Karnataka High Court
The State Of Karnataka vs M/S Lizmontagens India P Ltd on 14 June, 2018
Bench: Vineet Kothari, S.Sujatha
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R
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 14th DAY OF JUNE 2018
PRESENT
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
AND
THE HON'BLE Mrs.JUSTICE S.SUJATHA
S.T.R.P.No.13/2017
BETWEEN:
THE STATE OF KARNATAKA
REP. BY THE SECRETARY
FINANCE DEPARTMENT
VIDHANA SOUDHA, BENGALURU-560001.
...PETITIONER
(By Mr. VIKRAM A. HUILGOL, ADV.)
AND:
M/S. LIZMONTAGENS INDIA (P) LTD.,
KULAI, MANGALURU-575001.
...RESPONDENT
(By Mr. C.S. SURYAKANTH, ADV. FOR Mr. ATUL K. ALUR, ADV.,)
THIS STRP IS FILED UNDER SECTION 66(1) OF THE
KARNATAKA VALUE ADDED TAX ACT, 2003, FILED AGAINST
THE JUDGEMENT AND DECREE DATED 19-02-2016, PASSED IN
STA No.3008/2013 ON THE FILE OF THE KARNATAKA
APPELLATE TRIBUNAL AT BENGALURU, ALLOWING THE
APPEAL FILED UNDER SEC. 63(5) OF THE ACT.
Date of Order 14-06-2018 S.T.R.P.No.13/2017
The State of Karnataka Vs. M/s. Lizmontagens India (P) Ltd.,
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THIS STRP COMING ON FOR ORDERS, THIS DAY
Dr. VINEET KOTHARI J. MADE THE FOLLOWING:-
ORDER
Mr. Vikram A. Huilgol, Adv. for Revision Petitioner-State Mr. C.S. Suryakanth, Adv. for Mr. Atul K. Alur, Adv. for Respondent-Assessee The petitioner-State has filed the present revision petition u/s.66(1) of the Karnataka Value Added Tax Act, 2003 (for short 'KVAT Act') aggrieved by the order passed by the Karnataka Appellate Tribunal (Tribunal), Bengaluru, in STA No.3008/2013 (M/s.Lizmontagens India (P) Ltd., vs. The State of Karnataka) by which the Tribunal set aside the penalty imposed on the appellant-assessee on account of minor discrepancy between e-Sugam and the Invoice with respect to value and quantity of goods.
2. Accepting the explanation given by the appellant-assessee that the said discrepancy occurred on account of the feeding of the particulars prior to the final invoice raised by the consignor and the minor Date of Order 14-06-2018 S.T.R.P.No.13/2017 The State of Karnataka Vs. M/s. Lizmontagens India (P) Ltd., 3/8 discrepancy occurred on account of bona fide reasons and therefore, the Tribunal in exercise of its discretion deleted the penalty. The reasons given by the learned Tribunal are quoted below:
"We have carefully perused the contents of the file and considered the submission of the counsel for the Appellant as well as the submission of the State Representative. On perusal of the contents of the documents, it is seen that e-sugam bearing No.8103441491 is generated by the Appellant on 6/12/2012 at 4.23 hrs in which the particulars of goods purchased are mentioned and the value and quantity of the said goods are shown in the column provided for the same, in which the total value of the goods purchased is shown as Rs.19,32,084/- but whereas in the invoice bearing no.CE/17/2012 dated 10/12/2012 the value of the goods is shown as Date of Order 14-06-2018 S.T.R.P.No.13/2017 The State of Karnataka Vs. M/s. Lizmontagens India (P) Ltd., 4/8 Rs.17,88,640/-. On perusal of these two values mentioned in the invoice as well as e-sugam it is seen that in the invoice the value is shown as Rs.17,88,640/-, but whereas in the e-sugam generated in connection with this transaction referred above goes to show that the total value of the goods shown as Rs.19,32,084/-. This clearly goes to show that there is a difference of value of goods mentioned in the invoice as well as the e-sugam. But on perusal of the appeal memo in para no.11 of the appeal memo, the Appellant has specifically pleaded stating that:-> the Appellant has already fed the purchase particular as per his earlier order in the website and obtained e-sugam. The Appellant was not informed by the consignor in respect of dispatch of shortage of goods. Due to the shortage of goods the Date of Order 14-06-2018 S.T.R.P.No.13/2017 The State of Karnataka Vs. M/s. Lizmontagens India (P) Ltd., 5/8 value of the goods is also varied. Above this para i.e. in the para no.10, the quantity mentioned in the bill of sale is 9110 kg and the quantity mentioned in e-sugam is 9800 kg. To this difference there is an explanation in para no.11 of the appeal memo. Under the circumstances, observation by the CTO in his order stating that the goods under transport which was covered by e-sugam bearing no.8103441491 is defected and the sale is not pertain to the transaction thereby breached sec.53(2)(A)(b) of the KVAT Act, 2003 (53(2)(a)(b) of the KVAT Act 2003) and the Commissioner of Commercial Taxes, Bangalore notification Adcom (I & C)/PA/CR- 31/2011-12 dated 23.12.2011 and you have made attempt to evade tax due to the Government...................... etc., is the erroneous conclusion of the CTO. In the light Date of Order 14-06-2018 S.T.R.P.No.13/2017 The State of Karnataka Vs. M/s. Lizmontagens India (P) Ltd., 6/8 of the fact that while transporting the goods e-sugam is raised under the number referred above by mentioning all the particulars of the goods stated to be transported and its value etc., Under the circumstances only on the ground fact difference of the quantity of the goods shown in the invoice and the e-sugam. The appellant has tried to evade the tax payable to the Government is nothing but erroneous unsustainable ground in arriving to the conclusion especially in the light of fact that the Appellant has given clarification on 21/12/2012 in his letter head stating that:-> ....... We have booked the order for required goods on 4/12/2012 and therefore the e-sugam is generated on 6/12/2012 due to non-availability of truck that the goods was not possible for lift from the godown from the seller, in the mean time the seller has Date of Order 14-06-2018 S.T.R.P.No.13/2017 The State of Karnataka Vs. M/s. Lizmontagens India (P) Ltd., 7/8 disposed certain items without our knowledge which was booked and reserved for our Co. Hence the quantity of the goods do not tallied with e-sugam. At the time of preparing the bills the seller has raised the sale bill for actual goods which was loaded to the vehicle KA-19 A 5320. Hence the value of the goods is automatically less than the e-sugam value. ....... This explanation throw the light on the aspect of lesser quantity of the goods at the time inspection by the Authority concerned. Hence on all these grounds we are of the considered view that the reasoning findings and the conclusion of the check post Authority as well as the confirmation of the order of the check post Authority by the First Appellate Authority are erroneous. Accordingly, we answer in the Affirmative."
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3. Having heard the learned counsels, we are satisfied that the impugned order does not give rise to any question of law requiring consideration by this Court and the explanation furnished by the assessee appears to be plausible and the Tribunal cannot be said to have committed any error or perversity in accepting the same and setting aside the penalty in question.
4. The revision petition filed by State has no merit and is liable to be dismissed and the same is accordingly dismissed. It is expected of the State not to initiate petty and frivolous litigation in constitutional Courts. With this note of caution, costs are not imposed on State in this case.
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