COMMERCIAL TAX OFFICER Vs. C R VARGHESE

JUDGEMENT

(1.) Common question arises in the above Writ Appeals from separate judgments of the learned Single Judge allowing revision of returns by the assessees in various contingencies. Beyond the period enabled by the statute; is the ground of appeal. We would first notice the facts in each of the cases and the contingencies under which they sought for revision of returns, which were rejected or not acted upon by the Assessing Officer (AO).

(2.) W.A.No.2636/2017 is a case in which the assessee by itself had approached the AO for revision of returns for the period from April, 2015 to March, 2016. Monthly returns were filed by the assessee as stipulated under the Kerala Value Added Tax Act, 2003 ("KVAT Act", for short) and an audited statement as per Section 42 was filed on 30.12016. On 30.1.2017, Ext.P1 communication was addressed to the AO pointing out that there were some discrepancies in the returns which were detected in the audit report and audited statement. Ext.P1 also sought for permission to revise the returns. The communication at Ext.P1 was sent by e-mail and hard copy was submitted on 13.2017. Subsequently, on 9.6.2017 notice under Section 25(1) was issued threatening re-opening of the assessment for the year 2015-16, which was received by the assessee on 20.6.2017. The learned Single Judge relying on the decision of the Division Bench of this Court dated 03.07.2012 in O.T.Rev.No.22/2012 [State of Kerala v. M/s.M.M.Enterprises] allowed the claim of the assessee directing the revision to be permitted, especially since the issuance of notice under Section 25(1) cannot be treated as initiation of a penal action.

(3.) W.A.No.2541/2017 was a case in which the respondent/petitioner purchased a machinery as capital equipment for its business in March, 2014. The assessee failed to show the same in the return. Subsequently, in September, 2015, the assessee sought to revise the return showing the purchase of machinery as capital. The AO failed to take any action on the application filed by the assessee upon which the assessee was before this Court with the Writ Petition. The Department resisted the claim for revision on the ground that if it is permitted, the assessee would be entitled to claim input tax credit as per Rule 13 of the Kerala Value Added Tax Rules, 2005 [for brevity "KVAT Rules"]. The learned Single Judge found that the possible claim by the assessee for input tax credit cannot stand against the request for revision, especially since there is no penal action initiated against the assessee for the said period. The learned Single Judge allowed the claim of the assessee.