LAKSHMINARAYANA ELECTRICALS Vs. STATE OF KARNATAKA AND ANOTHER

JUDGEMENT

(1.) This appeal is preferred by the assessee against the order passed by the revisional authority under section 22A(1) of the Karnataka Sales Tax Act, 1957 (for short hereinafter referred to as, "the Act"). The assessee is a registered dealer under the Act. He had filed returns for the assessment year 2003-04. The assessee is a dealer in electrical goods and undertake electrical contract. He had opted for composition scheme by applying tax at four per cent on the value declared in the returns. The assessment was completed under section 12C of the Act. However, on October 4, 2007, a notice came to be issued under section 21(4) of the Act seeking documentary evidence to support turnover of Rs. 14,97,417 as labour contract and also to provide an application for opting of composition scheme. The Joint Commissioner of Commercial Taxes, Transition, by its order dated September 19, 2008 accepted payment of tax on labour receipts by recording a finding that the dealer is being assessed regularly under the concessional rate of tax at four per cent under the composite scheme under section 17(6) of the Act and that the Department has accepted such payment and the proceedings were dropped. That on June 15, 2009, the Additional Commissioner of Commercial Taxes under section 22A of the Act initiated suo motu proceedings to review the order passed by the Joint Commissioner of Commercial Taxes on the ground that form 8AA in original is not found in the records but only a Xerox copy is available. The assessee appeared before him and produced the application form, which was available in his records. However, the Additional Commissioner of Commercial Taxes by order dated July 22, 2009 rejected the plea of the assessee and proceeded to pass the impugned order on the ground that the order passed by the Joint Commissioner of Commercial Taxes, Transition, is prejudicial to the Revenue. An application was filed under section 25A of the Act seeking revision of the order, which also came to be rejected. Aggrieved by the said orders, the present appeal is filed.

(2.) Heard the learned counsel for the parties.

(3.) It is not in dispute that the assessee has registered himself as a dealer under the Act. He has opted for payment of composition tax in the year 2003-04. It is not in dispute that in the records of the Department a Xerox copy of the said application is available. On receipt of such an application, the Department has to issue the certificate in form No. 8AB. If it is not issued within thirty days form the date of receipt of the application, it is deemed to have been permitted. The assessee has been filing such application for composition of tax every year subsequent to the said period and accordingly, he has paid the tax. There is no dispute in this regard. Now the only dispute is with reference to the assessment year 2003-04. The assessment is sought to be reopened only on the ground that the original application filed by the assessee is not available and the assessee has not produced the original form 8AA and the original form 8AA is also not available in the records. Original form 8AA is produced by the assessee before the authority. The Xerox copy of the application opting for composition of tax is also available. After lapse of five years now if in the records of the Department the original application filed by the assessee is not available, that cannot be a ground to set aside the assessment order passed accepting the composition tax paid by the assessee. We are satisfied from the material on record that the revisional authority was not justified in interfering with the order passed by the Joint Commissioner of Commercial Taxes, Transition. Accordingly, the appeal is allowed. The impugned order is set aside. The original order is restored. The parties to bear their costs.