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Showing 321 to 340 of 1011 Records
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2011 (7) TMI 1082 - ALLAHABAD HIGH COURT
Whether the applicant shall not be entitled to the benefit of section 4A of the U. P. Trade Tax Act, 1948 qua the investment of ₹ 16,74,368 made towards purchase of dyes and moulds, as also in respect of expenditure made towards purchase of hydraulic oil to the tune of ₹ 61,468?
Held that:- Merely because there has been mention of the words dyes and moulds in the details furnished by the revisionist towards capital fixed investment, it cannot be said that the same were not an essential part of plant and machinery.
The issue as to whether the investment made towards dyes and moulds by the revisionist in the facts of the case would answer the description of investment towards plant and machinery as was provided for under the unamended Act has to be gone into with reference to the material fact relevant for deciding the same. Accordingly, the order of the Tribunal dated October 11, 2001 is hereby set aside. The second appeal No. 152 of 2000 is restored to its original number. Let the Tribunal re-examine the matter in the light of the observations made hereinabove, preferably within three months from the date a certified copy of this order is filed before it.Trade tax revision is allowed.
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2011 (7) TMI 1081 - KARNATAKA HIGH COURT
Whether garlic and ginger paste do not fall under entry No. 3 of the Third Schedule and is consequently liable to tax at 12.5 per cent in terms of section 4(1)(b)?
Held that:- Ginger and garlic paste come within the definition of "vegetables". In these circumstances the fruits and vegetables coming within entry No. 3 of the Third Schedule necessarily have to include ginger and garlic paste.
Under these circumstances, garlic paste and ginger paste have been rightly understood as falling within entry No. 3. The reasoning of the revisional authority that since garlic paste and ginger paste is close to masala paste and therefore the same should be read as masala product and consequently the tax at 12.5 per cent is applicable, cannot be accepted.
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2011 (7) TMI 1080 - RAJASTHAN HIGH COURT
Penalty imposed by the assessing authority under section 77(8) of the Rajasthan Sales Tax Act, 1994
Held that:- Whether this penalty ought to be applied in the category sales tax paid goods or not does not find discussion in the order of the assessing authority. After finding the alleged difference between the stock calculated as per sale value minus G. P. rate and stock reflected in the regular books of accounts maintained by the assessee, the assessing authority straightway computed the five times of the tax rate as penalty under section 77(8) and this aspect of the matter as to whether the goods being tax paid or taxable has escaped the attention of the assessing authority altogether. Unfortunately, learned Tax Board also has not addressed itself to this aspect of the matter.
Thus the imposition of penalty on the petitioner-assessee is found to be unjust and illegal. Consequently, this revision petition is allowed arid the impugned order of penalty passed by the learned authorities below including that of learned Tax Board dated December 31, 2007 is set aside.
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2011 (7) TMI 1079 - ANDHRA PRADESH HIGH COURT
Whether the petitioner is not eligible to be issued H forms?
Held that:- Mere issue of H forms does not mean anything, much less doing it entail the benefit under section 5(3) read with section 5(4) of the CST Act being extended to the assessee. Be it the exporter, or the dealer who is the penultimate exporter, cannot claim any benefit under section 5(3) of the CST Act merely on the ground that, at the request of the former, H forms were supplied by the notified authority without demur.
Along with the reply affidavit, the petitioner has placed before this court various export orders during the three assessment years which, according to the petitioner, were placed by the foreign buyer prior to the petitioner's purchase of rice from local millers. This is a matter to be gone into by the assessing officer at the time of assessment, not at the stage of issuing H forms. Subject to above observations, we dispose of the writ petition directing the first respondent to issue H forms to the petitioner within a period of ten (10) days from the date of receipt of a copy of this order.
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2011 (7) TMI 1078 - MADHYA PRADESH HIGH COURT
Auctioning the personal property of the petitioner for satisfying the recovery of the sales tax dues relating to M/s. Mahesh Niranjan Jute Pvt. Ltd., a company incorporated and registered under the Companies Act, 1956
Held that:- In the present case, the person who is to be taxed is a dealer and the company in question is registered as a dealer with the Sales Tax Department and therefore any tax, keeping in view the taxing statute, has to be recovered from director of the company. There is no such provision under the M. P. Sales Tax Act which empowers the respondents to recover the outstanding dues of sales tax from the personal property of the director and in absence of any specific statutory provision, the petitioner cannot be held to be a person liable to pay the tax and therefore the proclamation of sale in respect of the property belonging to the petitioner has to pave the path of extinction. The impugned proclamation dated August 2, 2005, panchnama dated August 29, 2005 and the consequential orders are set aside. It is pertinent to note that the property in question was sold by the petitioner during the pendency of the present writ petition and vide order dated April 7, 2011 the sale proceeds in the form of FDR have been deposited with the principal registrar of this court. Resultantly, as this court has allowed the writ petition the principal registrar of this court is directed to release the FDR in question.Writ petition is allowed
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2011 (7) TMI 1077 - MADRAS HIGH COURT
Whether the consumption of electricity, by itself, cannot be a ground for estimating the turnover?
Held that:- As rightly pointed out by the learned counsel for the appellant, if one reads the order of the Appellate Assistant Commissioner, there is at least some reason to justify the adoption of 12 units to 1 unit of jelly. But if one reads the order of the Joint Commissioner except for the arithmetical calculations based on the consumption of electricity there is hardly any material to arrive at the turnover at ₹ 18,54,400. Admittedly, except for the survey results conducted in the earlier year, no incriminating materials were found to arrive at this turnover. On balancing these orders that are before us, we find that the appellate authority orders appear to be more rational than the order before us. In the circumstances, we have no hesitation to set aside the orders and restore the order of the Appellate Assistant Commissioner. The tax case revision is allowed.
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2011 (7) TMI 1076 - KARNATAKA HIGH COURT
Whether the respondent herein is entitled to the transitional relief permissible under section 18 of the Karnataka Value Added Tax Act, 2003?
Held that:- The concept of ownership as an exclusive right to the owner to transfer part of the right has been dealt with and regarding the multi point tax levied under the Act, the Tribunal has rightly proceeded that, since admittedly the assessee has paid tax under the Sales Tax Act and also under the KVAT in respect of the transactions pertaining to the period from April 1, 2004 to March 31, 2005, having regard to the documents verified by the assessing officer, the assessee would be entitled to the benefit of transitional provisions under section 18 and therefore, the order passed by the Tribunal on the question of fact about application of section 18 to the transactions for the period from April 1, 2004 to March 31, 2005 is justified and does not suffer from any perversity or arbitrariness as to call for interference in this revision petition wherein only the question of law can be considered and in the absence of any arbitrariness or perversity in the consideration of the material on record, we hold that the appeal is devoid of merit and is dismissed.
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2011 (7) TMI 1075 - PUNJAB AND HARYANA HIGH COURT
Whether the learned Tribunal has erred in law in holding that the revisional proceedings which were initiated within 2 years from the assessment order dated April 9, 2007 and concluded within three years from the said assessment order, was time-barred?
Held that:- According to section 11(3) of the PGST Act, the assessing authority is required to pass an assessment order within a period of three years from the last date prescribed for furnishing the last return in respect of any period. In the facts of the present case the last date for filing of return for the assessment year 2001-02 was April 30, 2002 and the assessment could be framed up to April 30, 2005. It is not disputed that the assessing authority framed the assessment on April 9, 2007 which was beyond the period of limitation. Once that was so, the assessment order was void and without jurisdiction. The recourse to revisional proceedings by the Excise and Taxation Commissioner after the expiry of more than five years which were initiated on September 8, 2008 was, thus, bad. The decision of the Tribunal is in consonance with the provisions of the statute.
The learned counsel for the petitioners was unable to pin point any error or perversity in the order impugned herein which may warrant interference by this court. No substantial question of law arises in these revisions, hence dismissed.
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2011 (7) TMI 1074 - ALLAHABAD HIGH COURT
Whether it is not obligatory upon the Tribunal to intimate every date fixed in the matter for hearing by registered post especially once a notice of the proceedings is served upon the assessee and he puts in appearance?
Held that:- The learned counsel for the appellant could not refer to any statutory provision, whereunder, after an adjournment is granted on an application made by post by the assessee it becomes the duty of the Tribunal to intimate the next date by post. It is not in dispute that the appeal was filed by the assessee himself, on 11/13th July, 2003, the appellant made an application for adjournment by post, it was his duty to have followed the case and to have obtained information of the next date fixed after his adjournment application dated 11/13th July, 2003 was granted. The appellant assessee has been most negligent in pursuing the proceedings as is reflected from the order of the Tribunal. This court finds absolutely no good ground to interfere with the order of the Tribunal. The learned counsel for the appellant could not refer to any statutory provision, whereunder, after an adjournment is granted on an application made by post by the assessee it becomes the duty of the Tribunal to intimate the next date by post. It is not in dispute that the appeal was filed by the assessee himself, on 11/13th July, 2003, the appellant made an application for adjournment by post, it was his duty to have followed the case and to have obtained information of the next date fixed after his adjournment application dated 11/13th July, 2003 was granted. The appellant assessee has been most negligent in pursuing the proceedings as is reflected from the order of the Tribunal. This court finds absolutely no good ground to interfere with the order of the Tribunal.
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2011 (7) TMI 1073 - ALLAHABAD HIGH COURT
Whether PP caps manufactured by the applicant is known as crown cork and the Commissioner in its circular has held that crown cork falls under the cork has no substance?
Held that:- No error in the order of the Tribunal in arriving to the conclusion that the PP caps, which are made of aluminium, and iron, are not covered under the entry "cork" referred hereinabove. It has not been classified elsewhere, therefore, it is liable to tax as unclassified item. Appeal dismissed.
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2011 (7) TMI 1072 - ALLAHABAD HIGH COURT
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... ... ..... tion 23 of the Contract Act. Consequently the findings recorded to that extent are unsustainable. Counsel for the assessee is justified in contending that section 34 of the Trade Tax Act has no application in the facts of the case as it applies to moveable properties only. This court finds that the Tribunal was completely off target while referring to section 23 of the Contract Act and section 34 of the Trade Tax Act while allowing the appeal of the Department. The issue as to whether the assessee was entitled to the benefits flowing from section 6(2) of the Central Sales Tax Act, needs to be examined afresh on the basis of facts/ material as it exists on record. The order passed by the Tribunal dated July 7, 2003 is hereby set aside. The Second Appeal filed by the Department is restored to its original number. Let the appeal be decided by the Tribunal afresh within two months from the date a certified copy of this order is filed before it. The trade tax revision is allowed.
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2011 (7) TMI 1071 - KERALA HIGH COURT
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... ... ..... to 40.64cm the rate of tax is more than three times, i.e., ₹ 1,60,000 p.a. So far as the third category is concerned, if the length of the machine is above 40.64cm (in appellant's case it is 55cm) the tax payable is ₹ 3,20,000 p.a. What is clear from the scheme of classification is that tax payable is directly proportionate to the volume and quantity of goods produced by the machines. To achieve this objective the capacity of the machine has to be taken by multiplying the length with width. Therefore, in our view, the minor variation in the width of appellant's machine does not take it outside clause (iii). Further as already stated, the determinative feature of the machine with standard width indicating the volume and quantity of production being length, the appellant's machine is squarely covered by clause (iii). We, therefore uphold the clarification issued by the authority constituted for the said purpose. Consequently, this appeal is dismissed.
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2011 (7) TMI 1070 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... No. 101 and GR pertaining to that invoice were also with the driver which appears to have been taken into possession by the Department authorities before the appearance of dealer. In facts and circumstances of the case, it could not be said that non-declaration at the ICC in respect of goods of invoice No. 101 and GR No. 473 was with a view to attempt to evade tax. As such, we find merit in this appeal. The same is accordingly accepted. Orders of the authorities below are set aside." We have heard learned counsel for the appellant. The learned counsel for the appellant submits that number of correct invoice was deliberately withheld and, thus, the Tribunal was not justified in holding that there is no attempt to evade tax. We are unable to accept the submission. The finding recorded by the Tribunal that there was no attempt to evade tax is certainly a plausible view. The questions raised cannot, thus, be held to be substantial questions of law. The appeal is dismissed.
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2011 (7) TMI 1069 - ALLAHABAD HIGH COURT
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... ... ..... , therefore, the penalty was reduced by ₹ 50,000. The counsel for the assessee made an attempt to challenge the findings recorded by the Tribunal in the order dated May 28, 2011 by contending that the transaction was duly recorded in the account books and that there is no justification for reducing the penalty by ₹ 50,000 only. I have heard learned counsel for the parties and have gone through the records of the present writ petition. I am of the considered opinion that pure finding of facts have been recorded by the first appellate authorities which have been affirmed by the Tribunal for the purposes of upholding the levy of penalty in the facts of the present case. The same needs no interference in exercise of revisional jurisdiction under section 58 of the Value Added Tax Act. The Tribunal in fact had been more than fair to reduce the penalty by ₹ 50,000. There is no illegality in the order so passed. Revision lacks merit and is accordingly dismissed.
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2011 (7) TMI 1068 - ANDHRA PRADESH HIGH COURT
Refund of ₹ 31,04,742 consequent to the order of the Sales Tax Appellate Tribunal seeked - also claim interest under section 33F of the Andhra Pradesh General Sales Tax Act, 1957
Held that:- Granting, the relief sought for by the petitioner would enable them to unjustly enrich themselves at the cost of the State, and retain the tax collected by them in excess, even though the burden of tax has been passed by them to persons who have purchased packing material from them. Grant of such relief would not be in larger public interest. Failure to grant relief would neither result in substantial injustice to the petitioner, nor would they suffer real loss or prejudice thereby, as they have already passed on the tax burden to their customers, thus no reason, therefore, to exercise discretion under article 226 of the Constitution of India to grant the relief sought for. Appeal dismissed.
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2011 (7) TMI 1067 - KERALA HIGH COURT
Restoration of penalty imposed on the petitioner under section 45A of the Kerala General Sales Tax Act, 1963 for evasion of tax - Held that:- The conclusion drawn by the Tribunal are purely on findings of fact based on evidence and we do not find any justification to interfere with the same. However, the Tribunal has not considered whether it is a fit case for levying maximum penalty, i.e., double the amount of tax sought to be evaded.
We accordingly allow the revision in part by sustaining the order with regard to the percentage of gross profit added to the turnover for the purpose of determining the tax evaded, but reduce the penalty to one and a half times the tax so evaded. The assessing officer is directed to issue revised order in accordance with the above order without any delay.
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2011 (7) TMI 1066 - KERALA HIGH COURT
Whether the transaction between the company and the agents is an agency agreement whereunder company reimburses purchase cost and expenses and the agents are paid commission?
Held that:- The goods procured by the agents are only sold to the petitioner against form 25 issued by the petitioner. Though the arrangement is apparently stated as agency, the transactions prove otherwise. The agency arrangement appears to be only a scheme for splitting up of price between purchase cost, transport cost, commission, etc., to avoid tax on part of the turnover. In our view, this is a clear attempt to reduce incidence of tax on the actual turnover. We, therefore, cannot accept the contention of the petitioner that the conditions provided in Explanation 5 to section 2(xxi) are not satisfied. In view of the findings above, we dismiss the S. T. Revision cases.
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2011 (7) TMI 1065 - KARNATAKA HIGH COURT
Whether there is a violation of section 53(12) and minimum penalty of two times of the duty is levied by invoking the provisions of section 53(12)(a)(ii) is correct?
Held that:- The material on record would clearly shows that admittedly the petitioner has violated the provisions of section 53(12) as the vehicle was not stopped at the check-post and he had travelled 20 kms. thereafter and only after interception, the driver given the explanation that he was taking the goods to the Bangalore city at the instructions of the consignee. Admittedly, the vehicle was not stopped at the check-post and no documents were produced and wherefore, the case of the petitioner in view of the abovesaid admitted fact, the penalty to be imposed would fall within the provisions of section 53(12)(a)(ii) and wherein, it is stated that the amount of penalty imposed shall not exceed three times the amount of tax leviable in respect of the goods under transport. Hence, penalty of two times of duty leviable is imposed in this case and wherefore, the appellate authority and the Appellate Tribunal has taken a lenient view and imposed penalty of two times of duty leviable. Appeal dismissed.
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2011 (7) TMI 1064 - ALLAHABAD HIGH COURT
Recovery against the petitioner, as the Chairman of the society in the relevant assessment year -
Held that:- In the present case the dues of a. society registered under the Societies Registration Act can be first recovered from the estate of the society and thereafter from the office bearers or members of the society as the case may be. From the averments made in the writ petition we find that the society has stopped doing business since the year, 2006 and that all its properties have been sold. The trade tax dues relate to the assessment year 2003-04 when the petitioner was the President of the society and is still a member of the society can be recovered from him under the bye laws-20 from the petitioner. The writ petition is dismissed.
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2011 (7) TMI 1063 - KARNATAKA HIGH COURT
Validity of the order passed by the Commissioner of Commercial Taxes, the fourth respondent herein, conferring jurisdiction on the first respondent to reassess the petitioner under section 39(1) of the Karnataka Value Added Tax Act, 2003 ("the Act", for short) and to impose penalty and demand payment of interest questioned
Held that:- It is clear from the order at annexure A dated February 24, 2010 that the Commissioner of Commercial taxes has authorised the first respondent to reassess the petitioner under sub-section 39(1) of the Act as also to levy penalty and demand payment of interest. Therefore, there is no merit in the contention of the petitioner that the order at annexure A is invalid or that the orders of reassessment and orders of penalty passed by the first respondent are without jurisdiction.
There is no reason why this court should entertain these writ petitions when the Act contains a detailed mechanism for the redressal of the grievances of the petitioner especially when the matter involves public money. It is, also well-settled that the mere fact that an assessee has to deposit the amount of tax while filing an appeal cannot be said to be a good ground to bypass the remedy provided under the Act. There must be something more in a. case to warrant the entertainment of a petition under article 226, something going to the root of the jurisdiction of the taxing authority. Appeal dismissed.
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