9911796707
TMI Blog2023 (3) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 (for short, 'the KVAT Act'). The Tribunal by the impugned common order has rejected the petitioner's application for waiver of pre-deposit under Section 63(4) of the KVAT Act, and the petitioner's appeals in STA Nos. 74, 75 and 76 of 2021 must stand rejected because the petitioner has not made the necessary pre-deposit. However, on 21.04.2022 this Court has granted stay of dismissal of the petitioner's appeals. 2. The petitioner, apart from calling in question the Tribunal's common order dated 03.03.2022, had challenged the validity of the provisions of Section 63(4) of the KVAT Act as arbitrary and unconstitutional, but consequent to this Court's orders dated 13.04.2022 and 20.04.2022, the prayers in this regard stand deleted. As such, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeals before the Tribunal under Section 63 of the KVAT Act would also fail. With the afore as prefatory submissions, Sri Sandeep Huilgol submits that this Court must grant waiver of the pre-deposit as contemplated under Section 63(4) of KVAT Act and grant further liberty to the petitioner to seek deferment of the appeals by the Tribunal under Section 63(5) of the KVAT Act. 4. Sri. Sandeep Huilgol submits that the Assessing Officer does not dispute that the petitioner has paid taxes for the purchase during the relevant period viz., from February 2014 to September 2015 and these amounts have also been remitted by the concerned manufacturer/distributor. Though the petitioner cannot deny that the Returns for the aforesaid period are filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain waiver and in this regard, he places reliance upon the decision of this Court in W.P. No. 16323/2016 This petition is disposed of on 24.03.2016. W.P. No. 9511/2021 [This petition is disposed of on 23.06.2021] and with caveat that this Court, while considering the question of waiver of pre-deposit for stay under Section 62 of the KVAT Act in these cases, has granted such waiver in the light of the fact that the petitioners in such cases were public undertakings. 7. Sri Hema Kumar K., the learned Additional Government Advocate for the respondents on the other hand, submits that the stipulation under Section 63(4) of the KVAT Act for pre-deposit is part of the scheme of appeal as contemplated under Sections 62 and 63 of the KVAT Act. He e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Hemakumar submits that the petitioner could always make this request with the Tribunal after making the mandatory pre-deposit. 9. This Court must at the very outset observe that the Tribunal will have to examine the question whether the petitioner must be denied the benefit of ITC only because the Returns are filed belatedly in the light of the law that prevails as of the date of its decision. Further, the petitioner's request for deferment under Section 63(5) of the KVAT Act is premature as such request can be made only when the appeals are registered and admitted by the Tribunal. Redoubtably, the appeals would be registered and admitted only when there is pre-deposit in compliance with the provisions of Section 63(4) of the KVAT Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in its entirety, and the request in this regard must be considered in the peculiarities of the case. 11. The petitioner's first appeal under Section 62 of the KVAT Act is decided in the backdrop of the questions whether the petitioner must be allowed the benefit of output tax as also the benefit of ITC when Returns in Form VAT 100 are filed belatedly after departmental inspection, and the petitioner is allowed the benefit of output tax but not the benefit of ITC because the Returns are filed belatedly. These circumstances must be considered to decide the subject question, and this Court must also consider the petitioner's assertion that if ultimately it is concluded, as a matter of law by the Hon'ble Supreme Court, that the delay in fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit under Section 63(4) of the KVAT Act with reasonable time. Hence, the following: ORDER [a] The petition is allowed in part, and the Tribunal's order dated 03.03.2022 in STA Nos. 74, 75 and 76 of 2021 is modified. The petitioner is permitted to deposit 50% (that is 15% of the amount in demand) as required under Section 63(4) of the KVAT Act and the petitioner shall be at liberty to make this deposit within six (6) weeks from the date of receipt of a certified copy of this order. [b] If the petitioner makes deposit as now permitted within the time allowed, the Tribunal shall consider, in accordance with law, the petitioner's application, if filed, under Section 63(5) of the KVAT Act for deferring the proceedings in STA Nos. 74, 75 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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