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Weir BDK Valves, A Unit of Weir India Pvt Ltd (Formserly B.D.K. Engineering Industries Limited) Versus The Assistant Commissioner of Commercial Taxes (Audit - 1) And Others

Denial of refund claim - Bar of limitation - Held that:- In the returns itself, the petitioner had claimed refund of a sum of ₹ 3,56,15,297/-. The opportunity ought to have been given to the petitioner to produce the ‘C’ Forms and ‘H’ Forms. The benefit available under the law cannot be denied on technical ground. The transaction is inter-state transaction. On production of statutory forms issued by the competent authorities, the petitioner is entitled to pay the lesser tax. In the instant .....

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sequent to the completion of the assessment by reopening the assessment. Further, Rule 12(7) of the CST Rules also provide for the same. The statutory forms can also be filed before the First Appellate Authority. - First Appellate Authority without going into the merits of the case dismissed the appeal on the ground that it is barred by limitation - Matter remanded back - Decided in favour of assessee. - W.P. No.72328 & W.P.Nos.72395-397/2012 (T-RES) - Dated:- 5-6-2015 - B. Manohar, J. For the A .....

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ter referred to as the KST Act for short) and for other reliefs. 2. The petitioner is a unit of Weir India Private Limited which is a subsidiary of Weir Holding BV, Netherlands and is engaged in the business of manufacture, sale and distribution of industrial valves and providing engineering services. The Weir India Private Limited, acquired the business of BDK Engineering Industries Limited, which was registered under the provisions of Karnataka Value Added Tax Act (for short the KVAT Act ) bea .....

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008, October 2008 to December 2008, January 2009 to March 2009, taken up for assessment and notice under Section 9(2) of Central Sales Tax Act, 1956 (hereinafter referred to as the CST Act for short) was issued on 17-02-2011 calling upon the petitioner to produce account books, tax invoices, sale bills and other relevant records for the assessment. In response to the said notice, the petitioner through his letter dated 22-3-2011 produced C Forms and H Forms and requested time to collect the bala .....

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the statutory forms and raise a demand for tax, interest and penalty is contrary to law. There is lot of mistakes in the pre-assessment notice. Along with the objections, the petitioner also furnished C Forms covering the turnover of ₹ 3,33,106/-, undertook to furnish C Forms and the accounts. The Assessing Authority after considering the objections to the preassessment notice, passed the assessment order on 25-05-2011 for each quarter of the assessment year 2008-09, calling upon the petit .....

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rise. The Inter-State transaction is covered by the statutory forms i.e. C Forms and H Forms and the petitioner is entitled for concessional rate of tax. Thereafter, on 23-06-2011, one more letter was addressed to the Assessing Authority producing 38 C Forms, covering a turnover for the assessment year 2008-09 and also H Forms covering turnover of ₹ 1,92,020/-. In pursuance of the said letter, the Assessing Authority issued an endorsement dated 03-07-2011 calling upon the petitioner to app .....

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and impose tax on concessional rate of tax. The Assessing Authority by its endorsement dated 26-09-2012 called upon the petitioner to pay the balance tax as per the assessment order dated 25-05-2011 failing which, coercive action will be taken. Being aggrieved by the said endorsement dated 26-09-2012 and also assessment order dated 25-05-2011, the petitioner preferred appeals before the Joint Commissioner of Commercial Taxes (Appeals), Dharwad Division, Hubli (the First Appellate Authority for .....

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respondents. 4. During the pendency of the writ petitions, the petitioner also filed an application seeking for quashing the order passed by the First Appellate Authority rejecting the appeals filed by the petitioner. 5. Sri.K.P.Kumar, learned Senior Counsel appearing for M/s.King and Patridge contended that the assessment order dated 25-05-2011, levying tax at the higher rate on account of non-submission of statutory forms is not sustainable. Though the petitioner has produced all relevant For .....

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he Assessing Authority should consider the same by reopening assessment under Section 9(2) of the CST Act read with Section 39 of the KVAT Act. In the Circular, it was made clear that the Circular Instruction dated 07-06-2006 shall be adhered to, strictly by all officers. In the instant case, though C Forms and H Forms are produced subsequent to the assessment, as per the Circular dated 7-6-2006, duty casts upon the Assessing Authority to take into consideration the statutory forms filed subsequ .....

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d by sufficient cause from furnishing such statutory forms within the aforesaid time, the authority may allow furnishing the said Forms within such further time. In the instant case, though the petitioner has sought time to collect the statutory forms from their customers, the Assessing Authority has not given any opportunity to produce the same. Though the petitioner appeared before the authorities in pursuance of the notice of rectification of the assessment order, the officers were not availa .....

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ration, the petitioner is entitled for refund of ₹ 3,56,15,297/-. The Appellate Authority without taking into consideration the reasons assigned for condoning the delay in filing the appeal dismissed the same, which is contrary to law. The reason assigned by the petitioner is a bonafide reason that they have to collect the Forms from his customers. Apart from that, they had acquired the business of BDK Engineering Industries on 11-10-2010. Within four months of acquisition of that industry .....

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he judgment reported in (2005) 142 STC 01 (STATE OF HIMACHAL PRADESH v/s. GUJARAT AMBUJA CEMENT); (2001) 121 STC 273 (MAHESHWARI FIREWORKS INDUSTRIES v/s COMMERCIAL TAX OFFICER AND OTHERS); (1970) 78 ITR 26 (L HIRDAY NARAIN v/s INCOME-TAX OFFICER, A WARD, BAREILLY). 6. On the other hand, Sri.M.Kumar, learned Additional Government Advocate appearing for the respondents submitted that the writ petition filed by the petitioner is not maintainable before this Court. The petitioner has got an alterna .....

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ctions to the said proposition notice nor produced any C Forms, accordingly, the Assessing Authority passed the order. Even in rectification proceedings also, though the petitioner was called upon to produce C Forms and H Forms, the petitioner has failed to produce the same. Accordingly, the Assessing Authority rejected the rectification application. 7. The Circular dated 7-6-2006 makes it clear that - If the required statutory forms are not filed or not fully filed within 3 months from the end .....

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THER v/s SHIV RATHAN G. MOHATTA). In the instant case, sufficient opportunity has been given to the petitioner to produce statutory forms, despite the same, the petitioner has failed to produce the same. Accordingly, the Assessing Authority has passed the order. Hence, sought for dismissal of the writ petitions. 8. I have carefully considered the arguments addressed by the learned counsel for the parties, perused the impugned assessment order and other relevant records. 9. The returns filed by t .....

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from their customers. On the basis of the C Forms and H Forms furnished by the petitioner, preassessment notice was issued under Section 9(2) of CST Act read with Sections 35, 36 and 72(2) of KVAT on 26-03-2011 calling upon the petitioner to file their objections to the pre-assessment notice. However, the petitioner failed to file their objections though time was granted. In view of that the Assessing Authority passed by the assessment order on 25-05-2011 and issued demand notices. Thereafter, t .....

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rdingly, the rectification application was rejected by the Assessing Authority on 27-07-2011. Thereafter, it appears that the petitioner had produced some more C Forms and H Forms covering taxable turnover of more ₹ 4,80,00,000/- and odd. The main grievance of the petitioner is that within four months of acquisition of business of the BDK Engineering, the assessment proceedings was taken place. He has to get the C Forms and H Forms from their customers, which consumes some more time. In sp .....

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assess the dealer rejecting the claim of concessional rate of tax/exemption, after issuing the proposition notice and after providing reasonable opportunity of being heard to the dealer in this regard, without, however, calling for books of accounts. (f) If the statutory forms are filed subsequent to completion of assessment as per sub-para (e) above, then the assessing authorities should consider the same by re-opening the assessments U/s 9(2) of the CST Act read with Section 39 of the KVAT Ac .....

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Perhaps the requisite corrective action can be taken by invoking the assessing authority s statutory power of rectification of mistakes. Even otherwise, the implementation, in appropriate cases, of, the power to allow further time cannot be withheld on the excuse that there is no express provision either in the statute or in the statutory rules for reopening the assessment. When the power is there and the facts are there demanding its exercise, the implementation must be done as a matter of cou .....

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to be noted that under rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules 1957 (in short, the Registration Rules ) the declaration form can be filed at a subsequent point of time and not necessarily along with returns. On an application being made before the assessing officer the extension can be granted. The object of the Rule is to ensure that the assessee is not denied a benefit which is available to it under law on a technical plea. The assessing officer is empowered to gr .....

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lso be accepted as additional evidence in support of the claim for deduction. 10. The judgment relied upon by the petitioner fully supports the case of the petitioner. The assessment for the year 2008-09 was taken up by the Assessing Authority after issuing notice. At the relevant point of time, the petitioner could not collect the entire statutory C Forms and H Forms and requested some more time to produce the same. However, the Assessing Authority proceeded to issue pre-assessment notice and t .....

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ion of statutory forms, the Assessing Authority levied a higher rate of tax on the turnover, for which, the statutory forms were not produced. Even on belated production of statutory forms, the statutory authority is bound to take into consideration the same and give the benefit of reduction of the tax. The circular dated 7-6-2006 issued by the Commissioner makes it clear that the Assessing Authority should consider the statutory forms which were produced belatedly i.e. subsequent to the complet .....

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