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2020 (5) TMI 342 - HC - VAT and Sales TaxRefund of Input Tax Credit - Invocation of suo-moto revision power under Section 64 of KVAT Act - denial of refund on the ground of non-payment of tax collected from the appellant by the sub-contractors - burden of proof - HELD THAT:- The co-ordinate Bench of this Court in the case of M/S BHAVANI ENTERPRISES, SMT. CHANDRA KANTA AGARWAL, SRI RITESH AGARWAL, SMT. SHRUTI AGARWAL VERSUS THE ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES ZONE III [2018 (6) TMI 974 - KARNATAKA HIGH COURT] while examining the issue of burden of proof has observed that the provision of Section 70 of the Act in its plain terms clearly stipulates that the burden of proving that input tax claim is correct lies upon the dealer claiming such input tax credit. The factual finding given by the prescribed Authority as well as the Appellate Authority requires to be examined by the Revisional Authority. The Revisional Authority proceeded to set-aside the order of the first Appellate Authority on the ground that the issue is not relating to the question whether the assessee is not a developer of SEZ but the issue relates to the claim of input tax credit made by the assessee on the basis of the invoices issued by the sub-contractors who have not at all deposited the tax to the extent of input tax credit claimed by the assessee - the input tax paid on the purchases from M/s. Dev Structural India Private Limited, Belagavi and M/s. Kanmani Constructions Pvt. Limited, Bengaluru, is refunded after due verification of all the documentary evidence. Whether allowing of the input tax credit as aforesaid would preclude the prescribed Authority in denying the input tax credit claimed by the assessee requires to be examined by the Addl. Commissioner of Commercial Taxes. It is not the case of the respondents that the sub-contractors are not in existence or invoices issued by such contractors are fake or any fraud has been played by the appellant. In such circumstances, denial of input tax credit relating to the refund of input tax paid, eligible for the appellant under Section 20(2) of the Act requires to be further examined by the Revising Authority with reference to Section 10 of the Act. Appeal allowed in part and part matter on remand.
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