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2016 (6) TMI 861 - KARNATAKA HIGH COURT

2016 (6) TMI 861 - KARNATAKA HIGH COURT - [2016] 92 VST 532 (Kar) - Refund - grant of refund merely accepting the returns without verifying the records and documents - Karnataka Value Added Tax, 2003 (KVAT) - sale of undivided share in land in flats sold - Held that:- the Tribunal has clearly exceeded the jurisdiction in setting aside the order by the first appellate authority and further whether to sustain the proceedings of the assessing authority/PA was also not the subject matter of the appe .....

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connected, they are being considered simultaneously. 2. The appellant/petitioner shall be addressed as the assessee, whereas the respondents - authorities shall be addressed as Revenue for the sake of convenience. 3. The short case of the appellants appears to be that on 30th July, 2007, the impugned order was passed by the DCCT(Audit) for accepting the monthly return for the period from April, 2005 to August, 2005 and the refund was allowed to the appellant as claimed in t he returns. In the sa .....

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amely DCCT (Audit) was wrong in invoking the provisions of Section 39(1) of the Act and for granting refund by merely accepting the returns. Hence, the Joint Commissioner, in exercise of his revisional power reversed the decision of refund, but accepted the returns. He further held that tax pay able for July 2005 had not been paid as per the return and directed to raise a demand for the same. 5. The Additional Commissioner of Commercial Taxes initiated the proceedings under Sec. 64(1) of the Act .....

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er Sec. 39(1) and make reassessments for all the tax period. On 30th January, 2010, the Deputy Commissioner (Assessing Authority) , issued notices under Sec. 39(2) of the Act for all the tax periods and called upon the petitioner to produce books of accounts. The Deputy Commissioner instead of passing reassessment order after verification of the books of accounts and the documents, made a demand of tax vide order dt. 28-06-2010 for the tax period April, 2005 to March, 2006. The assessee against .....

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s further carried in second appeal before the Tribunal, so far as not granting of relief by the first appellate authority. There was no cross appeal preferred by the Revenue before the Tribunal against the decision of the first appellate authority. However, the Tribunal vide order dated 23-01-2014, not only dismissed the appeal, but also set aside the order of the first appellate authority, whereby certain benefits were partly allowed to the assessee. Under these circumstances, all the STRP as w .....

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239-250/2014 are preferred against the order passed by the Tribunal made on 23rd January, 2014, whereby the appeals preferred by the assessee came to be dismissed, without going into the merits and the order of the first appellate authority was set aside and further a direction was given to the assessing officer to give effect to the order of the additional commissioner dated 20-01-2010. 8. We have heard Mr. G.Rabinathan, the learned Counsel appearing for the appellant/petitioner - assessee and .....

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ial while exercising the appellate power :- 1. All appeals were preferred by the assessee against the order of the first appellate authority and it would mean that they would be restricted to the relief not granted by the first appellate authority in favour of the assesee. So far as reliefs which were already granted by the first appellate authority, naturally, the petitioner could not be said to be aggrieved and if any person who can be said to be aggrieved would be the Department. If, as per t .....

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elief granted by the first appellate authority in favour of the appellant. Under these circumstances, the scope and ambit of the appeal which was at the instance of the petitioner- appellant before the Tribunal could be said to be restricted to the extent of the relief not granted by the first appellate authority and not beyond the same viz., to examine the legality and validity of the order passed by the first appellate authority so far as it related to the relief already granted in favour of t .....

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matter of STA Nos.46/2014 and 47-57/2014), when the assessment was to be made under Section 39(1) of the KVAT Act, it was obligatory on the part of the assessing authority not only to issue notice, but to further consider the submissions and to give opportunity of hearing to the assessee before any final order of assessment is passed. As per the assesee in the present case, notice under Section 39(1) of the KVAT Act, was issued. The asessee appeared in response thereto and the books of accounts .....

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terpretation of the order passed by the Additional Commissioner in the revisional jurisdiction. If the assessee is not heard, it was to be one sided interpretation of the order and therefore it was more required on the part of the assessing authority to hear the petitioner-appellant before concluding on the interpretation and the effect of the order of the revisional authority i.e., Additional Commissioner. 11. In our considered view, the aforesaid aspects are not properly considered by the Trib .....

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ie., assessing authority for giving effect to the order passed by the Additional Commissioner dated 20.01.2010. In our view, if the scope of appeal preferred by the petitioner-appellant is considered as limited to the grievance raised by the petitioner-appellant so far as not granting the relief by the first appellate authority, all other observations on the part of the Tribunal can be said as exceeding the jurisdiction. It is true that in exercise of the appellate power under Section 63 of the .....

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e and thereafter further examine the same which has not at all been done. Further, it was for the respondent- Department to decide as to whether they should prefer an appeal against the order of the first appellate authority so far as granting of the relief in favour of the petitioner-appellant is concerned. When there was no cross-appeal or no cross-objection preferred by the respondent-department against the order of the first appellate authority so far as it related to grant of the reliefs, t .....

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