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M/s Fenesta Building Systems (A Unit of DCM Shriram Limited Formerly Known As DCM Shriram Consolidated Ltd) Versus The Additional Commissioner of Commercial Taxes

2016 (4) TMI 618 - KARNATAKA HIGH COURT

Period of limitation - Order passed by First Appellate Authority - Appellant submitted that the date for the purpose of exercise of the revisional power should be counted from the date of reassessment made by the assessing authority and not the First Appellate Authority - Held that:- the respondent was fully conscious about the point of limitation taken by the appellant in response to the show cause notice. However, in the reasoning recorded by the respondent while passing the impugned order, th .....

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ation, would be one of the vital aspects and it would completely change the basis of the order, in the event the point of limitation is accepted. - Matter remanded back - STA No. 1/2016, STA Nos. 89-99/2016 - Dated:- 3-3-2016 - Jayant Patel And B. V. Nagarathna, JJ. For the Appellant : Sri Harish V S, Adv For the Respondent : Sri Shivayogi Swamy, AGA JUDGMENT Admit. 2. Mr. Shivayogiswamy, learned Addl. Government Advocate appearing for the respondent-Revenue waives notice of admission. 3. All ap .....

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he customers. It is the case of the appellant that on 29.05.2010, re-assessment order was passed by the Assessing Officer under Karnataka Value Added Tax, 2003 (hereinafter referred to as the KVAT Act', for short) for the tax period of 2007-2008. The matter was carried in appeal before the First Appellate Authority and the First Appellate Authority found that since the appellant was dealing in the works contract, benefit of 25% towards labour charges should be made admissible and the order d .....

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ppearing for the appellant and Mr. Shivayogiswamy, learned Addl. Government Advocate for the respondent. 8. Leaving aside the other aspects, one of the vital aspects is that the appellant in reply to the notice under Section 64(1) of the KVAT Act, raised the point of limitation at paragraph-16 of the reply. The same for ready reference is reproduced as under: "16. Without prejudicial to the above submissions we further submit that, in our case the Assessing Authority has passed order on 29- .....

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applicable, therefore the limitation of four years for revision starts from the date of order passed by the Assessing Authority i.e., 29-05- 2010, which ends on 28-05-2014, since, proceedings initiated is barred by limitation, therefore the same should be dropped." 9. It further appears that the respondent while passing the impugned order has completely reproduced the reply submitted in response to the show cause notice under Section 64(1) of the Act; the relevant of which reads as under a .....

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vide VAT AP No.673 to 684/10-11 dated 06.01.2012. As the issue raised in the revision proceedings was not before the FAA, the doctrine of the merger cannot be made applicable, therefore the limitation of four years for revision starts from the date of order passed by the Assessing Authority i.e., 29-05- 2010, which ends on 28-05-2014, since, proceedings initiated is barred by limitation, therefore the same should be dropped. 17. In support of this we rely on the Hon'ble Karnataka High Court .....

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he passing of the first appellate order". 18. Sub-section (4) of Section 64 of the KVAT Act, 2003 provides that, "Notwithstanding anything contained in sub-section (3), the Additional Commissioner or the Commissioner may pass an order under sub-section (1) or (2), as the case may be, on any point which has not been raised and decided in an appeal or revision referred to in clause (b) of sub-section (3), before the expiry of a period of one year from the date of the order in such appeal .....

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Mill reported in [1975] 35 STC 601 (AP), in the said case an assessment was made on 15-03-1965 the date of service of order was 29- 03-1965. Assessees appealed before the Assistant Commissioner for rate of tax issue and allowed the appeal vide order dated 17-09- 1965. Revised order was issued on 12-12-1967. Subsequently Deputy Commissioner of Commercial Taxes exercising SMR powers U/s.20(2) of the AP Act vide order dated 12-09- 1969 revised the order of the Assistant Commissioner stating that t .....

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revision order dated 12-12-1969, was barred by time". 20. Hon'ble Supreme Court in The State of Madras Vs Madurai Mills Co., Limited reported in [1967] 19 STC 14 (SC) held that, i) that, since the question regarding the exclusion of the value of cotton purchased from outside the State of Madras was not raised before the Deputy Commissioner and the only point raised before him was regarding the inclusion of the amount of tax collected by the respondent in the taxable turnover, the subje .....

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the State of Madras was not the subject-matter of revision before the Deputy Commissioner. That, therefore, the revision proceeding before the Board of Revenue was barred by limitation. 21. In Vikram Cement Vs Commissioner of Commercial Tax, Indore and others [2010] 35 VST 362 (MP) held that REASSESSMENTLIMITATION- DOCTRINE OF MERGER- ORDER DATED OCTOBER 26, 1994 BY ASSESSING AUTHORITY PURSUANT TO REMAND BY APPELLATE AUTHORITY TO GIVE OPPORTUNITY TO PRODUCE DECLARATION FORMS-NO MERGER OF ENTIRE .....

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as on a limited challenge by the dealer only on the award of interest and penalty by the assessing officer in the order of assessment dated March 31, 1999. The rest of the order of assessment was not in challenge before the first appellate authority and would therefore to that extent not merge with the order of the first appellate authority. The limitation for revising the order of assessment dated March 31, 1999 would therefore commence from April 21, 1999 which was the date on which the order .....

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d) held that, DOCTRINE OF MERGER - REVISION - JOINT COMMISSIONER - LIMITATION - FIVE YEARS FROM DATE OF ORDER SOUGHT TO BE REVISED - ASSESSMENT APPEALED AGAINST BY DEALER AND APPEAL ALLOWED - DEPUTY COMMISSIONER PROPOSING TO TAX TURNOVER NOT SUBJECT OF APPEAL - NO MERGER OF ASSESSMENT WITH ORDER IN APPEAL - LIMITATION RUNS FROM DATE OF ASSESSMENT - REVISION NOTICE TIMEBARRED - TAMIL NADU GENERAL SALES TAX ACT (1 OF 1959), SEC.34. The issue has been dealt in detail before the Assessing Authority .....

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aforesaid aspects in order to take cognizance of the fact that the respondent was fully conscious about the point of limitation taken by the appellant in response to the show cause notice. However, in the reasoning recorded by the respondent while passing the impugned order, there is no discussion whatsoever on the issue of limitation. 11. Learned Counsel appearing for the respondent is also unable to show any discussion dealing with the point of limitation. He only submitted that as per the pr .....

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