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Showing 321 to 340 of 927 Records
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2011 (8) TMI 1052 - MADHYA PRADESH HIGH COURT
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... ... ..... dment notification dated June 9, 2000 has been upheld but the said judgment does not help the respondent in the present case in view of the earlier order of the Division Bench in respect of the present petitioners. In view of the aforesaid, the present writ petition is allowed with the direction to the respondents to re-examine the petitioners' case in the light of the direction earlier issued by the Division Bench of this court in W.P. No. 3600 of 2002. Let this exercise be completed by giving an opportunity of hearing to the petitioners within three months from the date of receipt of copy of this order. If the petitioners are found eligible, necessary benefit be extended to them. If the respondents find that the petitioners are not entitled to exemption, they will pass a reasoned speaking order and will duly communicate the same to the petitioners. The writ petitions are accordingly disposed of. Let a copy of this order be placed in the record of W.P. No. 4688 of 2010.
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2011 (8) TMI 1051 - MADHYA PRADESH HIGH COURT
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... ... ..... ubt about the fact that the purchases are taxable or not, it cannot be said that there was any mens rea of the assessee in deliberately non-payment of the tax. The Division Bench held that in such circumstances, the assessee was not liable for penalty. In the present case, the assessee disclosed all the transactions and complete return was filed but the assessee contended before the authority that the aforesaid transactions were not taxable. It appears that it was a bona fide plea of the assessee, which was not upheld by the authorities but on this ground, the petitioner was not liable for penalty. In view of the aforesaid discussion, we do not find that the petitioner with guilty mind had concealed purchases or had submitted false returns to invite the penalty. Accordingly, the petition deserves to be and is hereby allowed. The impugned order dated September 9, 2003 (annexure P7) passed by the Divisional Deputy Commissioner, Jabalpur is hereby quashed. No order as to costs.
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2011 (8) TMI 1050 - ALLAHABAD HIGH COURT
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... ... ..... products of a manufacturer sold to another manufacturer either directly or through an intermediary will continue to retain the original character of waste products. In view of the law laid down by the Division Bench of this court in the case of J and J Enterprises 1996 102 STC 51 (All); 1996 UPTC 471, the sale of waste product of a manufacturer, i.e., "fibre sheet glass cuttings" by the assessee would be a sale by a intermediary to the other manufacturer of helmet, roofing sheet, toys, bambar auto-light cover, washing machine and cooler body, etc. The goods, i.e., "waste product" will not lose its original character of being a waste product. Therefore, the Trade Tax Tribunal is not justified in recording a finding that the goods sold by the assessee were not covered by entry 29 of notification dated February 17, 2000. In view of the aforesaid, the order of the Trade Tax Tribunal dated January 5, 2004 is quashed. The present trade tax revision is allowed.
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2011 (8) TMI 1049 - ANDHRA PRADESH HIGH COURT
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... ... ..... 5 APSTJ 116, the impugned revisional order dated July 29, 2011 cannot therefore be sustained, since the first respondent failed to provide personal hearing to the petitioner. On the aforesaid premises, the impugned order passed by the first respondent bearing R.R. No. 3/2011-12, dated July 29, 2011 is set aside. It is however open to the first respondent or any other revisional authority authorized under section 32 of the 2005 Act to pass a fresh order in accordance with law. In case the Commissioner proceeds to revise the assessment order in exercise of powers conferred under section 32(1) of the 2005 Act, the petitioner is at liberty to make an application to the Commissioner of Commercial Taxes to exercise discretion under section 32(5) of the 2005 Act and if such an application is made, the Commissioner may consider passing an appropriate order in accordance with law on such application. The writ petition is allowed as above. However, there shall be no order as to costs.
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2011 (8) TMI 1048 - KERALA HIGH COURT
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... ... ..... proves beyond doubt that but for the declaration obtained and produced by them, they would have been liable to pay tax on the products sold to the petitioner, no matter the petitioner happens to be liable under section 5(2) by virtue of the sale by them under brand name. In other words, the declaration 25D provided is only a mechanism to ensure assessment, levy of tax on sale by the brand name holder which is declared as deemed first sale under the provision so that the previous seller is not liable to pay tax. The only conclusion possible is that the SSI unit that was manufacturing and selling the goods under brand name to the petitioner would be outside the purview of exemption provided to them under notification SRO No. 1729/93 and so much so, they were ineligible to issue declaration in annexure IV to the above notification. Consequently the petitioner was rightly declined concessional rate under Notification SRO 1091/2009. We, therefore, dismiss the S.T. revision case.
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2011 (8) TMI 1047 - ALLAHABAD HIGH COURT
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... ... ..... as has been held in the case of State of Karnataka v. Azad Coach Builders Pvt. Ltd. 2010 36 VST 1 (SC); 2010 UPTC 1279. Even if it is held that the sale was not inextricably linked to export and the sale of polished "kora maal" was an independent sale of goods to a dealer out of the State the same would be covered by proviso (iii) to section 3 AAAA of the Act. This court may clarify that the sale to a dealer outside U.P. would be a sale in the course of inter-State sale or commerce covered by section 3AAAA(1), proviso (iii). There is a categorical finding of fact by both the appellate authorities below that the identity of the goods had not been altered after polishing and engraving. This finding of fact could not be demonstrated to be perverse or based on no evidence. Accordingly this court finds that there is no illegality in the order of the Tribunal so as to warrant interference by this court. Accordingly all the above-mentioned trade tax revision is dismissed.
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2011 (8) TMI 1046 - KERALA HIGH COURT
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... ... ..... rom cocoa beans, no matter processing of cocoa beans may yield different cocoa products. Further, in absolute terms, eight per cent use of cocoa in the product makes it a cocoa product and admittedly the respondent itself named the product "choco paste", i.e., after cocoa giving the impression that it is the predominant ingredient. Even though major ingredient by weight in confectionery is sugar, nobody calls it after sugar or calls it a sugar product. The product identification is in fact with reference to the components used, may be cocoa, orange flavour, lemon flavour, etc. We are, therefore, of the view that cocoa paste is an item falling under entry 19 of Notification SRO 82/2006 taxable at 12.5 per cent. In view of our findings above, there is no need to consider whether the items fall under residuary entry 103 of SRO 82/2006. We accordingly allow the revisions in part by modifying the orders of the Tribunal and that of the first appellate authority as above.
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2011 (8) TMI 1045 - ANDHRA PRADESH HIGH COURT
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... ... ..... ty Commissioner, who has set aside the consequent order passed by the second respondent dated May 4, 2005, an order passed in consequence of the order of the Appellate Deputy Commissioner on September 5, 2003, the first respondent is not competent to exercise the power of revision and the revisional order is thus unsustainable. Since on the analysis above, the revisional order dated August 31, 2006 is unsustainable on the point of jurisdiction, it is not necessary for us to go into the question whether the order is unsustainable for having been passed beyond the period of limitation specified in section 20(3) of the Act, as well. Accordingly, the two revision orders passed by the first respondent on August 31, 2006 for the assessment years 1999-2000 and 2000-2001 respectively are set aside and the consequent orders passed by the second respondent dated November 7, 2006 are also declared invalid. The writ petitions are allowed as above, but in the circumstances without costs.
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2011 (8) TMI 1044 - KARNATAKA HIGH COURT
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... ... ..... tion 5B of the KST Act. It is not a case of inter-State sale. It is a case of sale within Karnataka. Merely because the assessee obtained DG sets from its unit at Goa while executing contract at Mangalore, the character of the transaction does not change. In fact, it was submitted that the assessee has not even paid any tax in Goa as it is completely exempted. Besides this, when the contract was entered into at Karnataka, contract was executed in Karnataka, payment is made in Karnataka and the contract did not occasion movement of the goods from outside the State of Karnataka, tax is attracted. Merely because the assessee got the goods from Goa that is altogether an independent contract and to that contract the Telecom Department is not a party. In that view of the matter, the revisional authority was justified in setting aside the order of the appellate authority and restoring the revision. Therefore, we do not see any merit in this appeal. Accordingly, appeal is dismissed.
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2011 (8) TMI 1043 - ALLAHABAD HIGH COURT
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... ... ..... herefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. Paragraph 59 of the judgment is quoted below "59. A decision, as is well known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision." The law so explained has been followed in the case of Dr. Rajbir Singh Dalal v. Chaudhari Devi Lal University reported in AIR 2008 SCW 5817. In view of the above discussion this court finds legally no error in the order of the Tribunal which has rightly held that a false declaration has been made in form IIIB which was issued by the petitioner in respect of the raw material, namely, tendu patta. This court finds no good ground for quashing the order impugned. The present writ petition is dismissed.
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2011 (8) TMI 1042 - ANDHRA PRADESH HIGH COURT
Time Limitation - Benefit of exemption from levy of tax - Works Contract - sub-contracting basis - section 20(2) of Andhra Pradesh General Sales Tax Act, 1957 - Held that:- The revisional order was required to be passed by November 4, 2006, but was admittedly sent to the partners of the firm including the petitioner by registered post acknowledgement due on July 20, 2007, beyond the period prescribed under section 20(3) of the Act. There is no explanation as to what steps were taken from August 31, 2006 till July 20, 2007 to communicate the revisional order to the petitioner.
It must be presumed that the order was not passed on the date it is purported to have been passed but it was passed beyond the period of limitation prescribed under section 20(3) of the Act - the order cannot be sustained being barred by limitation - Petition allowed.
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2011 (8) TMI 1041 - KARNATAKA HIGH COURT
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... ... ..... may result in double taxation which may make the Act vulnerable to challenge as violative of article 14 of the Constitution. Following the aforesaid judgment, a Division Bench of this court in ECI Engineering and Construction Co. Ltd., Hyderabad v. Additional Commissioner of Commercial Taxes, Zone I, Bangalore reported in 2010 33 VST 757 (Karn); 2009 67 Kar. L.J. 125, has also held, once the said turnover is taxed in the hands of the sub-contractor, a deemed sale takes place and the very same turnover cannot be taxed again in the hands of the contractor under section 6B on the ground of resale when there is no such resale. In view of the aforesaid legal position, the impugned order passed by the revisional authority is unsustainable and is liable to be set aside. Accordingly, it is set aside. Hence, the following order Both the appeals are allowed. The impugned order passed by the revisional authority is set aside. The order passed by the Appellate Commissioner is restored.
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2011 (8) TMI 1040 - ALLAHABAD HIGH COURT
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... ... ..... 13) of the Rules would show that the assessing authority will include registering authority. Shri S.P. Kesarwani submits that in the office of the Department the assessing authorities are empowered to act as registering authorities. In our opinion for the purposes of section 55 the assessing authority will include registering authority. In view of the above, the appeal lies against the order of amending the registration certificate under section 55 of the Act. The petitioner may prefer an appeal before the appellate authority, who will decide it after giving notice to both the parties as to whether the order amending the registration certificate is valid or suffers from any illegality. It will be open to the petitioner to give reply to the show-cause notice on the application moved by Shri Pankaj Yadav alleging that the business of the firm has been closed and thus the registration be cancelled. The writ petition is accordingly dismissed on the ground of alternatives remedy.
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2011 (8) TMI 1039 - JHARKHAND HIGH COURT
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... ... ..... jurisdiction of the High Court where exist no special reason to invoke writ jurisdiction. The learned counsel for the petitioner at this juncture, pointed out that the petitioner paid tax for one or two months only after amendment made in the entry. However, we are making it clear that neither any of the observation made by us is against or in favour of any of the parties in this petition nor the reply filed by the respondent can be treated to be binding upon the adjudicating authority because he, under the law, is bound to decide each and every question in accordance with law in accordance with his own decision uninfluenced by any of the correspondences, reply, etc. Therefore, with these observations, this writ petition is disposed of with liberty to the petitioner to raise the objection before the assessing officer and obtain any order. In case any order is passed against the petitioner by the assessing authority, the petitioner will be free to avail of the lawful remedy.
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2011 (8) TMI 1038 - ITAT KOLKATA
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... ... ..... of ₹ 55,780.” In view of the above legal position and respectfully following the decision of Hon’ble Apex Court and Hon’ble Rajasthan High Court, we delete the addition based on DVO’s report estimating cost of construction without rejection of books of account, as the books of account were maintained properly by assessee recording the cost of construction. Hence, Cross Objections of assessee are allowed. 6. Coming to revenue’s appeals, since we have already allowed Cross Objections of the assessee on legal issue that DVO’s report estimating cost of construction without rejection of books of account cannot be accepted and once there cannot be any reference to DVO without rejection of books of account, revenue’s contentions on merit cannot be accepted. Appeals of revenue are dismissed. 7. In the result, Cross Objections of the assessee are allowed and appeals of revenue are dismissed. 8. Order pronounced in open court on 10.8.11.
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2011 (8) TMI 1037 - KARNATAKA HIGH COURT
Exemption on the charges collected by it for pumping ready mix concrete at the customers' site - Whether the pumping charges collected by the assessee from the customers, form part of a pre-sale expenses and thus, chargeable to tax under the Act - Held that:- It is clear that section 4 of the Act which deals with the liability to tax and rates thereof prescribes that every dealer who is or is required to be registered as specified in sections 22 and 24, shall be liable to pay tax, on his taxable turnover. Therefore, for imposing tax it is necessary to find out what is the turnover. As is clear from the definition, "turnover" means aggregate amount for which goods are sold or distributed or delivered or otherwise disposed of in any of the ways referred to in clause (29) by a dealer and subject to such conditions and restrictions as may be prescribed the amount for which goods are sold shall include any sums charged for anything done by the dealer in respect of the goods sold at the time of or before the delivery thereof. Therefore, all expenses incurred by the assessee at the time of delivery or before the delivery thereof is included in the turnover. As held by the Supreme Court in the aforesaid judgment, the real test to be applied is whether the goods have passed to the buyer. In the case of cost of freight if delivery forms part of the sale consideration, then, those expenses would form part of the turnover. It is only in case where cost of freight or delivery is included by the dealer not in his capacity as the seller but as a matter of convenience and on behalf of the purchaser and it is independent of the cost element of the goods in question for the seller, then it will not form part of the sale price. Therefore, it depends on the facts of each case.
The assessee is a manufacturer of ready mix concrete. The said ready mix concrete is manufactured with its ingredients like jelly, cement, sand, etc., and in order to avoid hardening of the RMC after certain period of time due to exposure to moisture, chemicals are added to keep the RMC in a liquefied stature till its delivery to the customers depending upon the distance the vehicle carrying RMC is to reach the customer's place. If the RMC is hardened it becomes un-usable. As is clear from the material on record, the assessee transports the RMC from the manufacturing place to the customer's site. Therefore, in the case of RMC, transportation charges invariably forms part of the sale consideration. After it reaches the site of the customer, the RMC is to be delivered to the customer. The choice of taking the delivery is given to the customer. He has the option of getting the entire RMC dumped at the site from the lorry or he has also been provided an option to get the RMC to a particular place such as roof top or any floor. Therefore, the RMC is delivered by pumping the RMC from the lorry to the specified place by the customer. All expenses incurred till the delivery constitutes sale price.
There is no dual role played by the assessee. He is not pumping the RMC for and on behalf of the customer. He has to pump the RMC to the specified place as shown by the customer in order to deliver the RMC. Therefore, even if the pumping charges are collected separately as is clear from the invoice produced before us, or as per terms of the contract, still the said pumping charges invariably form part of the sale transaction which facilitates the delivery of the goods and it would form part of pre-sale expenses. In the aforesaid judgment of the apex court, there were two contracts one is manufacturing fanta and coco-cola and the assessee was delivering those products at his site. The customer had an option to transport those goods from the site of the manufacture to his site either by using his own transportation or by using the transportation facility provided by the assessee. The transportation provided by the assessee is including taking delivery of the goods from the manufacturing place to the customer's site, which contract is conspicuously missing in this case.
The assessee at no point of time will take delivery of RMC from the customer and then pumps it to the specified place at the site. Therefore, the ratio of the judgment has no application to the facts of this case. Having regard to the totality of the circumstances, the terms of the contract, the intention of the parties, it is clear that the sale of the product, viz., RMC and transporting it from the manufacturing place up to the customer's site and pumping it to the place where the customer specifies, the pumping charges become part of the sale transaction. In that view of the matter, we do not see any merit in this appeal - Decided against assessee.
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2011 (8) TMI 1036 - CALCUTTA HIGH COURT
Service tax demand - also interest as envisaged under Section 75 of the Finance Act, 1994 and penalty in terms of Section 78 of the said Act - Held that:- An activity which amounted manufacture having been excluded from the definition of ‘business auxiliary services’ there may have been doubt as to whether conversion of coke into coal on behalf of clients constituted taxable service. Moreover, Service Tax Authorities were also not sure of the exact Clause of Section 65(19) into which the activity of conversion of coke into coal on behalf of clients would fall at the material time, and accordingly did not specify the clause.
The correspondence on record reveals that there was also confusion with regard to intra-port service. Sometimes the authorities contended that intra-port services constituted ‘cargo handling services’. At other times they contended that the services constituted ‘port services’. The services did not fit into the definition of port-services prior to its amendment with effect from 2010 or into the definition of ‘cargo handling services’. In the impugned show cause notice it is claimed that the activities constituted business auxiliary service. If the services clearly fell within the ambit of business auxiliary service, there would be no need to amend the definition of port-services.
In any case there was some confusion. If there was any confusion or doubt which had to be cleared by amendment, it cannot be said that there was wilful suppression or contravention of Chapter V to evade payment of Service Tax, so as to attract the proviso to Section 73(1) of the Finance Act, 1994.It is immaterial that the petitioner is registered in Kolkata but explanation had been given to the authorities of Paradeep, Ranchi and Dhanbad. If the queries were answered, it cannot be said that there was wilful suppression. It appears that the concerned authorities initially accepted the explanation of the assessee, but later proceeded to issue the impugned show cause notice upon change of opinion. The impugned show cause notice is barred by limitation.
The show cause notice is thus set aside.
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2011 (8) TMI 1035 - MADRAS HIGH COURT
Rate of assessment of tax - Import of machinery - assessment of tax at 12 per cent instead of 20 per cent under entry 9 of the Eleventh Schedule to the Act - Held that:- The impugned order cannot be sustained. Firstly for the reason, that it is totally a non-speaking order and does not deal with the contention raised by the petitioner, to challenge the assessment order to be violative of the statutory provisions of the Tamil Nadu General Sales Tax Act, 1959 - The law is well-settled, that the quasi-judicial authority is required to pass orders meeting with all the contentions raised, so that, the higher authorities can see the legality of reasons for coming to the conclusion - impugned order is a non-speaking order, which cannot be sustained in law - matter remanded back - Decided in favour of assessee.
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2011 (8) TMI 1034 - MADRAS HIGH COURT
Whether on facts, a case was one falling under section 3(3) of the Act, could be decided in appeal as it is not a jurisdictional point or the one barred under the Act - Held that:- There is no violation of statute in imposing penalty or in the findings recorded, holding that provisions of section 3(3) of the Act do not apply to fabric. The remedy with the petitioner was to file a statutory appeal, which the petitioner deliberately failed to file, and chose to move an application, under section 16D, by-passing the ordinary statutory remedy, to avoid payment of 25 per cent of the tax imposed - The jurisdiction of the Special Committee under section 16D is a limited jurisdiction, to check patent illegality regarding bar under statute or violation of natural justice. The Special Committee is not a substitute of appellate authority to decide the order on merit.
Once, by the provisions of the Act, a particular category is taken out of the purview of section 3(3) of the Act, then the question, as to "whether the petitioner was entitled to a benefit of purchase, by issuing form XVII for use of consumable" is a question of fact, to be decided and jurisdictional point, which could be looked into by the Special Committee under section 16D - The order passed by the Special Committee, therefore, is in consonance with the jurisdiction vested in it, under the statute, which does not call for any interference by this court, specially when there is no violation of principle of natural justice, as the petitioner was given full opportunity before passing the order of assessment - Decided against assessee.
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2011 (8) TMI 1033 - KARNATAKA HIGH COURT
Penalty - contravention of provisions of section 53(2) of the KVAT Act, 2003 - no documents for movement of goods - Held that:- lorry receipt or consignment note indicates the movement of PVC flooring from Navaseva, Mumbai to Bangalore. The invoice of M/s. Kumar Distributor, Chennai, in favour of consignee at Bangalore indicated the transaction of sale as inter-State in PVC flooring. Thus, the goods are under movement from Mumbai whereas invoice is issued by consignor at Chennai. There is no statutory document from Mumbai to Bangalore connected with the sale invoice of the consignor at Chennai. Movement of goods was from one direction whereas transaction of sale was effected from a different destination. Consequently, it was considered that the movement of goods was one without document and hence it was "no document case". The assessing authority imposed double the rate of tax as penalty. In the suo motu revision, the penalty was reduced from double the rate of tax to the rate of tax leviable. On this ground also we do not find any reason to interfere with the reasoned order of the revisional authority. The tax levied is due to the violation of law and hence, the revisional authority has rightly passed the impugned order. The penalty imposed has been reduced in revision. A minimal penalty has been imposed. Due to contravention of law, penalty is attracted. Hence there is no good ground to interfere. - Decided against Assessee.
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