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2016 (12) TMI 629 - HC - VAT and Sales TaxInput tax credit - presumptive tax - unaccounted purchases - Evasion of tax - suppression of facts - Section 25(1) of the KVAT - Held that: - primarily Section 25C of the Act will not apply in an instance where the presumptive dealer suppresses his turnover. The learned counsel for the petitioners however submits that even in an instance where there is suppression of turnover by a presumptive dealer, a Division Bench of this Court in Mooken Devassy & Co., [2016 (12) TMI 463 - KERALA HIGH COURT] observed that if the turnover assessed does not exceed ₹ 60 lakhs, the dealer is entitled for the benefit of payment of presumptive tax. If such a rationale is adopted, the petitioners in the present cases are also entitled for benefit of input tax credit. Section 25C applies only if the assessing authority had denied the eligibility of the dealer to pay presumptive tax for the violation of conditions enumerated in sub section (5) of Section 6. Unless such a finding is made by the assessing authority in the assessment order that the petitioners have violated any of the conditions enumerated in Section 6(5), none of the petitioners are entitled for the benefit of Section 25C. In other words, a finding by the assessing authority that the dealer has violated the conditions in Section 6(5) is a precondition for claiming input tax credit under Section 25C. Penalty proceedings u/s 22(7) of the Act - Held that: - it is an independent provision in respect of dealers paying tax under Section 6(5) and if it is found that amount of tax if any paid is less than the amount of tax which he is liable to pay, then the assessing authority has jurisdiction to direct the dealer to pay difference of tax between the amount of tax already paid and that fixed in such proceedings together with thrice the amount of such difference as penalty. Having regard to the aforesaid discussion, I do not think that the petitioners are entitled to get any relief in the above writ petitions. Petitions disposed off - The assessing Officer is directed to make a fresh assessment giving the benefit of payment of tax at presumptive rate - decided partly in favor of petitioner-assessee.
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