Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 328 (KAR)

U. D. Rotighar v. Joint Commissioner of Commercial Taxes

2013-03-13

B.MANOHAR, N.KUMAR

body2013
ORDER N. Kumar, J.—This revision petition is preferred by the assessee challenging the order dated 30-2-2011 passed by the Karnataka Appellate Tribunal, which upheld the order of the Revisional Authority imposing sales tax on the undisclosed turnover of Rs. 1,21,58,055/-. The assessee-M/s. U.D. Rotighar is a partnership firm engaged in the business of Hotel. The dealer has filed his statement of turnover for each tax period in the year 2006-07. The assessee also undertakes catering of food to Information Technology Units in Bangalore. The dealer has opted for composition of tax. The total turnover for the assessment year 2006-07 declared by him is Rs. 3,30,56,451/-. The assessment was concluded on 30-6-2009. There was a survey of his premises by the officers of the Income Tax Department on 22-9-2006. In the course of survey, they noticed the total sales of the assessee was Rs. 35,000/- per day under which event, the total turnover cannot be more than Rs. 1,25,00,000/- whereas the assessee has filed a return showing Rs. 3,30,56,451/- as the total turnover. The said discrepancy was brought to the notice of the assessee and she was asked to explain and her explanation was reduced into writing. The relevant portion reads as under: Q. Do you have anything else to state in connection with the discrepancies found during the course of survey? A. I shall offer a sum of Rs. 8 lakhs as additional net income for the assessment year 2006-07 in addition to the regular income and the return of income for the year 2006-07 shall be filed within 15 days from today. For the assessment year 2007-08 on higher income will be declared taking into account the higher sales noticed during survey and advance tax will be paid accordingly. The above statement is given by me with my free will and without any coercion or undue pressure. I have read the statement, understood the contents therein and thereafter put my signature hereunder. Sd/- (B. Chandraprabha) Deponent 2. Accordingly, she paid additional income tax on the net profit of Rs. 8,00,000/- for the year 2006-07. The same was reflected in the balance sheet of the assessee. By verification of the audited balance sheet, it is clear that the assessee has accounted Rs. 8,00,000/- towards income declared during the course of survey by the Income Tax Department and the food allowance of Rs. 1,91,782.50 ps. 8,00,000/- for the year 2006-07. The same was reflected in the balance sheet of the assessee. By verification of the audited balance sheet, it is clear that the assessee has accounted Rs. 8,00,000/- towards income declared during the course of survey by the Income Tax Department and the food allowance of Rs. 1,91,782.50 ps. This turnover however, was not declared in his monthly return of turnover and value added tax under Section 15 of the Karnataka Value Added Tax Act, 2003 was not paid. Therefore, the Additional Joint Commissioner of Commercial Tax, by virtue of the power conferred under Section 63 of the KVAT Act, 2003 issued notice to assessee proposing to determine the total taxable turnover at Rs. 1,63,82,507/- for the tax paid on March 2007 and proposed to levy composition tax under Section 15 of the Act at 4% on the same. On receipt of notice, the assessee filed her objections stating that the proposals made are illegal and untenable. It was contended that the Income Tax Authorities have disallowed expenditure and hence, net profit is enhanced by Rs. 8,00,000/- but have not enhanced the sales turnover or purchase turnover. Though this amounts to suppression under the Income-tax Act, 1961, it is not suppression under the Karnataka Value Added Tax Act, 2003. The net profit calculated is for the entire year 2006-07 but not for the month of March 2007. Hence, the estimation made for the month of March 2007 is not sustainable in the eye of law. 3. After considering the aforesaid objections and the judgments relied on, the Revisional Authority held that the net income of Rs. 8,00,000/- offered by the assessee to the Income Tax Authorities is the result of suppression of food and drinks and it is an undisclosed sale of food and drinks. Therefore, the question of any estimation would not arise. Though the assessee contended that the aforesaid amount of Rs. 8,00,000/- was due to disallowing of expenditures by the Income Tax Authorities, nothing was placed on record to substantiate the said contention. On the contrary, in the statement given by the assessee, she has declared the said income. When the assessee has derived the additional income of Rs. Though the assessee contended that the aforesaid amount of Rs. 8,00,000/- was due to disallowing of expenditures by the Income Tax Authorities, nothing was placed on record to substantiate the said contention. On the contrary, in the statement given by the assessee, she has declared the said income. When the assessee has derived the additional income of Rs. 8,00,000/- from business income i.e., by running a Hotel, therefore, the same is out of the sales of food and drinks, which was suppressed by her as she has no other source of income. Therefore, the objections raised were overruled and he passed an order holding that the turnover declared for the month of March 2007 is Rs. 40,32,670/- and the undisclosed turnover based on the income declared to the Income Tax Authorities is Rs. 1,21,58,055/- and the amount received from food sales to employees is Rs. 1,91,782/- and therefore, the total taxable turnover was calculated at Rs. 1,63,82,507/- and composition tax was levied at 4% on the said amount. 4. Aggrieved by the said order, the assessee preferred an appeal to the Karnataka Appellate Tribunal. The Appellate Tribunal, on careful consideration of the entire material on record however, referring to the various judgments relied on by the party, held the addition made by the Revisional Authority is not based on estimation, but is made on admitted income on the basis of which he has calculated the total turnover and has imposed tax, which is legal and valid and therefore, it declined to interfere with the order passed by the Revisional Authority. Aggrieved by the said order, the assessee has preferred this revision petition. 5. The learned Counsel appearing for the assessee assailing the impugned order contends firstly that the addition made by the Income Tax Authorities cannot be the basis for addition under the Karnataka Sales Tax Act, 1957. Secondly, before the Revisional Authority could revise the assessment order passed by the Assessing Authority, it must have material to show the suppression of sale without which it has no jurisdiction to revise the order. Thirdly, it was contended that even if it comes to the conclusion that there is suppression of turnover, the proper thing to do is to remand the matter back to the Assessing Authority for fresh consideration and then to pass a revised assessment order. Thirdly, it was contended that even if it comes to the conclusion that there is suppression of turnover, the proper thing to do is to remand the matter back to the Assessing Authority for fresh consideration and then to pass a revised assessment order. It cannot embark upon its calculation to pass an order levying tax as has been done in this case, which is one without jurisdiction. Therefore, he submits that seen from any angle, the impugned order requires to be set aside. 6. In support of the said contention, the learned Counsel relied on the judgment of the Apex Court in the case of Girdhari Lal Nannelal Vs. The Sales Tax Commissioner, M.P., AIR 1977 SC 298 a , where the Apex Court has held that the approach which may be permissible for imposing liability for payment of income tax in respect of unexplained acquisition of money may not hold good in sales tax cases. For the purpose of income tax, it may in appropriate cases be permissible to treat unexplained acquisition of money by the assessee to be the assessee's income from undisclosed sources and assess him as such. As against that, for the purpose of levy of sales tax, it would be necessary not only to show that the source of money has not been explained but also to show the existence of some material to indicate that the acquisition of money by the assessee has resulted from transactions liable to sales tax and not from other sources. 7. In the instant case, the statement given by the Assessing Authorities during survey, makes it very clear that she is offering Rs. 8,00,000/- as additional net income for the assessment year 2006-07 in addition to the regular income and for the assessment year 2007-08 she will show a higher income taking into account higher sales noticed during survey and higher tax paid accordingly. Therefore, from the aforesaid admission, the only source of income of the assessee is from carrying on this Hotel Business and that she is having higher sales, which is not disclosed in the accounts and therefore, she has agreed to show additional net income of Rs. 8,00,000/- and pay tax on that and she has committed herself in the next year to show higher sales and pay advance tax. 8,00,000/- and pay tax on that and she has committed herself in the next year to show higher sales and pay advance tax. In the light of the aforesaid categorical admission, there is no question of the Sales Tax Authorities holding any enquiry and looking into the accounts. Therefore, the Revisional Authority proceeded on the said admissions and figures given by the assessee in computing the tax on suppressed turnover. Reliance is also placed on the judgment of the Apex Court in the case of P.C. Ittymathew and Sons Vs. Dy. Commissioner of Sales Tax (Law), JT (2000) 4 SC 265 , where it has been held that where an addition was made to the income of the assessee by the Income Tax Authorities and the Sales Tax Officer, treating this addition as profit from unaccounted sales, calculated the turnover and brought it to tax, but the Tribunal found that the Sales Tax Authorities had not established that the income disclosed by the assessee had been derived from business transactions liable to sales tax and in revision the High Court reversed the order of the Tribunal. On appeal, the Supreme Court held that the Assessing Authority had relied on no material which indicated that the additional income had come from transactions that were liable to sales tax, which was merely a presumption on his part and that presumption could not rightly be drawn. Again in the facts of this case, the profit from the unaccounted sales is admitted to the assessee as aforesaid and she had income only from Hotel Business and therefore that was made the basis for levying tax under the Act. Therefore, the said judgment also has no application to the facts of this case. 8. Reliance is also placed on the judgment of the Madras High Court in case of P.C. Ittymathew and Sons Vs. Dy. Commissioner of Sales Tax (Law), JT (2000) 4 SC 265 , where it was held that the Joint Commissioner, under Section 34 of the Tamil Nadu General Sales Tax Act, 1959 had no jurisdiction to bring to tax for the first time, turnover which has allegedly escaped assessment, when it was neither the subject-matter of assessment proceedings nor Appellate proceedings. Under such circumstances, the Joint Commissioner cannot exercise the power which the Assessing Authority should have exercised but did not. Under such circumstances, the Joint Commissioner cannot exercise the power which the Assessing Authority should have exercised but did not. The power to bring an escaped turnover to tax is the power of the Assessing Authority under Section 16 of the Act. In the instant case, in the balance sheet of the assessee, the aforesaid amounts were reflected, which did not find a place in the monthly returns filed by the assessee under the Act. The said entries are not disputed and in the light of the aforesaid admission, it is not a case of estimation of the suppressed turnover. It is a case of calculation of tax payable on the admitted turnover, which the Revisional Authority could very well do while exercising this power under Section 63-A of the Act. Reliance is also placed on the judgment of this Court in case of Shankar Construction Co. Vs. Additional Commissioner of Commercial Taxes, Belgaum Zone, (2001) 124 STC 265 Kar : Shankar Construction Co. Vs. Additional Commissioner of Commercial Taxes, Belgaum Zone, (2001) 124 STC 265 Kar , to contend that when the Revisional Authority passes an order revising the assessment order, a right of first appeal is taken away. In the absence of any express provision in Section 63-A prohibiting the Revisional Authority from passing an order refraining the assessment, it cannot be said that a right of appeal is taken away. In fact against the order passed by the Revisional Authority statute provides for an appeal before the Karnataka Appellate Tribunal, which the assessee has exercised in the instant case. Therefore, we do not see any merit in the said contention also. In the aforesaid circumstances, we do not see any merit in this revision petition. Accordingly, revision petition stands dismissed.