Remanded

Pattanshetty.M.M. v. the State of Karnataka

Karnataka HC21 Nov 2013STA/501/2010

Case brief

AI extract

What is this about?

The High Court of Karnataka remanded a revision petition filed under section 66(1) of the KVAT Act to the Revisional Authority. The Court held that the revisional authority lacked a complete opportunity to consider a subsequent regular assessment order which had replaced the protective assessment order under challenge.

What did the court decide?

Order dated 4.12.2009 of the Revisional Authority is set aside, and the matter is remanded to the Revisional Authority to reconsider the entire matter afresh in accordance with law.

Pattanshetty.M.M. Vs the State of Karnataka — Writ and Judicial Review | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD

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DATED THIS THE 31^ST DAY OF OCTOBER 2012

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PRESENT

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THE HON’BLE MR.JUSTICE K.L.MANJUNATH

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AND

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THE HON’BLE MR.JUSTICE B. MANOHAR

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S.T.A.No.501/2010

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BETWEEN:

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Sri M.M.Pattanashetty Proprietor, M/s.Manjunatha Traders, Ankalgi, Gokak Taluk, Belgaum District.

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…Appellant (By Sri M.N.Shankare Gowda & Sri H.R.Kambiyavar Advocates.)

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A N D:

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The State of Karnataka, Additional Commissioner of Commercial Taxes, Zone-1, Vanijya Therige Karyala Gandhinagar, Bangalore-560009.

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...Respondent (By Sri Mahesh Wodeyar, Addl.Government Advocate.)

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This STA is filed under Section 66(1) of the Karnataka Value Added Tax Act, 2003, against the order dated 4.12.2009 passed in ZAC-1/BGM/SMR47/09-10 on the file of the Additional Commissioner of Commercial Taxes, Zone-1, Bangalore, setting aside the appeal order and revised in terms of the discussions.

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This Appeal coming on for final hearing this day, K.L.Manjunath, J, delivered the following judgment:

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JUDGMENT

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The above appeal was admitted on 19.1.2010 to answer the following substantial questions of law.

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i) Whether on the facts and in the circumstances of the case the revisional authority is right in holding that the burden is on the appellant to prove that the suppliers have actually deposited the tax collected as per Section 70(1) of the KVAT Act to claim input tax rebate?

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ii) Whether on the facts and in the circumstances of the case the revisional authority is right in revising the appeal order which is not in

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existence, when the re-assessment order is passed u/s 39 of the KVAT Act subsequent to the appeal order but before the initiation of revisional proceedings u/s 64(1) of the KVAT Act?

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iii) Whether on the facts and in the circumstances of the case the revisional authority is right in passing the order wholly on the ground that the appellant has not proved that the tax amount collected by the suppliers has actually deposited with department in the absence of proposing the same in the notice issued u/s 64(1) of the KVAT Act?

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iv)

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Whether on the facts and in the circumstances of the case the intelligence authority is right in passing the protective assessment order u/s 38(5) of the KVAT Act and in turn the revisional authority’s acceptance of the same?

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v) Whether on the facts and in the circumstances of the case the revisional authority is right in revising the appeal order without rejecting the documentary evidences produced as not genuine?

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vi) Whether on the facts and in the circumstances of the case the revisional authority is right in holding that there is no movement in spite of documentary evidences produced in support of movement of goods?

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Heard the counsel for the parties.

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After hearing we have noticed that without answering all the questions of law framed herein, the matter is required to be remanded to the Revisional Authority to consider whether the Revisional Authority was competent to revise the order dated 19.4.2007 when there was an order of reassessment

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*38(1)(a) passed under Section 39(1) of the Karnataka VAT Act, 2003, on 17.10.2007.

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*Corrected vide court order dtd. 21.11.2013 Sd/DBBJ & BMJ

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The Revisional Authority exercising its power vested in it under Section 64(1) of the Karnataka VAT Act has revised the order passed by the First Appellate Authority dated 19.4.2007 passed in Appeal No.JC/ AP/ BGKVAT-233/ 2006-07/ B121, which order was passed by the appellate authority in an appeal filed by the assessee challenging the order passed by the assessing authority under Section 38(5) of the Karnataka VAT Act, as a protective assessment order.

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Thereafter the Deputy Commissioner of Commercial Taxes (Audit-3) has passed a Regular Assessment under Section 39(1) of the Karnataka VAT Act, 2003, on 17.10.2007. Against the Regular Assessment passed by the Deputy Commissioner, the assessee has not filed any appeal because he is satisfied with the order. But the question is that when Regular Assessment Order has been passed on 17.10.2007, whether the Revisional Authority would

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*38(1)(a)

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*Corrected vide court order dtd. 21.11.2013 Sd/DBBJ & BMJ

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get jurisdiction to review the order passed by the

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*38(1)(a)

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First appellate authority against the order passed as a Protective Assessment Order because any order passed as a protective assessment will merge with the Regular Assessment. In other words the Protective Assessment Order passed under Section 38(5) would merge with the order passed under Section 39(1) of the Karnataka VAT Act.

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Therefore we are of the view that in view of

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*38(1)(a)

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*38(1)(a)

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the order of reassessment passed under Section 39(1) of the Act for the entire year 2006-07, it is for the Revisional Authority to reconsider the entire matter afresh in accordance with law. Since the Revisional Authority has exercised its power and revised the order passed by the First Appellate Authority, which appeal was filed against the Protective Assessment Order, as there is no opportunity for the Revisional Authority to consider the order passed under Section 39(1) of the Karnataka VAT Act, we set aside the

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*Corrected vide court order dtd. 21.11.2013 Sd/DBBJ & BMJ

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order dated 4.12.2009, passed by the Revisional Authority, as per Annexure-E to the appeal, without answering the questions of law framed in this appeal the matter is remanded to the Revisional Authority to dispose of the revision in accordance with law. While doing so the Revisional Authority shall consider the effect of the order of Regular Assessment passed

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*38(1)(a) under Section 39(1) of the Act.

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*Corrected vide court order dtd. 21.11.2013 Sd/DBBJ & BMJ

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Sd/JUDGE

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Sd/JUDGE

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Mrk/-

Pattanshetty.M.M. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Pattanshetty.M.M. v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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