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VAT and Sales Tax - Case Laws

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• 2022 (6) TMI 1210
  
  Classification of goods - Bread-Rusk - Process of manufacturing - to be classified under Entry 9 of Schedule B of the HPVAT Act or is classified as an unlisted item under the residual entry i.e. Part III of Schedule A of the HPVAT Act and subject to VAT @ 12.5% (subsequently increased to 13.5%)? - Burden/onus to prove - HELD THAT:- It needs to be borne in mind that it is now well settled principle of law that in interpreting different entries, attempts shall be made to find out as to whether the same answers the description of the contents of the basic entry and only in the event it is not possible to do so, recourse to the residuary entry should be taken by way of last resort. Hon'ble Supreme Court in MAURI YEAST INDIA PVT. LTD. VERSUS STATE OF UP. [2008 (4) TMI 101 - SUPREME COURT] has held that if there is a conflict between two en....... + More

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• 2022 (6) TMI 1174
  
  Validity of revision proceedings - power of Commissioner and other prescribed authorities to suo motu revise an earlier order - HELD THAT:- The statutory provision of law u/s 33 of the Telangana Value Added Tax Act, 2005, makes it very clear that there is a remedy of appeal against an order passed under section 32 of the Act. In the considered opinion of this court, as the petitioner was heard by the revisional authority while passing the impugned order, and the revisional authority was jurisdictionally competent to pass such an order, the petitioner has to prefer an appeal, keeping in view the statutory remedy of appeal available under the Act. All the grounds raised by the petitioner will certainly be looked into by the appellate authority and the petitioner shall be free to place reliance upon the judgments of the honourable Supreme Co....... + More

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• 2022 (6) TMI 1039
  
  Appealable order or not - endorsement on the application made by the petitioner requested for reopening the assessment for consideration of form H - non deposit of 12.5% of the disputed tax in terms of third proviso to Section 21(1) of the APVAT Act, 2005 - Section 31(1), 31(2) and 31(3)(a) of A.P. VAT Act - HELD THAT:- From a reading of the provisions of Section 31(1), 31(2) and 31(3)(a) of A.P. VAT Act, it is clear that any VAT dealer objecting to "any order" passed or proceeding recorded by any authority under the provisions of the Act other than an order passed by Additional Commissioner or Joint Commissioner or Deputy Commissioner, may within 30 days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed. It is to be noted here that the word used is 'any order'....... + More

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• 2022 (6) TMI 1038
  
  Levy of Compounding fee - Detention of goods alongwith the vehicle - certain documents which otherwise should have accompanied with the goods at the time of movement, were not available - petitioner had already paid the tax levied as one time tax, of course pursuant to the orders passed by this Court - HELD THAT:- Whether the petitioner is liable to pay the compounding fee within the meaning of Section 72(1)(a) of the Act or not, has to be gone into only on the basis of the factual matrix and since the revisional authority under Section 54 of the Act is the final fact finding authority in this kind of cases, before whom the petitioner can very well lay his revision petition by putting forth his case both on facts as well as on law and therefore, without exhausting such an alternative remedy, the petitioner cannot come before this Court to....... + More

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• 2022 (6) TMI 973
  
  Recomputation of tax and imposition of penalty - whether alleged loan transaction of the Assessee was in fact an instance of suppression of purchases or not? - HELD THAT:- It is seen from the impugned order of the Tribunal that a letter was produced from Mr. Sikaria and placed before the Tribunal in which the statement of the account of the Assessee as appearing in the books of Mr. Sikaria was enclosed. It is further seen that on the part of the Assessee, material was placed to substantiate the contentions that the transaction was in fact a loan transaction. In MITTAL & COMPANY VERSUS COMMISSIONER OF SALES TAX, UP., LUCKNOW [1987 (8) TMI 420 - ALLAHABAD HIGH COURT], it was rightly pointed out that although the initial onus was on the Assessee to show that no sale was made, the question arose as to how the Assessee is expected to disch....... + More

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• 2022 (6) TMI 972
  
  Reduction of assessment framed under Section 12 (4) of the Orissa Sales Tax Act, 1947 - purchase and sales suppression - business was only four months old on the date of inspection - HELD THAT:- The Tribunal appears to have overlooked the fact that the Assessee had only conducted four months of business in the year in question and that was one factor that weighed with the ACST in reducing the enhancement of the taxable turnover to thrice the actual amount of suppression. In the considered view of the Court, since this was a new venture and it is possible that the Assessee was not fully aware of all the legal requirements, the view taken by the ACST enhancing the taxable turnover to three times the actual suppression did not call for interference. It could not be said to be arbitrary or unreasonable. This Court restores the order of the AC....... + More

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• 2022 (6) TMI 971
  
  Enhancement of tax demand - enhancement of assessment without taking recourse to Rule 50(3) of the Orissa Sales Tax Rules, 1947 - whether enhancement is beyond jurisdiction and not based on material facts on record? - enhancement of turnover in absence of any materials to establish that the goods found short have been sold - determination of sales turnover by the Tribunal can be held to be based on lawful and valid nexus and sustainable in law or not? - validity of disposal of second appeal by the Tribunal without compliance of Rule 57 of the Rules for service of notice inviting cross-objection is justified in view of Section 23(3)(b) of the OST Act read with Rule 52 of the Rules? Whether, such enhancement directed by the Tribunal under Annexure-3 is legally justified? - HELD THAT:- On a bare reading of the impugned order under Annexure-3....... + More

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• 2022 (6) TMI 857
  
  Validity of assessment order - no opportunity granted, prior to framing of the impugned assessments - violation of principles of natural justice - HELD THAT:- After referring to the verification to be undertaken by the Assessing Authorities in regard to the materials in his possession, at paragraph 3.3.5, the Assessing Authority is required to issue notice along with all details connected to the assessment and seek objections from the assessee concerned. Thereafter, a personal hearing shall be afforded, either physically or virtually, granting adequate opportunity to the dealer to put forth its objections. The Circular bearing No.5/2021 also envisages a request of the assessee for cross examination of the third party dealer. It also provides for such an opportunity of cross examination to be granted suo motu, if the Assessing Authority be....... + More

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• 2022 (6) TMI 772
  
  Concessional rate of tax - purchase of tin containers, for packing purposes, against Form XVII declaration - levy of penalty under section 3(3) of the TNGST Act - quantum of penalty at 150% imposed on the petitioner by the assessing officer, which was restricted to 100% by the appellate authority - assessment years 1990-91, 1991-92 and 1992-93 - HELD THAT:- Considering the fact that prior to amendment of section 3(3), the packing materials were excluded from the concessional rate of tax against form XVII declaration and there is no material to prove that the tin containers purchased by the petitioner were used in the manufacturing activity, this court finds no good reason to interfere with the well considered findings of the Authorities below, disallowing the concessional rate of tax under section 3(3), against issuance of form XVII decla....... + More

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• 2022 (6) TMI 701
  
  Maintainability of petition - availability of alternative remedy of appeal - Validity of assessment order - works contract - transfer of the property took place on the ONGC platform - part of the State of Maharashtra or not - movement of goods from the State of Maharashtra to Mumbai High - inter-state sale or local sale - case of petitioner is that the transfer of the property in goods imported in execution of the work contract is outside the State of Maharashtra and thus the State of Maharashtra has no jurisdiction to levy tax - concept of a separate delivery of such goods in such a contract - HELD THAT:- It is not in dispute that the petitioner has filed this writ petition under Article 226 of the Constitution of India impugning the order of assessment passed by the assessing officer on 30th December, 2015 under section 23(4) of MVAT Ac....... + More

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• 2022 (6) TMI 700
  
  Validity of assessment order - levy of interest on belated payments of taxes in terms of Section 42(3) of the TNVAT Act - HELD THAT:- Admittedly, no show cause notice for the levy of interest was ever issued - One feature in the 2016 assessments is that the computations refer to the position that admitted taxes, as per the returns filed under the Act, were itself not settled. In such an instance, the petitioner is liable to pay interest in terms of the Section 42 of the Act in regard to the admitted tax and such a levy is automatic. However, the impugned notice does not make a distinction between the components of the tax being admitted tax & tax levied on additions made in assessment upon which interest has been levied, had this been done, and the assessing authority made a bifurcation as regards the interest related to the belated p....... + More

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• 2022 (6) TMI 671
  
  Issuance of Garnishee Notices - non-service of pre-assessment notices as well as assessment orders - composition scheme - dispute over turnover - execution of civil work relating to construction of roads - HELD THAT:- Any VAT dealer who executes a contract and opts to pay tax by way of composition, must register himself as a VAT dealer and he shall pay tax at the rate of 5% of the total consideration received or receivable. In a case where the VAT dealer opts for composition he shall before commencing execution of the work notify the prescribed authority in Form VAT 250 details of the contract on which composition option has been exercised. On receipt of the payment by the VAT dealer, he shall calculate the tax at 5% of the amount received and shall enter such details in Form VAT 200 whereafter the tax due shall be paid along with the ret....... + More

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• 2022 (6) TMI 654
  
  Maintainability of petition - availability of alternative remedy of appeal - exclusion of period spent by the petitioner before this Court for the purposes of calculating the period of limitation before the Tribunal - HELD THAT:- The preliminary objection raised by the learned Advocate General, has to be sustained and the writ petition deserves to be dismissed on the ground of availability of an effective alternative remedy against the order impugned in the writ petition. However, there are merit in the argument raised by Mr. Z.A. Qureshi, learned senior counsel representing the petitioner on the issue that the period spent by the petitioner before this court be excluded for the purpose of calculation of limitation for filing the appropriate application before the Tribunal. Hence, it is directed that, in case the petitioner files the appl....... + More

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• 2022 (6) TMI 608
  
  Validity of assessment order - reversal of Input Tax Credit (ITC) in terms of Section 19(2)(v) of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The Division Bench of this Court in the case of THE STATE OF TAMIL NADU REPRESENTED BY ITS SECRETARY COMMERCIAL TAXES DEPARTMENT, THE DEPUTY COMMISSIONER (CT) (FAC) VERSUS M/S. EVEREST INDUSTRIES LIMITED [2022 (4) TMI 1204 - MADRAS HIGH COURT] has decided the issue in favour of the assessee and it was held that Amendment Act 5 of 2015 is curative / declaratory in nature and would thus relate back to 11.11.2013, resultantly, the position insofar as the right of the manufacturers to avail ITC is, it becomes an absolute right, once the inputs are used in the manufacture or processing of the goods within the State, the subsequent event of the manufactured goods being sold by way of iner-state....... + More

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• 2022 (6) TMI 425
  
  Validity of assessment order - all the three authorities were of the view that no reconciliation statement has been produced, books of accounts have not been produced and therefore, the assessment was completed is in the nature of best judgment assessment - HELD THAT:- Partially the appellant has to be blamed for the present position. The transferor company stood amalgamated with the appellant with effect from 1st November, 2007 though the scheme of amalgamation was approved by this Court on 26th June, 2009. The period for which the assessment has been made, which is the 4th quarter ending 2009 is obviously much after the order of this Court approving the scheme of amalgamation dated 26th June, 2009. Be that as it may, by operation of law, the transferor company, namely, M/s. Metco Group Engineers Pvt. Ltd. loses its identity on and after....... + More

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• 2022 (6) TMI 374
  
  Recovery of dues - priority of charges - default in payment of Loan Cash Credit etc. by previous owner of property M/s Dev Bhumi Ispat - overriding effect of SARFAESI Act and RDB Act over HPVAT Act - HELD THAT:- SARFAESI Act as well as RDB Act are Central Legislations whereas HPVAT is a State Legislation. SARFAESI Act and RDB Act declare priority of secured creditors upon secured assets over all revenues, taxes, cesses and other rates payable to Central Government or State Government or local authorities. Provisions of Section 31-B of RDB Act are also the same. Section 26 of HPVAT creates first charge on property of dealer or such other person from whom any amount of tax or penalty including interest is recoverable - As has been reiterated by the Supreme Court in UCO Bank’s case [2017 (1) TMI 742 - SUPREME COURT], by virtue of provi....... + More

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• 2022 (6) TMI 300
  
  Benefit of the concessional rate of tax - C-Forms issued by the purchaser located in the State of Rajasthan - registration of the dealer i.e., the purchaser located in the State of Rajasthan was cancelled, with retrospective effect - inter-state sale - HELD THAT:- Since the Tribunal is the final fact-finding authority, it ought to have given an opportunity to the appellant that the subject transaction were inter-state sale transactions, contrary to what was contended by the respondents/revenue - Tribunal could have also taken recourse to an alternative route, which was to remand the matter to the Assessing Officer for determination of this very issue i.e. whether or not the subject transactions were inter-state sales transactions. Concededly, the Tribunal took recourse to neither route, and simply ruled against the appellant, both in the ....... + More

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• 2022 (6) TMI 280
  
  Levy of tax with penalty u/s 10A of the CST Act - transfer of right to use goods - revised show cause notice issued without meeting out the legal requirements - alleged misuse of 'C' Forms in respect of purchases made by the appellant - HELD THAT:- It is evident that the respondent refused to examine the contentions raised by the appellant with respect to the control and possession over all goods at all times, but never parted with it, as the same are irrelevant. In any event, the respondent has already decided to conclude levy of tax and penalty against the appellant, without even waiting for the objections filed by them. While so, the revised notice issued by the respondent cannot be allowed to be sustained. The learned Judge failed to consider the same and erred in directing the appellant to file their objections to the impugne....... + More

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• 2022 (6) TMI 203
  
  Adverse remarks against the officer of VAT department acting as AO - Order of the High Court - Validity of provisional assessment order - ex-parte order - proper service of notice or not - HELD THAT:- In the impugned order dated 29.02.2016 relating to the merits of the case are concerned, no comments are required in that relation, for the same having not been challenged by the State. However, even when all the findings of the High Court in the principal part of order dated 29.02.2016 are accepted, they would only lead to the result that the impugned actions in drawing up ex parte assessment orders and then seeking to enforce recovery as also the impugned action in rejecting the application for registration of change of place of business did not meet with the approval of the High Court. Such disapproval of the High Court had been essential....... + More

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• 2022 (6) TMI 202
  
  Recovery of dues towards tax - Right of secured creditors - creation of first charge - Section 48 of the GVAT Act, 2003 - HELD THAT:- What came to be purchased by the writ-applicant in the auction proceedings conducted by the Bank of Baroda was a secured asset under the provisions of the SARFAESI Act. In such circumstances, the State cannot claim preference over the subject property for the purpose of recovery of the dues towards tax. It is not in dispute that the first charge was created in favour of the bank and the bank in exercise of its powers under the SARFAESI Act, put the subject property to auction. It is hereby declared that the State cannot claim any first charge over the subject property by virtue of Section-48 of the GVAT Act, 2003. The decision of the Mamlatdar, Vadodara (Rural) contained in the Letter dated 04.02.2022 at Annexure-H to this writ-application is hereby quashed and set aside. This writ-application succeeds and is hereby allowed.

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