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Showing 201 to 220 of 868 Records
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2009 (4) TMI 864 - KARNATAKA HIGH COURT
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... ... ..... approached this court contending that the petitioner though had paid a sum of Rs. 64,27,821 is nevertheless being asked to pay an higher amount of Rs. 80,49,741 without giving credit to the account of the petitioner the amount already paid by the petitioner and it is in this context had sought for issuing a declaration that the notice under annexure E was illegal and unenforceable, etc. The petitioner 39 s contention being without any merit and even the averments made in the writ petition being virtually suppressio veri, the writ petition is not a bona fide availment of the writ remedy before this court. There is absolutely no justification to characterize the demand at annexure E to be either illegal or not enforceable. Accordingly, this writ petition is dismissed and the amount of Rs. 50,000 being the cost deposited by the petitioner is awarded in favour of the Revenue. It is open to the respondent to seek withdrawal of this amount by filing an application in the registry.
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2009 (4) TMI 863 - MADRAS HIGH COURT
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... ... ..... te of tax. But the respondent has lost sight of the fact that the prayer of the petitioner is not actually for change of the rate of tax. The prayer of the petitioner was that the product was an adhesive and not a lubricant. On this issue, certainly the respondent has power to consider the revision under section 55 and pass orders one way or the other. Therefore, de hors the prayer made by the petitioner, both the writ petitions are disposed of setting aside the orders dated January 12, 2009 passed on revision and remitting the applications under section 55 back to the respondent for a fresh consideration. The respondent shall consider the revision petition of the petitioner in accordance with law and dispose of the same on merits within a period of four weeks from the date of receipt of a copy of this order. Till the revision petitions are disposed of, the respondent shall not take any coercive steps for recovery. No costs. Consequently M.P. Nos. 1 and 1 of 2009 are closed.
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2009 (4) TMI 862 - MADRAS HIGH COURT
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... ... ..... x on February 19, 1995. It was further found as a fact that in the absence of any inspection and in the absence of stock variation or recovery of any records, the levy adopted by the assessing officer taking into consideration the entire inter-State purchases turnover on ready-made garments and the gross profit of 36 per cent as per the accounts and the lump sum addition of Rs. 10,000 for the defects in arriving the taxable turnover of Rs. 13,91,930 against the reported turnover of Rs. 11,29,826 was not a proper method. Further, for the defects pointed out, the Tribunal has sustained the lumpsum addition of Rs. 10,000 and penalty in respect of the lumpsum addition. The rest of the penalty is directed to be deleted. As we are of the view that the view taken by the Tribunal is in consonance with the statutory provisions, no question of law, much less, a substantial question of law is involved in this revision so as to have an entertainment. The revision is dismissed. No costs.
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2009 (4) TMI 861 - KARNATAKA HIGH COURT
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... ... ..... ebate in any manner as permitted in law. Unless the petitioner has followed up the claim for rebate and in a manner permitted by law and has demonstrated that the amount if not fully utilised, can it result in refund there is no way of issuing a writ of mandamus to the respondents to compel them to refund the amount. In the first instance there is no quantification of refund of amount as claimed by the petitioner in any manner known to law or by any authority. An exercise of this nature will not be undertaken in a petition under articles 226 and 227 to the Constitution. It is only after ascertaining the definite amount, if the petitioner is so entitled in law, a writ of mandamus for refund or return of that amount can be issued and not otherwise. Therefore, while writ of mandamus as sought for is declined, it is open to the petitioner to pursue the matter before the authorities as permitted in law and seek such reliefs as are available to him in law. Writ petition dismissed.
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2009 (4) TMI 860 - ANDHRA PRADESH HIGH COURT
Stay of collection of the disputed tax seeked - Held that:- The mere fact that the revisional order was passed 3½ years after the show-cause notice was issued is of little consequence. It is not even the case of the petitioner that the revisional order dated January 31, 2005 is barred by limitation. It is evident from the order of the Deputy Commissioner that the delay in passing the final order was due to numerous opportunities being given to the petitioner to produce his books of account.
The petitioner, having failed to produce the books of account despite several opportunities being given to him, cannot now be heard to say that the revisional order should be dismissed for laches. No statutory provision prohibiting a successor-Deputy Commissioner from passing final orders of revision on the basis of a show-cause notice issued by his predecessor in office, has been brought to our notice.
It is not even the case of the petitioner that either the Act or the Rules mandate a personal hearing being given to the dealer by the revisional authority. It is also not his case that he had sought for such an opportunity or that the Deputy Commissioner, who had issued the show-cause notice proposing to revise the assessment order passed by the Commercial Tax Officer, had heard him personally. It is well-settled that in cases where no request is made for personal hearing, the final order passed cannot be held to be vitiated on that account. Thus after taking into consideration the points raised, shall not be held to be invalid merely on the ground that no personal hearing had been afforded. Appeal dismissed.
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2009 (4) TMI 859 - ALLAHABAD HIGH COURT
Penalty proceedings initiated against the assessee under section 15A(1)(o) - Held that:- As the transactions between the assessee and the U.P. State Sugar Corporation Ltd., were in the nature of inter-State sale and was also recognized as such by way of the order dated July 15, 2002, such being the case, it cannot be said that the provisions of section 28A of the Act were violated or that any penalty could be imposed for violation of the said provision.
Revision allowed. The penalty imposed upon the assessee by the impugned order dated December 23, 1997 is hereby set aside
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2009 (4) TMI 858 - CENTRAL SALES TAX APPELLATE AUTHORITY
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... ... ..... same reasons for which the claim was disallowed for the earlier year are reiterated in the assessment for the year in question. In the appeal relating to the prior assessment year, we have confirmed the finding of the assessing authority that the transaction between the appellant and Capital Enterprise, Yanam was in the nature of direct inter-State sale. The appellant has not been able to furnish any material to contradict the finding which is based on cogent reasons. We are therefore of the view that the assessing authority was justified in rejecting the F forms and subjecting the disputed turnover to tax under the CST Act at 10 per cent in the absence of C forms. The appeal is dismissed. The appeals are accordingly allowed or dismissed as indicated above. We would like to put on record that we have refrained from giving any direction for refund of the local tax paid in other States in the absence of prayer to that effect either in the appeal or in the course of arguments.
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2009 (4) TMI 857 - MADRAS HIGH COURT
Whether, in the facts and circumstances of the case, the Tribunal is legally correct in having set aside the order of the assessing authority as affirmed by the first appellate authority only on the ground that the Department is in possession of extract sent by the Enforcement Wing Officers and nothing more?
Whether the Tribunal is correct in law in holding that the view that the burden of proving the purchases of groundnut from Karnataka dealers would still lie upon the Department and not upon the assessee?
Whether the Tribunal has legally erred in not holding that the burden of proof had been shifted upon the dealer once it is proved through the extract that they had made purchases of groundnut from Karnataka dealers? and
Whether the order of the Tribunal in having deleted the consequent penalty is legally sustainable?
Held that:- While the business connection of the assessee with the Karnataka commission agent cannot form the basis to show that whatever transactions which were accounted in other States are genuine, unless the purchaser's role has been proved beyond doubt by giving such unassailable reason, the revision of assessment has to be set aside. Consequently the penalty imposed was also set aside.
Not able to see any illegality or irregularity in the order of the Tribunal as the reasoning given by the Tribunal is cogent and also in accordance with the established principle of law. Appeal dismissed.
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2009 (4) TMI 856 - KARNATAKA HIGH COURT
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... ... ..... llate authority has got the document verified for its genuineness and is likely to reject it on the basis of the expert opinion indicating the document to be not genuine, then the appellate authority should necessarily put the appellant on notice about the proposal and if the verification of an appellate authority should proceed without apprising an appellant of such developments then the appellant can definitely complain about the action of the appellate authority. Such being not the complaint in the present petitions and, on the other hand, submission of Mr. Shashidharan, learned counsel appearing for the petitioner, being that the appellate authority has already heard the matter and reserved it for orders, there is no occasion to interfere with the functioning of the Commissioner on the basis of the circular nor an occasion to quash the circular. It is for the petitioner to pursue the matter before the appellate authority. Without prejudice, these petitions are dismissed.
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2009 (4) TMI 855 - MADHYA PRADESH HIGH COURT
Reassessment proceedings under the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 challenged as without serving the order of assessment
Held that:-In view of the aforesaid analysis and the judgment of the Division Bench of this court in the matter of Smt. Jijeebai Shinde [1984 (9) TMI 13 - MADHYA PRADESH High Court], in the facts of the present case, we quash the reassessment initiated by the impugned notice dated December 29, 2000, by giving liberty to issue fresh notice of reassessment in accordance with law.
The writ petition is allowed accordingly
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2009 (4) TMI 854 - ANDHRA PRADESH HIGH COURT
Deferment of the revision proceedings request rejected - Held that:- In the facts and circumstances of the present case, it cannot be said that exercise of powers by the Joint Commissioner under section 20(2) of the APGST Act is without jurisdiction. It is not even the case of the petitioner that the impugned order is in violation of principles of natural justice nor are the vires of any statutory provision under challenge in this writ petition.
The petitioner has an effective alternative remedy, of an appeal to the Sales Tax Appellate Tribunal under section 21 of the APGST Act, without exhausting which they have invoked the jurisdiction of this court under article 226 of the Constitution of India. In view of the existence of an alternative remedy, we see no reason to express any opinion on the submission made by the learned counsel on the merits of the impugned order.
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2009 (4) TMI 853 - GAUHATI HIGH COURT
Whether "potato chips" manufactured and sold by the petitioner-company under the brand name "Lays" and "Uncle Chips" would be covered by entry 80 of Part A of the Second Schedule to the Assam Value Added Tax Act, 2003 or the said product would fall under the residuary entry covered by the Fifth Schedule to the Act?
Held that:- "Potato chips" manufactured and sold by the petitioner-company would fall under entry 80 of Part A of Schedule II to the Assam Value Added Tax Act, 2003, as contended by the petitioner and that the said item will not fall under the residuary item contained in serial No. 1 of the Fifth Schedule to the Act as claimed by the Revenue. Our above finding, naturally, has to be understood in the context of the provisions of the Act as it stood prior to the amendment to the Schedule to the Act made with effect from October 16, 2008.
The revision petition, therefore, is allowed. The impugned order dated September 10, 2007 passed by the learned Commissioner of Taxes, Government of Assam is set aside and quashed.
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2009 (4) TMI 852 - ORISSA HIGH COURT
Deduction claimed on the basis of declaration form No. 1D(96) disallowed - Held that:- In case M/s. REPL had availed of the benefit of eligibility certificate exhausting the maximum limit during a particular period as to whether further benefit could have been taken by it after making misrepresentation, it is settled legal proposition that misrepresentation/fraud vitiates every action/order whether the assessment orders made in favour of M/s. REPL which might have attained finality could have any sanctity. All these questions are admittedly questions of fact. Such factually disputed questions cannot be adjudicated by this court in exercise of writ jurisdiction. W.P. dismissed.
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2009 (4) TMI 851 - MADRAS HIGH COURT
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... ... ..... hundred per cent of the amount collected (ii) where the excess amount has been collected wilfully and knowing that it was not due to be collected, one hundred and fifty per cent of the amount collected Provided that no proceedings under this sub-section shall be commenced after a period of five years from the date of order of the final assessment by the assessing authority. Provided further that no prosecution for an offence under subsection (1A) of section 45 shall be instituted in respect of the same facts on which a penalty has been imposed under this Act. Any collection made unauthorisedly is definitely a violation under section 22 of the TNGST Act and the amount has to be recovered from the person who collected and the same, of course, by way of penalty under the provisions of the Act. Article 265 of the Constitution of India also emphasizes that tax cannot be collected without any authority of law. Hence, for the foregoing reasons, this revision is dismissed. No costs.
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2009 (4) TMI 850 - ANDHRA PRADESH HIGH COURT
Whether show-cause notices do not mention the basis on which the turnovers mentioned therein were sought to be taxed ?
Whether the petitioner was denied an opportunity of effectively putting forward their defence thereagainst?
Held that:- The show-cause notice should reflect the jurisdictional facts based on which the final order is proposed to be passed. The assessee would then have an opportunity to show cause that the authority had erroneously assumed existence of a jurisdictional fact and, since the essential jurisdictional facts do not exist, the authority does not have jurisdiction to decide the other issues. This requirement is also absent in the show-cause notices issued in the present case.
Viewed from any angle, failure to indicate the basis for levy of tax under the A.P. VAT Act in the show-cause notice on, among others, the turnover of ₹ 815.52 crores falls foul of the audi alteram partem rule necessitating the impugned assessment order being set aside on the ground of violation of the principles of natural justice. W.P. allowed.
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2009 (4) TMI 849 - MADRAS HIGH COURT
Additional sales tax demanded - Held that:- There is much force in the contention advanced by petitioner to the effect that the petitioner having disputed the computation of taxable turnover which is said to have been exceeded ₹ 40 crores as mentioned in the notice dated March 14, 2000, the respondent ought to have passed an order of provisional assessment or final assessment and without resorting to such course of action, the notices dated March 14, 2000 and March 21, 2000 were issued overlooking the procedure contemplated under the provisions of the local Act and the Central Act. Therefore, this court has no hesitation to hold that the respondent had issued the impugned notices arbitrarily and mechanically without application of mind resulting in grave prejudice and injustice to the petitioner and as such, the impugned notices are liable to be set aside.
Accordingly, the notices issued by the respondent dated March 14, 2000 and March 21, 2000, respectively, are hereby quashed. In view of quashing of the impugned notices, the petitioner is entitled to the refund of the amount of ₹ 15,79,415 paid under protest towards the additional sales tax pursuant to the said notices dated March 14, 2000 and March 21, 2000
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2009 (4) TMI 848 - KARNATAKA HIGH COURT
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... ... ..... of the order passed by respondent No. 2. Ultimately consequence of such order is re-determination of the liability of the petitioner under the provisions of the Act. It is open to the petitioner to pursue his remedy as per the Act by filing appeals as provided under the statute and to seek his relief. These writ petitions being prima facie examined only for the purpose of ascertaining any patent lack of jurisdiction on the part of the second respondent and therefore any observation incidentally on the merits of the order is not to be construed as an order passed, but is only for the purpose of examining the question as to whether the matter is to be examined in writ jurisdiction by-passing the appeal remedy or to relegate the petitioner to the statutory remedy. Therefore, it is made clear that it is open to the petitioner to raise all contentions before the appellate authority including the question of jurisdiction. These writ petitions are not entertained and are dismissed.
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2009 (4) TMI 847 - MADHYA PRADESH HIGH COURT
Direction issued by the BIFR - on what basis the financial limit has been fixed and whether it finds place in the original scheme - Held that:- We are of the considered opinion that the direction issued by the BIFR is in conformity with the original scheme and it has not travelled beyond the mandate of the original scheme. Be it placed on record, we have also asked Mr. Shukla as to which stand of the petitioner would dislodge the order. Except stating that they have not entered into production, the learned Deputy Advocate General for the State, could not enlighten us. It is demonstrable from the documents brought on record that the exemption was granted for rolling mill unit but nothing has been mentioned therein that it is for a particular place and correctly so.
The directions issued by the BIFR and affirmed by the AAIFR are in consonance with the original scheme which was accepted by the State Government as a consenting party and, therefore, any deviancy thereof is neither just nor proper. When the original scheme did not fix any financial limit, the same could not have been incorporated in the notification. Thus, the orders passed by the BIFR and AAIFR are just and proper and there is no warrant of interference.
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2009 (4) TMI 846 - PUNJAB AND HARYANA HIGH COURT
Withhold of refund due to the petitioner - Held that:- A perusal of impugned order dated April 28, 2006 (P8) shows that it has recorded a finding granting approval to withhold refund of ₹ 4,32,21,206 by observing that recovery of the aforesaid amount would be adversely affected later on if the refund is allowed. The Commissioner has failed to record any reason as to how the recovery is likely to be affected. The order is totally laconic as it does not give any reasons. There is not even a whisper of the material forming basis of aforesaid satisfaction by the Commissioner. The impugned order is wholly unsustainable in the eyes of law and is, thus, liable to be set aside.
Appeal allowed. The impugned order dated April 28, 2006 (P8) is set aside. The respondents are directed to refund a sum of ₹ 4,32,21,206 in respect of assessment year 2002-2003 along with interest to the assessee-Society.
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2009 (4) TMI 845 - KARNATAKA HIGH COURT
Whether the provisions of section 15(5)(e) of the Act is only by way of clarification and even as indicated in the budget speech of the Finance Minister and that it does not create an additional liability but only points to an existing liability only reveals half truth?
Held that:- The principle of promissory estoppel having been indicated to be attracted to a situation of the present nature as what the statute provided for earlier is an option and that option after having been exercised the consequence are sought to be changed by subsequent variation of the law is unreasonable, same logic holds good in respect of any liability fastened for the period from April 1, 2005 to March 31, 2007.
However, the position continues to be the same in respect of all dealers other than works contractors and in the case of works contractors from April 1, 2007 onwards the liability as indicated in section 15(5)(e) of the Act though is independently mentioned is to be read as part of composition as offered under section 15(1) of the Act and it has to be worked on such premise for persons who have opted for payment of tax by way of composition and who are dealers, on and after April 1, 2007 onwards.
In this view of the matter, all reassessment orders for levy of additional burden on the premise of the liability under section 3(2) of the Act for the period prior to April 1, 2007 and also any penalties levied under section 72(2) of the Act and the consequential levy of interest and penalty including any prosecution launched covering the period only on the premise that the tax paid by the petitioners by way of composition falls short of the amount indicated in the reassessment order, stands quashed by issue of a writ of certiorari.
In this view of the matter, the show-cause notices issued in the case of petitioners in W.P. No. 2416 of 2008 at annexure D stand quashed by issue of a writ of certiorari. The petitioners having confined their challenge to the assessment orders up to the period March 31, 2007 and with the declaration of law that the provision of section 15(5)(e) of the Act as it operates from April 1, 2007 is a valid provision, other consequences in law follows.
Section 4(3)(d) of Act No. 6 of 2007 is declared unconstitutional in so far as it pertains to the deeming provision of making clause (e) of sub-section (5) of section 15 of the Act operative from April 1, 2006 being an unreasonable provision having deleterious consequences on the petitioners.
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