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2018 (6) TMI 1704 - KERALA HIGH COURTGrant of Special Rebate - Section 12 of the Kerala Value Added Tax Act, 2003 - prohibition applicable to presumptive regime - whether the tax payable by the assessee on the suppressed purchase value under Section 6(2) of of the Act of 2003 is liable to special rebate under Section 12 of the said Act? - HELD THAT:- There are no analogy that can be drawn from Venus Marketing. Venus Marketing was with respect to the input tax credit claimed by a presumptive dealer. With respect to presumptive dealers, there is a specific prohibition, in claiming input tax credit under Section 11 of the Act of 2003. In the case of persons, who switch over from the presumptive regime to regular tax payment, there is an enabling provision under Rule 12 of the Kerala Value Added Tax Rules, 2005. An assessee, who is under the presumptive regime is to make an application pointing out his intention to changeover and from that time onward the assessee is entitled to input tax credit. Even when such changeover is allowed in the course of an year, the presumptive tax paid before the changeover is not entitled to input tax credit. The procedural mandate distinguishes input tax credit allowable under Section 11 from special rebate deductible under Section 12. The claim under Section 11 has to be supported by invoices; which in the instance of best judgment were suppressed and later detected. While input tax is a claim to be made by the assessee, special rebate is a deduction permissible in the return itself. Hence the assessing authority when determining the turnover and levying tax is obliged to grant the deduction to tax payable under sub-section (2) of Section 6 as special rebate. The assessee is entitled to special rebate on the purchases added to the turnover returned, on best judgment assessment - the questions of law is answered in favour of the assessee and against the revenue - Revision dismissed.
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