TaxTMI 
TaxTMI 
2018 (2) TMI 523
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....essment orders were passed under Section 9 (2) of the CST Act, read with Section 36(1) and 72(2) of the Karnataka Value Added Tax Act, 2003 (for short 'the KVAT Act') for the tax periods April, 2005 to March, 2006, levying Central Sales Tax at 10%, penalty and interest, in the absence of statutory forms furnished by the assessees. Being aggrieved, the assessees preferred appeal before the Joint Commissioner of Commercial Taxes (Appeals), Davanagere Division, Davanagere, (First Appellate Authority - for short 'FAA') who allowed the appeals on the issue of limitation. 4. The Addl. Commissioner of Commercial Taxes exercising the powers under Section 64 (1) of the KVAT Act, initiated revision proceedings to revise the order of the FAA as it was erroneous and prejudicial to the interest of the Revenue. After issuance of notice and hearing the assessees, revisional order was passed setting aside the order of the FAA and restoring the re-assessment order of the Assessing Authority. Being aggrieved, the assessees are in appeal. 5. The learned counsel Shri Narayan G. Rasalkar, appearing for the appellant would contend that the order of the FAA was neither erroneous nor prejudicial to ....
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....ECH SOLUTIONS PRIVATE LIMITED, VS. STATE OF KARNATAKA [2015 (83) KLJ 270 (HC)], upheld the constitutional validity of the amendment and permitted the petitioners to file appeals in regard to their contentions afresh. It is before the amendment was brought into existence, their right in the form of preventing the authorities to take up reassessment, expired as per the provisions of Section 40. Section 40 as existed during relevant period if considered, despite upholding the validity of amendment made to the provisions of Section 40, the 'right' of the appellant seeking 'right of limitation' does not get extinguished by the amendment. Notwithstanding the bar of limitation, a base for upholding the impugned reassessment for 2005- 2006 by the authorities, still barred by the provisions of Section 32 of the KVAT Act, would preclude the authorities to proceed with the reassessment demanding the production of books of accounts whose retention period as prescribed has already expired. Section 32 of the KVAT Act is not amended in co-extensive with amendment to Section 40. 7. In support of his contentions, learned counsel placed reliance on the following judgments: i) COMMERCIAL TAXES ....
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....f the revenue, he may, if necessary, stay the operation of such order for such period as he deems fit and after giving the person concerned an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or canceling the assessment or directing a fresh assessment. 12. This provision contemplates that the Addl. Commissioner is empowered to call for and to examine the record of any order passed or proceeding recorded under this Act and on such examination if it is found that any order passed by any Officer who is not above the rank of a Joint Commissioner, revision powers can be exercised provided such order is erroneous in so far as it is prejudicial to the interest of the Revenue. That means, the essential factors viz., 'erroneous' and 'prejudicial to the interest of Revenue' should co-exist in an order/proceeding to take up for revision. It is apparent that the Appellate Authority was of the view that reassessment proceedings initiated by the prescribed authority is barred by limitation. 13. Section 40 of the KVA....
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....tax period. Provided that an assessment or reassessment relating to any tax period upto the period ending 31st day of Mrach, 2007 shall be made within a period of eight years after the end of the prescribed tax period: Provided further that an assessment or reassessment relating to any tax period commencing from the 1st day of April, 2007 upto the period ending 31st day of March, 2012 shall be made within a period of seven years after the end of the prescribed tax period. (2) Notwithstanding anything contained in sub-section (1), if any tax is, not paid by a dealer who has failed to get registered though liable to do so or fraudulently evaded attracting punishment under Section 79, an assessment or reassessment may be made within eight years from the end of the prescribed tax period: Provided that an assessment or reassessment relating to any tax period upto the period ending 31st day of March, 2007 shall be made under this sub-section within a period of ten years after the end of the prescribed tax period." By virtue of this amendment, an assessment or reassessment relating to any tax period upto the period ending 31.03.2007 shall be made within a period of ten year....
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....en to the provision. It is apt to refer to the factual context of the case. Under sub-section (1) of Section 21 of the Uttar Pradesh Trade Tax, 1948 before its amendment, the Assessing Authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, had the power to assess or reassess the dealer according to law. Sub-section (2) provided that except as otherwise provided in the said section no order for any assessment year shall be made after the expiry of 4 years from the end of such year. However, after the amendment, a proviso was added to sub-section (2) under which Commissioner of Sales Tax authorizes the Assessing Authority to make assessment or reassessment before the expiration of 8 years from the end of such year notwithstanding that such assessment or reassessment may involve the change of opinion. The proviso came into force with effect from 19.02.1991. In that context it was held that, it was immaterial if a period for assessment or reassessment under sub-section (2) of Section 21 before the addition of the said proviso had expired. It was the completion of assessment or reassessment under Section 21 which was to be done before the....
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....s later. Thus, it is not only until the expiration of 5 years the books of accounts are required to be kept and maintained but also for such other period as may be prescribed or until the assessment reaches finality whichever is later. The phrase "until the assessment reaches finality" has to be read in conjunction with Sections 39 and 40 of the Act. The word "assessment" is defined under Section 2 (5) of the Act which reads thus: "(5) 'Assessment' means an assessment made or deemed to have been made under this Act and includes a re-assessment." 20. Thus, it is clear that assessment also includes reassessment. The prescribed limitation for assessment/reassessment is in terms of Section 40. The limitation period being enlarged by the amendment carried out under Section 40 of the Act, the same shall have a bearing on Section 32. 21. In the present case, the period of limitation as per the Amendment Act No.54/2013 is eight years with effect from 01.04.2005 i.e., 30.04.2013, the date of finality of the assessment, which would be the date of expiry of limitation to reassess the deemed assessments made under Section 38 of the Act for the assessment year 2005-2006. Reassessment p....