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Case Laws
Showing 161 to 180 of 731 Records
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2009 (11) TMI 870 - KARNATAKA HIGH COURT
Whether the Commissioner is justified in invoking section 22A(2) of the Act, when such a revisional power is also vested with the Joint Commissioner?
Whether the Commissioner was justified in holding that the black pepper purchased by the appellant from the unregistered dealer from outside the State of Karnataka and purchases made within the State of Karnataka?
Held that:- As per section 21 as well as 22A of the Act, revisional powers can be exercised by both the authorities within a period of four years. When limitation is stipulated as four years, it is not for the Commissioner to direct the Joint Commissioner how he has to exercise his revisional power, when such power is vested in him under section 22A of the Act. In the circumstances, we are of the opinion that point No. 1 has to be answered against the assessee by holding that both the Joint Commissioner as well as the Commissioner of Commercial Taxes can exercise their powers under different provisions of law.
So far as purchase of black pepper is concerned, the order of the Commissioner is mainly based on the note sheet maintained by the assessing officer while passing the order of assessment. Based on such note, the revisional authorities are not expected to reverse the findings of the assessing officer. It is for the assessing officer as well as the revisional authorities to find out whether the black pepper purchased by the assessee from the unregistered dealers from local or inter-State based on the accounts maintained and other documents. Appeal is allowed in part by answering the question of law and remanding the matter to the assessing officer to give his finding in regard to purchase of black pepper worth ₹ 77,35,310 is either from the local unregistered dealer or from the unregistered dealer outside the Karnataka State.
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2009 (11) TMI 869 - KERALA HIGH COURT
Arrears of tax and interest due for the assessment years 1994-95 to 2000-01 - Held that:- We are of the view that the provisions of the Contract Act have no application so far as the Sales Tax Act is concerned because it is a selfcontained code providing for levy and collection of sales tax by the Government from dealers.Therefore, the learned single judge rightly rejected the appellant's claim based on sections 59 and 60 of the Indian Contract Act.
What is conveyed by sub-section (2) of section 55C is that the applicability of sub-section (1) of section 55C is not with reference to the period for which arrears are paid, but reference to the date of payment made in discharge of arrears of tax and interest by the dealer. In other words, all payments made after January 1, 2000 towards the discharge of arrears of tax will be subjected to adjustment under section 55C(1) irrespective of the year to which the arrears of tax and interest relate. We, therefore, uphold the order of the learned single judge and dismiss the writ appeal
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2009 (11) TMI 868 - KARNATAKA HIGH COURT
Whether, in the facts and circumstances of the case, the Tribunal is justified in allowing the deduction on the amount of tax collected as per rule 6(4)(h) of the Karnataka Sales Tax Rules, 1957?
Held that:- In view of the above, we find that the question of law formulated by the Revenue does not call for answering particularly in view of the judgment of the honourable Supreme Court in C. Venkatagiriah's case [1994 (3) TMI 377 - SUPREME COURT] and the "Rule of proof cannot be static and it varies from case to case". Hence, we refrain from answering the substantial question of law.
Accordingly, we hold that the assessing officer should re-examine the claim of the assessee with regard to deduction of tax from the total taxable turnover and pass orders on merits after giving opportunity to the respondent-assessee and in accordance with law. We allow this revision petition in part and remit the matter to the assessing officer for fresh consideration.
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2009 (11) TMI 867 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... ut in the backdrop of aforesaid facts. For the reasons mentioned hereinabove, we hold that the petitioner is entitled to get refund as claimed. The concerned authorities will refund the T.D.S. amount within February 15, 2010, as no question of unjust enrichment arises in the said case of tax deducted at source by the contractee. The petitioner will get refund of the tax deposited on September 27, 2004 if such refund is not hit by the doctrine of unjust enrichment. The petitioner will now appear before the appropriate authority before December 10, 2009 to satisfy him that there is no unjust enrichment. The concerned authority will consider the same and record his decision/ satisfaction by January 31, 2010. If the concerned authority is satisfied that there is no unjust enrichment he will refund the said amount by March 31, 2010. Application is disposed of. No order as to costs. R.K. DUTTA CHAUDHURI (Judicial Member). - I agree. DIPAK CHAKRABORTI (Technical Member). - I agree.
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2009 (11) TMI 866 - MADRAS HIGH COURT
Best judgment assessment - Non production of relevant documents - Held that:- In the present case, only on the ground that the relevant documents were not produced, the respondent-Department proceeded to finalise the assessment on the basis of the best judgment method. The failure to grant sufficient time and opportunity to produce records is a clear violation of principles of natural justice and the assessment orders passed without considering the relevant statutory records and documents will amount to denial of sufficient opportunity and will amount to violation of principles of natural justice. The assessment order has been passed, without considering the relevant factors and therefore, the orders suffer from vice of non-application of mind to relevant factors and therefore, deserve to be set aside.
In the result, the orders of assessment in both the cases, which are challenged, are set aside on the ground of violation of principles of natural justice and since no opportunity was given to produce records, the matters are remitted back to the Commercial Tax Officer/respondent for reconsideration on the merits. The petitioner will be entitled to produce all records and materials that may be available for the purpose of effectively concluding the assessment proceeding.
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2009 (11) TMI 865 - MADRAS HIGH COURT
Whether there is no separate notice issued for cancellation of the registration certificates under section 7 of the CST Act and there is no personal hearing granted to the petitioner?
Held that:- There are no reasons stated in the affidavit for the belated writ petition nor any reason disclosed for not challenging the order passed on the notice. It must be noticed that the petitioner filed an application on October 12, 2004 for fresh registration. If really the petitioner had any grievance on cancellation, nothing prevented the petitioner from seeking remedy before the revisional authority. Hence, on the ground of laches alone, the writ petition is liable to be dismissed.
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2009 (11) TMI 864 - KARNATAKA HIGH COURT
Whether in spite of the statutory provisions under the KST Act and Rules, 1957 and judicial pronouncements that there is only one ‘sale’ and ‘turnover’ involved in the works contract executed by a subcontractor directly to the employer/contractee, the Karnataka Appellate Tribunal was right in having held that in respect of the payments made by the petitioner to the sub-contractors, besides the sub-contractors, the petitioner is also liable to pay turnover tax at three per cent prescribed under section 6B of the Karnataka Sales Tax Act, 1957?
Whether the Karnataka Appellate Tribunal was right in having held that the petitioner is not eligible for deduction under rule 6(4)(n)(iii) of the KST Rules, 1957 on the payments made to sub-contractors merely because the petitioner could not produce proof that the sub-contractors had declared the turnovers corre sponding to such payments in the monthly statements/annual returns filed by them, when the petitioner had furnished proof that the subcontractors were dealers registered under the KST Act, 1957 which was substantial compliance with the rule to entitle to the petitioner to the deduction claimed?
Whether the Karnataka Appellate Tribunal was right in having held that the petitioner was liable to pay purchase tax under section 6 of the KST Act, 1957 on the purchases of sand and jelly in spite of the fact that the dealers who sold the sand and jelly to the petitioner had attained total turnovers exceeding ₹ 2,00,000 in the year and therefore were liable to registration and payment of tax?
Held that:- The Tribunal was in error in holding that the payments made by the petitioner to the sub-contractors would come within the purview of turnover and liable to pay turnover tax of three per cent under section 6B of the Act. Accordingly, we answer the question of law framed hereinabove one and two in favour of the revision petitioner and against the Revenue on the facts of this case only.
Insofar as question No. 3 which is formulated hereinabove, the authorities have considered the submissions and also the material placed by the revision petitioner and have come to a conclusion that the petitioner is liable to pay purchase tax and we do not see any grounds to deviate from the said view taken by the authorities. Accordingly, we confirm the said view and answer question No. 3 in favour of the Revenue and against the assessee. Appeal allowed in part.
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2009 (11) TMI 863 - ALLAHABAD HIGH COURT
Recovery proceedings against the personal assets of the petitioners - whether the tax dues from the corporate body can be recovered from the assets of the directors of corporate body?
Held that:- The facts and circumstances of the case that the arrears of tax dues against the company cannot be recovered from the personal assets of the petitioners who were the directors of the company. Hence, the recovery notice against the petitioner (annexure 1 to the petition) is not sustainable in law and is liable to be quashed.
The writ petition, therefore, succeeds and is allowed. The recovery notice issued against the petitioner (annexure 1 to the petition) is quashed.
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2009 (11) TMI 862 - ALLAHABAD HIGH COURT
Bogus transactions - Held that:- In the instant cases, the custom authorities at Bhairwan (Nepal) has informed the Department that they never issued such certificates. In spite of several opportunities, the assessee has not brought any certificate issued by the Indian Custom Office at Bhairwan. However, the assessee has claimed that custom fee was paid by the dealer who has received the goods in Nepal. The payment was received from Nepal by way of pay order.Hence, the transaction pertaining to export becomes doubtful.
In the instant cases, if the export to Nepal will be found bogus then it will have to be added as a sale in the State. So, D.C. (Executive) has rightly restored the cases pertaining to the State Sales Tax Act as well as Central Sales Tax Act for both the assessment years under consideration. Thus the assessing officer will decide the issue de novo by considering the entire evidence and by providing the reasonable opportunity of being heard to the assessee
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2009 (11) TMI 861 - ALLAHABAD HIGH COURT
Benefit of section 4BB of the Act - Held that:- The benefit of Sec 4BB is the statutory benefit and the assessees are entitled for the said benefit. To this effect, the Commissioner has already issued a circular No. 554 dated July 22, 2004. See Diksha Suri v. ITAT [1997 (5) TMI 20 - DELHI High Court], Union of India v. Paras Laminates Pvt. Ltd. [1990 (8) TMI 140 - SUPREME COURT OF INDIA] and Commissioner of Income-tax v. Ramamurthi [1976 (10) TMI 18 - MADRAS High Court] wherein the said benifit already allowed.
Set aside all the impugned orders passed by the Tribunal and restored the matter back to the Tribunal to decide the issue de novo
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2009 (11) TMI 860 - KARNATAKA HIGH COURT
Whether the petitioner herein has to pay the turnover tax on the ale of packing material based on the notification dated March 30, 1994 at the reduced rate of tax of second sale at one per cent. instead of 2.5 per cent?
Held that:- If the package material used by the assessee for selling its product, i.e., cement has suffered tax earlier. The same has to be considered as second sale or subsequent sale or whether the package material has suffered tax earlier or not, it can be answered by the assessing officer. In the circumstances, answering the questions of law in favour of the assessee holding that if the package material has suffered tax earlier and it is used for selling its product, in the light of the notification dated March 30, 1994 the turnover tax attracts only one per cent. of the tax considering it as second sale or subsequent sale. In order to ascertain the actual facts in the case, we have set aside the order of the assessing officer and remitted the matter for fresh consideration in accordance with law. Accordingly, this appeal is allowed and matter is remanded to the assessing officer who shall consider the matter afresh and pass an appropriate order within an outer-limit of six months from the date of receipt of the copy of this order.
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2009 (11) TMI 859 - ALLAHABAD HIGH COURT
Whether the Corporation cannot be treated as manufacturer?
Held that:- The present case is referred to the committee to be constituted as directed by the apex court, if not already functional and the said committee will look into the matter and redress the dispute raised in the present petition. It is further directed that until the decision by the aforesaid committee, recovery proceeding shall be kept in abeyance and the same shall be subject to the order that may be passed by the said committee.
In view of the observation made above, the present revision is disposed of.
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2009 (11) TMI 858 - MADRAS HIGH COURT
Revision of assessment - Form F accepted - CST Act - TNGST Act - Held that:- It is now settled that once form F has been accepted and an assessment has been made on the basis of form F declaration filed by the assessee, revision of assessment cannot be made unless or otherwise the assessing authority has recorded a finding that assessment has been completed by fraud, misrepresentation or collusion - the writ petitions are dismissed.
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2009 (11) TMI 857 - KERALA HIGH COURT
Whether exhibit P9 assessment is unsustainable in view of the fact that it is issued totally in violation of the provisions contained in section 17D?
Held that:- In view of the directions contained in the judgment of the Division Bench, Hindustan Petroleum Corporation Limited v. Assistant Commissioner [2009 (10) TMI 876 - KERALA HIGH COURT] exhibit P9 is not sustainable. Therefore exhibit P9 is hereby quashed and the second respondent is directed to issue fresh orders.
Since the application for benefit under the Amnesty Scheme was submitted by the petitioner at a time when exhibit P9 revised order of assessment was not issued, the orders permitting payment under the Amnesty Scheme issued as evidenced by exhibit P10 is liable to be quashed.
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2009 (11) TMI 856 - MADRAS HIGH COURT
Disallowance of turnover in a sum of ₹ 3,57,41,932.63 as the consignment sale which claim was rejected by the assessing officer and whether treating the transaction as inter-State sale falling under section 3(a) of the Central Sales Tax Act, 1956 is correct or not?
Held that:- The issues raised by the Revenue in the present writ petition being questions of fact which were thoroughly considered by the lower authorities they do not warrant any interference. W.P. dismissed.
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2009 (11) TMI 855 - PUNJAB AND HARYANA HIGH COURT
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the erection of body on the chassis would amount to sale, contrary to the judgment of the honourable Supreme Court in State of Gujarat (Commissioner of Sales Tax, Ahmedabad) v. Variety Body Builders [1976 (4) TMI 190 - SUPREME COURT OF INDIA]?
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that there would be no effect with regard to tax liability of the dealer even if the transaction is held to be inter-State sale?
Held that:- The first question of law does not survive as it has already been answered against the dealer-appellant by the honourable Supreme Court in the case of Commissioner of Commercial Taxes, Mysore v. M.G. Brothers [1974 (10) TMI 81 - SUPREME COURT OF INDIA]
On the issue of inter-State sale, the Tribunal has opined that even if the contention raised by the dealer-appellant is accepted and it was treated as an inter-State sale on account of movement of goods from Punjab to Haryana, still the fact remains that the tax was assessable at four per cent, which has been charged by the respondent-State. Accordingly, the Tribunal has concluded that no useful purpose would be served by remanding the matter for fresh assessment, especially when the dealer-appellant did not show the transaction to be inter-State sale. Therefore, we are of the view that there would be no tax effect on the dealer-appellant in the facts and circumstances of the present case. Accordingly, while leaving the question of law open, we dismiss the appeal.
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2009 (11) TMI 854 - MADRAS HIGH COURT
Whether, in the facts and circumstances of the case and in law, the Sales Tax Tribunal was justified in setting aside the order of the Appellate Assistant Commissioner without finding any illegality in the order of the Appellate Assistant Commissioner partly allowing the appeal?
Whether, in the facts and circumstances of the case and in law, the Sales Tax Tribunal was justified in treating the loan transaction as a sale also on the ground that the petitioners are not financiers?
Whether, in the facts and circumstances of the case and in law, the Sales Tax Tribunal ought to have held that the levy of penalty was unjustified and illegal?
Held that:- In a best judgment assessment, guesswork is inevitable but it should be a reasonable one. The AAC was justified in finding that the estimated assessment from serial Nos. 1 to 96 was unreasonable. In our considered view, the Tribunal was not justified in interfering with the order of the AAC in respect of slip No. 1 insofar as the estimated assessment.
The Tribunal did not keep in view the documents produced by the assessee. The Tribunal was not right in saying that the amount could not have been taken from business. The assessee is a dealer in buying and selling of utensils having daily collections. Therefore, it cannot be said that the amount so paid to M/s. Reliance Electricals was a colourable device to evade purchase transaction. When the findings of the AAC were based on documents, the STAT was not justified in raising doubts and interfering with the findings of the AAC. In such view of the matter, the order of the STAT in respect of slip No. 3 cannot be sustained.
Tax revision is partly allowed. Insofar as slip Nos. 1 and 3, the order of the STAT is set aside. Insofar as addition of ₹ 4,95,816 in respect of transaction with M/s. Kalaivani Metals, the order of the STAT remitting the matter back to the assessing authority is confirmed. The assessing authority shall consider the matter afresh after affording sufficient opportunity to the assessee and also to the Revenue and pass orders in accordance with law within a period of three months from the date of receipt of copy of this order.
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2009 (11) TMI 853 - MADRAS HIGH COURT
Whether the second respondent has no jurisdiction to demand and collect any amount of tax, inasmuch as he is not the "assessing authority", as defined under section 2(5) of the Tamil Nadu Value Added Tax Act, 2006?
Held that:- At this stage of hearing of the writ petition, the learned counsel appearing on behalf of the petitioner had submitted that it would suffice, if the second respondent is directed to dispose of the representation of the petitioner, dated October 27, 2009, on merits and in accordance with law, within a specified time fixed by this court, after giving an opportunity of the hearing to the petitioner. He had also prayed that till the second respondent disposed of the representation of the petitioner, dated October 27, 2009, the second respondent may be directed not to deposit the cheques issued by the petitioner on October 8, 2009.
Thus the second respondent is directed to dispose of the representation of the petitioner, dated October 27, 2009 on merits, and in accordance with law, within a period of four weeks from the date of receipt of a copy of this order, after giving an opportunity of hearing to the petitioner. Further, the second respondent is also directed not to deposit the cheques bearing cheque Nos. 985128, 985129, 985130, 985131, before disposing of the representation of the petitioner, dated October 27, 2009, as directed by this court.
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2009 (11) TMI 852 - MADRAS HIGH COURT
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... ... ..... s under 21. . . Even though in a given case or more than one case, the quantum of turnover suppressed or the tax sought to be avoided also, at times, may be one and the same, if the particular assessee, at the time of final assessment, found to have otherwise paid any amount already before such final assessment, sufficient to go to reduce the tax liability ultimately determined, the imposition of penalty to that extent is reduced. . . Since cheque bearing No. 697629 dated January 7, 1998 for Rs. 14,905 was given by the assessee even on January 7, 1998, as per the above decision, levy of penalty under section 12(3) of the Act is not justified. Both the AAC (CT) and the STAT have not taken note of the payment of the amount by way of cheque dated January 7, 1998 and therefore, the impugned orders cannot be sustained. In the result, the orders passed by the Appellate Assistant Commissioner (CT) and Sales Tax Appellate Tribunal are set aside and the revision is allowed. No costs.
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2009 (11) TMI 851 - MADRAS HIGH COURT
Branded chips - whether taxable at 12.5 per cent under Part C of the First Schedule to the Tamil Nadu Value Added Tax Act, 2006?
Held that:- As far as the present case is concerned, once a clarification is given by the Commissioner of Commercial Taxes, that will bind the subordinate assessing authorities and one cannot expect a different order from the assessing officers. In these circumstances, no fruitful purpose would be served by directing the appellant to go for an assessment and for that reason, not to entertain the writ petition. That apart, in the present case, for the very branded products, there is a well reasoned Division Bench judgment of another High Court in Pepsico India Holdings Pvt. Ltd. v. State of Assam [2009 (4) TMI 853 - GAUHATI HIGH COURT].
It is a settled proposition that in tax matters, when there is a Division Bench judgment of another High Court on a similar provision, it has to be treated with due respect and in the instant case, since the Guwahati High Court has taken a view that the potato chips sold by the appellant under the same brand name "Lays" and "Uncle Chips" are held to be classifiable as processed vegetables and not to come under a residuary entry which is according to us also otherwise correct, there is no reason for us to take a different view.
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