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2009 DIGILAW 528 (KAR)

STATE OF KARNATAKA v. A. T. THIMAPPA.

2009-07-20

ARAVIND KUMAR, D.V.SHYLENDRA KUMAR

body2009
ORDER D. V. SHYLENDRA KUMAR J. - This sales tax revision filed under section 23(1) of the Karnataka Sales Tax Act (for short, "the KST Act") though has come up for orders on the application Misc. Cvl. 12109/09 for stay sought for by the petitioner, is nevertheless examined on merits also and we find that there is delay of 108 days in preferring this revision petition. As notice had been issued to the respondent - dealer through counsel Sri Keshava Murthy, we have heard Sri Manjunath, learned Government Advocate for the revision petitioner - State and Sri Keshava Murthy, learned counsel appearing for the respondent both on the merits of the applications and on the revision petition also. Accepting the circumstances explained in the affidavit filed in support of the application seeking for condonation of delay, the delay is condoned, revision petition is taken up for examination. The short question involved is as to whether the Appellate Tribunal was justified in deleting certain observation that had been made by the first appellate authority holding that the refund claim which had been put forth by the respondent - dealer under sub-section (4) of section 5 of the KST Act in respect of the sales effected under this Act for the accounting period April 1, 2000 to March 31, 2001 was to be entertained and allowed even without the production of form 32B declaration by the dealer. The dealer who had transactions of purchase in copra which is a declared goods within the meaning of section 14 of the Central Sales Tax Act (for short, "the CST Act") had claimed that he had made some local purchase to the extent indicated in the turnover and had paid the Karnataka Sales Tax Act (for short, "the KST Act") at four per cent on the same and later on having sold the said goods in the inter-State transaction, CST at two per cent as was applicable and having been levied and paid, it appears had claimed refund of the difference tax liability between the State Act and Central Act, filing refund application under sub-section (4) of section 5 of the Act. This claim for refund has been disallowed by the assessing authority, as the assessee did not come forward to produce any supporting material to prove that the transaction of the goods had been subjected to the KST and subsequently on the sale of very goods commensurate CST was paid by the dealer. The assessment order was an ex parte order, as the same came to be passed as the dealer had not responded to the notice issued by the assessing authority. In the appeal before the first appellate authority, the appellate authority though prima facie was convinced of the levy and payment of local tax by the dealer, at the time of local purchase of the very goods which he had sold in the inter-State trade nevertheless, observing that it is subject to the positive result of cross-verification of the purchase bills and filing of the declaration in form 32B, which is mandatory, and payment of tax on the same which the respondent has to note and follow due process of law, etc., and in the result the appeal was allowed in part. The aggrieved assessee further appealed to the Tribunal under section 22 of the KST Act. The Tribunal examined the requirement of filing form 32B declaration and opined that the requirement under proviso 6A of the KST Act is not attracted for hearing the question, as filing of form 32B was required which was on the statute book only on and after 2002 and that the assessee's transaction ending on March 31, 2001, that requirement was not attracted and accordingly ordered for, deleting the observation of the first appellate authority regarding the requirement of filing form 32B declaration. However, the Tribunal nevertheless observed that the assessing authority who dealt with the claim of the dealer for reimbursement of the local tax paid on copra, which in turn had been claimed to have been sold in the inter-State trade and having paid Central sales tax on the same, before ordering the claim application and allowing refund to the dealer, the assessee has to satisfy the original authority about the actual payment of tax under the KST Act and therefore the claim for verification was nevertheless affirmed. The State is in revision only to the extent of the Appellate Tribunal deleting the observation of the first appellate authority about the requirement of filing a declaration in form 32B of the Act. We have bestowed our attention to the submissions made at the Bar. We find that for the relevant accounting period the proviso under section 6A of the Act is not attracted, and if so, there is no question of form 32B being filed as part of the requirement of the dealer proving the payment of tax both under the KST Act and the CST Act as a requirement, which if not applied could disentitle the dealer the claim for reimbursement. The Tribunal is justified in deleting the observation of the first appellate authority as the requirement of filing form 32B was not a requirement in terms of statutory provision as it existed corresponding to the accounting period in question. Accordingly, the revision petition is dismissed and Misc. Cvl. 12109/09 does not survive for consideration, is also dismissed.