TMI Blog2015 (11) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... as the output tax and the credit which is claimed. However, if there are incorrect statement in the said return, an opportunity is given to such assessee to file a revised return in the prescribed form within a period of 6 months from the end of the relevant tax period, subject to the permission being granted by the prescribed authority. If return is not filed within the aforesaid time, then the question of calculating the refund would not arise. In the instant case, admittedly the returns for the period from April 2005 to February 2007 were filed only on January 16, 2010. In fact, the reason given for delay in filing such return was, the assessee was a heart patient and he could not file the return in time. The law do not provide for condo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrying on annual maintenance contract to the customers, which includes labour and service and sale of components/parts for the maintenance of air-conditioners. The prescribed authority took up visit audit on January 16, 2010 and called for production of books of accounts from April 2005 to September 2009 for verification. The assesse had not registered himself under the Act. Therefore the assessing authority treated the respondent as unregistered dealer and he was assessed to tax under section 38(7) of the Act and also penalty was levied under section 73(1) of the Act. Aggrieved by the said order, the assessee preferred an appeal with the first appellate authority, which dismissed the same. It also directed the assessing authority to levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies were not justified in treating the assessee as an unregistered dealer during the period from April 2005 to February 2007 and therefore the Tribunal was justified in passing the impugned order for refund of tax and therefore he submits, no case of interference is made out. 5. From the aforesaid facts and rival contentions, the question that arises for our consideration in these revision petitions is, whether the Tribunal was justified in directing refund of input tax ? 6. Output tax, input tax and net tax is provided under section 10 of the Act, which reads as under: 10. Output tax, input tax and net tax.- (1) Output tax in relation to any registered dealer means the tax payable under this Act in respect of any taxable sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions specified in sections 11, 12, 14, 17, 18 and 19, where under sub-section (3) the input tax deductible by a dealer exceeds the output tax payable by him, the excess amount shall be adjusted or refunded together with interest, as may be prescribed. 7. Sub-section (4) of section 10 of the Act provides how the net tax to be paid or refunded, is to be calculated. It provides, the first condition to be fulfilled is a tax invoice or a debit note or credit note, in relation to a sale ought to have been issued in accordance with section 29. Secondly, the return is to be filed as provided under section 35(1), i.e., a return VAT 100 within 20 days or 15 days after the end of preceding month showing the input tax as well as the output tax and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35, at paragraphs 9 and 11, has held as under (pages 120 to 122 in 77 VST): 9. From a reading of the aforesaid provision it is clear that, output tax is a tax payable by any dealer on sale of goods made by him in the course of his business. Input tax is a tax collected by the registered dealer or payable under this Act on the sale to him of any goods for use in the course of his business. Sub-section (3) of section 10 provides for calculating the net tax payable by the registered dealer. It provides that, the net tax payable by a registered dealer in respect of each tax period shall be the amount of output tax payable by him in that period less the input tax deductible by him as may be prescribed in that period and shall be accounted fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the relevant tax period. Therefore, the statute provides for filing of a return, claiming input-tax rebate within the period prescribed in law. If in the return filed there is any omission or incorrect statement, a provision is made for filing of a revised return within the time prescribed. If the returns are not filed within the said period, then the assessee would not be entitled to the benefit of setting off output tax against the input tax. 8. Therefore the order passed by the Tribunal is contrary to the statutory provisions and cannot be sustained. The question of law is answered in favour of the Revenue and against the assessee. Hence we pass the following order: The revision petitions are allowed. The impugned order is he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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