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Showing 141 to 160 of 737 Records
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2008 (4) TMI 693 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... cations at that time. The assessment has to be made within the period as prescribed in subsection (2)(a) of section 11 of the 1941 Act and section 48 of the 1994 Act. The assessment periods ended on March 31, 1995 and 1996, so both became barred by limitation on the date of filing appeals in 2004. Therefore, no effective purpose shall be served in remanding the appeals or even directing exclusion of the time spent in the proceeding of the appeal, revision as well as this application. Hence, it is ordered that both the applications are allowed on contest but without cost. The impugned assessment orders passed by the Commercial Tax Officer, Siliguri charge in the Darjeeling Case Nos. 113(J) 95-96 and 673(J) 97-98 on July 25, 1997 and June 8, 1998, respectively, as well as the orders passed in the appeals therefrom in the Appeal Case Nos. 3A-418/ 2004-05 and 3A-428/2004-05 and also the recovery proceedings therefrom are set aside. DIPAK CHAKRABORTI (Technical Member) - I agree.
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2008 (4) TMI 692 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... N-39 of 2008 and RN-40 of 2008 are allowed in part with cost of Rs. 10,000 payable by the petitioner within sixty days hereof and in default the bonds furnished by the petitioner would stand forfeited. The impugned orders passed on January 7, 2008 by the Deputy Commissioner of Commercial Taxes, Siliguri range in revision case Nos. R/DC/17/07-08 and R/DC/18/07-08 both dated January 3, 2008 confirming the order passed on December 28, 2007 by Sri P.N. Sherpa, Assistant Commissioner, Commercial Taxes, Siliguri range in Revision Case No. R/AC/15/07-08 dated December 27, 2007 confirming the orders dated December 22, 2007 passed by the Sales Tax Officer, Siliguri range in Seizure Case No. GPCP/69/07-08 and GPCP/70/07-08 upholding imposition of penalty are set aside. The seizure of the consignments was however legal. On payment of cost as awarded the bonds furnished by the petitioner for the release of the goods would stand discharged. DIPAK CHAKRABORTI (Technical Member). - I agree
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2008 (4) TMI 691 - CHHATTISGARH HIGH COURT
Whether, in these cases, the petitioner(s) (S.E.C.L.) was liable to pay the entry tax under section 3(1) of the M.P. (C.G) Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (for short, "the Entry Tax Act") or not?
Held that:- Imposition of entry tax by the concerned authority on the coal sold by the petitioner(s) under different agreements and transit orders was not in accordance with law. As such, the coal sold was not liable to entry tax by such authority. Thus the petitions are allowed. It is held that in the facts and circumstances of these cases, the petitioner(s) is not liable to pay entry tax under section 3(1) of the Entry Tax Act.
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2008 (4) TMI 690 - MADRAS HIGH COURT
Appealable order - Held that:- The appellant was on March 24, 2000 originally assessed for the assessment year 1997-98 on a taxable turnover of ₹ 4,72,07,862.The earlier order dated March 24, 2000 was rectified to that effect. In respect of the other turnover, i.e., inter-State sales covered by "C" form ₹ 11,46,763 at four per cent and consignment sales not covered by form F ₹ 88,25,714 taxable at eight per cent, there was no change. The entire relief sought for by the appellant in respect of the third turnover, i.e., stock transfer to Bangalore branch has been totally granted by accepting the form F produced by the appellant. Thus, the order rectifying the earlier order dated March 24, 2000 is only the rectification order granting the relief as sought for by the assessee. In respect of the rest of the turnover, no dispute was raised by the assessee. The contention of the learned counsel that the order passed under section 55 of the Act granting the relief is an appealable order is not acceptable.
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2008 (4) TMI 689 - ALLAHABAD HIGH COURT
Whether, on the facts and in the circumstances of the case, the Tribunal is legally justified in reversing the order of the Deputy Commissioner (Appeals) and confirming the demand of additional tax under section 22?
Held that:- It is apparent that the Tribunal committed an error while allowing the second appeal on the ground that the circular was not binding on the authorities as according to it the circular was not in accordance with law. The Tribunal has exercised powers beyond the scope of section 22 of the Act. The view taken by the Tribunal is contrary to the various decisions of this court as also the apex court referred to above and as such the order of the Tribunal cannot be sustained.
It is accordingly set aside and the appellate order is restored.
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2008 (4) TMI 688 - KERALA HIGH COURT
Deduction of discount in the determination of taxable turnover - Held that:- Discount to be allowed as deduction in the turnover is only trade discount, which is shown separately in the invoice, whereunder the purchaser pays for the goods, only the amount, reduced by discount, shown in the bill. As under the above provision, discount given through credit notes, periodically, will not be entitled to any deduction from the turnover. Consequently, the suppliers from whom petitioners purchase the goods are not entitled to any deduction of credit note amount in the determination of their taxable turnover either as discount or otherwise and, so much so, the tax charged in the bills raised by them would have been or should have been paid by them entitling the petitioners for credit of full input tax in their assessment based on purchase bills.
The petitioners should be given reasonable time to obtain declaration in terms of circular from suppliers, that the suppliers have not claimed deduction of the credit note amount and that full tax on the sale bills is fully paid. The petitioners are given six weeks time from today to produce declarations and if declarations are produced within six weeks from today, there will be direction to the assessing officer to verify the same and rectify assessments by giving full credit of input tax based on purchase bills. Revenue recovery proceedings and appeals should be kept in abeyance for two months from now. Thereafter, recovery will be based on rectified orders and once rectified orders are issued the petitioners can withdraw the appeals on this issue and pursue appeal on other matters, if any. In view of the above exposition of the provisions on discount, there is no need to consider the validity of the fifth proviso to section 11(3) of the KVAT Act introduced with effect from July 1, 2006 challenged in some writ petitions.
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2008 (4) TMI 687 - GAUHATI HIGH COURT
Seizure of goods in exercise of powers under section 74 Assam Value Added Tax Act, 2003 - Held that:- In the present case, the seizure was, admittedly, made on February 6, 2008. A period of more than two months has already elapsed since then. It is also the respondents' case that they have had been carrying on a process of verification for the purpose of determining as to what, if any, income of the petitioner-company has escaped assessment due to either incorrect accounting of the goods or due to incorrect maintenance of the account books. In either case, therefore, verification process or the enquiry, which was initiated, needs to be brought to an expeditious end, for, this process of verification or enquiry cannot be kept indefinitely pending. Ends of justice, therefore, demand that appropriate directions be issued to the respondents to deal with the matter in such a manner as would uphold the legislative intent embodied in section 74(5).
With the above object in view, the respondents are hereby directed to complete, if they have not already completed, the process of verification or enquiry, within a period of one week from today, and, upon completion of such verification or enquiry, respondents shall permit the petitioner to obtain release of the seized goods in terms of the provisions contained in section 74(5) and other provisions relevant thereto or connected therewith.
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2008 (4) TMI 686 - ORISSA HIGH COURT
OVAT tax demanded - Penalty imposed - Held that:- The goods in question having come from outside the State of Orissa and the documents establish the fact that the entire consignment also left Orissa, the "presumption of sale," as contemplated under sub-section (10) of section 74 cannot and does not arise. Therefore, looking at the issue of levy of tax under the OVAT Act, there exists no statutory basis for justifying the same. Therefore, in our considered opinion, not only was the demand of "penalty" invalid for the reasons as noted hereinabove, the demand for OVAT and entry tax is also without any statutory basis and, therefore, unlawful.
Accordingly, the writ application is allowed. The amount of OVAT deposited, is directed to be refunded and the bank guarantee of ₹ 25,00,000 issued in favour of the Revenue may also be similarly released in favour of the petitioners within a period of 4 (four) weeks from the date of this judgment. Imposition of penalty has already been quashed.
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2008 (4) TMI 685 - MADHYA PRADESH HIGH COURT
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... ... ..... al notification. By the amended notification, the Government has provided that the industry would be classified in two parts one who have already come into production and the other who have taken effective steps for establishment of the industry. The present petitioner was not registered as an industrial unit on or before December 31, 1999, therefore, he was held not entitled to any benefit. In the matter of State of Punjab v. Nestle India Ltd. 2004 136 STC 35 2004 6 SCC 465, the question before the Supreme Court was whether the Government or a department of the Government is estopped from contending or doing something contrary to the promise made by it. In the present case, the Government is not doing something which runs contrary to the original notification. Taking into consideration the totality of the circumstances and the earlier judgment, we do not think that the matter requires to be referred to the larger Bench. The petition deserves to and is accordingly dismissed.
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2008 (4) TMI 684 - KERALA HIGH COURT
Whether the 'non-stick cookware' is classifiable under entry 5 of the First Schedule to the Kerala General Sales Tax Act, 1963 or whether the item would fall under entry 104 of the First Schedule, which provides for levy of tax on pressure cooker, cook and serveware, casseroles, water filters and similar home appliances not coming under any other entry in this Schedule or in the Fifth Schedule?
Held that:- Until non-stick items were specifically brought under entry 104, those items were covered under the residuary category "similar home appliances" referred to in entry 104.
In the result, we hold that, "non-stick cookware made of aluminium" are home appliances and classifiable under entry 104 of the First Schedule to the KGST Act.
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2008 (4) TMI 683 - ORISSA HIGH COURT
Whether the Tribunal is legally correct in refusing to accept the declarations in form 'F' and form 'C' and whether such refusal on the part of the Tribunal does not run contrary to the law laid down by the honourable Orissa High Court in Oriental Chemical Industries v. State of Orissa [1978 (3) TMI 201 - ORISSA HIGH COURT] ?
Held that:- Under the provisions of sales tax law a registered dealer is entitled to effect inter-State sale at a concessional rate of tax on the strength of "C" declaration forms and also entitled to transfer goods from its manufacturing unit to its other place of business or agent situated outside the State otherwise than by way of sale on the strength of "F" declaration forms without payment of tax. The dealer cannot be deprived of the above benefit of tax available under the statute merely because the declaration forms are for the first time filed before the second appellate authority, if for some good reasons the same could not be produced before the assessing officer and first appellate authority.
From the order of the learned Tribunal, it is revealed that the reason assigned by the dealer in its petition dated August 7, 2001 was not disputed by the Revenue. In these circumstances, the learned Tribunal is not justified in insisting on production of further documentary evidence in support of the contention of the petitioner that the declaration forms were received by it after the hearing of the first appeal, for the purpose of accepting those declaration forms. Against revenue. Since the Tribunal has not examined the correctness of the declaration forms produced before it, now it shall examine the same and for this purpose the matter is remanded to the Tribunal.
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2008 (4) TMI 682 - MADRAS HIGH COURT
Limitation period - revised assessment - alternate remedy - Held that:- Limitation period commences from the date of final assessment order. The said provision came into effect prospectively and not retrospectively. There is nothing in the amendment made to section 16(1)(a) that the same was intended to operate retrospectively. There is no dispute regarding the same. Therefore the amended provision is not relevant. There is also no dispute that the revision of assessment is barred by limitation as early as on March 31, 2001, which is much before the introduction of amended provision of section 16(1)(a) by Amendment Act of 22 of 2002, which came into effect from July 1, 2002.
Coming to the next contention regarding alternative remedy, the appellant has established the revision of assessment made under section 16(1)(a) of the Act is statutorily barred by limitation and therefore, it is a fit case for the interference under article 226 of the Constitution of India. Further we are also of the view that the revised assessment made by the respondent is illegal, wrong, without basis and justification.
Thus the revised assessment passed by the appellant is statutorily barred by limitation under section 16(1)(a) of the TNGST Act. Set aside the order of the learned single judge and the writ appeal is allowed.
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2008 (4) TMI 681 - KERALA HIGH COURT
Whether, on the facts and circumstances of the case, interest is chargeable under section 23(3) of the Kerala General Sales Tax Act, 1963 from the date of filing of the return admitting the tax liability, but claiming concessional rate of tax or from the date of assessment and issuance of demand notice in pursuance thereof?
Held that:- In the present case, the assessee has filed his return conceding a particular turnover by way of self-assessment and in that had claimed concessional rate of tax. The assessee was fully aware, unless he produces declaration form No. 18 from the purchasing dealer, that he would be disentitled to claim concessional rate of tax, in view of the language employed in the section itself and in spite of it, he had paid lesser rate of tax than what is specified in the Schedule to the Act. Since the assessee had not paid tax on the admitted turnover at the specified rate of tax, this is a case where tax due under the Act is not paid and therefore, the petitioner cannot escape the rigour of the penal provision under the Act. Tax revision petition requires to be rejected and accordingly rejected
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2008 (4) TMI 680 - ORISSA HIGH COURT
Whether, under the facts and circumstances of the case, the plant and machineries having suffered Orissa sales tax at the time of purchase inside the State of Orissa the lease rental received on leasing out those plant and machineries can be taxed?
Whether, under the facts and circumstances of the case, the transfer of property in goods and the transfer of right to use the goods are two distinctly separate taxable events once as sale and secondly as deemed sale in the face of the legislative intent of single-point taxation as provided under section 8 of the Orissa Sales Tax Act?
Whether, under the facts and circumstances of the case, the imposition of penalty by the Sales Tax Officer and confirmed by the Assistant Commissioner and Sales Tax Tribunal is correct law?
Held that:- This court holds that since no tax can be imposed by way of subsequent lease rent in respect of the same goods on the petitioner, there cannot be any imposition of penalty for non-payment of the same. As such, the penalty imposed on the petitioner is quashed.
All the three questions referred to above on which the matter has been argued are answered in the negative, i.e., in favour of the assessee and against the Revenue.
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2008 (4) TMI 679 - ORISSA HIGH COURT
Whether, on the facts and in the circumstances of the case, the Tribunal is right to hold that tax is exigible for photographs as execution of works contract?
Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal is perverse due to non-consideration and misconsideration of facts and law and, therefore, it is liable to be set aside for re-hearing?
Held that:- We answer the first question in the negative and the second question in the affirmative. We thus answer both the questions in favour of the assessee and against the Revenue.
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2008 (4) TMI 678 - GAUHATI HIGH COURT
Summary assessment - Revision petition dismissed - Held that:- The dismissal order was passed only on March 11, 1998. There is nothing to show that the petitioner was duly informed about adjourning the date of hearing of the revision petitions till March 11, 1998. Thus the revision petitions were dismissed improperly. In the light of the above considerations, the impugned orders are hereby quashed. In the facts and circumstances of the case, the concerned authority shall take appropriate steps for assessment of the petitioner in respect of the said three assessment years afresh in accordance with law.
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2008 (4) TMI 677 - MADRAS HIGH COURT
Order of assessment - whether being without jurisdiction and against law - whether single judge, instead of asking the appellant to move in appeal, should have decided the writ petition on merit? -
Held that:- From the impugned order dated June 30, 2003, it will be evident that the assessing authority has not specifically stated that the clarificatory order of Commissioner dated January 11, 2002, is contrary to the law or is not binding. He has given his explanation as to how the Commissioner's order to be read in-between. Whether such finding of the assessing authority is against the spirit of letter dated January 11, 2002, issued by the Commissioner is to be determined either by the appellate authority or by a court of law. In this background, if learned single judge, for deciding the question of legality and propriety of the assessment order, has asked the appellant to move before the appellate authority under section 31A of the TNGST Act, no interference is called for.
Thus in absence of any illegality in the order passed by learned single judge and there being alternative remedy available to the appellant, as observed earlier, no interference is called for with the impugned order passed by learned single judge. Appeal dismissed.
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2008 (4) TMI 676 - KARNATAKA HIGH COURT
Clearance certificate regarding recovery of arrears of sales tax in case of liquor dealers - Held tht:- Direction to the petitioners to produce the clearance certificate are only notices issued to the petitioners to furnish the clearance certificate. The petitioners, instead of filing reply to the impugned communications-cum-notices vide annexures D and E issued by the first respondent, have rushed to this court and presented the instant writ petition. Therefore, the writ petitions filed by these petitioners are liable to be dismissed as misconceived and the prayer sought for by the petitioners is a premature one.
Writ petition filed by the petitioners is liable to be dismissed in view of the suppression of material facts and the prayer sought for by the petitioners is liable to be rejected as misconceived in nature.
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2008 (4) TMI 675 - SUPREME COURT
Whether appropriate writ, order or direction, incorporation of Sec. 54(ka) and Sub-Sections (4) to (9) in Section 69 of the Excise Act may be declared ultra-vires and be struck down?
Held that:- The amendments introduced, are regulatory in nature and cannot be regarded as violative of freedom guaranteed under Article 301 of the Constitution. Article 300-A is not attracted and deprivation is in exercise of police power and said article enjoins that such deprivation should not be without sanction of law.
There are similar provisions in the Excise Acts of other States, for example the Tamil Nadu Excise Act, 1971, Karnataka Excise Act, 1965, Uttar Pradesh Excise Act, 1910 and the Andhra Pradesh Excise Act, 1968. The provisions are in Sections 4 and 14A of the Tamil Nadu Act, Sections 43A and 43B of the Karnataka Act, Section 72 of the Uttar Pradesh Act and Sections 46 and 46A of the Andhra Pradesh Excise Act. Thus the inevitable conclusion is that the appeals are without merit, deserve dismissal.
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2008 (4) TMI 674 - SUPREME COURT
Employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation
Held that:- The Executive Committee of the Bank had fixed the number of chances to be given to an employee in the confirmation test. If it is enforced against the writ petitioner having regard to her physical position, to appear in the second examination, the provisions thereof, keeping in mind the principle underlying the statutory provisions of Maternity Benefit Act, may not be held to be applicable. She was, thus, entitled to another opportunity to appear at the examination. The Executive Committee or for that matter the appellate authority cannot exercise the power of relaxation in a discriminatory manner. It was expected to act judiciously, assuming that the employer had a discretion in this behalf. Discretion cannot be equated with whims and caprices.
We, for the reasons abovementioned, are not in a position to accept the submission of Mr. Mehta that it was for the employer to decide as to how many chances have to be given to each employee and the Bank cannot be deprived of such discretionary jurisdiction, thus need not deal with the question as to whether the insistence of confirmation test is not in accordance with the Regulations.
Appeal filed by the Bank is dismissed and that of the writ petitioner is allowed. The writ petitioner shall be reinstated in service forthwith. She, however, may be paid only 50 % of the back wages. This order we are passing keeping in view that her services had been terminated on 9th November, 1990. The writ petitioner is also entitled to costs. Counsel's fee assessed at Rs.50,000/-.
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