The Joint Commissioner Of vs M/S Alupro Building Systems Pvt Ltd
2025 Latest Caselaw 5284 Kant

M/s Hindustan Lever Ltd. (Lipton Division) [2007

(62) Kar.L.J. 257 (HC) (DB)].

12. According to him, the respondent has also stated

in the said letter that if excess collection of tax at 8.5% is

in contravention of Section 47 of the Act, the Audit Officer

would have definitely forfeited the amount under Section

47 of the Act. On the basis of the respondent's letter

dated 06.09.2012 and with an intention to initiate suo

motu revision proceedings and to pass order under

Section 47 of the Act, the appellants have perused the

audit orders and the corresponding records and came to

conclusion that it is necessary to verify the copies of

agreements, works orders and sales invoices/RA Bills in

respect of the respondent's business transactions in order

to ascertain the legality of the audit orders passed and

accordingly, issued an endorsement dated 11.03.2013.

Hence, the date of issue of endorsement after perusal of

the audit orders and corresponding records is the date of

initiation of the suo motu revision proceedings. As such,

endorsement dated 11.03.2013 is the date of initiation of

- 11 -

revision proceedings and consequently from the date of

calling for records/initiation of revision proceedings,

revision order is to be made within a period of one year as

per sub-section (3) of Section 63-A of the Act. He stated

that, the notice issued on 10.07.2014 is in continuation of

the endorsement dated 11.03.2013 issued by the

appellants. In view of the fact that revision order has not

been passed within a period of one year from the date of

first notice dated 11.03.2013, the same has been rightly

set aside by the learned Single Judge.

13. It may be stated here that, the counsel for the

respondent had also made submissions on the merits of

the decision dated 21.02.2015, whereby the Revisional

Authority has concluded the revisional proceedings. In

support of his submissions, he has relied upon the

following judgments:

a. Judgment of the Supreme Court in the case of Income Tax Officer, Ward No.16(2) -Vs.- Techspan India Private Limited and Anr. [(2018) 6 SCC 685];

b. Judgments of this Court in the cases of:

- 12 -

i. Milestone Aluminium Company Pvt. Limited

-Vs.- The Commissioner of Commercial Taxes (Karnataka) [STA No.53/2009, decided on 02.11.2010];

ii. M/s. Satyanarayana Engineering Works, Davanagere -Vs.- Assistant Commissioner of Commercial Taxes, Davanagere and Ors. [1998 (45) Kar.L.J. 566 (HC) (DB)];

iii. M/s. Keshawa Trading Co. -Vs.-

Commissioner of Commercial Taxes [ILR 1985 Kar 2132];

iv. Hindustan Lever Limited (Lipton Division) (supra);

v. S.    Subba     Rao       -Vs.-       Commissioner          of
     Commercial     Taxes         in    Mysore,      Bangalore
     [STA    No.3/1965        and       connected        matter,
     decided on 29.09.1966];

vi. M/s.        Keshawa           Trading          Co.      -Vs.-

Commissioner of Commercial Taxes [WP No.13992/1981 and connected matters, decided on 11.06.1985];

c. Judgment of Customs Excise and Gold (Control) Appellate Tribunal in the case of Himatsingka Seide Ltd. -Vs.- Commissioner of Customs, Bangalore [LAWS(CE)-2005-3-131] .

- 13 -

Analysis:

14. Having heard the learned counsel for the parties,

at the outset we may state, the learned Single Judge has

decided the writ petition on the issue, whether the

revisional order was within the time period of one year or

not and nothing more. We have reproduced the relevant

facts which are required to be taken into consideration

while deciding the issue which fell for consideration. The

impugned order does not reflect the facts as highlighted

by us in this order. In other words, the impugned order

does not reflect the aforesaid facts having been

considered by the learned Single Judge while passing the

impugned order. Having said that, it is to be seen that,

on the basis of the facts narrated above, the order dated

21.02.2015 was within the period of one year from the

date of initiation of proceedings or calling for the records

under Section 63-A of the Act.

15. The conclusion drawn by the learned Single

Judge is that, the order was passed beyond one year and

therefore, the appellant No.1 was acting without

- 14 -

jurisdiction. What is sought to be urged by the

respondent is that the limitation of one year would start

from 11.03.2013, which is the date of endorsement after

the perusal of audit orders and as such, the date of

institution of suo motu proceedings. Whereas, the case

of the appellants is, the date of 11.03.2013 follows the

fact that on 21.08.2012, the assessee had made a request

to the Joint Commissioner to implement the

recommendation made by LVO-20 vide letter dated

19.06.2012. It was in this background that a letter dated

20.10.2012 was written by the Joint Commissioner to the

Assessing Officer to submit assessment records. The

Assessing Officer vide letter dated 19.11.2012, intimated

the Joint Commissioner that original assessment records

were submitted to the Joint Commissioner (Appeals). It

was on 12.12.2012, the Joint Commissioner (Appeals)

rejected the appeal filed by the assessee. It is pursuant

thereto that the Joint Commissioner received the records

on 23.01.2013. The Joint Commissioner had asked for

certain documents from the assessee vide his

- 15 -

endorsement dated 11.03.2013, the contents of which are

reproduced as under:

"ENDORSEMENT

Ref: 1) Order under Section 39(1) of the KVAT Act, 2003, dated 06.02.2012 for the tax periods 2008-07 to 2009-10.

2) Common orders under Section 9(2) of the CST Act, 1956 dated 06.02.2013 for the tax periods 2007-08, 2008-09 and 2009-10. 3) Notice of excess payments in Form VAT 185 dated 06.02.2012.

4) Letter of the authorized signatory of the dealer dated 11.04.2012 addressed to the ACCT, LVO-020, Bangalore.

5) Common orders under Section 9(2) of the CST Act, 1956 read with Section 69 of the KVAT Act, 2003 dated 31,05.2012 for the tax period 2006-07, 2007-08 and 2008-09 and 2009-10.

6) Revised notice of excess payments in Form VAT 185 dated 31.05.2012.

7) Letter of the authorized signatory of the dealer dated 09.06.2012 addressed to the ACCT, LVO-020, Bangalore.

8) Letter of the authorized signatory of the dealer dated 14.06.2012 to the Addressed to the ACCT, LVO-020, Bangalore.

9) Letter of the ACCT, LVO-020, Bangalore dated 19.06.2012.

10) Letter of the authorized signatory of the dealer dated 21.08.2012.

- 16 -

*** On passing of audit orders at references (1) & (5) above, and in pursuance of the issuance of demand notice in Form 185 dated 31.05.2012 (ref

6), authorized signatory of the dealer has requested the LVO-020, Bangalore, for issue of refund of Rs.1,06,95,125/- vide letter dated 09.06.2012 (ref

7). Accordingly, the ACCT, LVO-020, Bangalore vide letter dated 19.06.2012 (ref 9), has requested this office to accord permission to issue refund.

On perusal of the audit orders and corresponding records, it is felt necessary that the copies of Agreements, Work Orders and Sales Invoices/R A Bills, in respect of the dealer's business transactions, are to be verified, in order to ascertain the legality of the audit.orders passed and the refund claim thereon.

Hence, the dealer is instructed to furnish the aforesaid details, at the earliest."

16. So, what has been considered by the Joint

Commissioner in terms of endorsement dated 11.03.2013

was, the issue of refund to the respondent-assessee. In

the meantime, a writ petition was filed by the respondent-

assessee before this Court which was finally decided on

11.07.2014, whereby direction was issued by this Court to

- 17 -

refund the amount of Rs.1,06,89,301/- along with interest

at 6% p.a. in accordance with Section 50 of the Act within

a period of two weeks to the respondent. It is necessary

to state here, this Court while deciding the writ petition,

had made an observation with regard to the fact that the

reason that revisional orders are awaited from the

Commissioner of Commercial Tax is not a relevant ground

or reason to withhold the refund, particularly when it is

not shown that the Commissioner of Commercial Tax has

already initiated revisional proceedings under the Act.

This observation of the Court is relevant as it was only on

10.07.2014 that a notice was issued by the Joint

Commissioner under Section 47(3) read with Section 63-A

of the Act. The said notice is the starting point of

initiation of proceedings under sub-section (3) of Section

63-A of the Act, which finally culminated in the order

dated 21.02.2015. So in that sense, the revisional

proceeding culminated within one year of its initiation i.e.,

the date of issuance of notice on 10.07.2014. The learned

Single Judge while passing the impugned order, has not

- 18 -

considered the aforesaid facts or at least, not referred to

the aforesaid facts in support of his conclusion. Surely his

conclusion is clearly untenable. Having said that, the writ

petition, wherein the impugned order has been passed,

has been filed with the following prayers:

"a) Writ of Certiorari or directions in the nature of Certiorari to quash the impugned order passed by the 1st respondent bearing No.JCCT(Adm) DVO-1/SMR/CR-09/2014-15 dated 21.02.2015 under the provisions of the KVAT Act in relation to the assessment periods April 2006 to March 2010 vide Annexure "L"

b) Writ of Mandamus or directions in the nature of Mandamus directing the respondent authorities not to initiate further proceeding pursuant to the impugned order passed thereto vide Annexure "L

c) Issue such other writ or order as deemed fit in the circumstances of the case in the interest of justice and equity."

17. In effect, the respondent had challenged the

order dated 21.02.2015 on merits of the conclusion

arrived at by the Joint Commissioner in the revisional

proceedings. As the learned Single Judge has allowed the

writ petition only on the ground that the order has been

- 19 -

passed beyond one year and as such, without jurisdiction,

and has set aside the order without going to the merits of

the assessment order dated 21.02.2015, we are of the

view that the impugned order of the learned Single Judge

to that extent needs to be set aside. Though submissions

have been made by the counsel for the parties on the

merits of the assessment order by relying on judgments,

we are of the view, as the same have not been considered

by the learned Single Judge in the impugned order, it shall

be appropriate that the writ petition is revived on the

board of the learned Single Judge for a decision on the

merits of the assessment order dated 21.02.2015 after

hearing the counsel for the parties.

18. Accordingly, the impugned order dated

17.12.2015 passed by the learned Single Judge in

WPs No.14969 and 57759-57805 of 2015 is set aside; the

writ appeal is allowed; the writ petitions are revived on

the board of the learned Single Judge with a request to

the learned Single Judge to hear the counsel for the

parties on the merits of the challenge to the order dated

- 20 -

21.02.2015 and decide the writ petition in accordance with

law. Liberty is given to the respondent to file an

application in the writ petitions along with this order for

revival/hearing of the writ petitions.

Sd/-

(V KAMESWAR RAO) JUDGE

Sd/-

(S RACHAIAH) JUDGE

PA