TMI Blog2016 (6) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... und by the Tribunal, and if it was not applied, the view taken by the Tribunal that the action was not unintentional cannot be said to be an impossible view, which may call for interference by us. - Levy of penalty confirmed. - Decided against the assessee. - STRP NO. 462/2015 & STRP NOS. 463-484/2015 - - - Dated:- 8-3-2016 - MR.JAYANT PATEL AND MRS.B.V.NAGARATHNA JJ. For the Petitioner: Sri. Thirumalesh, advocate For the Respondent: Sri. T.K. Vedamurthy, GP ORDER The petitioner-assessee has preferred the present petitions by raising the following substantial questions of law: 1. Whether on the facts and in the circumstances of the case, the Karnataka Appellate Tribunal was right in holding that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006, the first month of Appeal and subsequently in all the tax periods continuously. The factors which could cause confusion in using the formula prescribed under Rule 131 do not exist in these appeals. The appellant has not demonstrated the existence of any such factors or confusions in the use of the said formula. The Prescribed Authority clearly states that the Appellant has claimed input tax credit at 12.5% in the case of furnace oil or other petroleum products used for manufacture of finished goods; that the Appellant has not maintained the classification of purchases of furnace oil or other petroleum products and that in the absence of such classified purchases 10% of the total of 12.5% local purchases were presumed as purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 39(1) he is vested with powers of re- assessment if it is found that, for any tax period, tax admitted in the return is less than the correct tax liability and not otherwise. This is an issue which is not before us and the same is opened to revision by the jurisdictional authorities. Also, the Appellant has attempted to establish that non-application of the said formula and consequently short payment of tax is un-intentional and not deliberate by contending that for the tax periods of the year 2007-08 the Prescribed Authority has granted refund of ₹ 19,88,44,369/- vide his orders dated 24-2-2011. This contention is again contrary to facts and the same is very clear from the order of the Prescribed Authority under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and Rules, is not an account of any deliberate act of not applying the apportionment formula in the month of inputs, no interest or penalty should be demanded from the dealer concerned. In these Appeals, the Appellant had failed to establish existence of any confusion in applying the formula. Though the transactions necessitating partial rebating exist in every tax period the Appellant has not bothered to attempt partial rebating by use of the formula prescribed under Rule 131. As stated in the Circular, excess claims of tax credits are a possibility when a cycle of transaction is less than 6 months or spread over in two to three months of one financial year and two or three months in another financial year. The Appellant does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the first appellate authority. 5. As such, it is hardly required to be stated that the scope of judicial scrutiny in the present petitions is limited to a question of law and not a question of fact. The Tribunal, for the purpose of a question of fact is the ultimate fact finding authority. This Court may interfere with such finding of fact if it is a mixed question of law and fact or the view taken by the Tribunal on the basis of the facts available on record is an impossible view and not the possible view. If it is a possible view, this Court may not sit in an appeal over such finding of fact. 6. The learned Counsel for the petitioner attempted to contend that the Tribunal has gone by a particular paragraph of the Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the part of the assessee and inspite of the same, the benefit of circular was not given fully. Hence, the Tribunal in the said case had taken the view that once it was found that there was no malafide intention on the part of the petitioner, it was required for extending the benefit and accordingly the order of penalty and interest was set aside by the Tribunal. Such is not the fact situation in the present case, inasmuch as the first appellate authority in the present matter, has found that the action was not unintentional and therefore, the benefit of circular would not be available to the assessee. 8. Under these circumstances, the decision upon which reliance has been placed by the learned Counsel when not applicable to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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