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2015 (8) TMI 637 - HC - VAT and Sales TaxPre-Determination – Deemed Waiver – Appellant was informed that next date of hearing would be intimated later, but no subsequent date of hearing was indicated by commissioner – Since Commissioner failed to make any determination within prescribed period, proposed determination as indicated by Appellant would have been deemed to be issued by Commissioner – Whether tribunal was justified in holding that there was deemed waiver of application for pre-determination – Held that:- three conditions were to be satisfied for Commissioner having deemed to have issued determination in terms of Section 84(6) – All three condition were not fulfilled in current case – Admittedly, Appellant had already applied to transactions for determination of rate tax at 4% but failed to implements transaction which were subject matter of application as per Section 84 (6)(b) – Therefore, commissioner could not be deemed to have issued 'proposed determination' – Tribunal was not right in holding that there was waiver of deemed application for predetermination – Appellant would nevertheless not have been able to avail benefit of Section 84(6), since Appellant did not satisfy condition (b) under Section 84 (6) – Determination of tax and interest by VATO upheld, but levy of penalty and corresponding interest on such penalty amount set aside – Petition disposed of. Classification of DSCs – Fixation of Taxation rate – Whether Tribunal was right in holding that Digital Still Image Video camera was not classified and covered by Entry No.41 or 41A clause 15 and that there was deemed waiver of application for pre-determination – Held that:- (1st April 2005 to 7th August 2005) Term IT products has been described to include computers, peripherals etc but not DSCs which were distinct species as apparent from Entry 8525 40 listed in ITA – Legislature did not included DSCs in Entry 41 till 29th November 2005 – Prior to change brought DSCs were not part of IT products – Entry as it read could not be said to have included DSCs – Therefore impugned order of AT upholding determination of VAT and interest thereon not interfered with – AT was right in holding that DSCs was not classified and covered by Entry No 41 or 41A – Decided partially in favour of Assesse. (30th November 2005 to 31st December 2007) Bracket preceding words 'other than' in Item 15 of Entry 41 A, closing with bracket after words 'digital still image video cameras' was certainly unique to Delhi statute – Brackets really do not serve any particular purpose – To accept brackets as they are and to try to make some sense out of it would result in acknowledging that DSCs belong to species of transmission apparatus which it obviously was not – DSCs were not transmission apparatus and therefore brackets could not have brought out unintended result of excluding such equipment, viz., DSCs from first item viz., 'transmission apparatus' – Therefore correct way to read Article 15 in Entry 41A to DVAT Act was to read it without two brackets and to read it in manner that item 'digital still image video cameras' was not excluded from ambit of Entry 15 – Thus period between 30th November 2005 to 31st December 2007, Appellant would be liable to pay 4% tax and not 12.5% on turnover of sales of DSCs – Decision of Tribunal and VATO hereby set aside – Neither interest nor penalty would be liable to be paid – Decided in favour of Assesse.
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