Karnataka High Court
Bharat Heavy Electricals Ltd vs The Deputy Commissioner Of Commercial ... on 3 January, 2017
Author: Vineet Kothari
Bench: Vineet Kothari
1/13
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 03rd DAY OF JANUARY 2017
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION Nos.62549-560/2016 (T-RES)
BETWEEN:
BHARAT HEAVY ELECTRICALS LTD
INDUSTRIAL SYSTEMS GROUP
PROF. CNR RAO CIRCLE, IISC POST
P.B.NO.1249, MALLESHWARAM
BENGALURU-560012.
REPRESENTED HEREIN BY ITS
AUTHORISED REPRESENTATIVES
Mr. PSM HAMEED NAJIMUDEEN AND
Mr. S. CHATURVEDI.
...PETITIONER
(BY SRI. K.P. KUMAR, SR. COUNSEL FOR
SRI. T. SURYANARAYANA, ADV.)
AND:
THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES
(AUDIT)-2.7, DVD-02, KORAMANGALA
BENGALURU-560047.
...RESPONDENT
(BY SRI. T. K. VEDAMURTHY, AGA)
THESE W.Ps. ARE FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ASSESSMENT ORDER VIDE ANNEX-K DTD.28.11.2016 PASSED
BY THE RESPONDENT UNDER SECTION 9(2) OF THE CST ACT
READ WITH THE KVAT ACT & ETC.,
THESE W.Ps. COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:-
Date of Order 03-01-2017 W.P.Nos.62549-560/2016
Bharat Heavy Electricals Ltd., Vs.
The Deputy Commissioner of Commerical Taxes
2/13
ORDER
Mr.K.P.Kumar, Sr.Counsel for Mr.T.Suryanarayana, Adv. for Petitioner Mr.T.K.Vedamurthy, AGA for Respondent
1. These writ petitions have been filed by a public sector undertaking "Bharat Heavy Electricals Ltd.,"
(BHEL), which is though having a registered office within the State of Karnataka has its manufacturing units and sales units at various places all over the country and in other States also outside the State of Karnataka.
2. In these writ petitions, a challenge has been laid to the impugned assessment order passed by the Respondent-Deputy Commissioner of Commercial Taxes (Audit)-2.7, Bengaluru, on 28.11.2016 for the assessment period April 2010 to March 2011, raising a net demand of Rs.24,72,79,464/- including the tax, interest and penalty under the provisions of KVAT Act, 2003.
Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 3/13
3. The brief reason for which the impugned assessment order assailed by the petitioner-company is that the denial of exemption of tax under the provisions of KVAT Act, 2003 in respect of the sales made by the petitioner-company outside the State of Karnataka. The petitioner-company claimed such outside Karnataka sales to the extent of Rs.95,34,92,290/-, out of total sales of Rs.421.72 crores and it was claimed by the petitioner-assessee that such sales were made to various customers by its manufacturing/sales units situated outside the State of Karnataka in the States like Andhra Pradesh, Gujarath, Jharkand, Orissa, Tamilnadu, Uttar Pradesh and West Bengal and these goods never entered State of Karnataka.
4. The relevant portion of the impugned order to the aforesaid claim and the reasons for denial of such exemption is quoted below for ready reference:-
Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 4/13 "3. LSOK(Local Sales Outside Karnataka) The dealer company has effected local sale outside Karnataka (LSOK) and declared as Exempted sales in the returns and in Form VAT- 240 for the FY 2010-11. The state wise and customer wise turnover details are as under;
STATE CUSTOMER GROSS
VALUE
ANDHRA PRADESH HINDUJA NATIONAL POWER 253745629
CORPN
VSP-LD Convertors 5940840
TOTAL 259686469
GUJARAT GESCL-UKAI 23889080
GIPCL-TPS-SLPP 676190
GSECL-TPS-SIKKA TPS 360232169
ONGC 471859
TOTAL 385269298
JHARKHAND DVC-AHP & DG-KODERMA 2052333
TOTAL 2052333
ORISSA MALIBHRAMANI DG Set 3056086
TOTAL 3056086
TAMIL NADU CHENNAI PETRO CHENICAL DG 1573552
SETS
NORTH CHENNAI-I & II(DG SET) 29509615
NTECL-VALLUR 90671141
TNEB-NORTH CHENNAI-UNIT-I 58929630
TNEB-NORTH CHENNAI-UNIT-II 9957278
TOTAL 190641216
UTTAR PRADESH UPR VUNL-ANPARA 93061926
TOTAL 93061926
WEST BENGAL DVC-AHP MEJIA UNIT 1 & 2 1153846
DVC-DURGAPUR-TPS-AHP 18571116
TOTAL 19724962
GRAND TOTAL 953492290
THE ANALYSIS OF TURNOVER
PERTAINING TO EXEMPT TURNOVER
There is a claim of exemption on the
turnover of Sale outside Karnataka and has submitted the documents such as.
1. Statement of invoice details with invoices.
2. Copy of the E-Mial Letter sent by BHEL, Hyderabad.
3. Copy of Form-304 of Gujarat State.
Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 5/13
4. Copy of audit report of BHEL West Bengal certified by Chartered Accountant.
The dealer company ought not to have declared the other states turnovers in the VAT- 100 and in Form VAT-240 filed under KVAT Act, 2003. By declaring the other state turnover in Karnataka and claiming exemption is not in accordance with the provisions of CST Act 1956.
The above amount as per the Company's details is pertaining to the other State Turnovers. But the Company has not furnished the documents as required by the provisions of the Act i.e.,u/s 4 of CST's Act 56. As per the Section, there should be a contract to the sale and purchase, the movement of goods and delivery/termination of goods shall move as per the covenant of the contract, and shall produce the required LRs to allow the Sales outside the State. In the absence of such documents, the claim of exemption is rejected and levied tax thereby".
5. The learned Senior Counsel Mr.K.P.Kumar, for the petitioner-company has urged that in the past, the practice adopted by the petitioner-company was to disclose its entire India turn over in its returns filed in Karnataka at Bengaluru and thereafter, from the entire turn over which in the present year was to the extent of Rs.421 crores approximately, the exemption is claimed Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 6/13 to the extent of sales made outside the State of Karnataka, which was to the extent of Rs.95.34 crores in the present year and such exemption was being allowed by the Assessing Authority in the previous Assessment years, even after coming into force of the KVAT Act, 2003, but for the present assessment period in question, the Assessing Authority refused that exemption even though the relevant details, audit reports and documents were furnished before him during the course of the assessment proceedings and he also submitted that no specific proposition notice was given to the assessee for denying such exemption of sales made outside the State of Karnataka to the petitioner-company for this year in question.
He also submitted that the petitioner-company, a public sector undertaking is in huge losses and demand of tax, interest and penalty raised is wholly illegal, without considering the relevant documents produced by the petitioner-company for claiming such exemption Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 7/13 under KVAT Act, 2003 to the extent of Rs.95 crores & odd as stated above.
6. On the other hand, Mr.T.K.Vedamurthy, learned AGA for the Respondents-Department, upon being instructed by the concerned Assessing Authority who was present in the Court, also sought to vehemently oppose these objections and while raising the plea of non maintainability of these writ petitions on the ground of availability of the alternative remedy by way of an Appeal under Section 62 of the KVAT Act, 2003, by producing the bulk of Invoices, he sought to submit before the Court that from the Invoices produced by the petitioner-company also, it was not clearly established as to whether such sales claimed to be the sales made outside the State of Karnataka, were in fact such sales emanating in other States as stated above, and the goods never entered the State of Karnataka.
Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 8/13 He submitted that even TIN numbers of Karnataka were mentioned on the Invoices of this claimed exempted turnover and no other supporting documents for proving these sales to have originated or emanated from outside the State of Karnataka and terminating in other States, other than Karnataka, were proved by the petitioner-assessee and therefore, the imposition of tax on the petitioner-assessee in the present case by denying such exemption was justified.
He also drew the attention of the Court towards the prescribed Form VAT-100 and VAT-240 and relevant Rules framed under the Rules of KVAT Act, 2003 namely, Rule No.34(3) and Rule 138 of KAVT Act Rules, 2005 and he submitted that the assessee has voluntarily disclosed its entire turnover in its returns filed here and therefore, for claiming the exemption in respect of the sales made outside the State of Karnataka, it ought to have proved each such transaction properly that such sales was really taking Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 9/13 place outside the State of Karnataka, not attracting any tax under the provisions of the KVAT Act, 2003 or entitling the State of Karnataka to collect even CST under the provisions of CST Act, 1956, for the inter- state sales made from the State of Karnataka to the purchasers in other States.
7. Having heard the learned counsels for the parties, this Court is of the view that there are alternative remedies available to the petitioner- assessing company to challenge the validity of the impugned assessment order dated 28.11.2016.
8. The imposition of tax under the provisions of the KVAT Act, 2003 in the present case on the sales claimed to be exempt and made outside the State of Karnataka requires going into the relevant facts of these transactions which have to be proved by the Assessee company as the sales taking place outside the State of Karnataka. This Court advisedly would not make any Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 10/13 comment on the evidence so far produced by the Assessing Company and non recording of separate detailed findings by the Assessing Authority in the impugned order, as would appear from the quoted portion of the order as stated above, so that the interest of either of the parties is not adversely affected.
9. The petitioner-assessing company not only has the remedy by way of filing an appeal against the impugned assessment order, but, if the assessing company is of the opinion that there are factual errors in the impugned order, and such mistake of facts is apparent on the face of the impugned order, it has a remedy by way of filing the appropriate Rectification application under the provisions of Section 69 of the Act.
10. The learned senior counsel for the petitioner- assessing company urged before the Court that since the filing of the appeal would require certain pre-
Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 11/13 deposits to be made by the petitioner-company to maintain such appeal on merits, the petitioner-company which is a loss making public sector undertaking may be permitted that instead of filing the appeal, it would file the Rectification application under Section 69 of the Act and the respondent-Assessing Authority may be directed to pass the appropriate speaking order on such Rectification application within the stipulated time frame, as the petitioner-company would be unable to deposit the requisite portion of the disputed demand of Rs.24.72 crores at this stage.
11. However, upon instructions of the officials of the petitioner-company present in the Court, he fairly submitted that if a minimal portion of the said demand say to the tune of Rs.5 crores is directed to be deposited, for disposal of the writ petition as prayed by directing the respondent-Assessing Authority to consider such Rectification application on merits, the Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 12/13 petitioner-company would do so, subject to the final orders to be passed by the respondent-assessing authority under Section 69 of the Act.
12. Therefore, in view of the aforesaid, these writ petitions are disposed of with a liberty and direction to the petitioner-company to make the deposit of Rs.5 crores with the respondent-Assessing Authority within a period of one month from today and with the said deposit of Rs.5 crores, which will remain subject to the final orders to be passed by the respondent-Assessing Authority in exercise of its rectification powers under Section 69 of the Act for rectification, the petitioner- assessee company is directed to file the Rectification application seeking rectification of the aforesaid impugned portion of the assessment order under Section 69 of the Act. The respondent-assessing authority is directed to permit the petitioner-assessee company to produce the relevant evidence in support of Date of Order 03-01-2017 W.P.Nos.62549-560/2016 Bharat Heavy Electricals Ltd., Vs. The Deputy Commissioner of Commerical Taxes 13/13 its Rectification application to satisfy the respondent- assessing authority that these sales claimed to be exempted under the provisions of KVAT Act,2003, were indeed not the sales taking place either within the State of Karnataka or were not the inter-state sales emanating or originating from the State of Karnataka and the Assessing Authority will pass the said rectification orders before 31.03.2017 in any case on merits discussing such relevant evidence produced by the assessee. The petitioner-assessee company is also directed to fully co-operate with the Assessing authority and not seek any adjournment in the matter. In the first instance, the petitioner-assessee company may appear before the Assessing Authority on 16.01.2017. No costs.
Sd/-
JUDGE Srl.