SAP INDIA PRIVATE LIMITED Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THESE thirteen (13) appeals are filed under Section 63 of the Karnataka Value Added Tax Act, 2003 (for short, the 'Act') and the Central Sales Tax Act, 1956 (for short, the 'CST Act') contesting the common appeal order dated 25th February, 2011 passed by the Joint Commissioner of Commercial Taxes (Appeals -2), Bangalore (for brevity as 'FAA') in Case Nos. VAT/AP 1359 to 1370/2010 -11 and CST AP. No. 203/2010 -11 by which the reassessment orders dated 25th September, 2010 passed under Section 39(1) of the Act and under Section 9(2) of the CST Act by the Assistant Commissioner of Commercial Taxes (Audit -41), DVO -4, Bangalore (hereinafter referred to as 'AA') came to be quashed. While quashing the reassessment orders of AA, the FAA has set aside the orders of the levy of interest and penalty under Section 36 and under Section 72(2) of the Act. Further, the directions are given to refund the amount of tax, interest and penalty collected in pursuance of the impugned orders which are quashed. Having not been satisfied by the orders of the FAA, the appellant has preferred appeals before this Tribunal challenging the appellate order with respect to the one of the issues which has been answered against the appellant by the FAA namely the question of time limitation to pass orders for the impugned tax periods in view of the time -limit prescribed under Section 40(1) of the Act. Even though, the appellant succeeded before the FAA, in view of withholding of refund by the Commissioner of Commercial Taxes under Section 51(1) of the Act, which has been upheld by this Tribunal while disposing the Interlocutory Application No. 1 filed by the State in cross appeals granting stay for refund of tax vide order dated 30th March, 2012 in STA Nos. 768 to 780 of 2011, the appellant challenged this stay order of the Tribunal before the Hon'ble High Court by filing writ petitions bearing W.P. Nos. 12772 to 12784 of 2012 (T -RES) which has been disposed of by judgment dated 5th June, 2012 allowing the writ petition in part, directing the Tribunal to reconsider the matter and pass fresh order. The appellant has challenged this judgment also, by filing writ appeal bearing W.A. Nos. 3320 to 3332 of 2012 (T -RES). In the writ appeal, the Hon'ble High Court by its judgment dated 11th September, 2012 directed this Tribunal to construe the cross -objections as appeals and should be disposed of in accordance with law. While directing so, the Hon'ble High Court had held that "the appeal by the assessee before the Tribunal appears to be untenable exercise and also observed that when the assessee had succeeded before the Appellate Authority, he cannot file an appeal against such order only on the ground that on the question of limitation, an adverse finding is given against him" at paragraph No. 12 of the said judgment.

(2.) HOWEVER , the appellant has challenged this judgment also before the Hon'ble Supreme Court in Special Leave to Appeal (Civil) Nos. 27592 to 27604 of 2013 and the Hon'ble Apex Court has allowed the said appeals of the appellant and modified the impugned order of the Hon'ble High Court by its judgment dated 1st November, 2013 and directing the authorities to refund the amount as soon as possible. At the same time, the Hon'ble Apex Court has also held that the appeals filed by the assessee as well as the cross -objections filed by the revenue shall be heard on merits by this Tribunal. At this juncture, the appeals preferred pending before Court No. 8 of this Tribunal have been transferred to Court No. 7 by the Hon'ble Chairman on 11th January, 2012. The appeal proceedings have been held at Court No. 7 from 18th January, 2012 to 19th November, 2013. Subsequently, these appeals have been transferred to this Court on 10th December, 2013 by the Hon'ble Chairman on the ground that the Court No. 7 had become Single Member Bench. The appeals have been heard but released in view of the transfer of the District Judge Member on 29th April, 2014. Subsequent to the same and after reconstitution of the Bench, the appeals came up for preliminary hearing before us on 20th May, 2014 and having noticed that the cross appeals are not having been allotted the numbers, the Registry was directed to allocate STA Nos. to cross appeals and after allocation of the same, the appeals of the appellant and the cross appeals of the State have been heard on 10th June, 2014.

(3.) GROUNDS of appeal. -