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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2019
BEFORE
THE HON’BLE MRS.JUSTICE S.SUJATHA
WRIT PETITION Nos.35989 – 36000/2016 c/w W.P.No.33372/2018, W.P.Nos.13781 & 28178 – 28188/2017 AND W.P.Nos.32896 – 32919/2016 (T – RES)
IN W.P.Nos.35989 – 36000/2016:
BETWEEN:
M/s MFAR CONSTRUCTIONS PVT. LTD. No.8 & 8A, AVS COMPOUND 80 FEET ROAD, 4TH BLOCK, KORAMANGALA, BENGALURU - 560034 REP BY ITS CHIEF EXECUTIVE OFFICER SRI FAYAZ KAMALUDDIN S/O LATE K.P.KAMALUDDIN AGED ABOUT 46 YEARS
... PETITIONER
[BY SMT.VANI H., ADV.]
AND:
1 . ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES ZONE –II, 6TH FLOOR, VANIJYA THERIGE KARYALAYA - 1, GANDHINAGAR, BENGALURU - 560009
2 . DEPUTY COMMISSIONER OF COMMERCIAL TAXES, AUDIT - 4.5, DVO – 4, ROOM No.204, 2ND FLOOR, VTK - 2, KORAMANGALA BANGALORE - 560047
- 2 -
3 . STATE OF KARNATAKA DEPARTMENT OF FINANCE BY ITS SECRETARY VIDHANA SOUDHA AMBEDKAR VEEDHI BANGALORE – 560001
…RESPONDENTS
[BY SRI T.K.VEDAMURTHY, AGA.]
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE INTERPRETING THE PROVISIONS OF SECTION 10(3) OF THE KVAT ACT IN SUCH A MANNER SO AS TO PERMIT AVAILMENT OF INPUT TAX CREDIT BASED ON THE ANNUAL AUDITED STATEMENT OF ACCOUNTS IN FORM VAT 240 IRRESPECTIVE OF THE CLAIM BEING MADE IN THE RETURNS OF TURNOVER FILED UNDER SECTION 35 OF THE KVAT ACT, IN SO FAR AS PETITIONER IS CONCERNED.
IN W.P.No.33372/2018:
BETWEEN:
M/s MANGALORE FORCE, URWA STORE ROAD, KOTTARA CHOWKI, MANGALORE-575 005 A PARTNERSHIP FIRM, REP BY ITS PARTNER SRI MUKESH M., S/O SRI SHEKHAR M., AGED ABOUT 46 YEARS
... PETITIONER
[BY SMT.VANI H., ADV.]
AND:
1 . THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES-ENFORCEMENT-02 WEST ZONE, VANIJYA THERIGE BHAVANA, MAIDAN ROAD, MANGALURU-575 001
- 3 -
2 . STATE OF KARNATAKA DEPARTMENT OF FINANCE, BY ITS SECRETARY, VIDHANA SOUDHA, BENGALURU-560 001
…RESPONDENTS
[BY SRI T.K.VEDAMURTHY, AGA.]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE INTERPRETING THE PROVISIONS OF SECTION 10(3) OF THE KVAT ACT IN SUCH A MANNER SO AS TO PERMIT AVAILMENT OF INPUT TAX CREDIT BASED ON THE ANNUAL AUDITED STATEMENT OF ACCOUNTS IN FORM VAT 240 IRRESPECTIVE OF THE CLAIM BEING MADE IN THE RETURNS OF TURNOVER FILED UNDER SECTION 35 OF THE KVAT ACT, IN SO FAR AS PETITIONER IS CONCERNED.
IN W.P.Nos.13781 & 28178 – 28188/2017:
BETWEEN:
M/s PARAMOUNT LTD., COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, HAVING ADDRESS FOR COMMUNICATION AT WASTE WATER TREATMENT PLANT, PHASE-3, MRPL, KUTHETHOOR, KATIPALLA, MANGALORE-575013 AND REGISTERED OFFICE AT PARAMOUNT COMPLEX, NATUBHAI CIRCLE, RACE COURSE, VADODARA-390007 REP BY ITS AUTHROISED SIGNATORY, SRI BHARBESH B. SHAH, S/O B.J.SHAH, AGED ABOUT 58 YEARS
... PETITIONER
[BY SMT.VANI H., ADV.]
- 4 -
AND: 1 . COMMISSIONER TAX OFFICER AUDIT-6, DIVISIONAL VAT OFFICE, VANIJYA THERI BHAVANA, VI FLOOR, MAIDAN ROAD, MANGALORE-575001
2 . ASSISTANT COMMISSIONER OF COMMERCIAL TAXES LOCAL VAT OFFICE-260, MAIDAN ROAD, MANGALORE-575001
3 . STATE OF KARNATAKA DEPARTMENT OF FINANCE, REP BY ITS SECRETARY, AMBEDKAR VEEDHI, BENGALURU-560001
…RESPONDENTS
[BY SRI T.K.VEDAMURTHY, AGA.]
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE INTERPRETING THE PROVISIONS OF SECTION 10(3) OF THE KVAT ACT IN SUCH A MANNER SO AS TO PERMIT AVAILMENT OF INPUT TAX CREDIT BASED ON THE ANNUAL AUDITED REPORT IN FORM VAT 240 IRRESPECTIVE OF THE CLAIM BEING MADE IN THE RETURNS OF TURNOVER FILED UNDER SECTION 35 OF THE KVAT ACT, IN SO FAR AS PETITIONER IS CONCERNED.
IN W.P.Nos.32896 – 32919/2016:
BETWEEN:
M/s ANS CONSTRUCTIONS LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT, HAVING ITS OFFICE AT NO.201, MATHA RESIDENCY, ASHOK NAGAR, KOTTARA, MANGALORE - 575 006 REP BY ITS AUTHORISED SIGNATORY, SRI RAGHUNATH PRASAD,
- 5 - S/O SRI RAGHUNATH, AGED ABOUT 53 YEARS.
... PETITIONER
[BY SRI VANI H., ADV.]
AND:
1 . DEPUTY COMMISSIONER OF COMMERCIAL TAXES (ADUIT-2) DIVISION VAT OFFICE, MAIDAN ROAD, MANGALORE - 575 001.
2 . STATE OF KARNATAKA DEPARTMENT OF FINANCE, BY ITS SECRETARY, VIDHANA SOUDHA, AMBEDKAR VEEDHI, BANGALORE - 560 001.
…RESPONDENTS
[BY SRI T.K.VEDAMURTHY, AGA.]
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE INTERPRETING THE PROVISIONS OF SECTION 10(3) OF THE KVAT ACT IN SUCH A MANNER SO AS TO PREMIT AVAILMENT OF INPUT TAX CREDIT BASED ON THE ANNUAL AUDITED STATEMENT OF ACCOUNTS IN FORM VAT 240 IRRESPECTIVE OF THE CLAIM BEING MADE IN THE RETURNS OF TURNOVERB FILED UNDER SECTION 35 OF THE KVAT ACT, IN SO FAR AS THE PETITIONER IS CONCERNED.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED, IS COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PASSED THE FOLLOWING:
O R D E R
These petitions involving similar and akin issues, have been considered together and are disposed of by this common order.
- 6 -
In W.P.Nos.35989-36000/2016, the petitioner has challenged the order dated 05.05.2016 passed by the Additional Commissioner of Commercial Taxes under Section 64 of the Karnataka Value Added Tax Act, 2003 [‘Act’ for short].
In W.P.No.33372/2018, the petitioner has challenged the re-assessment order and the rectification order passed by the prescribed authority under the provisions of the Act.
In W.P.Nos.13781 and 28178-28188/2017, the petitioner has challenged the re-assessment order dated 25.11.2016 passed by the prescribed authority under the provisions of the Act in addition to the other prayers sought. However, the prayers in clauses [d], [e], [f] and [g] are not pressed as having rendered infructuous.
In W.P.No.32896/2016 the petitioner has challenged the reassessment orders as well as the
- 7 - demand notices dated 17.05.2016 and 18.05.2016 relating to the assessment years 2012-13 and 2013-14 respectively. Though the petitioner has sought for a direction to the respondent to allow the deduction of sub-contractor for the assessment year in question, the same is not pressed. Accordingly, the said prayer is dismissed as not pressed.
The fulcrum of dispute in these matters revolves around the interpretation of Sections 10[3] and 10[4] of the Karnataka Value Added Tax Act, 2003 [‘Act’ for short] inasmuch as the availment of input tax credit by the registered dealer based on the annual audit statement of accounts filed in Form VAT 240 notwithstanding no claim made in the return of turnover filed under Section 35 of the Act.
The petitioners are the dealers registered under the provisions of the Act. The claim of the input tax credit of the petitioners based on Form VAT 240 has been rejected by the Authorities.
- 8 -
The learned counsel Smt.Vani.H., appearing for the petitioner submitted that Sub-section [4] of Section 10 provides for circumstances under which the deduction of input tax credit can be restricted. According to the said provision deduction of input tax shall not be allowed unless tax invoice in accordance with Section 29 is issued and the same is available with the registered dealer claiming the deduction at the time of furnishing the returns in respect of the sale. Thus, it was submitted that if the registered dealer/assessee satisfies that it was in possession of the tax invoices issued in accordance with Section 29 at the time of filing the returns, it would be suffice and there is no mandatory requirement for claiming the input tax credit in the return of turnover filed.
It was submitted that the return of turnover filed by the petitioners are deemed as assessed under Section 38 of the Act. However, the annual audited
- 9 - statement of accounts was prepared much after the filing of the returns for the 12 respective tax periods and therefore, the petitioners could not claim the differential input tax rebate which was found at the time of annual auditing of books and reflected in Form VAT 240 – the prescribed form of annual audited statement of accounts. The petitioners had made a claim to allow the input tax credit based on the annual audited statement of accounts.
It was argued that Section 31 of the Act and Rule 34 of the Rules provides for 9 months period for the completion of the annual audit and furnishing of audit in Form VAT 240 before the prescribed authority. The filing of the audit report is to facilitate the Assessing Officer in framing of a proper assessment. The first respondent after verifying all the details furnished by the petitioner in support of the input tax credit/rebate based on the annual audit report, rejected the input tax
- 10 - credit solely on the basis that the same was not claimed in the returns filed. Learned counsel has referred to circular dated 08.02.2018 issued by the Commissioner of Commercial Taxes, [Karnataka] Bangalore in compliance with the direction of this Court rendered in the case of M/s. Kirloskar Electric Company Pvt. Ltd., infra in respect of Section 10[3] of the KVAT Act relating to the period up to 2014-15.
Learned counsel for the petitioners argued that the amendment to Section 10[3] of the Act by Act No.5 of 2008 w.e.f., 01.08.2008 substituting the phrase “this Act” for the words “Chapter V” would indicate the entitlement of input tax credit by the registered dealer based on VAT Form 240. It was argued that the decision of the Authorities in rejecting the claim of input tax credit is contrary to Section 10[3] of the Act. Reliance was placed on the catena of judgments.
- 11 - 9. Learned Additional Government Advocate submitted that the writ petitions are not maintainable as the petitioners have not exhausted the alternative and efficacious remedy of statutory appeal available under the provisions of the Act.
Learned counsel inviting the attention of the Court to Section 35 of the Act, submitted that returns are required to be filed by every registered dealer and shall pay the tax due on such return within 20 days after the end of the preceding month or any other tax period as may be prescribed. Revised returns can be furnished under Section 35[4] of the Act wherein a time limit of 6 months is prescribed. In terms of Section 38[1], every dealer shall be deemed to have been assessed to tax based on the returns under Section 35 of the Act. The registered dealer in the event of not claiming the input tax credit in the monthly returns, by filing the annual statement in Form VAT 240 is not
- 12 - entitled to claim the same on the basis of the annual statement in Form VAT 240 filed. It was thus argued that the authorities are justified in denying the input tax credit and the same does not call for any interference by this Court.
Having heard the learned counsel appearing for the parties and perusing the material on record, the moot question that arises for consideration of this Court is: Whether the registered dealer is entitled to claim input tax credit under the provisions of the Act on the basis of audit statement in Form VAT 240 sans making such claim in the monthly returns?
Under the Scheme of the Act, Section 3 is the charging Section Liability to tax and rates thereof, is contemplated under Section 4 of the Act. Section 35 provides for furnishing the return which reads thus: “35. Returns.-
(1) Subject to sub-sections (2) to (4), every registered dealer, and the Central Government, a State Government, a statutory
- 13 - body and a local authority liable to pay tax collected under sub-section (2) of Section 9, shall furnish a return in such form and manner, including electronic methods, and shall pay the tax due on such return within twenty days after the end of the preceding month or any other tax period as may be prescribed.
Provided that the specified class of dealers as may be notified by the Commissioner shall furnish particulars for preparation of the return in the prescribed form or submit the return in the prescribed form, electronically through internet in the manner specified in the said notification:
Provided further that the specified class of dealers as may be notified by the Commissioner shall pay tax payable on the basis of the return, by electronic remittance through internet in the manner specified in the said notification.
(2) The tax on any sale or purchase of goods declared in a return furnished shall become payable at the expiry of the period specified in sub-section (1) without requiring issue of a notice for payment of such tax.
(3) Subject to such terms and conditions as may be specified, the prescribed authority may require any registered dealer.-
(a) to furnish a return for such periods, or
- 14 - (b) to furnish separate branch returns where the registered dealer has more than one place of business.
(4) If any dealer having furnished a return under this Act, other than a return furnished under sub-section (3) of Section 38, discovers any omission or incorrect statement therein, other than as a result of an inspection or receipt of any other information or evidence by the prescribed authority,
[a] he shall furnish a revised return within the time prescribed for filing the return for the succeeding tax period; and
[b] he shall furnish a revised return any time thereafter but within six months from the end of the relevant tax period, if so permitted by the prescribed authority.”
Section 38 deals with the assessment of tax. In terms of the said provision, every dealer shall be deemed to have been assessed to tax based on the return filed by him under Section 35, except in cases where the Commissioner may notify the dealer of any requirement of production of accounts before the prescribed authority in support of a return filed for any
- 15 - period and such authority shall proceed to assess such dealer – [a] on the basis of the return filed where he is satisfied that the return filed is correct and complete; or [b] to the best of its judgment, where the return filed appears to be incorrect or incomplete, after giving the dealer an opportunity of showing cause against such assessment in writing and any additional tax assessed shall be paid within thirty days from the date of service of such assessment on the dealer.
Section 2[28] of the Act defines “Return” as under: “Return” means any return including a revised return prescribed or otherwise required to be furnished by or under this Act;”
“Tax period” is defined under Section 2[33] of the Act as under: “Tax period” means such periods as may be prescribed;”
Rule 37 of the Karnataka Value Added Tax Rules, 2005 [‘Rules’ for short] deals with tax period and the same is quoted hereunder:
- 16 - “Rule 37. Tax period. – The tax period for the purpose of Section 35 shall be as follows, namely- (1) In the case of registered dealers, other than those dealers opting for payment of tax by way of composition under Section 15, whose total turnover in a year does not exceed twenty-five lakh rupees shall be a quarter.
(2) In the case of other registered dealers, it shall be one calendar month.
Explanation.- For the purposes of clause (1), a quarter shall mean any period ending on the final day of the months of March, June, September and December of calendar year.”
A comprehensive reading of these provisions makes it clear that the registered dealer is liable to furnish a return in the Form and manner prescribed and shall pay the tax due on such return within 20 days/15 days after the end of the preceding month or any other tax period as may be prescribed. The tax on any sale or purchase of goods declared in return furnished becomes payable at the expiry of the period of 20 days/15 days without requiring issue of a notice for
- 17 - payment of such tax. The registered dealer is entitled to furnish a revised return within six months from the end of the relevant tax period. It is the deemed assessment based on the return filed by every registered dealer under Section 35 of the Act except in certain cases where the commissioner may notify.
Provisions of Section 10[3] of the Act was amended from time to time. Section 10[3] as it stood prior and after the amendments is quoted hereunder for ready reference:
“SECTION 10[3] OF THE KVAT ACT PRIOR TO AMENDMENT Act No.5 of 2008:
[3] Subject to input tax restrictions specified in Sections 11, 12, 14, 17, 18 and 19, the net tax payable by a registered dealer in respect of each tax period shall be the amount of output tax payable by him in that period less the input tax deductible by him as may be prescribed in that period and shall be accounted for in accordance with the provisions of Chapter V.
- 18 - Section 10[3] of the Act after its amendment by Act No.5 of 2008 w.e.f., from 01.08.2008:
[3] Subject to input tax restrictions specified in Sections 11, 12, 14, 17, 18 and 19, the net tax payable by a registered dealer in respect of each tax period shall be the amount of output tax payable by him in that period less the input tax deductible by him as may be prescribed in that period and shall be accounted for in accordance with the provisions of this Act.
SECTION 10(3) OF THE KVAT ACT AFTER ITS SUBSTITUTION IN 2015 w.e.f. April 1, 2015:
Output tax, input tax and net tax
(1) and [2] .....................
(3) Subject to input tax restrictions specified in Section 11, 12, 14, 17,18 and 19, the net tax payable by a registered Dealer in respect of each tax period shall be the amount of output tax payable by him in that period less the input tax deductible by him as may be prescribed in that period and relatable to goods purchased during the period immediately preceding five tax periods of such tax period, if input tax of such goods is not claimed in any of such five preceding tax periods and shall be accounted for in accordance with the provisions of this Act.
SECTION 10(3) OF THE KVAT ACT AFTER ITS AMENDMENT IN 2016 w.e.f. 1-4-2016
- 19 -
Output tax, input tax and net tax.
(1) .....................
(3) Subject to input tax restrictions specified in Sections 11, 12, 14, 17, 18 and 19, the net tax payable by a registered Dealer in respect of each tax period shall be the amount of output tax payable by him in that period less the input tax deductible by him as may be prescribed in that period and [....] shall be accounted for in accordance with the provisions of this Act.
Provided that, a registered Dealer while calculating the net tax payable on or after first day of April, 2015, may claim input tax relatable to goods purchased during the period immediately preceding five tax periods of such tax period, if input tax of such goods is not claimed in any of such five preceding tax periods.”
Section 10[4] of the Act reads thus: “[4] For the purpose of calculating the amount of net tax to be paid or refunded, no deduction for input tax shall be made unless a tax invoice, debit note or credit note, in relation to a sale, has been issued in accordance with Section 29 [x x x] and is with the registered dealer taking the deduction at the time any return in respect of the sale is furnished, except such tax paid under sub- section [2] of Section 3.”
- 20 - 18. The Cognate Bench of this Court in the case of Kirloskar Electricity Co. Ltd., V/s. State of Karnataka and Another, reported in [2018] 50 GSTR 385 [Karn], while considering the denial of input tax credit on the premise that the registered dealer has not claimed such input tax credit in that particular period i.e., input tax credit restricted/denied to the registered dealers merely on the ground that sale invoice on the basis of which input tax credit claimed was pertaining to a month or a period prior to the relevant tax period has held that the claim of credit of input tax is indefeasible as was the case of CENVAT under Excise Law and such credit of ITC under VAT law which is equivalent to tax paid in the chain of sales of the same goods, cannot be denied on the anvil of machinery provisions. It is held that the input tax credit cannot be denied only because input tax credit claim is not made in respect of sale invoices which are not pertaining to same tax period, nor it can be denied on the ground
- 21 - that such claim is not made immediately in the month or months following the month of purchase of goods in question. The machinery provisions of filing of returns under Section 35 of the KVAT Act cannot defeat the substantial claim under Section 10[3] of the Act. The revenue is entitled only to verify that the sale invoices are genuine and valid and such input tax credit claim is not duplicate fictitious or bogus. Indeed, it was not in dispute the input tax credit was claimed in the returns filed by the registered dealer.
Pursuant to the said decision of Kirloskar Electricity Company, circular No.15/2017-18 dated 08.02.2018 has been issued by the Commissioner of Commercial Taxes whereby it is instructed as under: “1. Claim of Input Tax Credit [ITC] shall not be denied only because ITC claim is made in respect of sale invoices which are not pertaining to the same tax period of the purchase
Input Tax Credit [ITC] shall not be denied on the ground that such claim is not
- 22 - made immediately in the month or months following the month of purchase of goods.
All the assessing/re-assessing authorities/appellate authorities/revisional authorities/enforcement authorities LGSTOs/GSTSOs and any other authorities while verifying the claims of Input Tax Credit [ITC] for the period up to 2014-15, shall follow the judgment of the Hon’ble High Court of Karnataka rendered in this case of M/s. Kirloskar Electric Company Pvt. Ltd., & Others, in W.P.No.58917-58928/2016 and other aforesaid judgments favouring the assesses referred to in this judgment.
The above judgment is hosted in the department website http://ctax.kar.nic.in/judgments and also in e-Notice Board at ‘Law & Policy’ folder at Sl.No.791. All the officers are directed to download the copy of the same and follow the judgment while verifying the claims of Input Tax Credit [ITC] under the provisions of KVAT Act, 2003 upto the period 2014-15.
Non-compliance to the instructions issued I this circular will be viewed seriously and disciplinary action will be initiated against such non-compliant officers.
If any contrary view other than the interpretation made in this judgment and the instructions of this circular is taken by any of the authorities in the department while examining the claim of input tax credit as per section 10[3] of KVAT Act, 2003, as existed up
- 23 - to 31.03.2015, such authorities will be held responsible for any contempt proceedings that would be initiated by the Hon’ble High Court of Karnataka and disciplinary action will be initiated against those authorities as per the Karnataka Civil Service Rules.”
In the case of Sonal Apparel Private Limited V/s. State of Karnataka and Another, reported in [2017] 97 VST 488 Karn], the learned single judge of this Court has held in paragraphs 37 as under: “37. Under the KVAT Act, tax is leviable on every sale of goods, irrespective of whether it is the first, second or third sale. However, in order to ensure that the Act does not fall foul of the prohibition placed by the Constitution of India on double taxation, the provisions of the Act permit a dealer to deduct the amount of tax paid by him on his purchases while calculating his net tax liability. If the interpretation afforded by the Revenue to the meaning of Section 10(3) were to be accepted, the petitioners would be deprived of the benefit of availing credit of tax paid on their purchases, it would result in tax being levied under the provisions of the same Act on the same commodity at multiple stages.
Xxxx
- 24 - A case can be found in favour of the petitioners in the alternative as well. In that, it is not in dispute that from the inception of the KVAT Act, Section 10(3) was consistently interpreted by the Revenue to mean that a dealer is permitted to deduct the input tax paid on his purchases irrespective of the month in which the purchases were effected. Based on the understanding that Section 10(3) did not require dealers to avail credit only in the month in which the purchases were effected. They were held entitled to avail such credit, as long as the claim of input tax credit was supported by the prescribed documents. The ambiguity as to the purport of Section 10(3) arose as a result of the Department's clouded interpretation of the Centum Industries case. The newly substituted provision clears the air and puts to rest the ambiguity, it may hence be said that the amendment to Section 10(3) is clarificatory and therefore could be given retrospective effect.”
In the case of State of Karnataka v/s. K.Bond Polymers Pvt. Ltd., reported in LAWS [KAR] 2012 [3] 227, the Division Bench of this Court has observed that Sub-section 3 of Section 30 of the Act deals with, when the payment of tax is to be made relating to credit and debit notes. It does not deal with the payment of refund tax. Once the tax is paid under
- 25 - the Act, the assessee is entitled to the benefit of input tax. The undisputed facts therein were that the assessee was entitled to claim refund of input tax in July 2006. However, the assessee had put forth the claim six months thereafter in the VAT returns filed for December 2006. In that context, it was held that the delay in putting forth the claim for refund does not in any way affect the right to claim the said amount, which is legitimately due to the assessee under the Act nor it amounts to contravention and resulting in liability to pay tax. There is no cavil in this proposition. However, the dispute herein is the claim of input tax made without claiming such credit in the returns.
In the case of A.Balakrishnan V/s. General Manager and Another, reported in ILR 2007 KAR 1336, the learned single judge of this Court in the context of Section 139 of the Income Tax Act, 1961, held that the said provision does not indicate that the
- 26 - authorities are barred from processing the return filed under the IT Act, 1961 just because it is not filed within the time stipulated either under Section 139[1] or 139[4] of the said act. A return filed is bound to be processed by the Income Tax authorities for which purpose they are meant unless there is an embargo placed.
In the case of State of Karnataka Vs. Centum Industries Private Limited case, reported in [2015] 77 VST 117 [Karn], The Division Bench of this Court interpreting Section 10[3] of the Act inasmuch as the belated claim made by the assessee much after the lapse of a reasonable period, 6 months, disallowed the claim of input tax credit. It is beneficial to refer to the relevant paragraphs which reads thus: “12. It is contended on behalf of the assessee that, once input tax has been paid, by virtue of Section 10 the assessee is entitled to the rebate of the tax against the output tax notwithstanding the fact that such a claim is not put forth in the returns filed within the aforesaid period. He is entitled to claim such rebate even after the said period,
- 27 - as no period of limitation is prescribed. Once payment of input tax is admitted, the assessee is entitled to the benefit of setting off the input tax against the output tax. If the said interpretation were to be accepted it would render the period prescribed under the Act meaningless. When in the statute a specific period is prescribed for filing of the return under Section 35(1) of the Act and when a provision is made under Section 35(4) of the Act for filing of a revised return again prescribing a time limit, when in sub-section (3) of Section 10 it is categorically stated that the input tax shall be accounted in accordance with the provisions of this Act, the assessee would not be entitled to the benefit conferred on him under sub-section (4) of Section 10, if it is not accounted for.
In the instant case, the assessee paid input tax for the month of June 2006. In the returns filed in July 2006 he did not put forth any claim. He also did not file any revised return within 6 months putting forth the said claim. That is the period prescribed under law under Section 35 (1) and 35 (4) of the Act. It is only in the return filed in the month of February 2007, after the expiry of the aforesaid period, he put forth the said claim. Therefore, the assessing authority as well as the first Appellate Authority rightly held that the claim for input tax rebate put forth for the first time in February 2007 for the period of June 2006 cannot be allowed. However, the Tribunal without reference to the statutory provisions proceeds on the assumption that allowing input tax is a
- 28 - statutory promise made to the dealer buying the goods from the registered dealer by paying that tax mentioned in the tax invoice. There is nothing in law stipulating that if input tax is not claimed during the month succeeding the month in which purchase is effected, the dealer would forfeit his claim to claim input tax. In coming to the said conclusion, the Tribunal has not applied its mind to sub-section (3) of Section 10 which is the provision which determines the net tax payable by a registered dealer in respect of each tax period in arriving at tax liability the amount of output tax payable by the assessee in that period less the input tax deductible by him as may be prescribed in that period and accounted for in accordance with the provisions of the Act. If the assessee is not putting forth a claim for input tax deduction in the return filed in July 2006 nor as he put forth such a claim in a revised claim which he could have filed within 6 months there from his right to claim input deduction is lost. He cannot for the first time in the returns filed in February 2007 put forth a claim for input tax deduction as the said return was not related to the tax period during which the input tax was paid. In that view of the matter, the Tribunal has not applied its mind to the aforesaid provision and ignoring the mandate of law has allowed the said deduction erroneously. Therefore, the said finding recorded by the Tribunal cannot be sustained and accordingly it is hereby set aside. The question of law raised is answered in favour of the revenue and against the assessee. ”
- 29 - 24. Section 31[4] of the Act reads thus: “[4]. Every dealer whose total turnover in a year exceeds one hundred lakh rupees shall have his accounts audited by a Chartered Accountant or a Cost Accountant or a Tax Practitioner subject to such conditions and such limits as may be prescribed and shall submit to the prescribed authority a copy of the audited statement of accounts and prescribed documents in the prescribed manner.
Provided that every dealer whose total turnover for the year ending Thirty First day of March, 2010 exceeds forty lakh rupees shall have his accounts audited.”
Rule 34 of the Rules provides for audit and submission of accounts. The said rule is extracted hereunder for ready reference: “34. Audit & submission of accounts. –
(1) Every registered dealer who is, not a company defined under the Companies Act, 1956 (Central Act 1 of 1956) or a company incorporated outside India and required to have his accounts audited under sub-section
(4) of section 31 shall have his accounts audited by a Tax Practitioner enrolled under rule 163 for a period of not less than three years or under section 36 of the Karnataka Sales Tax Act, 1957 (Karnataka Act 25 of 1957) for a period of not less than three years
- 30 - on the date of such audit or by a Chartered Accountant [or a Cost Accountant].
(2) Every other registered dealer who is required to have his accounts audited under sub-section (4) of section 31 shall have his accounts audited by a Chartered Accountant.
(3) The audited statement of accounts shall be submitted in Form VAT 240 to the jurisdictional Local VAT officer or VAT sub- officer within six months after the end of the relevant year.”
Thus, it is clear that only in certain cases exceeding the total turnover fixed under Section 31[4] accounts of the dealer has to be audited. In terms of Rule 34[3], this audited statement of accounts shall be submitted in Form VAT 240 to the competent authority within 9 months after the end of the relevant year. Form VAT 240 is only the audited statement of accounts issued by the Chartered Accountant/Cost Accountant/Tax Practitioner, as the case may be which would facilitate the assessment but the same would not be a construed as a return to compute the net tax liability under Section 10[3]. The substantive provision
- 31 - of the Act, Section 10[3] has to be read harmoniously with the procedural provision of filing of the return under Section 35. Filing of return within the time prescribed under Section 35 is mandatory. It is on the basis of such return, the tax liability has to be determined and payment to be made by the registered dealer. Filing of returns is sine-qua-non to determine the net tax liability under Section 10[3] after deducting the input tax from the output tax. Section 10[4] plays an important role in calculating the amount of net tax to be paid or refunded wherein it is categorically specified that a tax invoice, debit note or credit note, in relation to a sale, has been issued in accordance with Section 29 and is with the registered dealer taking the deduction at the time, “any return” in respect of the sale is furnished, except paid under Sub-section [2] of Section 3 i.e., from an unregistered dealer.
- 32 - 27. At this juncture, it is beneficial to refer to the Division Bench judgment of this Court in the case of Infinite Builders and developers V/s. Additional Commissioner of Commercial Taxes [2014] 68 VST 24, the relevant paragraphs of which are quoted hereunder: “44. The assessee never filed any revised return in respect of the period from April 2005 to March 2006 nor claimed any input credit return, but, on the other hand only filed nil tax liability return. The assessee persisted and did not file any revised return or anything at all even after inspection, notice etc. In this view of the matter, there was nothing at all before the assessing authority to provide any input tax deduction in favour of the assessee for the entire period from April 2005 to March 2006. So it is urged by the appellant/assessee that even long after the expiry of the period in which the revised return could have been filed, the fact remains that there is no response by filing any revised returns. In such a position, we are of the view that the first appellate authority did go out of its duties and responsibilities and acted out of its jurisdiction to entertain a claim for deduction of input tax rebate in favour of the assessee by accepting some material, purporting it to be based on the books of accounts and the purchase invoices etc and in granting reliefs to the assessee. We find, it is a case of the first appellate authority acting more loyal than the king, even though a claim
- 33 - had not been put forth by the assessee through the returns, the first appellate authority has ventured to allow the appeals and grant relief to the assessee, contrary to statutory provisions!
The Act specifically provides for the manner in which the extent of purchases made by an assessee from registered dealer and the claim for corresponding tax made at the time of purchase can be claimed by prescribing a specific mode and that is not complied by the assessee. Therefore, even assuming that the benefit of reduction of Section 3(2) tax liability as given by the appellate authority is not disturbed by the revisional authority, it cannot be a ground for extending such a benefit in respect of input tax rebate either by comparison or otherwise.
In so far as Mr Keshava Murthy’s submission that in a best judgment assessment, where a return is not accepted and is based on the information as disclosed in the books of accounts etc., the claim in the returns or non-claiming in the returns cannot be of much significance, we find that claim for input tax credit can only be in specified form and not in a generalised form and therefore, the arguments cannot succeed. We have discussed this aspect elaborately as above. Therefore, on comparison of provisions of Section 38(3) of the Act, the benefit cannot be extended by overlooking the statutory requirements under Section 10(4) of the Act read with sub-sections (1) and (4) of Section 35 of the Act.
- 34 -
In the circumstances we find that the impugned order passed by the Commissioner setting aside the appellate authority’s order for the periods April 2005 to March 2006 and April 2006 to November, 2006 and restoring the assessment order cannot be said to be suffering from any illegality or want of jurisdiction and therefore, the appeals to that extent are dismissed. The Judgments relied cannot further the case of the appellant/assessee, as when a statutory provision mandates compliance in a particular manner in examining as to whether the compliance is secured or otherwise a broad based approach is not called for, more so in tax matters, where the liability is strictly as per the sections and compliance, both on the part of the revenue and on the part of the assessee, also should be strictly in terms of the statutory provisions. An assessee pays penalty if it violates the statutory provision and likewise the revenue also loses revenue unless it adheres to the requirements of the statutory provision. It is for this reason we are not impressed by the submission on behalf of the assessee that there was no need for taking a technical approach or hyper technical approach and if the appellate authority had taken a pragmatic and plausible view, the revisional authority should not have disturbed the same or interfered with the same, is not accepted.”
In the judgments referred to by the learned counsel for the petitioners discussed supra, the claim of
- 35 - input tax credit was made in the subsequent months/belatedly in the returns filed. In the present case, it is not in dispute that no such claim of input tax credit is made by the assessee in filing the monthly returns but the same is claimed on the basis of audited statement of accounts, Form VAT 240 – certificate issued by the Chartered Accountant/Cost Accountant/Tax Practitioner within a period of 9 months after the end of the relevant year.
Return is the basis on which the computation of tax liability has to be made including the input tax credit in terms of Section 10[3] and Section 10[4]. It is not in dispute that no input tax credit has been claimed by the petitioners in any of the return filed during the relevant tax periods, merely on the audited statements filed by the Chartered Accountant/Cost Accountant/Tax Practitioner, no input tax credit can be allowed. If such an argument if
- 36 - accepted, filing of monthly returns would be an empty formality making the provisions of Section 35 to 56 as well as Section 72 of the Act redundant. The arguments of the learned counsel that the amendment brought to Section 10[3] with effect from 01.08.2008 substituting the words under the provisions of “the Act” for the words “Chapter V” implies to allow input tax credit on the basis of Form VAT 240 even in the absence of claim of input tax credit in the return filed by the assessee is wholly misconceived. By giving such an interpretation, the entire gamut of taxation mandating the strict adherence of filing returns, the foundation for assessment to determine the net tax liability gets uprooted, effacing Chapter V and the penal provision under Section 72 disturbing the scheme of the Act which is not the intent and object of the amendment brought to Section 10[3] of the Act with effect from 01.08.2008. In my considered opinion, the amendment would suggest strict compliance of all the provisions of the Act to claim the input tax credit.
- 37 - Section 10[3] cannot be read in isolation ignoring Section 10[4] read with Section 35. Any statement/certificate facilitating the assessment would not assume supremacy over the relevant substantial provisions. Such opinion of the Chartered Accountant/Cost Accountant/Tax Practitioner would only be a recommendatory but cannot obliterate the mandatory provisions of filing of returns to compute the net tax liability under Section 10[3] and 10[4] of the Act.
It is apparent that all the registered dealers are not required to file such Form VAT 240 but only depending on the total turnover for the year, Form VAT 240 has to be filed. In cases where no such VAT 240 is filed, it would certainly result in discrimination if VAT 240 has to be accepted as the basis for determining the input tax credit. VAT Form 240 cannot replace the “return”.
At the cost of repetition, it is reiterated that none of the judgments referred to, by the learned
- 38 - counsel for the petitioners would permit the registered dealer to claim the input tax credit on the basis of the VAT Form 240 without filing the return. When the statutory provision mandates compliance in a particular manner, it should be done in that particular way alone not by any other method. “Expressio unius est exclusio alterius” is the well settled legal maxim followed by the Hon’ble Courts without any exception. Hence, this Court is of the considered view that no input tax credit can be availed independent of the claim in the returns merely filing Form VAT 240.
For the aforesaid reasons, the writ petitions are dismissed.
Sd/- JUDGE
NC.