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Showing 81 to 100 of 681 Records
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2009 (6) TMI 947
Whether the petitioner is liable to produce any further proof with respect to payment of input tax, for which refund is claimed?
Held that:- In this case it is evident that the dealer had produced bills with respect to purchases made by him, evidencing payment of input tax. Further he had produced copies of demand drafts evidencing payment of tax to various Forest Depots within the State. These documents will definitely prove the payment of input tax. Production of these documents can definitely be considered as discharge of the burden cast upon the dealer to prove his claim for refund. Therefore, the dealer had successfully discharged the burden of proving his entitlement for refund.
The dealer cannot be burdened with production of any additional evidence. His initial burden of proving entitlement for refund should be presumed as discharged, on his production of materials which will clearly indicate payment of input tax. It is for the assessing authority to do any further cross-verification, for which the dealer could not be insisted for production of any additional proof or certificates. Thus the rejection of the claim for refund ordered through exhibit P4 is hereby quashed.
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2009 (6) TMI 946
Works contract - inter-state sale - The petitioners claimed exemption on the ground that movement of goods from outside the State to Kerala is under contract of sale and so much so it is an inter-State sale assessable outside Kerala - Held that: - transfer of property in goods admittedly took place in Kerala when the goods are appropriated to the contract that is by laying pipe in the location identified by the awarder. Until then the goods were retained by the petitioner at their risk in their godown. A trader making inter-State purchase or bringing goods on stock transfer and selling the same later becomes liable for payment of tax under the Kerala General Sales Tax Act on sale of such goods. The position is not different so far as contractors are concerned, who bring goods from outside the State either as stock transfer or as inter-State purchase, stock them in their godown and later use them in the execution of works contract - the Tribunal rightly held that the transfer of materials in the course of execution of work in Kerala does not amount to inter-State sale of goods from Mumbai to Kerala - petition dismissed - decided against petitioner.
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2009 (6) TMI 945
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... ... ..... Sales Tax Acts of the different States but at the highest a transfer of an actionable claim. The decision to the extent that it held otherwise is accordingly overruled though prospectively with effect from the date of this judgment. In the order impugned in this revision, the assessment related to the year 1989-90. The Constitution Bench(1) having now taken a view that the sale of lottery ticket does not involve sale of goods within the meaning of the Sales Tax Act and at the highest, a transfer of an actionable claim, the impugned proceedings in so far as it held that the business turnover of the (1)Reported as Sunrise Associates v. Government of NCT of Delhi 2006 3 VST 151 (SC) 2006 145 STC 576 (SC). assessee by virtue of sale of lottery tickets can no longer be held to be a sale of goods attracting the provisions of TNGST Act for the future years. With that observation, the tax case revision is disposed of. The question of law raised is answered in favour of the assessee.
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2009 (6) TMI 944
Whether form 25A is not required to be furnished by a dealer if he is first seller of goods falling under the Fifth Schedule?
Held that:- Even if form 25A was obtained and produced by the respondent, the same would have served the very same purpose of getting details of the purchasers who are registered dealers in the State. In other words, in our view, the sale bills will serve the purpose of form 25A, when the first sale is to a registered dealer in the State. Therefore the later order of the Tribunal allowing the claim in favour of the respondent-assessee is correct and is in accordance with rule 32(13C) of the Rules. The first order of the Tribunal issued for this year was patently wrong as it was against the express provision in the rule. There is nothing wrong in the Tribunal correcting it through review proceedings.
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2009 (6) TMI 943
Penalty orders issued under section 45A of the Kerala General Sales Tax Act challenged - Held that:- Since unaccounted purchase of goods by the appellant from outside State by purchasing D. Ds. in the name of employee is the only irresistible conclusion possible from the facts established by the Department, penalty was rightly levied. Even though the appellant submitted that penalty sustained at one and a half times the tax is high, we do not think any quantum relief is called for because for failure of the Department to file revision against Tribunal's orders, appellant escaped from tax and interest liability which will be more than the penalty. The writ appeal is accordingly dismissed confirming exhibits P15 to P18 orders of penalty on merits.
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2009 (6) TMI 942
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... ... ..... 4)(b) authorises penalty only if there is attempt of evasion of tax on the transaction, pursuant to which goods are transported, penalty cannot be levied on the transaction because it is an interState purchase from outside the State and transport to the assessee 39 s place of business in Kerala. We therefore do not find any justification to sustain the order of penalty confirmed by the Tribunal. In fact, in our view, if there is co-ordination between the excise and sales tax authorities, they can ensure collection of sales tax in respect of liquor purchased, transported and stored under the permits issued by the excise authorities. The goods transported in this case are covered by permit issued by the excise authorities. We therefore cancel the penalty confirmed by the Tribunal. Consequently the revision filed by the assessee is allowed and that of the Revenue is dismissed. Penalty collected if any will be adjusted towards tax liability or otherwise refunded to the assessee.
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2009 (6) TMI 941
Whether the Appellate Tribunal was correct in holding that the concessional levy was rightly disallowed since no goods were manufactured inside the State for sale by him of any goods liable to tax when the statute permits the petitioner to make use of form XVII in the works contract?
Whether the Appellate Tribunal was correct in not considering the correct provision exists during the year 1990-91, even though the same was raised in the grounds and also argued at the time of hearing?
Held that:- Admittedly, the assessment year in question is 1991 pertaining to the period from April 1, 1990 to March 31, 1991, viz., during the relevant assessment period, the sub-clause (iii) of section 3(3) which specifically provides that involved in the execution of works contract shall be at only three per cent on the turnover relating to such sale would mean that if a product was purchased utilising form XVII and that particular product is utilised in works contract of that person, who has availed form XVII even in that case the tax payable would be only at the concessional rates was very much available under the Act, under which the assessee, under law, is entitled to claim concession and the same was rightly claimed by the assessee.
In view of the fact that the assessee is entitled to seek necessary concession of rate of interest as per section 3(3)(iii) as it then was, which has been rightly claimed by him, we set aside the order passed by the Tribunal and allow the tax case revision, answering the questions of law as stated above in favour of the assessee and against the Revenue.
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2009 (6) TMI 940
Sale of goods within the customs frontiers in India - whether exempted from the sales tax in view of section 5(2) of the CST Act? - whether the learned single judge was right in dismissing the writ petition directing the appellant to avail of the alternative remedy?
Held that:- After careful examination of the facts of the case the learned single judge is perfectly justified in holding that the order passed by the assessing officer is not required to be interfered with and giving liberty to avail of the alternative remedy of filing an appeal against the order of assessment before the appellate authority. The said conclusion arrived at by the learned single judge is legal and valid. Therefore, the order passed by the learned single judge does not call for interference in this appeal.
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2009 (6) TMI 939
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... ... ..... alty on the assessee (petitioner herein). In other words, non-submission of particular form or its wrong submission in itself is not enough to attract the rigour of penalty provision and imposition of Rs. 72,560 on the petitioner by way of penalty under the Act. It is more so in this case because both the authorities below have failed to record any finding of fact against the petitioner so far as their intention to avoid payment of tax is concerned and secondly, how, and why they indulged in submission of wrong forms before the authorities. We are, therefore, not inclined to concur with the reasoning and conclusion of two authorities below impugned in this writ. In view of foregoing discussion, the petition succeeds and is allowed. Impugned order dated April 24, 2003 passed by the Deputy Commissioner, Commercial Tax, Indore (annexure P1) is set aside. As a consequence, penalty imposed on the petitioner by order dated October 3, 2002 by Check-post Officer is quashed. No cost.
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2009 (6) TMI 938
Whether, on the facts and in the circumstances of the appellant's case, was the revisional authority right in holding that the appellant was liable to resale tax under section 6B of the Act, in so far as the payments made to the sub-contractor?
Held that:- There is a registered sub-contractor to whom the work is entrusted by the appellant-contractors. It is not the case of Revenue that the sub-contractor is not a registered dealer under section 10 of the KST Act and not paid the tax on taxable turnover in respect of transfer of goods for the execution of work in favour of contractor. Thus we answer the substantial question of law in favour of the appellant-assessee.
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2009 (6) TMI 937
Penalty order challenged - Held that:- As according to the third respondent, there is mens rea embedded in this case which attracted levy of penalty. So the revisional authority, namely, the third respondent considered the question raised by the petitioner with respect to the mens rea and came into a specific finding against the assessee and in favour of the Revenue. W.P. dismissed.
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2009 (6) TMI 936
Whether, in the facts and circumstances of the case, the Tribunal is legally correct in having deleted the penalty levied under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 based upon the decision in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) [2001 (10) TMI 1100 - MADRAS HIGH COURT] while for the assessment year 1980-81 penalty is leviable under section 12(5)(iii) of the Act for filing of incorrect and incomplete returns and therefore the said decision cannot be applied to this case?
Held that:- The conduct of the respondent-assessee in not including the freight charges and packing charges in the taxable turnover cannot be held to be a deliberate or intentional act on its part with a view to defeat its tax liability. On the other hand, the submission of the return of the respondent-assessee during the relevant year was fully supported by the Division Bench decision of this court which held the field till the year 1992 when it came to be reversed in the decision of the honourable Supreme Court in Ramco Cement Distribution Co. Pvt. Ltd. v. State of Tamil Nadu [1992 (10) TMI 228 - SUPREME COURT OF INDIA]. As held in the decision of this court reported in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) [supra], under section 12(4) specific expression used is "may " for the purpose of levying of penalty.
We are convinced that the order of the Tribunal in having set aside that part of the order of the Assistant Commercial Tax Officer in having imposed penalty was justified and the same was perfectly in order. We therefore answer the question of law against the appellant and in favour of the assessee
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2009 (6) TMI 935
Whether, on the facts and in the circumstances of the case and on a true and correct interpretation of section 2(10) of the Maharashtra Sales Tax on the Transfer of the Right to use any Goods for any Purpose Act, 1985, the Tribunal was justified in holding that the impugned transaction does not amount to a sale under the provisions of the Lease Act?
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that even after consideration that the constructive possession of the computer being given to the contractee mentioned in the impugned invoice the computer continues to be under effective control of the respondents-contractor and, therefore, transfer of right to use the computer by the contractee could not be held to have taken place as covered by the term 'sale' occurring in the Lease Act?
Held that:- In the present case, from the facts noted earlier, it is clear that the goods, i.e., computers and terminals were always in possession of the respondents. They were never delivered or handed over to the ONGC. It may be that as per the requirement of ONGC, fixed time was assigned to them and during that fixed time of the day, staff members of ONGC would come to the office of the respondents to get their work done but during all that period, computers would be operated by the employees of the respondents and not by the employees of the ONGC.
In view of the language of sections 3 and 4 tax shall be leviable on the turnover of sales in respect of transfer of right to use any goods. Unless there is transfer of right to use any goods, the provisions of the said Act will not be attracted and sales tax cannot be levied on such transactions. Taking into consideration the nature of the contract between the respondents and the ONGC and the legal position, it must be held that the Tribunal correctly interpreted the provisions of section 2(10) of the Act while holding that the transaction is not taxable. Decided in favour of the respondents and against the Revenue.
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2009 (6) TMI 934
What is the date for an application for registration as dealer under rule 7(1)(ai) of the Bombay Sales Tax Rules, 1959, where a company court passes an order of amalgamation?
Held that:- No order of a court should visit a party with liabilities and/or undesirable consequences in the matter of tax. The rule must be so read as to give effect to the legislative mandate. The date for applying for registration under section 19(6) for a company, can only be the date of the company court's order. If within sixty days of such order an application is made, then the expression "succession to business" in rule 7(1)(ai) will also be so read. Under rule 8(3)(a)(iii) then it will be the date the company court has ordered or the date provided in the scheme which will be the date of succession to business. This would obviate any difficulty to a party till such time the delegate makes a specific provision in rule 8.
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2009 (6) TMI 933
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... ... ..... wilful nondisclosure of turnover. It is beyond dispute that the entire turnover was disclosed by the appellant in the return read with the accompanying documents. There was no addition to the total turnover. However, the appellant put forward a wrong claim in respect of a part of the turnover on the ground that it represented stock transfers. No doubt, the claim was not accepted. That does not mean that the appellant was guilty of non-disclosure of any turnover. Hence, the penalty provision under section 16(2) is not attracted. The decision of Division Bench of the Madras High Court in Deputy Commissioner of Commercial Taxes, Trichy Division, Trichy v. V.R. Kuppusamy Gounder and Sons 1995 98 STC 408 which interpreted the same provision relating to penalty, fully supports the contention of the appellant. The penalty cannot therefore be sustained in law. For the above reasons, the penalty is set aside. Accordingly, the appeal is partly allowed as indicated in paras 10 and 11.
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2009 (6) TMI 932
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... ... ..... Tribunal set aside the penalty in respect of items remanded for fresh assessment. The contention of the State is that instead of setting aside the penalty, the penalty issue should have also been remanded so that the penalty could be levied afresh if the remanded items are again held to be taxable under the CST Act. No arguments have been addressed in this appeal. Apparently, the State is not keen on pursuing the appeal. The Tribunal adopted the normal procedure of setting aside the penalty when the tax assessment in respect of the same transactions is set aside. From the mere fact that a fresh assessment was ordered while setting aside the assessment on certain items of disputed turnover, it does not automatically follow that there should be a similar direction in respect of penalty. At this distance of time, the initiation of penalty proceedings afresh was apparently considered to be inappropriate by the Tribunal. We are not inclined to interfere. The appeal is dismissed.
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2009 (6) TMI 931
Auction notice challenged - Whether the respondents having first charge over the property, have the right to sell the property?
Held that:- In the present case, it will be evident that the assessee (dealer—M/s. Jay Flash Ceramics Ltd.) mortgaged the land in question in favour of Indian Bank on August 1, 1990. After promulgation of NPA Act, the bank being the secured creditor and mortgaged property being a secured debt, the bank had right to auction sell the property. The assessee (dealer—M/s. Jay Flash Ceramics) becomes eligible for interest-free sales tax on July 5, 1993, i.e., much after the property was mortgaged. Sales tax deferment agreement was reached on September 1, 1993 and April 22, 1996, i.e., much after the properties in question were mortgaged in favour of the bank. In that view of the matter also, the State cannot claim first charge over the property in question nor can it claim any priority over the debts due to the bank.
Thus the respondents had no jurisdiction to auction sell the property in question and the impugned auction notice dated February 5, 2007 issued for auction sale of the property, which was mortgaged with the Bank and which has already been auction sold in favour of one K.O.P. Enterprises and subsequently purchased by the petitioner, is fit to be set aside. W.P. allowed.
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2009 (6) TMI 930
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... ... ..... e address of the ultimate purchaser and therefore it is clear that the subsequent sale is a pre-arranged one between the petitioner and the ultimate purchaser and thereafter petitioner placed the order with the outsider-manufacturer for manufacture and supply of the boiler. Boiler is an equipment manufactured against orders and necessarily manufacturer should be informed about the requirements of the customer. Further it is covered by guarantee and warranty for limited periods. In the first place, we do not think sale of goods in transit can be applied to supply of equipment of this type which is made to order for the customer. The petitioner obviously acted as an agent or as a dealer in between manufacturer and ultimate consumer. Since the petitioner has no agency it is a case of purchase and sale which in the absence of proof of a second inter-State sale under section 6(2) has to be necessarily assessed as a local sale under the KGST. Consequently the ST Rev. is dismissed.
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2009 (6) TMI 929
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... ... ..... poration were manufactured and delivered month after month. The learned counsel for the appellant has fairly stated that it has no case in respect of sales effected to APSRTC. The appeal is therefore dismissed on this item. The appellant should pay the tax under the CST Act on the turnover attributable to sales by RSO, Vijayawada to APSRTC. In other respects, the appeal is remanded to the Commercial Tax Tribunal for fresh disposal after examining the transactions branch-wise and keeping in view the observations in this order. The Tribunal shall, as far as possible, dispose of the appeal within six months. The appellant and the respondent are at liberty to file the relevant statements/documents before the Tribunal. To this extent, the appeal is allowed. It is needless to state that till the matter is decided by the Tribunal, the assessing authority shall not enforce the demand except in regard to the tax payable on the sales of bus chassis to APSRTC through Vijayawada office.
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2009 (6) TMI 928
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... ... ..... hi to encash the bank guarantee on the same day. An urgent application for stay was moved on the same day. By an order dated December 5, 2008, this Authority granted stay till the next date of hearing but, on the same day the bank guarantee was encashed and an amount of Rs. 1,15,64,176 was realized before the stay order was received. The sequence of events would show that the respondent acted in undue haste in realizing the tax by way of encashing bank guarantee. In the circumstances, we direct that the excess tax paid by and collected from the appellant shall be refunded within a period of two months from the date of receipt of this order with interest at nine per cent per annum on Rs. 1,15,64,176 from December 5, 2008 up to the date of payment. This direction is without prejudice to the appellant 39 s right to claim refund of further amount as a sequel to this order. Accordingly, all the three appeals are allowed partly and to the extent indicated in the text of the order.
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