TMI Blog2018 (2) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... according to him is due on the basis of the information made in the return filed by him, it is highly unrealistic to expect him to pay the tax on the basis of final assessment done by the assessing authority. The assessee cannot predict the liability accruing on the basis of the rectification proceedings initiated subsequent to assessment proceedings. Revision petition dismissed. - S.T.R.P.Nos. 100019/2015 & 100005/2016 - - - Dated:- 10-11-2017 - MRS. S. SUJATHA AND DR. H. B. PRABHAKARA SASTRY JJ. PETITIONER: (BY SRI M. KUMAR, AGA) RESPONDENT: (BY SRI.SANGRAM S. KULKARNI, ADV.) S. SUJATHA J. ORDER Since common issues are involved in these matters, both the matters are clubbed, heard and disposed of by this common order. 2. The Revenue has preferred these revision petitions under Section 23 of the Karnataka Sales Tax Act, 1957, (for short the Act ) challenging the common judgment of the Karnataka Appellate Tribunal at Bengaluru in STA No.3500 and 3501/2013 for the assessment years 2006-2007 and 2007-2008. 3. Facts in brief are: The respondent herein is a company registered under the Companies Act, 1956, and is carrying on the business of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion in the present case is, deliberate efforts made by the assessee to evade tax in the guise of claiming certain benefits which were not a t all applicable. At the first instance, the explanation offered by the assessee that they had claimed benefit under a mistaken notion is at best only self serving. The Tribunal failed to appreciate these vital aspects in a right perspective in allowing the appeals. It is the contention of the learned counsel that interest is liable to be paid under Section 12-B (2) of the Act in view of the rectification orders passed under Section 25-A of the Act. 7. On the other hand, learned counsel Sri Sangram S. Kulkarni, appearing for the assessee supporting the impugned orders submitted that Section 12-B (2) of the Act provides for payment of interest in cases of default committed in the payment of tax for any month or quarter beyond ten days, or if the amount of tax paid is less than the amount of tax payable for any month or quarter in terms of the returns filed. In such cases, for the default in payment of tax or making short payment of tax, the liability accrues on the assessee to pay interest. Admittedly, no provisional assessment was made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing authority to be incorrect or incomplete, the assessing authority may assess the dealer provisionally for that month to the best of his judgment, recording the reasons for such assessment, and proceed to demand and collect the tax on the basis of such assessment; Provided that before taking action under this sub- section the dealer shall be given a reasonable opportunity of being heard. 10. Section 12-B (2) of the Act empowers the authorities to collect interest in the following circumstances: i) if default is committed in the payment of advance tax for any month or quarter as the case may be, beyond ten days whether or not of filing of the monthly statements, or ii) if the amount of tax paid is less than the amount of tax payable for any month or quarter as the case may be. 11. It is beneficial to refer to the Constitutional Bench judgment of the Hon ble Apex Court in the case of J.K. SYNTHETIC s case supra, wherein it is observed thus: 17. Let us look at the question from a slightly different angle. Section 7 (1) enjoins on every dealer that he shall furnish prescribed returns for the prescribed period within the prescribed time to the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and expect him to pay the tax on that basis to avoid the liability to pay interest. That would be asking him to do the near impossible. 12. The Division Bench of this Court in the case of MANDOVI MOTORS s case supra , has observed thus : 10. Therefore, in addition to the monthly returns i.e., Form 3 which he has filed, a dealer i s expected to file yearly returns i.e., Form 4 under Section 12 (1) of the Act in the prescribed manner. Sub-section (1-A) of Section 12 makes it obligatory on the part of the dealer to pay in advance the full amount of tax pay able by him on the basis of such return filed under Section 12 (1) as reduced by any tax already paid under Section 12 -B. Along with the return he shall furnish satisfactory proof of the payment of such tax. The said provision declares the tax so payable on such annual return shall for the purpose of Section 13 be deemed to be the tax due under this Act from such dealer. If default is committed in the payment of full amount of tax payable in advance for any year as reduced by any amount of tax already paid under Section 12-B, whether or not a return as required under sub-section (1) is filed; or if the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justifiable. A harmonious reading of sub- Sections (1), (2), (3), (3A) and (4) of Section 12- B makes it clear that the phrase paid and payable employed in sub- Section (2) shall be the determination of advance t ax made by the assessee not the assessment made by the assessing authority. 14. From the aforesaid, it is clear that when the assessee pays the tax which according to him is due on the basis of the information made in the return filed by him, it is highly unrealistic to expect him to pay the tax on the bas is of final assessment done by the assessing authority. The assessee cannot predict the liability accruing on the basis of the rectification proceedings initiated subsequent to assessment proceedings. The assessee cannot foresee these eventualities which according to him was unexpected/uncalled. If any demand is made on finally assessing the assessee or on the rectification order, penal provisions under Section 12 (3-A) and Section 12 (4 ) would have been invoked but no power under Section 12-B (2) dealing with the interest on the advance tax payment can be exercised save or except demand made on provisional assessment under Section 12-B(3). 15. No question of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
