EMCEE ASSOCIATES Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The Appellant being aggrieved by the order impugned dated September 15, 2009 in case No. ZAC-1/BCD-1/SMR-45/09-10 on the file of the Additional Commissioner of Commercial Taxes, Zone 1, Bangalore, vide annexure A, has presented this appeal to restore the first appeal order dated December 15, 2007 vide annexure J including other reliefs.

(2.) The Appellant claims that he is a dealer registered under the Karnataka Sales Tax Act, 1957 (hereinafter referred to as, "the Act") and engaged in food catering. He has opted to remit tax under the composition scheme as provided under Section 17(4) of the Act. Accordingly, he has filed the application seeking permission for composition of tax payable in form No. 8 along with statement in lieu of return of turnover/estimated turnover in form No. 9 on April 21, 2004 in the office of the Commercial Tax Officer, 12th Circle, Bangalore and acknowledged copies produced at annexures B and C, respectively.

(3.) During the assessment year 2004-05, he has furnished the returns in form No. 3, within the stipulated time and remitted the tax applicable therewith. Thereafter, annual return in form No. 4 was filed declaring his gross and taxable turnover and admitted tax, and the same has been remitted with the respective monthly returns. Be that as it may, the third Respondent has passed the assessment order dated May 17, 2007 under Section 12C(8) of the Act read with Notification No. FD 116 CSL 2006 (3) dated March 31, 2006 levying tax at the rate of 12 per cent, plus cess of 15 per cent, on the amount of tax and additional tax at the rate of one per cent, on the turnover totalling to Rs. 2,19,269 in the said assessment order. But without considering the notification dated March 31, 2006, which provides for completion of deemed assessments of dealers on the basis of the turnover and taxes payable as declared by such dealers in their annual return subject to the conditions stated therein, the authority has proceeded to extend the benefits entitled as provided under the Act, without considering his application. The said order has been proceeded without giving sufficient opportunity to substantiate the case and without complying with the principles of natural justice. Thereafter, the authority issued a demand notice dated May 17, 2007. Assailing the correctness of the same, the Appellant/Assessee has filed rectification application apparent on the face of the record under Section 25A of the Act. Instead of considering his application for rectification, the authority has proceeded to issue an endorsement stating that form Nos. 8 and 9 filed by the Appellant/Assessee are not tallying with each other and issued endorsement dated October 16, 2007. Being aggrieved by the endorsement dated October 16, 2007, the Appellant herein filed an appeal before the Joint Commissioner of Income-tax (Appeals) and proceedings No. KST.AP.No 141/07-08 dated December 15, 2007 came to be passed and the said matter had come up for consideration before the jurisdictional competent authority and the competent authority accepting the xerox copies of form Nos. 8 and 9, allowed the appeal filed by the Appellant. Be that as it may. The Additional Commissioner of Commercial of Commercial Taxes, Zone 1, Bangalore, invoking the revisional powers under Section 22-A(1) of the Act, initiated the proceedings in No. ZAC-1/BNG-1/SMR-45/09-10. In turn, the Additional Commissioner of Commercial Taxes, after going through the original record and order passed by the revisional authority, set aside the order passed by the appellate authority holding the rejection of the rectification application by an endorsement dated October 16, 2007 is just and proper and the endorsement issued consequent to the order of assessment was restored. Being aggrieved by the order impugned passed by the revisional authority vide annexure A dated September 15, 2009 the Appellant herein felt necessitated to present this appeal seeking restoration of the order passed by the first appellate authority dated December 15, 2007.