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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 723 Records
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2013 (12) TMI 1743
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... ... ..... eater Noida to Ludhiana. It was not disputed that the driver of the vehicle had presented both the invoices i.e. No. 10137174 and 10137172 in respect of the goods amounting to ₹ 12,55,154/- and ₹ 2,08,780/- respectively. One consolidated GR No. 146715 from Greater Noida to Ludhiana alongwith the packing list was also presented. In such circumstances, it could not be said that there was an attempt to evade tax. Moreover, there was no tax liability at the stage of entry of goods in the State of Punjab as they were coming from Greater Noida to the branch at Ludhaina. The Tribunal had taken different view from the one as had been taken in M/s Karwa Consolidated Marketing Limited's case (supra) under similar circumstances without giving any reasons. No justification has been pointed out for adopting different approach. 8. In view of the above, the substantial questions of law are answered in favour of the assessee and against the revenue. The appeal stands allowed.
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2013 (12) TMI 1730
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... ... ..... elling dealer had been cancelled. The first appellate authority as well the tribunal has recorded a finding of fact that during the relevant period the selling dealer was duly registered and all payments to him were made by the assessee through Bank which stood verified. It has also been recorded that the entire purchases were made by the assessee against the tax invoice which shows that the goods were tax paid. In view of the above, the assessee was entitle to the benefit of input tax credit. I find no illegality in the order of the tribunal. The revision lacks merit and is dismissed.
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2013 (12) TMI 1677
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... ... ..... different companies as has been mentioned in paragraph 2 of the revision itself and there is nothing on record which could establish that the transferee assessee having so permitted the use of trade mark has excluded itself from its use. In view of above, the 4th and 5th conditions as laid down by the Supreme Court do not stand fulfilled. In view of the aforesaid facts and circumstances, the permission to use the trade mark does not satisfy all the five tests as laid down by the Supreme Court in the case of BSNL (Supra) to bring it within the ambit of transfer of rights to use the trade marks. Accordingly, the permission granted for the use of the trade mark would only be treated as licence and not as transfer of right to use the trade mark. It would not be covered by Section 3F of the Trade Tax Act. The tribunal as such has not erred in deleting the tax liability for the use of trade mark under Section 3F of the Trade Tax Act. The revisions have no force and are dismissed.
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2013 (12) TMI 1676
Penalty u/s 45A of the KGST Act - discrepancy in quantity recorded by the petitioner as transported in trucks - Held that:- In the present case, the petitioner have shown 1,000kgs in the delivery note, whereas he has actually transported 10,000kgs. As against 600 kgs he would have transported 6,000 kgs. and likewise, in respect of all the delivery notes, he had transported 10 times the quantity that is shown as per the delivery note and the books of account.
There is a clear finding that when the vehicle was having a capacity of 6,000 kgs to 10,000 kgs and that too national permit vehiclesowned by petitioner. Hence there is every possibility that the petitioner would have carried at least ten times quantity as shown the delivery note. In fact, the assessing officer had only taken ten times, whereas, it is possible that the petitioner would have even carried the full capacity of the truck involved - In fact, the assessing officer had only taken ten times, whereas, it is possible that the petitioner would have even carried the full capacity of the truck. Under these circumstances,we do not think that the petitioner/appellant is justified in contending that the quantum of penalty is excessive.
Appeal dismissed.
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2013 (12) TMI 1631
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... ... ..... rticular case are actually found to have been false, obviously the next logical question would be as to where the goods which are stated to have been sold, interstate, have been actually sold within the State itself, so as to avoid much higher levels of taxation involved. Hence, to determine the above question, since the petitioner is stated to be not cooperating in that regard, despite his being on interim anticipatory bail for the past 2 months, I do not find it to be a case where the concession of pre-arrest bail, as granted vide order dated 5.9.2013, should be continued any further. 20. In view of the above, this petition is dismissed and the interim order dated 5.09.2013, granting interim anticipatory bail to the petitioner is vacated. However, nothing said hereinabove would be taken to be a finding on the merits of the case, but only observations necessary to be made, in the context of the prayer for continuing the concession of anticipatory bail. Petition disposed of.
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2013 (12) TMI 1586
Works contract of civil works - iron and steel - classification of goods - taxable at 4% or 12.5%? - Held that: - Merely because iron and steel are cut into a particular length depending on the requirement and they are bound by wire and converted into a particular shape, the iron and steel do not lose their original characteristics. It continues to be the same product. Even after these beams, pillars, roofs are cast, the rod and steel continues to be in the same position in the buildings or the bridge which is constructed. At no point of time the iron and steel is transformed into a new product/ goods. There is no value addition to the said steel rods and beams. In fact, steel rods and beams. In fact, steel rods are used only to reinforce the cement concrete. It is used because it is iron and steel rod and it continues to be iron and steel rod even after the completion of the building or the bridge which is constructed, in which these iron and steel rods are used. Therefore, it continues to be the declared goods. By virtue of Section 15 of the CST Act, the state has an authority to impose tax. It cannot impose tax more than the tax prescribed in Section 15 of the Act - the Assessing Authority was justifies in levying on these iron and steel rods at 4%.
Point of taxation - Held that: - the sale of goods takes place either by transfer of title or by delivery of possession or at the tome of incorporation of the goods in the course of execution of any works contract. It is a deeming provision. Therefore for any amount to be included in the turnover, the condition precedent in there should be a sale or delivery of possession or incorporation of the goods in the course of execution of any works contract. If none of these events have happened, there is no turnover, If consideration of entering into the works contract, if amounts are paid in advance as mobilization advance, that amount is paid to the contractor to take steps to execute the work. On the date of amount is paid, the contractor neither transfers title in the property nor delivers possession nor incorporates any goods in the work. Therefore the question of treating the advance amount paid as part of consideration for transfer of property in goods would not become turnover and therefore the explanation added to Rule 3 with the object of levying sales tax on advance receipt runs counter to the aforesaid statutory provisions as well as the constitutional provisions.
Tax on bullet tanks - Held that: - the steel plates before it was incorporated has undergone the process of manufacture and ceased to be the steel plates and it has been taken the form of either section or bullet tank. Therefore, the value of the steel plates at the time of acquisition is not the same at the time of incorporation. It was the declared goods at the time of acquisition. It ceased to be declared goods at the time of incorporation. Before incorporation. Before incorporation there is value addition to the steels plates by the process of manufacture. Therefore, the prohibition contained under section 15 of the CST is not attracted and the state legislature has the power to levy tax in terms of Item No.23 of Sixth Schedule on these goods as it does not fall within any of the categories mentioned from Item Nos. 1 to 22 and also for the reason that it is not a declared goods as stipulated under section 14 of the CST Act - the authorities were justified in levying tax at 12.5% in terms of Item No.23 of Sixth Schedule on the bullet tanks.
Appeal allowed - decided partly in favor of appellant.
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2013 (12) TMI 1496
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... ... ..... VST 390 (Karn), whereby, by a detailed order, it was held that at the time of sale of goods, unless the goods purchased had transformed into new goods, as such, it is not liable to be taxed under the residuary provision. If the goods acquired is declared goods and it continued to be declared goods even at the time of sale, may be in different form, the levy of tax should be only as declared goods and not as residuary in nature. In that view of the matter, we do not find any merit in the petitions. The Tribunal has rightly allowed the appeal and granted relief to the assessee. 5. For the aforesaid reasons, we pass the following ORDER The revision petitions are dismissed. The authority shall refund the tax paid, to the assessee within one month from the date of communication of the order, failing which the authority shall pay interest at 12 per cent. and interest shall be collected from the person who was not diligent in obeying the court order and make refund to the assessee.
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2013 (12) TMI 1495
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... ... ..... nterest and penalty are set aside. The assessing authority is directed to furnish a copy of the statements recorded by them of the customers and any other incriminating material they have collected against the assessee and have their say in the matter and if it wants to cross-examine them, to offer them an opportunity to cross-examine and then pass appropriate orders in accordance with law. That would meet the ends of justice. 8. Consequently, the amount paid by the assessee shall be refunded to the petitioner forthwith, failing which, it will carry interest at 12 per cent. per annum from the 31st day. The assessee shall appear before the authorities on December 26, 2013 at 11 a.m. The entire assessment proceedings shall be completed within a period of three months from the date of furnishing of all the incriminating materials, statements, which have been collected from the customers of the assessee including the investigation report, to the assessee. 9. Ordered accordingly.
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2013 (12) TMI 1488
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... ... ..... ice shall be caused to the assessee. However, on the other hand, if the delay is not condoned, in that case, the applicant would deprived of submitting the case on merits which otherwise will not be in the larger public interest looking to the high stake involved and the applicant would not be nonsuited on the technical ground of delay. Under the circumstances, we are of the opinion that the delay is required to be condoned on imposing reasonable cost and the applicant should be given opportunity to submit the case on merits rather than nonsuiting it on the technical ground of delay. 5. In view of the above and for the reasons stated above, present application is allowed and delay caused in preferring the tax appeal is hereby condoned by awarding cost of ₹ 10,000/-, which shall be paid to the respondent within the period of six weeks from today. Rule is made absolute accordingly. Registry is directed to notify main Tax Appeal for admission hearing on December 12, 2013.
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2013 (12) TMI 1477
Recovery of sales tax dues of the company in liquidation. - priority to be observed in the matter of payment of debts in the case of winding up - state act versus central act - Held that:- When the law is one made with reference to entries in the concurrent list, where both Parliament and the State Legislature are sovereign powers in the matter of making laws, again in view of article 254 of the Constitution unless it be a law made by the State, which is reserved for the assent of the President and the assent is received, the State law, would otherwise if it is repugnant to the law made by Parliament, must make way whether the Parliamentary legislation is before or after the legislation made by the State.
We are also not impressed by the contention of the appellant with reference to section 537 of the Companies Act. It is true that sub-section (2) of section 537 provides that nothing in that section applies to any proceedings for the recovery of any tax or impost or any dues payable to the Govern ment. It is true, under section 537(2), when the company is being wound up the embargo in sub-section (1) of section 537 is not made applicable for proceedings for recovery of tax payable to the Government. In the facts of this case, we must notice that there is no case for the appellants that recovery proceedings commenced by the State proceeded beyond the stage of attachment.
The sale held by the company court is for the benefit of all the creditors. The manner in which sale proceeds is to be shared among the various creditors is indicated in the provisions contained in the Companies Act. They include sections 529A and 530 of the Act. The priority itself is to be decided by the company court under section 446(2)(d). If the State is allowed to proceed against the property, despite the sale held as free of encumbrances, the result would be that the sale would become vulnerable and it would also be against what had been held out to the auction purchaser under the aegis of the company court that the sale is being held free of encumbrances. Having regard to the provisions contained in sections 529A and 530, the intention is clear that the law of the land is that the claim of the State must with regard to the amounts due as taxes be subject to the amounts due to the secured creditors and workers.
If the sale is held free of encumbrances and if the State is allowed to pursue its claim as against the property, it would naturally bring the sale under a cloud and there would be no end to the litigation which would in the ultimate analysis be not only against the interests of persons whose interests are sought to be secured by the Companies Act on the basis of priority, but against the scheme of the Companies Act. On this reasoning we find that the impugned order does not suffer from infirmity. - Decided against the revenue.
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2013 (12) TMI 1462
Maintainability of appeal - Held that:- Authority shall not admit or allow the application where the question raised in the application is already pending before any officer or authority of the department or any other authority or appellate Tribunal or in Court and it relates to a transaction or issue, which is designed apparently for the avoidance of tax. In other words, the application before the Advance Rulings Authority has to be made before the question raised for consideration before any officer or authority of the department. If such a question is already decided by the authority, acting on the decision, the assessee can manage his affairs better. The authority who are subordinate to the said Advance Rulings Authority are bound by the opinion of the Advance Rulings Authority. At the same time, once the said question arises for consideration before any officer or authority, the said officer or authority is competent to decide the said issue of the assessee. If he is aggrieved, he is provided with a statutory remedy of preferring an appeal before the appellate authority as well as to the Tribunal.
It is only after inspection of the premises, the authorities issued notices to the assessee calling upon him to produce the documents, a recommendation is made for initiation of reassessment proceedings, and a demand for ₹ 2 crores was made to the assessee which is already paid after protest, the assessee filed the application before the Advance Rulings Authority. If the authorities have accepted the returns as it is and if they had no grievance whatsoever, they would not have called upon the assessee to produce the books of account and would not have collected a sum of ₹ 2 crores as tax even under protest. - So prima facie, the question of exemption is pending before the officer concerned for adjudication and therefore, once such a question is pending before any authority or officer for adjudication, the aforesaid provision makes it clear that an application for advance rulings is not maintainable - Decided against assessee.
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2013 (12) TMI 1449
Detention of goods - Penalty u/s 78 - Whether in the facts and circumstances of the matter, non-submission of any bill, bilty at the time of inspection by the vehicle driver (who was subsequently describes as owner of the goods in question) in relation to the goods in question did not amount to violation of the provisions of Section 78(2)(a) of the Rajasthan Sales Tax Act thereby making the assessee liable for penalty under Section 78(5) of the said Act. - held that:- Supreme Court in the case of Guljag Industries (2007 (8) TMI 344 - SUPREME Court) is quite explicit wherein it was held that ait is not open to the assessees to contend that in certain cases of inter-State transactions they were not liable in any event for being taxed under the RST Act, 1994 and, therefore, penalty for contravention of Section 78(2) cannot be imposed. As stated hereinabove, declaration has to be given in Form ST 18A/18-C even in respect of goods in movement under inter-State sales. It is for contravention of Section 78(2) that penalty is attracted under Section 78(5). Whether the goods are put in movement under local sales, imports, exports or inter-State transactions, they are goods in movement, therefore, they have to be supported by the requisite declaration.
Admittedly, the driver of the vehicle transporting the goods did not have any document with him. In spite of notice dated 14.06.2002, no document including Form ST 18A was sought to be filed. Consequently in my considered opinion, the assessing officer vide order dated 15.06.2002 rightly visited the respondent-assessee with penalty under Section 78(5) of the Act of 1994. The Deputy Commissioner (Appeals) II as also the learned Tax Board however interfered with the order of penalty dated 15.06.2002, passed by the assessing officer without just cause and in fact contrary to the enunciation of law by the Hon'ble Supreme Court tin the case of Guljag Industries (Supra). It is trite that the judgments of the Hon'ble Supreme court operate retrospectively unless the enunciation of law by the Hon'ble Supreme Court is specifically made applicable subsequent to the decision of the Court with reference to doctrine of prospective of overruling. - Decided in favour of Revenue.
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2013 (12) TMI 1448
Denial of input tax credit - Failure to produce the account books, i.e., tax invoices and form VATC-4 or form VATD-1 - Held that:- Petitioner shall be entitled to produce the tax invoices, forms VATC-4 and forms VATD-1 before the Assessing Authority, who shall thereafter, determine the tax liability by deciding the matter by passing a fresh order, in accordance with law. - Decided in favour of assessee.
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2013 (12) TMI 1447
Denial of input tax credit - failed to produce form VATC4 before the Assessing Authority - Held that:- 46 affidavits were submitted by the petitioner and an opportunity was given to the State counsel to verify the correctness and authenticity of the same. - State counsel submits that the genuineness of the 46 affidavits and form C4 regarding the input-tax credit have been verified by the Department and the same are found to be genuine. - respondent No. 4 directed to re-determine the tax liability by taking into consideration form C4, which has been produced by the petitioner and pass a fresh order, in accordance with law - Decided in favour of assessee.
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2013 (12) TMI 1446
What is the procedure to be followed for recovery of dues payable under the Tripura Sales Tax Act, 1976 after the repeal thereof and the enforcement of the Tripura Value Added Tax Act, 2004 especially in a case where the proceedings for assessment are started after the TVAT Act came into force - Held that:- A bare perusal of sub-section (1) of section 89 shows that the Tripura Sales Tax Act, 1976 and Tripura Additional Sales Tax Act, 1990 have been repealed with effect from April 27, 2005, the date of commencement of the TVAT Act. The proviso to the section, however, clearly lays down that despite the repeal of the aforesaid Acts, any right, title, obligations or liabilities acquired, accrued or incurred under the previous Acts shall continue to be valid notwithstanding the repeal of the Act. - Sub-section (3) of section 89 of the Act also makes it clear that all arrears of tax, interest, penalty, fee or other amount due as on April 27, 2005 whether assessed or levied before the said date may be recovered, as if such tax, penalty, interest, fee or other amount is levied under the new Act. The appellate and revisional authorities shall also be as per the TVAT Act. Therefore, the intention of the Legislature is absolutely clear that though the recovery may be made as per the terms of the repealed Acts, the procedure for recovery and adjudication has to be that provided under the TVAT Act.
Therefore, it is only the officers under the TVAT Act who had the jurisdiction to exercise the powers under section 89(2)(b) of the Act and the order passed against the assessee is, therefore, without jurisdiction and it is accordingly set aside. - Decided in favour of assessee.
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2013 (12) TMI 1445
Attachment of the petitioner' current account maintained with the second respondent-Bank as well as withdrawal of a sum of ₹ 6,07,682/- from that account - Held that:- On perusal of the material on record, it is noted that the re-assessment order is passed in respect of M/s. Ambience Projects, which is a partnership firm. That order has no nexus to the petitioner firm and merely because one of the partners in M/s.Ambience Projects is a partner in the petitioner-firm also would not enable the Department to proceed against the petitioner partnership firm to the extent of withdrawing certain amounts from its current account. If recoveries have to be made by the Department, it should be from M/s.Ambience Projects or its partners. If any recovery has to be made from Sri.Hemanshu M.Shah who is one of the partners in M/s.Ambience Projects in his personal capacity then in that regard the details regarding his assets had to be known and hence, a notice could have been issued to the petitioner to furnish the details. - A coercive action against the petitioner who is stranger to the re-assessment proceedings would not serve the purpose at all. In that view of the matter, the attachment of the current account of the petitioner is illegal. - Decided in favour of assessee.
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2013 (12) TMI 1444
Levy of penalty - lorry driver obtained the endorsement from the RTO on the invoices, he has not obtained any endorsement from the check-post of Karnataka - Held that:- When it is clear from the material on record that the documents carried in the lorry was not tendered at any check-post in Tamil Nadu en-route to Karnataka and in Karnataka also it was not tendered at the check-post, the motive behind the same is very clear. The assessing authority rightly held that it is a clear case of non-compliance of the mandatory requirements of law and therefore, it attracts penalty. The first appellate authority was not justified in setting aside the said order solely on the ground that there was no liability of paying tax. The Additional Commissioner of Commercial Taxes, invoked suo motu proceedings and set aside the appeal order and restored the order of penalty passed by the assessing authority. We do not find any justification to interfere with the order. - Decided against assessee.
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2013 (12) TMI 1443
Whether jobwork carried out by an exempted unit can or cannot be included while calculating production for the purpose of rule 28A(11)(a)(i) of the Haryana General Sales Tax Rules, 1975 - Held that:- After considering the arguments and in essence recording conclusions, the Tribunal proceeded to abdicate its powers on an erroneous premise that it has no jurisdiction to opine whether an order passed by this court is no longer good law in view of the subsequent judgments of the honourable Supreme Court. The Tribunal was apparently unaware that law laid down by the honourable Supreme Court cannot be ignored merely because a Division Bench of a High Court may or may not have taken a contrary view. The Supreme Court of India sits at the pinnacle of the system of administration of justice, and its orders prevail over all other orders. A Tribunal, exercising judicial or quasi-judicial powers cannot refuse to consider judgments of the honourable Supreme Court by holding that it is for the High Court to decide whether its opinion subsists. The Tribunal, in our considered opinion, while recording that it has no power to consider the Supreme Court's judgments viz-a-viz a Division Bench judgment of this court, has misdirected itself and failed to comprehend the nature of its jurisdiction as a quasi-judicial authority. - Decided in favour of assessee.
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2013 (12) TMI 1442
Restoration of appeal - Non compliance of pre deposit order - Assessee has deposited 25% of deposit - Held that:- While deprecating this practice of filing repeated applications for rectification and appeals with the sole object of seeking deferment of payment of tax, but cannot ignore the fact that the petitioner has deposited the amount due though after a great degree of delay and, therefore, set aside the impugned order dated July 22, 2013 and remit the matter to the Deputy Excise and Taxation Commissioner to decide, the appeal on merits. The petitioner shall, however be liable to pay ₹ 15,000 as costs for delay and unnecessary wastage of the time of various Tribunals and courts, to be deposited with the Punjab and Haryana High Court Legal Services Committee within one month - Petition disposed of.
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2013 (12) TMI 1441
Applicable rate of tax of concrete cover blocks - Whether the cement block manufactured by the appellant is covered by entry 10(3)(a) of SRO No. 82/2006 taxable at the rate of 12.5 per cent. or does it come under entry 18(5) of the Third Schedule, attracting only four per cent. tax. - Held that:- Entry 18 relates to hollow bricks and other type of bricks, roofing tiles, etc., and specific entries are provided for bricks, blocks, therapeutic goods, etc. The learned senior counsel appearing for the appellant specifically referred to cement bricks, including hollow bricks which is entry 18(5). Hollow bricks are apparently used for constructing walls. The entry also takes care of blocks, cement bricks. Cement bricks again can be used for constructing walls and this product can be termed as a cement brick, though not used for construction of walls. It is used for the purpose of providing a space in between steel structure and the shutter. When flooring tiles are included in the entry, we are of the view that the item can possibly come under entry 18(5) of the Third Schedule. - Decided in favour of assessee.
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