9911796707
TMI Blog2023 (7) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... the Karnataka Value Added Tax, 2003 (for short, 'the KVAT Act') (Annexure-A), the order dated 12.07.2019 under Section 69 read with Section 39(1) of the KVAT Act (Annexure-A1), and the order dated 15.09.2021 under Section 47(3) of the KVAT Act (Annexure-R), which is consequential to the order dated 31.03.2021. 2. The facts leading to this petition in brief would be that the petitioner, who had entered into contract with M/s. Ocean Interiors Limited during the relevant assessment year viz., 2015-16, deducted a sum of Rs. 76,89,549/- as Tax Deducted at Source (TDS) and deposited a sum of Rs. 80,75,720/- along with interest. When the petitioner approached the concerned for VAT Form-156, its representatives were informed that because the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectification, which would be akin to a review, can be only when there is a mistake apparent from the record, and unless a finding is recorded justifiably that there is a mistake apparent from the record, the fourth respondent could not have assumed jurisdiction. He canvasses that the third respondent in dismissing the appeal has overlooked this essential fact. 5. Sri. Ravi Raghavan next contends that the provisions of Section 47(3) of the KVAT Act could not have been invoked to justify a rectification and withdrawal of Form-185. The provisions of Section 47(3) of the KVAT Act for forfeiture could be invoked only if any amount is collected by way of tax as contemplated under Section 47(1) of the KVAT Act. The petitioner did not collect any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and because of the indisputable position in law that any deduction towards anticipated tax liability would assume the character of tax. However, in the peculiarities of the case, the questions that will have to be considered by this Court in this writ petition are: Whether in the circumstances of the case there could be forfeiture under Section 47(3) of the KVAT Act of the refund permitted to the petitioner, and Whether the third respondent has erred in his jurisdiction in upholding the fourth respondent's rectification order dated 12.07.2019 [Annexure - A1] under Section 69 of the KVAT Act. This Court, for the following reasons, must answer this question in favour of the petitioner. If the provisions of Section 47(1)1 of the KVAT Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted certain amount as tax and deposited the same along with interest because of its own reading of this provision. Subsequently, when the petitioner has made a request for VAT Form-156, its representatives are informed that it was not obliged under the provisions of Section 9-A of the KVAT Act to deduct the amount. The petitioner has repaid the amount to M/s. Ocean Interior Limited. Neither this fact, nor the further assertion that the contractor has filed full returns disclosing this transaction and offering tax is contested. 10. This Court must opine that, given the scheme under Section 47 of the KVAT Act and the circumstances in which the petitioner has deduced TDS and deposited the same notwithstanding the provisions of Section 9(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings dated 11.07.2019 related to deductions made notwithstanding the provisions of Section 9-A of the KVAT Act, could not have been relied upon the same to conclude that there was a mistake apparent from the record in permitting the refund. The relevance of the proceedings dated 11.07.2019 is not brought even in the present writ petition. The third respondent, while exercising the appeal jurisdiction should have considered these aspects before declining the petitioner's appeal, and in the absence thereof, the third respondent's order dated 31.03.2021 cannot be sustained. With the afore, question for consideration is answered in favour of the petitioner and consequentially, the impugned order must be quashed. 13. The petitioner would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Commercial Taxes (Audit)- 4.8, DVO-4, is called upon to ensure that there is refund of Rs. 80,75,720/- in terms of Form VAT-185, which is dated 11.02.2019 within a period of six [6] weeks from the date of receipt of a certified copy of this order. If there is any delay, for the delayed period interest as permitted statutorily shall be paid. ---------------- Notes: 1. Where any amount is collected by way of tax or purporting to be way of tax from any person by any dealer, whether knowingly or not, such dealer shall pay the entire amount so collected, to the prescribed authority within twenty days after the close of the month in which such amount was collected, notwithstanding that the dealer is not liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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