TMI Blog2015 (5) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from tax, as the department did not raise any question with regard to the monthly returns filed by the assessee right from April 2006 onwards and it accepted the same, which would amount to ‘deemed assessment’. Where the Commissioner itself had issued a clarification dated 03.06.2006 with regard to the commodity in question, the assessee/dealer would be presumed to have a genuine belief that it was exempted from tax and thus, it cannot be said to be a case where the assessee had furnished any wrong information or concealed any material information. It is not the case where the sale of White Oats had not been disclosed by the assessee. It is not the assessee alone but, in the facts of the present case, we can safely say that even the department was under the genuine belief that the commodity in question was exempted from tax, until the second clarification dated 20.01.2010 was issued. After the issuance of the said clarification, the assessee (instead of getting into litigation by raising a dispute regarding the White Oat flakes being subjected to tax or not) started paying taxes on sale of the said commodity. Clarification dated 03.06.2006 was issued under Section 59(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices. Then for the assessment years 2006-07 to 2008-09 (36 months), by assessment order dated 28.07.2010 passed by the Assessing Officer, the appellant was subjected to tax for the sale of White Oats. For the assessment year 2009-10 (12 months), by a separate order dated 31.01.2011 the appellant was subjected to tax for the aforesaid 12 months. The assessee challenged the said orders in appeals, which were decided by two separate orders dated 20.12.2012 passed by the Joint Commissioner of Commercial Taxes whereby the appeals of the assessee were dismissed. Challenging the said appellate orders, the assessee filed appeals before the Karnataka Appellate Tribunal, which have also been dismissed by a common order dated 01.02.2014. Challenging the said orders, these Revision Petitions have been filed. 3. We have heard Sri Inder Kumar, learned Sr. counsel assisted by Sri E I Sanmathi, learned counsel appearing for the appellant as well as Sri Giri Kumar, learned Additional Government Advocate appearing for the respondent and perused the records. We have also heard Sri K P Kumar, learned Sr. counsel assisted by Sri Vikram Hoilgol, on behalf of the intervening applicant M/s Pepsico In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued on 20.1.2010, there was no ambiguity or doubt with regard to the said product being subjected to tax under the Act. It is for the period up to 20.1.2010 which is in dispute i.e., whether for this period the assessee was liable to pay tax or not? 7. The submission of the learned Sr. counsel appearing for the petitioner is two fold: Firstly it is submitted that after the clarification was issued by the Commissioner on 03.06.2006 for the commodity in question (White Oats), the sample of which was supplied to the Commissioner which was similar to the product being dealt with by the assessee, no tax could have been levied on the sale of such White Oats carried on by the petitioner. In this regard, it is submitted that the assessee did neither collect tax from the customers nor did it pay any tax. It is also submitted that for the tax period in question, the assessee had filed its regular monthly returns and at no point of time there was any question raised by the department with regard to the applicability of tax on the sale of such goods by the appellant and as such, the returns had been accepted, which would amount to deemed assessment . It is further submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of limitation. 10. Having heard learned counsel for the parties and considering the facts and circumstances of this case, we are of the view that till the issuance of the second clarification dated 20.01.2010, the assessee was not liable for payment of tax. The primary reason for coming to this conclusion is that the first clarification dated 03.06.2006 was issued by the Commissioner itself on a query made by another dealer with regard to the sale of White Oats, which was a product similar, if not identical to the product being dealt with by the assessee herein. When along with the query, the sample of the product had also been furnished by the dealer, it would be presumed that only after examining the said sample, the Commissioner had issued the clarification dated 03.06.2006. Once such clarification had been issued for exempting the product White Oats from payment of tax (even though the clarification order may have mentioned only Oats and not White Oats), then the question of payment of tax on the same would not arise. In fact, not only the assessee but the department itself was under a genuine belief or impression that the product in question was exempted from tax, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner had itself given a clarification on 03.06.2006 and held it to be exempted from tax. After the issuance of the said clarification, the question of payment of tax, till the second clarification dated 20.01.2010 had been issued, would not arise. 12. Even otherwise, the tax, in the present case, is such which is to be collected from the customers and then paid to the department. It cannot be doubted that after the issuance of the clarification dated 03.06.2006, the assessee had a genuine belief that the commodity in question was exempted from tax. The assessee thus did not collect any tax from the customers and consequently did not pay to the department. The department did not raise any question after the returns had been filed, whereby the assessee did not pay tax, treating itself to be exempted from tax for such commodity. As we have already held above, the department itself was under the genuine belief or impression that after the clarification dated 03.06.2006, the commodity in question was exempted from tax and hence, did not raise any query by issuing any notice to the assessee after it had filed regular monthly returns, ever since April 2006. From the aforesaid fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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