TMI Blog2021 (3) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied for invoking the powers under Section 64 of the Act viz., that the order sought to be revised is erroneous insofar as it is prejudicial to the interest of the revenue. However, from perusal of the impugned order dated 08.06.2015, it is evident that the Additional Commissioner of Commercial Taxes has not recorded a finding that the order passed by the Joint Commissioner of Commercial Taxes is erroneous insofar as it is prejudicial to the interest of the revenue. The Joint Commissioner of Commercial Taxes has acted like an Appellate Authority while passing the impugned order dated 08.06.2015. The condition precedent for invocation of power under Section 64 (1) of the Act having not been satisfied, the impugned order cannot be susta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, particularly on the ground that the assessee did not file a revised return under Section 35(4) of the KVAT Act, 2003? 2. Facts leading to filing of this appeal briefly stated are that appellant is a partnership firm engaged in development of residential projects based on a joint development agreement entered into with the land owner. The appellant formed the residential layout by laying roads, sewage lines, water lines etc and sold the residential layout to various customers and sale deed has been registered transferring the document of title. After registration of the sale deed, the appellant entered into construction agreement with buyer for constructing villas/ residential units. The entire construction activity was undertaken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty. In pursuance of the aforesaid order, a revised demand notice dated 22.08.2011 was issued. The Additional Commissioner of Commercial Taxes initiated proceedings under Section 64(1) of the Act to review the order of the Joint Commissioner of Commercial Taxes and set aside the order dated 14.03.2011 passed by the Joint Commissioner of Commercial Taxes and restored the re assessment orders holding that the appellant is not a works contractor and tax has to be paid under the composition scheme at the rate of 4%. In the aforesaid factual background, this appeal has been filed. 4. Learned counsel for the appellant submitted that the order passed by the Additional Commissioner is not sustainable in law and the second Revisional Authority e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been rightly invoked as the appellant failed to file the revised return as provided under Section35(4) of the Act. It is further submitted that the matter requires some factual adjudication therefore, the same may be remitted to the second Appellate Authority viz., Additional Commissioner of Commercial Taxes. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. Powers under Section 64 of the Act can be invoked only if the order is erroneous insofar as it is prejudicial to the interest of the revenue. Thus, twin conditions are required to be satisfied for invoking the powers under Section 64 of the Act viz., that the order sought to be revised is erroneous insofar as it is prejudicial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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