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IN1}HEHHHiCOURTCHFKARNKDMQLKTBANGALORE
DATED THIS THE 30'?" DAY OF OCTOBER 2009
THE I-ION'BLE 1vm.JUsTIcE D.V. SHYLENDEA: A»
Tm: I-ION'BLE MRJUSTICE L. "
PRESENT
AND
STRP N0.18A.[GE 2069.. . '
BETWEEN
(BY SETS}; T GP)
STATE OF' KARNA'1'AT:A.TT.'i'A _ * '.
BY THE COMMISSIONER. GE ~
CGMMESRGIAL A
VANIJYA THEHTGE 'KAR_YAL.AYA'""
~ = 'A PETITIONER
AND T
PROEM,/S NALPAK RESTAURANTS
'NfG,13'1.D_DS,D.URS RAOD.
024
S A {BYES
V. . RESPONDENT
RI"~--'{' N KESHAVAMURTHY]
TEES STRP IS FILED U/S 23 (1) OF KST ACT R/W
SA THE KAT ACT AGAINST THE JUDGMENT AND
». ORDER DATED:
468/2006 ON THE FILE OF THE KARNATAKA
APPELLATE TRIBUNAL. BANGALORE, ALLOWING THE
A /APPEAL AND SETTING ASIDE THE
17.1.2008 PASSED IN STANO.
I MPUGN ED
REVISION ORDER.
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THIS STRP COMING ON FOR ADMiSSION..__'I'I-IiS
DAY, SHYLENDRA KUMAR. J., MADE
FOLLOWING: -
ORDER
STRP by the revenue uricl.e’r” Section_,;.”2:3V{‘i)fiofifithep V
Karnataka Sales Tax Act, 19571°'(«1qét%¢ii1aftc;;f’reier:~é§e,to~.,,
as ‘the Act’).
2. Revision the order
dated 17.01.2008 pagseajinn’V.S§mni”‘;q§,p%les/2006 by the
Karnataka whereunder,
the App_ellate:” aside, a suo motu
revisio;ial–_ been passed by the Joint
Commissioynerv of 4’Corni_z1ereial Taxes [Intelligence &
Tranisition), Miy’-sore, revising the assessing order passed
the ‘Deputy Commissioner of Commercial Taxes
Mysore, the net result of which was to
enhaizcethée sales tax liability of the assessee by an
“..fj.ax;VnO1int”‘ of Rs.1,07,776/– by the Revisional Authority,
‘ came to be set aside by the Appellate Tribunal
and therefore, the present revision petition by the
Revenue. ‘°§/
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3. The basis of enhancement by the Revisional
Authority was that, on an inspection
24.12.2003, at the premises of the A’
establishment, who was carrying’ on ‘_ of
Hotels, restaurants etc., and
Mysore City, the Inspecting”‘–officer thell
actual number of empl.oyees”‘iiklio.’u’rere engaged in the
three units, put together in number.
whereas, as; for the
purpose of” employees, the total
number’ had sent a factuai
report W .,
“The lXs’ses_$iIfi.g Authority who had this input
before passing the assessment order had examined this
found the return filed by the assessee
‘gindiclatineg turnover of Rs.l,01,4l,927/~ merited
to “{facce’ptance, notwithstanding the inspection having
‘ regvealed engagement of 16 daily wage workers on the
establishment for the reason that the dealer had
maintained a meticulous account in the proper forms
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and had accounted for all his purchases and sales’ and
therefore, mere fact of establishment comprisiiig-,,’s–orn,e
16 additional casual employees may V’
1′?
difference and concluded the assessment:onsythehasliis 61.’
the return itself.
5. The Revisional othenvise
giving importance report of the
Inspecting Officers ‘Lmade therein
that the on the premise
that it expenses and if
so, when expenses go up because of
the reason “of V’i.6Vi.ad.di_.tional casual employees and
adding the wagesvpaid to them during the year as part
»of”the estab1ish_ment expenses and on such premise, the
be a little more than what the dealer
hadééllin ‘fact declared and while the Assessing Authority
“..j’j~didl”ngotV’iind merit to accept this suggestion and the
reasoning of the inspecting authority, the Joint
Commissioner, exercising his revisionai power, though
was required to look into the assessment order more
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the Kerala High Court and accordingly allowed the
appeal, as per its order dated 17.1.2008.
“.7. It is aggrieved by this order of ~..
present revision petition by the feveimie». 1 l ‘
8. We have heard VSri..t:’g:.T.,K.\/ledarn’urtj:hy;Tlearnedll’
I-ICGP’ and Sri Advocate’ for the
assessee, who had Qf this revision
petition.
9.__ 3 {earned HCGP would
submit that Authority, not acting on the
report of’>the_ 4 authority and in spite the
inspecltirig aulthorityhaving indicated the manner of
»vvor1;i11g’outV”the possible turnover, nevertheless having
ignoredvtiie the order obviously becomes an order
erro4neo’us.and prejudicial to the interest of the revenue
A ..ji’var1d”«-..ca11s for revision and accordingly the revisional
‘ order passed by the Joint Commissioner is in order and
it no interference was warranted by the Tribunal; that, in
fact, the revenue had piaced reliance on the judgment of
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the Kerala High Court which should have been followed
and it is for this reason, the present revision petitio._n.._ 4
10. On the other hand, Sri .,
learned Counsel appearing for
out that the Assessing Authorityllhald’
convincing reasons the
recommendation of that the
inspecting authority to suggest, in
what made, but it is
the du assessing authority;
that the having not indicated as to
in what ‘p_’recisfe_ the order passed by the
_ assessing authcarity was erroneous, further question of
»prejudice.,do_es not arise; that the revisional order is not
ltenablely eitjherlfllon facts or in law and therefore, the
has allowed the appeal to set aside this
‘ orderand restore the assessment order, there is nothing
iyrong in the order passed by the Tribunal and no
interference is warranted.
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11. Revision Petition under Section 23(1) of the
Act is one which can be examined by the High
involves a question of law which has H
answered by the tribunal. In W
question of law which has been
the Tribunal, which oiir. for
correction and in fact,;__we go’ ofiine that
it is even debatabie”‘–..V:as. Atty» the revisional
authority, in streh_ have exercised
his revisionai at simple reason
that th’e”orcieif Commissioner does
not manner the Assessing
Authority gariewrong, but is more obsessed with
“V._4.,th§.._recommendationAof the inspecting authority being
Assessing Authority.
A the other hand, we find that the Assessing
had given cogent and convincing reasons, for
_ ‘ rejecting such recommendation and therefore, there was
…abse1uteiy no scope for the revisional authority to get
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active by exercising his powers under Section 21(2) of
the Act.
13. There is no merit in this revision _
accordingly dismissed at the admission st~e:ge;:if.. V.
JT/ —