TaxTMI 
TaxTMI 
2013 (5) TMI 134
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....ver the business as a running concern, by forming a partnership. Present petitioner is a different entity, as five of the earlier partners were subsequently excluded and the firm is now being run just by two persons, as the partners. 3. The grievance of the petitioner originates from the time when the petitioner submitted necessary application for availing the benefit of input tax credit in the year 2006. It is stated that the petitioner had applied for obtaining the registration under the KVAT Act, and was granted registration, with effect from 1-4-2005, as per Ext.P3 dated 16-3-2006. However, the claim preferred by the petitioner as borne by Ext.P5 was stated as not acceptable to the department, and the said position was conveyed to the petitioner vide Ext.P6 series show-cause notices under Section 22(1) of the KVAT Act stating that the petitioner, being not a registered dealer at the relevant time, it could not be acceded to. The petitioner submitted Ext.P7 representation/reply dated 2-6-2006 before the Commercial Tax Officer, who issued Ext.P6 series notices. The petitioner, in the meanwhile, had submitted an application for registration under Section 13 of the KGST Act, ....
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....oes not specifically mention that 'registration' is mandatory to have the benefit of input tax credit. Reference is made to Section 11(12) and 11(13) of the KVAT Act which are extracted below. "Sec 11(12) of the Act:- 12) A registered dealer who intends to clam input tax credit under this section shall, for the purpose of determining the amount of input tax credit, maintain the accounts and such other records as may be prescribed, in respect of purchases, supplies and sales effected by him in the State. Sec 11(13) of the Act:- 13) Subject to the provisions of sub-sections (4) to (7) and sub-sections (9) to (12) , input tax credit shall be allowed to a registered dealer in respect of the tax paid under the Kerala General Sales Tax Act, 1963 (15 of 1963) where the tax paid by the dealer who sold the goods to such registered dealer or by any previous seller, or the Kerala Tax on Entry of Goods into Local Areas Act, 1994(15 of 1994), in respect of goods purchased by him during a period of one year immediately preceding the date of commencement of this Act, subject to such conditions and restrictions as may be prescribed where such goods are i) held as open....
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....registered dealer as on 31-3-2005, there cannot be any doubt in this regard and stands outside the ring. The only question is regarding the applicability, if any, of the judicial precedents cited above. 8. Coming to the decision in (36) VST 126 (cited supra), the concerned dealer who started the business with effect from 1-4-2007 submitted application for registration only on 19-5-2008. A compounding fee of Rs. 31,278/- was collected by the department for carrying out the business without registration and the offence was compounded accordingly. After compounding the offence, an application for correction of the application for registration was filed, to substitute the date of commencement of business from 1-4-2008 (given in the said application) to 1-4-2007, which was the actual date of the commencement of business. A learned Judge held that the party was eligible to have retrospective registration from the date of commencement of the business; against which appeal was preferred, which was being considered by the learned Judges in the said case. 9. It was noted that Section 16 (2) of the Act prior to the amendment provided that the registration shall take effect only after th....
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.... not come to the rescue of the petitioner, who claims the benefit of input tax credit without being a registered dealer as on 31-3-2005. 10. Coming to (44) VST 100, it was a case where the petitioner started business in supplying the materials to industrial units in the 'special economic zone', in the year 2006, though registration under the KVAT Act was obtained only in the year 2009. The purchaser in the 'special economic zone' gave Form No.43 prescribed under Rule 12C of the KVAT Rules, 2005, to enable the petitioner to claim exemption on the supplies made to it. However exemption was declined by the department for the year 2006-07, on the ground that the petitioner was not a registered dealer under the KVAT Act when the supplies were made. After discussing the facts and figures and relevant provisions of law, it was observed by the Bench that the reliance placed by the department was more with reference to the 'form' concerned and that there was nothing to indicate in Section 6(7) or Rule 12 C of the Rules, that in order to grant exemption, the supplier should be a 'registered dealer' at the time of making the supply. It was in the said circum....