TMI Blog2010 (9) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner’s tax liability. These petitions are allowed to the extent indicated hereinabove - Writ Petition No. 20781 of 2010 - - - Dated:- 2-9-2010 - ASHOK B. HINCHIGERI, J. ORDER:- ASHOK B. HINCHIGERI J. The petitioner s grievance is over the rejection of its belatedly filed revised returns and passing the reassessment order, dated April 24, 2010 (annexure D). The petitioner has also sought a writ in the nature of declaration declaring that time-limit of six months provided in section 35(4) of the Karnataka Value Added Tax Act, 2003 (for short, the VAT Act ) for filing the revised returns is directory. Sri G. Sarangan, the learned senior counsel appearing for Smt. H. Vani for the petitioner submits that the original returns filed by the petitioner contain certain omissions and incorrect statements. It was all because of the changeover from the earlier Karnataka Sales Tax Act ( the KST Act ) regime to the VAT Act regime. The software installed was developed only to meet the requirements of the KST Act. On noticing that the returns already filed were not accurate from the angle and requirement of VAT regime, the petitioner filed revised returns for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions, he has relied on the Kerala High Court decision in the case of Commissioner of Income-tax v. Aspinwall and Co. Ltd. reported in [1993] 204 ITR 225 (Ker). He requests that the machinery provisions are to be construed liberally; only the charging provisions require strict construction. In support of his submissions, he relies on the honourable Supreme Court judgment in the case of J.K. Synthetics Ltd. v. Commercial Taxes Officer reported in [1994] 94 STC 422 (SC). He also brings to my notice rule 39 of the Karnataka Value Added Tax Rules, 2005 (for short, the VAT Rules ), which enables the concerned officer to issue a notice to an assessee if the return is found to be incomplete or incorrect. The said rule is extracted hereinbelow: 39. Action on apparently incomplete or incorrect return submitted. (1) Where any return submitted is apparently incomplete or incorrect, the jurisdictional local VAT officer or VAT sub-officer shall issue a notice in Form VAT 150 requiring the dealer to submit a complete or correct return within ten days of issue of the notice. The afore-extracted rule does not prescribe any period of limitation within which the concerned officer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act , the apex court held that a circular of the Board under section 119 cannot override or detract from the Act inasmuch as, what section 119 has empowered is to issue orders, instruction or directions for the proper administration of the Act or for such other purpose specified in sub-section (2) of that section and that such an order, instructions or direction cannot override the provisions of the Act which would be destructive of all the known principles of law as the same would really amount to giving powers to a delegated authority to even amend the provisions of the law enacted by Parliament. Sri Shivayogiswamy has also relied on the Kerala High Court decision in the case of J S Granites Company v. State of Kerala reported in [2009] 25 VST 424 (Ker). He read out the headnote, which reads as follows: The power of the Commissioner to decide a dispute is a power to clarify: to resolve the dispute as to the application of the statutes in question and not beyond. The provisions in section 59A of the Kerala General Sales Tax Act, 1963 and section 94 of the Kerala Value Added Tax Act, 2003 amount only to the statutory recognition of the authority, to clarify, meaning th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined. There cannot be a direction to treat a particular type of transaction to be a manufacturing activity without examining the factual scenario. There cannot be a generalisation in such matters. Sri Shivayogiswamy submits that if any Act is prejudicial to the interest of the Revenue, the Joint Commissioner under section 63A and the Additional Commissioner and the Commissioner under section 64 of the VAT Act can always exercise their revisional power for determining the correct liability of an assessee to pay the tax. Even when Sri Shivayogiswamy resisted this petition tooth and nail, he fairly submits that not entertaining of the returns for two months, February and March 2006, constitutes an error on the part of the first respondent. He undertakes to have the revised returns filed for the month of February and March 2006 considered and consequentially have those portions of the impugned reassessment orders rectified. Sri Sarangan s rejoinder submission is that the appeals are filed against the reassessment orders; on the other hand the main grievance ventilated in these writ petitions is only the non-acceptances of the revised returns on the ground of delay. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the honourable Supreme Court in the case of Fertilizer Corporation of India Ltd. v. State of Bihar [1988] 68 STC 158 (SC), the machinery provisions are required to be interpreted liberally and generously, so long as the principle object of the provision is not frustrated. With this ratio at the back of my mind, let me refer to the Statement of Objects and Reasons of the VAT Act. Its object No. VII is to promote, Voluntary compliance by providing for acceptance of returns filed by the dealers on self-assessment basis and for scrutiny of books of account only in selected cases. Rule 39 of the VAT Rules provides for taking action by the concerned officer on an apparently incomplete and incorrect return submitted. The rationale behind section 35(4) of the VAT Act and rule 39 of the VAT Rules is only to lessen the imperfections. The errors cannot be left uncorrected and the returns cannot be left in the incomplete State. Viewed in this perspective, the Commissioner s order is laudable; the order cannot be held to be illegal or inconsistent with the provisions of the VAT Act or the Rules framed thereunder. If it were illegal, it would have been withdrawn by the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X
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