PR. COMMISSIONER OF INCOME TAX-CENRAL vs. SHRI NIRMAL KUMAR KEDIA

The reason for connecting these appeals is on account of the fact that common issues arise in respect of assessment years 2008-09, 2009-10, 2010-11 and 2011- 12 in respect of the very same appellant/assessee.

Briefly stated, the facts are that the appellant/assessee is a partnership firm registered under the provisions of the Karnataka Value Added Tax, 2003 and under Central Sales Tax Act, 1956 (hereinafter referred to as "the KVAT Act" and "CST Act" respectively for the sake of brevity).

That for the assessment years 2008-09 upto 2011-12, the appellant has filed its returns on its business turnover and paid the taxes accordingly. The appellant claimed deductions under the Rules while filing returns of turnover. It is the case of the appellant that it is engaged

It is the case of the appellant that under Rule 3(2)(i-1) of the KVAT Rules the appellant is eligible to claim deduction of the entire sub-contractors' payments made during the year. Accordingly, the appellant claimed the said deductions along with the returns filed by the appellant for the respective years. The Prescribed Authority (PA) initially passed an assessment order and thereafter re-assessment order for the year 2008-09, but in respect of other assessment years, the Prescribed Authority passed only an assessment order and issued an audit report by accepting the total and taxable turnovers declared by the appellant during the respective tax periods. Appellant also furnished the details of the sub- contractors and the declaration of turnovers made for the monthly returns along with the certificates issued by the sub-contractors in the prescribed form under the KVAT Rules to the Prescribed Authority.

According to the appellant, for the assessment year 2008-09, the Prescribed Authority made a rectification order on 21/01/2015 under Section 69(1) of

According to the appellant, for the assessment year 2008-09 even in the absence of a show-cause notice issued to the appellant, the rectification order was passed. For the other assessment years, the Prescribed Authority did not accept all other claims for deduction. Being aggrieved by the orders of the Prescribed Authority for the respective assessment years, the appellant filed an appeal before the Joint Commissioner of Commercial Taxes (Appeals) - I, inter alia, contending that the rectification order was in violation of the principles of natural justice as well as Section 69 of the KVAT Act insofar as the assessment year 2008-09 was concerned and that in respect of the other assessment years, the Prescribed Authority had failed to appreciate the case of the appellant regarding deductions as well as exemptions sought by the appellant. The first appellate authority accepted the contentions of the appellant/assessee and placing reliance

When the matter stood thus, in respect of the aforesaid four assessment years, notices were issued by the respondent under Section 64 of the KVAT Act seeking suo moto revision of the orders passed by the first appellate authority as well as the Prescribed Authority.

In response to the respective notices issued by the respondent/revisional authority, the appellant/ assessee filed its reply. Appellant/assessee was heard in the matter and the impugned orders at Annexure - A in the respective appeals were passed by the respondent. Being aggrieved, the assessee has preferred these appeals.

We have heard Sri Sandeep Huligol, learned counsel for the appellant/assessee and learned Additional

Appellant's counsel made a two-fold submission: firstly, he submitted that the respondent was not right in issuing the impugned notices and exercising suo moto revisional jurisdiction in the instant case as the first appellate authority had granted relief to the appellant/assessee by placing reliance on the judgment of the Hon'ble Supreme Court in the case of Larsen and Toubro. That when the first appellate authority had granted relief to the appellant/assessee placing reliance on the judgment of the Hon'ble Supreme Court, then the suo moto revision of the order of the first appellant authority would not lie. He next contended that the relief granted to the appellant/assessee insofar as deductions claimed on the basis of the payments made to the sub-contractors was precisely on the ruling of the Hon'ble Supreme Court and when the said judgment had been relied upon to grant the relief to the appellant/assessee, the first respondent/authority could not have exercised the jurisdiction under Section 64 of the KVAT Act to set aside the order of not only the first appellate authority, but also the order of the Prescribed Authority and simply remanded

Learned counsel for the appellant contended that having regard to the judgment of the Hon'ble Supreme Court in Larsen and Toubro, the first appellate authority had rightly granted relief to the appellant herein and therefore, the respondent could not have revised the said order exercising the powers under Section 64 of the KVAT Act. Appellant's counsel next contended, even if for a moment it is assumed that the initiation of the suo moto revisional powers was justified in the instant case, the exercise of the said powers is not in accordance with law. In this regard, learned counsel for the appellant placed reliance on paragraph No.11 of the judgment of a Co- ordinate Bench of this Court in the case of Godrej Agrovet Limited vs. Additional Commissioner of Commercial Taxes, Zone II, Bangalore [(2011) 39 VST 20] to contend that when the first appellate authority followed the judgment of the Apex Court, it cannot be said that the said order is erroneous. It is bound by the order of the Tribunal as well as the order of the Apex Court and to maintain judicial discipline, it has to follow the said judgment and has given effect to it. But if the Revenue

Learned counsel for the appellant/assessee further emphasized that even if for a moment it is to be presumed that the initiation of suo moto proceedings was justified in the instant case, the exercise of such power was not in accordance with law. In that regard, he drew our attention to the operative portion of the impugned order of the respondent in each of the cases and contended that by merely making certain observations, the respondent/Authority could not have set aside the order of the first appellate authority as well as the Prescribed Authority and remanded the matter to the Prescribed Authority “to verify the issues” keeping in view the observations made in the order that purchases and sub- contractors and to conclude re-assessment under Section 39(1) of the KVAT Act is as per law. Learned counsel for the appellant/assessee contended that the respondent/Authority has not taken a categorical stand in the matter and instead simply remanded the matter in toto to the respondent/Authority as well as the earlier order of the Prescribed Authority. According to the learned counsel

Learned counsel for the appellant contended that the said exercise of jurisdiction was also faulty for the reason that on merits of the matter this is not a case where there was any prejudice caused to the Revenue and in the absence of such a precondition being met, setting aside of the orders of the first appellate authority as well as Prescribed Authority in toto and remanding the matter to the Prescribed Authority for a fresh consideration was wholly unnecessary. In this regard, learned counsel for the appellant placing reliance on the judgment of a Division Bench of the Bombay High Court in the case of Commissioner to Income-tax vs. Gabriel India Limited [(1993)71 Taxman 585 (Bombay)] and submitted that even though the said judgment is rendered under Section 263 of the Income Tax Act, 1961, the object and purpose of that Section and Section 64 of the KVAT Act being similar, paragraph Nos.8 to 11 are apposite. He submitted that in paragraph No.10, the Bombay High Court has delineated on the circumstance under which the power of suo moto revision could be exercised namely, if

Per contra, learned counsel for the respondent supported the impugned orders and submitted that where there is no clarity on any specific aspect or finding given by the first appellate authority, it is always open to the revisional authority to issue notice and on seeking reply from the assessee to revise the said order. That in the instant case, that is precisely what has been done by the respondent/revisional authority as the said authority found the need to verify the issue with regard to the payments on purchases and sub-contract made to the sub- contractors and a fresh assessment to be made. The appellant is not in anyway prejudiced as the matter has been remanded for a fresh re-assessment to be made under Section 39(1) of the KVAT Act. The appellant,

The detailed narration of facts and contention would not call for reiteration. We have perused the orders impugned in these appeals.

The common factor in all these cases which pertain to the assessment years 2008-09 to 2011-12 is with regard to the claim of deduction made by the appellant/assessee insofar as the payments made to the sub-contractors are concerned. It is the case of the appellant/assessee that the sub-contractors have offered the said amounts for tax as they have indicated the said payments made to them in their returns and accordingly, the said amounts have been taxed. That no amount has escaped taxation since the appellant has made the respective payments to its sub-contractors who have offered the same for tax in their respective returns. All that the appellant claimed was deduction in respect of the payments made to the sub-contractors. It is also not a case that the sub-contractors have not offered the amount received from the appellant/assessee towards taxation.

We have considered this contention of the assessee in light of the judgments cited before us by learned counsel for the appellant. We have perused the observations of the Bombay High Court which are in respect to suo moto revision under Section 263 of the Income Tax Act, 1961 which are at paragraph Nos.8 to 13 of the said judgment. On a reading of the same, what emerges is the fact that suo moto revision could be exercised by the Commissioner only if, on examination of the records of any proceeding under the Act, he considers that any order passed therein is “erroneous insofar as it is prejudicial to the interests of the Revenue”. It is not an

Thus, there must be two circumstances which co-exist to enable the respondent to exercise power of revision under Section 64 of the KVAT Act, which is a suo moto revisional power. Firstly, the order passed by the first appellate authority or any other inferior authority not above the rank of the Joint Commissioner is erroneous. Secondly, the erroneous order must prejudice the interest of the Revenue. Therefore, the revisional authority has to first determine what is the erroneous order and thereafter determine as to whether the erroneous order has

Though the expression “prejudicial to the interest of the Revenue” has not been defined as such, under the KVAT Act, it would imply that on account of an erroneous assessment or re-assessment the revenue lawfully due to the State has not been realised or paid by the assessee. In order to determine all these aspects,

In the instant case, on an application of the aforesaid principles, we find that while discussing the aspects regarding the payments made to the sub- contractors, there is no categorical finding given as to whether the assessee was, indeed, entitled to claim such benefit or not entitled to the same. In the absence of such finding being given by the respondent/revisional authority, the matter has been simply remanded to the Prescribed Authority under the KVAT Act to verify the issue based on certain observations made.

We find that the respondent/Authority was not right in remanding the matter to the Prescribed Authority to verify the issues with regard to certain observations made during the course of the order of purchases and sub- contractors and to make a fresh re-assessment under Section 39(1) of the KVAT Act without giving a finding as

As requested by learned counsel for the appellant, liberty is reserved to the appellant to raise additional contentions and place further material before the respondent/Authority.

It is needless to observe that the respondent/ Authority shall consider the contentions of the appellant/assessee and dispose of the revisions in accordance with law.

Since the appellant/assessee is represented by the learned counsel, the State and the appellant through its authorized representative may appear before the respondent/Authority on 26/04/2021 without expecting any fresh notices from the said Authority.

In the result, the impugned orders of the respondent/Authority are set aside and the appeals are allowed and disposed of in the aforesaid terms.