M\/s. B.L. Kashyap & Sons Ltd., Versus Joint Commissioner of Commercial Taxes, (Admn) DGSTO-5,
VAT and Sales Tax
2018 (9) TMI 296 – KARNATAKA HIGH COURT – TMI
KARNATAKA HIGH COURT – HC
Dated:- 3-4-2018
W.P.Nos.11916-11920 & 12854-12857\/2018 (T-RES)
CST, VAT & Sales Tax
MRS. S. SUJATHA J.
\nPetitioner [By Sri V. Raghuraman, Adv.]
\nRESPONDENTS [By Sri T.K. Vedamurthy, AGA.)
\nO R D E R
\nPetitioner has called in question the legality and correctness of the orders dated 8.9.2017 passed by the Respondent No.1 enclosed as Annexures-A1, A2 and A3 to the writ petitions as well as endorsement dated 8.2.2018 issued by the Respondent No.1 enclosed as Annexure-B to the writ petitions and the consequential endorsement dated 14.02.2018 issued by the Respondent No.2 enclosed as Annexures-C1, C2, C3 and C4 to the writ petitions.
\n2. Petitioner is engaged in execution of civil works contract of construction of buildings and other works contract for private parties and G<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n t was passed by the Respondent No.2 for the period April 2011 to March 2012 on 26.06.2013 and reassessment order under Section 39[1] of the Act was passed by the Respondent No.2 for the period April 2012 to March 2013 on 29.07.2013. The amount demanded pursuant to these reassessment orders was remitted by the petitioner with interest. The Respondent No.2 again resorted to assessment and issued three separate notices under section 39[2] of the Act for the tax periods April 2010 to March 2013 alleging that the claim of labour and like charges at 30% on the total contract receipts which includes taxes collected and again allowing deduction towards taxes collected to arrive at taxable works contract receipts resulted in excess allowance of labour charges on the taxes collected which resulted in short payment of tax. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n y same tax periods April 2010 to March 2013 on the very same ground that deduction of 30% as labour and like charges claimed by the petitioner has resulted in excess deduction and short payment of taxes. The petitioner replied to the said notice issued under Section 63-A[1] of the Act. After considering the reply, the Respondent No.1 proceeded to pass the orders revising the order of the Respondent No.2 dated 16.08.2014 passed under Section 39[2] of the Act for the tax periods April 2010 to March 2013. Pursuant to the orders passed by the Respondent No.1, petitioner has filed rectification application under Section 69 of the Act which came to be rejected. These orders of the Respondent No.1 passed under Section 63-A[1] of the Act as well as endorsements issued by the Respondent No.1 rejecting the rectification application are impugned herein. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n [39] STC 177. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n e the order made on reassessment. The initial order for reassessment cannot be said to survive, even partially, although the justification for reassessment arises because of turnover escaping assessment in a limited field or only with respect to a part of the matter covered by the initial assessment order.” = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n from the date of the original assessment order but from the date of the earlier rectification order. In Deputy Commissioner of Commercial Taxes v. H.R. Sri Ramulu this Court has clearly laid down that when once a notice is issued for purposes of making reassessment the assessment proceedings become re-opened and the initial order of assessment ceases to be operative. The Court has further held that the effect of the re-opening of the assessment is to vacate or set aside the initial order of assessment and to substitute in its place the order made on reassessment and that the result of re-opening of the assessment is that a fresh order for reassessment would have to be made in respect of all matters including those matters in respect of which there is no allegation of the turnover escaping assessment. The same principle should apply even to a case like the present one where an application for rectification is filed after the completion of the reassessment proceedings”. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n eady issued by the Respondent No.2 under Section 39[2][e] of the Act. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. B.L. Kashyap & Sons Ltd., Versus Joint Commissioner of Commercial Taxes, (Admn) DGSTO-5,VAT and Sales Tax2018 (9) TMI 296 – KARNATAKA HIGH COURT – TMIKARNATAKA HIGH COURT – HCDated:- 3-4-2018W.P.Nos.11916-11920 & 12854-12857\/2018 (T-RES) CST, VAT & Sales TaxMRS. S. SUJATHA J. Petitioner [By Sri V. Raghuraman, Adv.] RESPONDENTS [By Sri T.K. Vedamurthy, AGA.) … Continue reading “M\/s. B.L. Kashyap & Sons Ltd., Versus Joint Commissioner of Commercial Taxes, (Admn) DGSTO-5,”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-13563","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13563","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13563"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/13563\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13563"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13563"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13563"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n3. The petitioner submitted his reply to the said proposition notices issued under Section 39[2] of the Act. Considering the objections filed by the petitioner, Respondent No.<\/p>\n
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\n4. The main ground of challenge in these writ petitions is regarding the jurisdiction of the Respondent No.1 to pass an order under Secti<\/p>\n
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\n[b] 'V. JAGANMOHAN RAO v. COMMISSIONER OF COMMERCIAL TAX AND EXCESS PROFITS TAX, ANDHRA PRADESH' reported in 1970 [75] ITR 373.
\n[c] 'M\/s. KUNDAN LAL SRIKISHAN, MATHURA [U.P.] v. COMMISSIONER OF SALES TAX, U.P. AND ANOTHER' reported in 1987 [1] SCC 684.
\n7. Learned Additional Government Advocate appearing for the respondents supporting the impugned orders, would submit that the Respondent No.1 is empowered to revise the order passed by the Assessing Authority dropping the proceedings under Section 39[2] of the Act. Dropping of reassessment proceedings initiated by the Respondent No.2 being erroneous and prejudicial to the interest of the revenue, it cannot be held that the Respondent No.1 had no jurisdiction to invoke Section 63-A[1] of the Act, to revise such orders.
\n8. Learned Additional Government Advocate would submit that the Respondent No.2 failed to act upon the notices issued under Section 39[2][e] of the Act, which constrained the Respondent No.1 to proceed wit<\/p>\n
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\n12. Similarly, in the case of JAGANMOHAN RAO supra, the Hon'ble Apex Court has observed as under:
\n“Section 34 in terms states that once the Income-tax Officer decides to reopen the assessment he could do so within the period prescribed by serving on the person liable to pay tax a notice containing all or any of the requirements which may be included in a notice under section 22[2] and may proceed to assess or reassess such income, profits or gains. It is, therefore, manifest that once assessment is reopened by issuing a notice under sub-section [2] of section 22 the previous under assessment is set aside and the whole assessment proceedings start afresh. When once valid proceeding<\/p>\n
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\n14. In the ligh<\/p>\n
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\n16. In the circumstances, it can be held that the proceedings initiated by the Respondent No.1 under Section 63-A[1] of the Act is without jurisdiction and nullity in the eye of law. Hence, for the aforesaid reasons, the orders impugned cannot be sustained and deserves to be quashed.
\n17. Accordingly, the impugned orders are quashed with liberty to the Respondent No.2 to proceed with the reassessment proceedings initiated under Section 39[2][e] of the Act in accordance with law.
\n18. Writ petitions stand disposed of in terms of the above. The Respondent No.2 shall conclude the reassessment proceedings in an expedite manner. Petitioner shall appear before the Respondent No.2 on 24.04.2018 without expecting any further notice. The Respondent No.2 shall hear the petitioner and pass appropriate orders in accordance with law.
\nAll rights and contentions of the parties are left open to be adjudicated before <\/p>\n
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