfer of the property in such goods (whether as goods or in some other form) in any works contract executed by him, the dealer shall be liable to pay tax on the value of such goods made by him; (d) in the case of dealer opting for composition of tax under clause (a) or (c) of sub-section (1), the turnover on which tax is leviable under sub-section (2) of Section 3 shall be deducted from the total turnover on which an amount as notified is payable under sub-section (1) by way of composition in lieu of the tax payable under (the Act;) (e) a dealer executing works contracts and opting for composition of tax under sub-section (1), shall be liable to pay tax, if any, under subsection (2) of Section 3, in addition to tax by way of composition on the total consideration for the works contracts executed).. "Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is correct and complete; or [b] to the best of its judgment, where the return filed appears to be incorrect or incomplete, after giving the dealer an opportunity of showing cause against such assessment in writing and any additional tax assessed shall be paid within thirty days from the date of service of such assessment on the dealer. 2. xxxxx Rule 37 of KVAT Rules: "Rule 37. Tax period. - The tax period for the purpose of Section 35 shall be as follows, namely- (1) In the case of registered dealers, other than those dealers opting for payment of tax by way of composition under Section 15, whose total turnover in a year does not exceed twenty-five lakh rupees shall be a quarter. (2) In the case of other registered dealers, it shall be one calendar month. Explanation.- For the purposes of clause (1), a quarter shall mean any period ending on the final day of the months of March, June, September and December of calendar year." 28. The aforesaid statutory provisions governing the field makes it very clear that a registered dealer is under an obligation to file its returns in the form and manner prescribed and to pay tax due on such returns within 20 days/15 days aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTION 10(3) OF THE KVAT ACT AFTER ITS AMENDMENT IN 2016 w.e.f. 1-4-2016 10. Output tax, input tax and net tax. (1) ..................... (3) Subject to input tax restrictions specified in Sections 11, 12, 14, 17, 18 and 19, the net tax payable by a registered Dealer in respect of each tax period shall be the amount of output tax payable by him in that period less the input tax deductible by him as may be prescribed in that period and [....] shall be accounted for in accordance with the provisions of this Act. Provided that, a registered Dealer while calculating the net tax payable on or after first day of April, 2015, may claim input tax relatable to goods purchased during the period immediately preceding five tax periods of such tax period, if input tax of such goods is not claimed in any of such five preceding tax periods." Section 10[4] of the Act reads thus: "[4] For the purpose of calculating the amount of net tax to be paid or refunded, no deduction for input tax shall be made unless a tax invoice, debit note or credit note, in relation to a sale, has been issued in accordance with Section 29 [x x x] and is with the registered dealer taking the deduction at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, in the present case, the dealer has certainly missed the bus by not reflecting the input tax credit in the returns filed by him and now wants advantage of input tax credit only because he has reflected the same in the audited statement of accounts in Form VAT 240 and therefore, this judgment is again of no help to the appellant. 34. Learned counsel for the appellant has also placed reliance upon the judgment in the case of State of Karnataka vs. K.Bond Polymers Ltd., reported in MANU/KA/2537/2012 (2012- VIL-127-KAR - STRP No.92/2009, decided on 2.3.2012). It is true that in the aforesaid case the Division Bench has held that the assessee is entitled to claim refund of input tax credit and there was a delay of six months and in those circumstances, it was held that the delay in putting forth the claim for refund does not in any way affect his right to claim the said amount, for which the assessee was legally entitled to. However, the aforesaid judgment is distinguishable on facts as in the present case the assessee has not at all made any claim of input tax rebate in the returns filed by him. He wants the input tax rebate based upon the audited statement in Form VAT 240, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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