TaxTMI 
TaxTMI 
2010 (9) TMI 961
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....meet the requirements of the KST Act. On noticing that the returns already filed were not accurate from the angle and requirement of VAT regime, the petitioner filed revised returns for the period from July 2005 to March 2006. Their filing took place on August 19, 2006. The learned senior counsel submits that the petitioner's bona fides cannot be disputed with any rate of success because the revised returns involve the payment of additional tax and not seeking the refund of the tax already paid. He brings to my notice the circular, dated July 7, 2008 issued by the Commissioner of Commercial Taxes. The said circular directs the officers of the Commercial Tax Department to accept the revised returns if they indicate any additional tax liability. The relevant clause/paragraph of the said circular is extracted hereinbelow: "(iii) Any revised return filed by a dealer beyond six months from the end of relevant tax period is liable to be rejected. However, if such revised return indicates any additional tax liability, then in such a case the return filed should be accepted with any payment made and reassessment proceedings should be got initiated through the jurisdictional JC-DVO....
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....e dealer to submit a complete or correct return within ten days of issue of the notice." The afore-extracted rule does not prescribe any period of limitation within which the concerned officer has to issue the notice. Such a rule is made only to ensure that the mistakes in the returns are corrected and that the return becomes complete in every respect. Similarly, the assessee should not be rendered helpless and remediless in correcting the returns which he has filed. Sri Sarangan complains of the non-application of mind, as the revised returns filed for some months, which are within the prescribed period, are also rejected. Per contra, Sri K.M. Shivayogiswamy, the learned High Court Government Pleader appearing for the respondents, has raised the threshold bar to the very maintainability of the writ petitions. He submits that the petitioner is not justified in resorting to the duality of the recourses. The petitioner has also filed the appeal before the appellate authority urging more or less the similar grounds raised in this petition. Sri Shivayogiswamy submits that the VAT Act is a self-contained code. When the Act itself has prescribed an outer-limit of six months f....
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....ons in section 59A of the Kerala General Sales Tax Act, 1963 and section 94 of the Kerala Value Added Tax Act, 2003 amount only to the statutory recognition of the authority, to clarify, meaning thereby, to make clear; to elucidate; to explain. The scope of any exercise with reference to those provisions is only to remove the confusion, if any. The 'power' to issue clarification does not include the authority to issue any clarification or circular contradicting the provisions of the Acts and Rules framed thereunder. No power is conferred on the Commissioner under the 1963 Act or the 2003 Act, to impose tax. When statutory provisions govern the field, there is no room for any executive decision, including by the issuance of statutory circulars or orders, which deviate from the effect of the provisions of a statute or statutory rules framed thereunder. Therefore, any clarification, issued contradicting the legal effect of the Act and the Rules, would be plainly ultra vires those primary and secondary legislations." He also brought to my notice the honourable Supreme Court's judgment in the case of Jhunjhunwala v. State of U.P. reported in [2006] 148 STC 659 (SC), wherein it is ....
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....als are filed against the reassessment orders; on the other hand the main grievance ventilated in these writ petitions is only the non-acceptances of the revised returns on the ground of delay. The question that would fall for my consideration is whether the Commissioner's circular is to be acted upon. Section 59(1) of the VAT Act, the provisions of which are extracted hereinabove, confers the power on the Government and the Commissioner to issue such orders, instructions, directions to all the officers as they deem fit for the administration of the VAT Act. The next part of the said sub-section contains a mandatory or compulsive element. It states that all officers shall observe and follow such orders, instructions and directions of the Government and the Commissioner. I do not propose to examine the hypothetical issue of whether the officers should obey the Commissioner's circulars, if they are issued in contravention of any statutory provision because that question has not arisen in this case, as the Commissioner's circular cannot be said to be in excess of or in violation of any statutory provision. The decisions relied upon by Sri Shivayogiswamy do not make the positi....
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....rder is laudable; the order cannot be held to be illegal or inconsistent with the provisions of the VAT Act or the Rules framed thereunder. If it were illegal, it would have been withdrawn by the Department. Yet another aspect of the matter which cannot be lost sight of is that by filing the revised returns, the petitioner has come forward to pay the additional tax. It is not that it has filed the returns to seek refund of the tax already paid. If the belated returns are therefore entertained and the additional tax is accepted, as directed by the Commissioner, it does not affect the interest of the Revenue adversely in any way. Filing of the belated revised returns and their acceptance by the concerned officer would not put the exchequer to any prejudice. Considering all these aspects of the matter, this court has no hesitation in holding that respondent No. 1 has not considered the petitioner's belated revised returns, though submitted with additional tax in accordance with the circular in question. For yet another reason too, the Commissioner's circular is absolutely sustainable. The sudden introduction of VAT regime has created an unfamiliar situation. To soften the rig....