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Case Laws
Showing 141 to 160 of 698 Records
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2009 (10) TMI 859 - KARNATAKA HIGH COURT
Alternative statutory remedy of appeals under section 62 of the Karnataka Value Added Tax Act, 2003 - Held that:- We are not inclined to accept the submission of Sri Prasad, learned counsel for the appellant to entertain these appeals and to keep these matters pending and to await further decision of the Supreme Court. If an earlier Division Bench of this court had already applied the law as had been declared by the Supreme Court in K. Raheja Development Corporation's case [2005 (5) TMI 7 - Supreme Court], we can only follow that and dismiss the appeals and Sri Prasad, the learned counsel for the appellant also urges us to do so. These writ appeals are dismissed at the threshold without being admitted.
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2009 (10) TMI 858 - MADHYA PRADESH HIGH COURT
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... ... ..... the record. From the assessment order dated December 7, 1991 it would clearly appear that the assessing officer was of the opinion that the sales tax return was bad as the tax was paid at the rate of three per cent only, while in fact the starter would attract the rate of 12 per cent. After holding so, the assessing officer imposed the penalty. Once the tax rate is held to be three per cent and it is further held that imposition of the tax at the rate of 12 per cent is bad, then the return filed by the present petitioner cannot be held to be false, wrong or bad. Once the return is held to be properly filed and that the tax was paid in accordance with law, then the assessing officer could not assume jurisdiction to impose the penalty. In the present matter in view of the findings recorded by the Appellate Board, we have no hesitation in holding that penalty should also stand nullified. We, accordingly, quash the order pertaining to penalty. The petition is allowed. No costs.
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2009 (10) TMI 857 - KERALA HIGH COURT
Whether the Tribunal was justified in holding that mere production of C forms is sufficient proof of inter-State sales?
Held that:- In view of our finding that failure of the respondent to prove inter-State movement will justify assessment of the turnover under the KGST Act, we have to necessarily reverse the order of the Tribunal which has allowed the appeal just based on C forms produced. However, we feel one more opportunity can be granted to the respondent to produce available proof of inter-State movement of goods before the assessing officer within a period of two months from the date of receipt of copy of this judgment for the officer to reconsider the matter and if required, cross-check the check-post records if available.
We make it clear that if proof of inter-State movement is produced for substantial quantity of the turnover, then the entire claim should be allowed because at this distance of time the respondent may not be able to produce L.Rs. for all the transactions. It is up to the respondent to produce copies of L.Rs., details of freight paid through cheques, etc. If evidence is produced, the assessing officer will revise the assessments granting concessional rate. On the other hand if the respondent fails to produce documents for substantial turnover of inter-State sales, then the Tribunal's order will stand reversed and the assessments made under the KGST Act will stand confirmed.
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2009 (10) TMI 856 - PUNJAB AND HARYANA HIGH COURT
Whetehr sales have to be treated as exempted from payment of tax as per 2002 Act - Held that:- The stand of the respondent that a separate notification for Union Territory, Chandigarh is required to be issued would not require any detailed consideration in view of the fact that notification issued by the Ministry of Civil Aviation under section 3 of the Act on November 18, 2002 would extend to all the States and Union Territories. It is further made clear that by letter dated February 10, 2003 (P4) circulated by the Ministry of Petroleum and Natural Gases intimating all the States and Union Territories the entitlement of the corporation like the petitioner stipulating that no tax/duties whether levied by the Central or State Government are leviable on the supply of fuel/lubricants on the air crafts of foreign countries. Even the refund has been permitted as the notification has come into force with effect from November 23, 2002.
As a sequel to the above discussion, this petition succeeds and order dated May 8, 2009 (P5) is set aside. Respondent No. 2 is directed to exclude the sale concerning ATF made to foreign aircrafts by the petitioner-corporation and re-determine the tax liable of the petitioner in accordance with law. The petition stands disposed of accordingly.
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2009 (10) TMI 855 - KERALA HIGH COURT
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... ... ..... ason for reduced margins charged by them in comparison with other hotels. Even though this argument is quite tenable, we still feel the order of the Tribunal is not tenable because the assessing officer noticed that the rate charged in the bill is in excess of the gross profit conceded by the assessee. The Tribunal by accepting the gross profit returned by the assessee, virtually directed acceptance of books of accounts which were admittedly defective. So much so, interference with the Tribunal 39 s order is called for. However, we do not think this is a fit case for remanding the matter and in our view, considering the gross profit seen confirmed in several cases coming before us, the rate of gross profit fixed by the first appellate authority is quite reasonable. We, therefore, modify the order of the Tribunal by restoring the gross profit at the rate fixed by the first appellate authority, i.e., 37 per cent. The S.T. revision case is allowed to the extent indicated above.
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2009 (10) TMI 854 - ALLAHABAD HIGH COURT
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that 'panjon' is bulk drug and is taxable at the rate of six per cent under Notification No. 1912 dated June 1, 1994 despite panjon or its formulation are not specified under Schedule First or Second to the Drug (Prices Control) Order, 1987?
Held that:- Panjon is not a formulation of the bulk drugs specified in the Second Schedule and, therefore, does not fall within the category of formulations specified as on March 31, 1994 in the Third Schedule under the Drugs (Prices Control) Order, 1987 and falls only under the residuary entry not included in item (a) above and liable to tax at the rate of eight per cent plus surcharge. The Tribunal has committed an error in levying the tax at the rate of six per cent under the entry "formulations specified as on 31st March, 1994" in the Third Schedule to the Drugs (Prices Control) Order, 1987. Revision allowed.
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2009 (10) TMI 853 - ALLAHABAD HIGH COURT
Deemed sale - non disclosure of the turnover of rent receivable in the return - Held that:- Explanation I, clause (ii) says that sale is deemed to take place in the State of U.P. if the goods are used by the lessee within the State during any period, notwithstanding that the agreement for the lease has been entered into outside the State or that the goods have been delivered to lessee outside the State. Therefore, even if the agreement was executed at Delhi in view of the aforesaid provisions there was deemed sale in the State of U.P. and the trade tax authorities have a jurisdiction to levy the tax. So far as the submission of learned counsel for the applicant that the plant and machinery were immovable cannot be accepted. Such pleading has not been taken before the authorities below at any stage. So far as the penalty under section 15A(1)(a) is concerned, no error in the order of the Tribunal. Merely because the rent has not been received, the applicant cannot be absolved from the liability to disclose such sale in the return.
Sales with deferred payment are, also included within the ambit of definition of "sale" under section 2(h) of the Act and, therefore, such receipts were liable to be disclosed. The explanation of the applicant for not disclosing the turnover of rent receivable in the return has rightly not been accepted. Revision dismissed.
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2009 (10) TMI 852 - PUNJAB AND HARYANA HIGH COURT
Whether, on the facts and circumstances of the case, there is any legal evidence to fix the higher rates of dal and dal gram at ₹ 220 and ₹ 275 per quintal than the rates claimed by the assessee which were based on the certificate issued by the Market Committee, Tohana?
Held that:- The court is under obligation to presume a certified copy to be genuine. The use of expression "shall presume" clearly shows that such a document has to be considered as proved until and unless it is disproved. Section 4 of the Evidence Act defines the expression "shall presume" to mean that wherever the expression is used in the Evidence Act, then the court must presume the fact as proved unless and until, it is disproved. Accordingly, it has to be held that certificate issued by the Market Committee, Tohana authenticating rates of gram and gram dal at ₹ 155 to ₹ 160 has to be considered as genuine.
By mere conjectural observation, it cannot be concluded that there was any legal evidence on record in support of the conclusion of the Assessing Authority or subsequent authorities that prices at ₹ 220 to ₹ 275 in respect of gram and gram dal were justified. Accordingly, reference is disposed of and question of law referred is answered in favour of the assessee-petitioner.
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2009 (10) TMI 851 - ALLAHABAD HIGH COURT
Seizure of goods - Held that:- The seizure of the goods made on suspicious presumption renders such a seizure arbitrary, and therefore, the Tribunal erred in law in only reducing the quantum of security for the release of the goods.
According the seizure itself being invalid, the goods ought to have been released without security. Under circumstances, the authorities are directed to release the goods forthwith. However, while releasing the goods, the authorities may take all precautions whatever they may feel necessary to ensure that the goods cross the State of U.P.
In the result, the revision is allowed. The order of the Tribunal dated September 26, 2009 is set aside and as directed the authorities shall release the seized goods forthwith without any security.
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2009 (10) TMI 850 - KERALA HIGH COURT
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... ... ..... hrough incorporation of various tariff entries of the Central Excise Tariff Act and consequently exemption was rightly declined to the petitioner for the year 1995-96 as such exemption is available only from April 1, 1999 after the amendment to entry 11 to the Third Schedule to the Act. Therefore we dismiss the revision on this issue. So far as the petitioner 39 s challenge against demand of interest is concerned, the Government Pleader submitted that under annexure A order of the Government, the petitioner was given instalment facility for payment of tax under deferred scheme and in fact the petitioner without committing default remitted the arrears of tax in terms of the instalment scheme. In the circumstances, revision pertaining to challenge against the demand of interest sustained by the Tribunal is allowed vacating the order of the Tribunal and that of the lower authorities levying and demanding interest for the alleged delay in payment of tax for the year in question.
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2009 (10) TMI 849 - PUNJAB AND HARYANA HIGH COURT
Whether, in the facts and circumstances of the case, the expenses incurred by the State or agencies of the Food Corporation of India after acquiring or purchasing the goods before delivery to the petitioner-dealer could form part of gross turnover and be subject to tax?
Whether, in the facts and circumstances of the case, could the market fee be included in the purchase turnover in view of Anand Swarup Mahesh Kumar v. Commissioner of Sales Tax [1980 (9) TMI 238 - SUPREME COURT OF INDIA ]?
Held that:- Considering the definition of expression "turnover" as defined in section 2(i) of the Act it is concluded that any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery thereof would be included in the expression "turnover".
In view of the above, question No. (1) has to be answered against the Food Corporation of India and in favour of the Revenue. The reference stands disposed of accordingly.
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2009 (10) TMI 848 - MADRAS HIGH COURT
Disallowance of refund claim of tax paid by him at 12.5 per cent as against four per cent chargeable thereon - Held that:- We do not accept the submission of the learned Additional Government Pleader that the petitioner, who is a purchaser of the capital goods, is not entitled to have the benefit of total refund of the amount. The provisions of section 18(2) of the Act has to be given its full thrust and consequently, reject the plea of the learned Additional Government Pleader. In the circumstances, the claim of the petitioner as regards the refund of tax without any reduction has to be accepted. Consequently, all the writ petitions stand allowed as far as this aspect is concerned.
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2009 (10) TMI 847 - ALLAHABAD HIGH COURT
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... ... ..... . The learned standing counsel submitted that along with the goods, bilty was not available and when the show-cause notice was issued the applicant had not produced the books of account for verification. Therefore, the seizure is justified. I have perused the impugned order and the order of the authorities below and the submissions made by learned counsel for the parties. On the facts and circumstances of the case, it appears that, prima facie, a case of seizure has been made out and, therefore, no interference is called for in this regard. However, it appears that the demand of cash security to the extent of three times of the tax appears to be excessive and it requires modification. In this view of the matter, the order of the Tribunal is modified to the extent that on the deposit of two times of the tax and furnishing of security in the form of other than cash or bank guarantee for the balance amount, the goods shall be released forthwith. The revision is allowed in part.
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2009 (10) TMI 846 - ALLAHABAD HIGH COURT
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... ... ..... oning issuance of notice for reassessment under the proviso to sub-section (2) of section 21 of the Act and reasons have also to be recorded while granting the permission. Learned standing counsel could not point out any fact to distinguish the ratio as laid down in S.K. Traders 39 case 2009 26 VST 601 (All) 2008 UPTC 392. In our considered opinion, the controversy is squarely covered in favour of the petitioner by the judgement of S. K. Traders, Modi Nagar, Ghaziabad v. Additional Commissioner, Grade 1 2009 26 VST 601 (All) 2008 UPTC 392. In view of the above, without going into merits of the case on a short ground that no opportunity was afforded before passing the impugned order, we hereby set aside the order dated March 13, 2000 and restore back the matter to the Commissioner, U.P. Trade Tax, to re-hear and re-decide the question of grant of sanction, after giving an opportunity of hearing to the petitioner. The writ petition is accordingly allowed. No order as to costs.
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2009 (10) TMI 845 - ALLAHABAD HIGH COURT
Sariya manufacture - Whether only two per cent tax will have to be charged from the assessee ?
Held that:- In the instant cases, the revisionist has purchased raw material from the units which were enjoying the tax exemption under section 4A of the Act. Thus, the revisionist has paid "nil" tax on the raw material. To bring at par as per the notification dated May 21, 1994, the A. O. has rightly levied the tax at four per cent on the finished goods manufactured by the revisionist.
Ultimately, the Government will have to charge four per cent tax on the iron and steel rods (sariya) manufactured by the revisionist-assessee. Appeal dismissed.
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2009 (10) TMI 844 - ALLAHABAD HIGH COURT
Notification dated March 4, 2008 issued by the State Government - whether unconstitutional and ultra vires to the U.P. Value Added Tax Act, 2008 ?
Held that:- In view of sub-sections (2), (4), (5) and (14) of section 34, the notification in question is a valid piece of subordinate legislation. It does not transgress the limit of section 34(1) of the Act and safeguard has been provided by enacting subsections (2), (4), (5) and (14) of section 34. The assessing authority concerned shall when approached by the contractor issue necessary direction to the contractee with regard to his claim that he is either not liable to pay tax on such sale or is liable to pay tax on amount lesser than the amount of deduction.
In the present case, the assessing authority when approached, dismissed the application of the petitioner on the erroneous assumption that no such notification has been issued under section 34 of the Act. Evidently, the assessing officer, was not justified in rejecting the application on the ground as has been set down in the order. The impugned order dated February 12, 2009 thus, cannot be allowed to stand. The assessing authority is required to reconsider the application of the petitioner afresh in the light of the observations made above in accordance with law. In the result, the writ petition is allowed to the extent stated above but no order as to costs.
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2009 (10) TMI 843 - ALLAHABAD HIGH COURT
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... ... ..... esent case, therefore, is whether on the principle of section 5 of the Limitation Act court can further extend the prescribed period of limitation for filing an application under the said scheme floated under section 7D of the Act. The said point is no longer res integra and has been set at rest in the case of Saket Bricks Traders, Gorakhpur v. Additional Commissioner (Legal), Trade Tax 2001 UPTC 332. It has been held therein that the provisions of the Limitation Act are not incorporated in the Trade Tax Act by Legislature and as such the principle of condonation of delay in filing an application cannot be read in the said scheme. The learned counsel for the petitioner could not point out any distinction so as not to attract the principle laid down therein. In our considered opinion, the controversy involved in the present writ petitions is squarely covered by the aforesaid decision of this court. In view of the above discussion, both the writ petitions are hereby dismissed.
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2009 (10) TMI 842 - ANDHRA PRADESH HIGH COURT
Calling upon the petitioner to arrange payment of the wrong adjustments of tax due, under tax deferment, for ₹ 7,90,64,705
Held that:- The respondent should have undertaken the exercise of extending tax deferment benefit under the scheme apportioning the production relatable to the original unit and the expanded unit notionally or proportionately, whichever he considered appropriate or relevant. The respondent shall put the petitioner on notice regarding the notional basis which it proposes to adopt for bifurcating production between the original and the expanded unit, and thereafter make the assessment de novo after giving the petitioner an opportunity of being heard. W.P. allowed.
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2009 (10) TMI 841 - MADHYA PRADESH HIGH COURT
Liability of entry tax and commercial tax - Whether wrongly been fixed on the petitioner since, there was no sufficient material to connect the petitioner with the alleged import of vanaspati ghee from Nepal?
Held that:- In the case on hand the assessing authority on the basis of the material collected by the Revenue has fixed the liability of commercial tax and entry tax on the petitioner by reaching to the conclusion that the entry and sale was effected by the petitioner and such a finding does not appear to be perverse or unsupported by material, therefore, it is not required to be interfered with.
That in view of the above analysis, we do not find any merit in the writ petition and the same is accordingly dismissed.
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2009 (10) TMI 840 - ANDHRA PRADESH HIGH COURT
Whether the second respondent had acted beyond his jurisdiction in revising the order of the Appellate Deputy Commissioner pending adjudication of the appeal filed by the petitioner before the STAT, Visakhapatnam?
Held that:- The assessment order passed by the fourth respondent related mainly to the turnover of paper of ₹ 33,70,435 which, to the extent of ₹ 24,07,454, was confirmed in appeal by the third respondent-Appellate Deputy Commissioner. It is only for the remaining turnover of ₹ 9,62,981 was the order of the fourth respondent-assessing authority set aside and remanded for consideration afresh. The petitioner preferred an appeal thereagainst to the STAT restricting the turnover under dispute in the appeal only to ₹ 24,07,454. The second respondent revised the order of the third respondent only on the turnover of ₹ 9,62,981 and not the turnover of ₹ 24,07,454 which is the subject-matter of appeal pending adjudication before the STAT. Let alone issues of law, even on issues of fact the appeal pending before the STAT has nothing in common with the order of the second respondent dated April 28, 2008. Appeal dismissed.
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