KIRLOSKAR FERROUS INDUSTRY LIMITED Vs. THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, KOPPAL AND OTHERS

JUDGEMENT

(1.) The appellant has preferred this appeal challenging the order passed by the learned Single Judge on 30-11-2012 in W.P. No. 61043 of 2009 rejecting the writ petition on the ground that the petitioner can avail an alternative remedy of appeal. The appellant is a company duly registered under the Karnataka Value Added Tax Act, 2003. The appellant has submitted returns in Form VAT 100 within 20 days after the end of the preceding month under Section 35 of the Act. The returns are to be filed for each tax period and the tax period shall be one calendar month as prescribed in Rule 37 of the Karnataka Value Added Tax Rules, 2005. The appellant submitted monthly returns for the months of January, February and March 2008 on 19-2-2008, 20-3-2008 and 20-4-2008 respectively. In the returns he had claimed certain input tax credits as per Section 10 of the Act in accordance with the books of accounts maintained in the course of the business. Section 31(4) of Act, provides that every dealer whose taxable turnover in a year exceeds Rs. 25,00,000/-, shall have his accounts audited by a Chartered Accountant subject to such conditions and such limits as may be prescribed. Rule 34 prescribes that, every registered dealer who is a company defined under the Companies Act, 1956 is required to have his accounts audited under Section 31(4) of the Act. The said audited statement of accounts shall be submitted in Form VAT 240 to the jurisdictional local VAT Officer within 9 months after the end of the relevant year. The relevant year in the appellant's case is 2007-2008. The appellant is required to have his accounts audited and shall submit the audited statement of accounts before the 1st respondent by December 2008.

(2.) The appellant's taxable turnover for the relevant year ended on 31-3-2008 exceeds Rs. 25,00,000/-. Therefore, he got his account audited by a Chartered Accountant. During the audit process, it was discovered that the claim of input tax credit for the tax periods, January 2008 to March 2008 was understated in the returns filed originally before the 1st respondent. This under statement was reflected in the audit report that was submitted before the 1st respondent in the month of December 2008. Therefore, the appellant filed revised returns on 30-12-2008 for three tax periods i.e., January, February and March 2008. In the revised returns, the appellant has rightly claimed input tax credit that was understated in the original returns. He also filed a revised annual statement in Form VAT 115 based on the revised returns filed on 30-12-2008. The additional claim of input tax rebate was made and the refund was sought on the basis of the said input tax credit. By an endorsement dated 31-12-2008 the 1st respondent rejected the revised returns on the ground that the time-limit for filing the revised returns for three tax periods has expired and therefore, the revised returns filed beyond six months cannot be accepted. Aggrieved by the said rejection, he preferred a writ petition. In the writ petition, he sought for the following reliefs:

(3.) His grievance is, six months is a period prescribed for filing a revised return. Whereas nine months is a prescribed for filing an audited statement of accounts. Only when a Chartered Accountant audits the account and points out the error, he could file a revised returns. Therefore, the revised return has to be necessarily beyond six months and beyond 9 months. Therefore, he submits the rejection of his request for refund of excess tax paid on the ground that returns is not filed within six months is ex facie illegal. Therefore, either the aforesaid two provisions have to be read harmoniously or Section 35(4), which prescribes six months period is to be struck down as arbitrary. The learned Single Judge before whom this argument was canvassed, has not considered this arguments. He has rejected the writ petition solely on the ground that the appellant has an alternative remedy by way of an appeal to challenge the endorsement issued. If that endorsement is issued in accordance with law, there is nothing the Appellate Authority can do. Because of the statutory provisions, which give raise to such a interpretation, which interpretation on the face of it is arbitrary, in this writ-petition he is challenging the virus of those provisions. The virus of a statutory provision cannot be gone into by the Appellate Authority. It has to he gone into by the High Court in its jurisdiction under Article 226 of the Constitution of India. Quashing of the endorsement is only consequential, if the appellant succeeds in showing that the said provisions are ultra virus or if this Court process a harmonious interpretation, then as a consequence, the endorsement goes. Under these circumstances, the learned Single Judge was not justified in dismissing the writ petition on the ground of validity of alternative remedy. It is the writ Court alone which can go into the validity of these statutory provisions. In that view of the matter, the order of the learned Single Judge is not sustainable. Hence, we pass the following: