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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 1075 Records
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2015 (12) TMI 1899 - MADRAS HIGH COURT
Revision of assessment - maintainability of petition - Availability of statutory remedy of filing an appeal as against the order of assessment - invocation of jurisdiction of this court under Article 226 of the Constitution - HELD THAT:- It is not the case of the petitioner herein that he was not put on notice or that the authority, who passed the order of assessment, is not having the jurisdiction. On the other hand, the competent authority has passed the order of assessment, after giving due opportunity of hearing to the petitioner and by considering the objection raised by them. Needless to say that if the consideration of objection was not proper or erroneous, that cannot be a ground to maintain the writ petition, since the alleged erroneous consideration or improper consideration cannot be stated as violation of principles of natural justice. On the other hand, it may be a good ground for filing an appeal.
Therefore, when the present assessment order having been passed by the competent authority, after giving opportunity of hearing to the petitioner, the same cannot be questioned under Article 226 of the Constitution of India, as the petitioner has to raise all those grounds only before the appellate authority who is also a fact finding authority.
All these writ petitions are dismissed, however, with liberty to the petitioner to challenge the order impugned in these writ petitions before the appellate authority within a period of two weeks from the date of receipt of a copy of this order.
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2015 (12) TMI 1898 - ALLAHABAD HIGH COURT
Levy of Entry Tax - entry of raw material being brought into a local area for consumption in manufacturing of a new commodity - HELD THAT:- The question of law has been decided by this Court in the case of THE COMMISSIONER COMMERCIAL TAX LKO. VERSUS S/S MARINO INDUSTRIES LTD. [2014 (12) TMI 1422 - ALLAHABAD HIGH COURT] wherein this Court has taken into consideration the finding of fact that the dealer was a manufacturer of laminated sheets using craft paper as raw material and not for packaging purposes and, therefore, the contention of the State has not been accepted by the Tribunal as it is only the goods specified in the schedule as notified by the State Government, which is liable to be levied with entry tax.
The goods as specified in the Notification specifically provide for paper for packing purposes and, therefore, that would not include the paper, which is being used as raw material. The question of law is, therefore, decided in favour of the assessee and against the revenue.
Revision dismissed.
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2015 (12) TMI 1867 - KERALA HIGH COURT
Input tax credit - tax paid at the time of purchase of goods from their suppliers - whether amounts offered by way of discount through credit notes issued by the supplier of the goods, at a point in time subsequent to the sale of the goods to the petitioners, can be added to the sales turnover of the petitioners' by invoking the provisions of explanation VII to the definition of turnover under Section 2(iii) of the KVAT Act? - HELD THAT:- The essence of the scheme is that, whenever tax is paid by a dealer at the time of purchase of goods, he is entitled to take credit of the tax so paid and to set off the said tax amount against the output tax to be paid by him at the time when he sells the product. A variation of the input tax credit availed by him is called for only in a situation where, it is found that the tax paid by the supplier of the goods, of which credit was taken by the petitioner as input tax credit, is subsequently reduced on account of a refund granted to the supplier, of the tax initially paid by him. It follows that, in the absence of any claim for refund of tax paid by the supplier, the input tax claimed by the petitioners cannot be varied or modified, save in the situations mentioned in Section 11 of the KVAT Act, such as, for instance, where the goods in question are sold at a price lower than that at which they were purchased or when the goods are sold at a subsidised rate.
On a perusal of the notices and assessment orders that are impugned in these writ petitions, it is found that the assessing authorities have not examined the issue as required. The assessment orders impugned in these writ petitions are therefore vitiated by a non-application of mind and is therefore quashed. The respondent assessing authorities in all these writ petitions, are directed, to complete the assessment proceedings, initiated against the petitioners through the notices issued to them under Section 25(1) of the Act, by taking note of the observations in this judgment, and after granting the petitioners an opportunity of being heard in the matter.
Petition disposed off.
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2015 (12) TMI 1863 - MADRAS HIGH COURT
Seeking permission for withdrawal of petition - HELD THAT:- In view of the submission and endorsement made by the learned counsel for the petitioner, recording the same, the writ petition is dismissed as withdrawn.
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2015 (12) TMI 1679 - KARNATAKA HIGH COURT
Natural justice - impugned order passed by the respondent without affording reasonable opportunity of producing ‘C’ declaration forms and the common order passed for all the 12 monthly returns - violation of Section 35(1) of the KVAT Act, 2003 and Rule 37 of the KVAT Rules, 2005 - Held that: - since the petitioner has not been given an opportunity of producing ‘C’ declaration forms, the petitioner shall be given an opportunity to produce the same before the assessment orders are passed - petition allowed by way of remand.
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2015 (12) TMI 1658 - MADRAS HIGH COURT
Recovery of arrear sales tax - petitioner was asked to pay the arrears of tax on property of seller, from whom the property was purchased by the petitioner - the petitioner has approached this Court stating that he is a bona fide purchaser for value without notice of the charge over the property and hence, his interest should be protected - Held that: - it is, no doubt, clear that the petitioner had purchased the property in question without notice of the charge over the same from his vendor and the same has also not been reflected in the Encumbrance Certificate issued by the Registration Department. In such circumstances, this Court is of the view that the impugned order passed by the respondent is vitiated in law - the petitioner, being a bona fide purchaser for consideration without notice of the charge over of the property, cannot be proceeded against insofar as the arrears of sales tax of his vendor - petition allowed - decided in favor of petitioner.
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2015 (12) TMI 1652 - MADRAS HIGH COURT
Natural justice - the mandate of law u/r 10(11) of the TNVAT Rules, 2007, for calling for the records for a detailed scrutiny, was not followed - alternative remedy of appeal - Held that: - the grievance of the appellant as against the Assessing Officer is not something that still entitles the appellant to bye- pass the alternative remedy of appeal. Therefore despite the fact that we are unable to approve the manner in which the Assessing Officer dealt with the objections, we do not wish to entertain the writ appeals - appeal dismissed - decided against appellant.
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2015 (12) TMI 1633 - KERALA HIGH COURT
Application for Payment of tax at compounded rates - even before the application was accepted and permission granted by the respondents, in June 2015, by virtue of a prohibitory order, the petitioner was constrained to stop his business activities and could not continue with the same. It his case, therefore, that the payment of tax at compounded rates should not be insisted from him for the period subsequent to June 2015.
Held that: - Having exercised his option to pay tax at compounded rates, and the tax having been paid by the petitioner and accepted by the department, the petitioner cannot wriggle out of his obligations under the KVAT Act - while holding that the petitioner would be liable to pay the tax due in accordance with Section 8(b) of the KVAT Act for the assessment year 2015-2016, I permit the petitioner to discharge the tax liability u/s 8(b) of the KVAT Act on or before W.P.(C). No.35496 of 2015 31.03.2016.
Petition disposed off.
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2015 (12) TMI 1632 - MADRAS HIGH COURT
Whether the Petitioner is not entitled to exemption from tax under Section 6(2) of the Central Sales Tax Act, 1956 on the second inter state sales of goods, since they have failed to prove by producing material evidences? - petitioners claim that there is error apparent committed by the Respondents in not considering the necessary documents filed by the Petitioner, particularly, non consideration of the Form-C declarations - respondents say that after proper inspection and considering the documents available, the impugned order has been passed.
Held that: - the Petitioner can be afforded one more opportunity to submit the documentary evidence to substantiate their case and on such evidence being filed, the same would be considered and appropriate orders would be passed - petition allowed by way of remand.
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2015 (12) TMI 1630 - MADRAS HIGH COURT
Purchase tax - penalty - By Notification No.336, dated 17.09.1964, there is an exemption granted for sales in the canteen run under the statutory obligations - The Petitioner only buys the provisions, cooks and supplies to the MFL employees on subsidise basis - petitioners claim that the purchases were only from the registered dealers and sales tax was not paid, because there was subsidised supply by MFL as a welfare measure and there was no sale to employees and that there was only a catering service - whether the turnover in relation to the sales effected in the canteen run by the Petitioner during the relevant assessment years is exempt from sales tax by reason of the N/N. 336 of 1964, dated 01.09.1964?
Held that: - Under the said notification, the exemption granted is for the sales by all canteens run by an employer or by the employees on cooperative basis on behalf of the employer. The further requirement to be satisfied, before the benefit of that notification can be claimed, is that running of such canteen must be under a statutory obligation without profit motive and the employer should subsidise at least 25% of the total expenses incurred in running the canteen.
Whether the petitioner is coming under the category of a canteen run on co-operative basis or not? - Held that: - the Petitioner is an independent contractor and he is not running the canteen on cooperative basis. Therefore, the Petitioner is not entitled to claim exemption provided under the said notification dated 17.09.1964, as he did not satisfy the essential requirements laid down in the notification for claiming the benefit therefor.
Since the Petitioner doing business has to produce the books of accounts, but the Petitioner did not maintain and produce the same, in the absence of original purchase bills, the Respondent assessed on the basis of the data available and passed the impugned order, the Petitioner is liable to pay tax.
Relying upon the decision of the case of Industrial Catering Services P Limited Vs. Commercial Tax Officer, Chennai [2003 (3) TMI 675 - MADRAS HIGH COURT], penalty set aside.
Petition disposed off - direction to the Respondents to re-examine the question of penalty - decided partly against assessee as regards imposition of tax.
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2015 (12) TMI 1628 - MADRAS HIGH COURT
Eligibility for interest free sales tax deferral benefit - natural justice - deferral benefit passed on to M/s.Bilt Industrial Packaging Company Limited (BIPCO) along with the unit - whether Eligibility Certificate originally granted to M/s.Servall Paper Board Limited was co-extendable to the subsequent buyers? - Held that: - When the 2nd Respondent by proceedings 8.12.2003 granted approval to the transfer of the deferral facility, the finding of the 1st Respondent in the impugned order that the Petitioner is not entitled to such facility is baseless. Even after cancellation of the the registration certificates, a direction was given to include the turnovers of the Unit, while passing final assessment order. Further, the 1st Respondent without issuing any prior notice and looking into the GOs, the registration certificates and without considering the records and the agreement and the returns filed by the Petitioners, passed the impugned order, without any basis - matter on remand with regard to the violation of the conditions in respect of the products manufactured other than the one so specified and converted the same into a different commercial commodity in some other forms by the Petitioner - petition allowed by way of remand.
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2015 (12) TMI 1627 - GUJARAT HIGH COURT
Natural justice - ex-parte decision - validity of order of Tribunal - pre-deposit - the assessment orders were passed by the Assessing Officer in absence of representative of appellant since there were some internal disputes between them. Be that as it may, assessment was made ex-parte. The Commissioner (Appeals) had dismissed the appeal because appellant was unable to deposit the entire amount of tax with interest by way of pre-deposit - Held that: - we would have wished the Tribunal had not made such strong observations in a pre-deposit matter when various issues were never considered by the Commissioner (Appeals) and were not directly at issue before the Tribunal - considering the fact that the assessment proceedings were framed ex-parte and question is of pre-deposit at first appellate stage, we direct the appellant to deposit sum of ₹ 5 lacs with the department by way of pre-deposit latest by 15.1.2016, upon which, the appeals would be entertained by the Commissioner on merits being uninfluenced by observations of the Tribunal in the impugned judgement - order of Tribunal reversed - appeal allowed - decided in favor of assessee.
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2015 (12) TMI 1625 - KERALA HIGH COURT
Constitutional validity of the Kerala Tax on Luxuries Act - levy of luxury tax on Direct to Home Services - legislative incompetence of the State Legislature - whether the cable TV connection enjoyed by a customer could be termed as a luxury enjoyed by the Customer? - Held that: - The levy of luxury tax under the same enactment– The Kerala Tax on Luxuries Act, 1976– on broadcasting services provided by cable operators, was also found to be within the legislative competence of the State legislature. Inasmuch as it is the case of the petitioners in these writ petitions that the services rendered by them are similar to the services provided by the cable operators, I do not see any reason to deviate from the views expressed by the division bench of this court on the legislative competence of the State legislature in introducing the levy of luxury tax on DTH services.
The levy of service tax is traceable to Entry 97 of List I of the VIIth Schedule to the Constitution, which is a residual entry. The power, to legislate under a residual entry in List I, is available to the Parliament only in respect of matters that are not relatable to any specific entry in Lists II and III. Thus, once it is found that the legislation in question is relatable to Entry 61 of List II, then the Legislative competence of the State Legislature is absolute and it is the validity of the Central Legislation, in respect of the same field of legislation, that would come under a cloud.
Even if the levy of service tax is traceable to Entry 92C of List I of the VII Schedule, an application of the doctrine of pith and substance would clearly indicate that the levy is essentially on the luxury provided through the provision of DTH services. The aspects theory of taxation that was recognised by the Supreme Court in Federation of Hotel & Restaurant Association of India v. Union of India – [1989 (5) TMI 50 - SUPREME Court] would operate against the petitioners to find that the State legislature had the competence to legislate on the aspect of “luxury” provided by the petitioners to their customers, notwithstanding that the Parliament may have the legislative competence to legislate on the aspect of “service” rendered to the customers.
While the State Legislature has the legislative competence to levy a tax on the luxury provided by a Direct to Home [DTH] Broadcasting service provider, the levy of luxury tax on DTH service providers to the exclusion of a similar levy on cable operators with effect from 01.04.2011 is discriminatory and violative of Article 14 of the Constitution of India - Taxes, if any paid by the petitioners during the period from 01.04.2011, shall be refunded.
The notice demanding tax for the period from 1.4.2010 to 31.3.2011 was stayed during the pendency of the writ petition, with liberty to the respondents to pass fresh orders after complying with the rules of natural justice, and in particular, after affording the petitioner an opportunity of being heard - appeal allowed by way of remand.
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2015 (12) TMI 1624 - ALLAHABAD HIGH COURT
Deposit of interest - the petitioner having deposited the demand made earlier duly for the assessment year 2008-09 - the accrued tax liability/arrears were stayed to the extent of 50 % on payment earliar but the petitioner was required to pay the tax at the prevailing rate for the future period.
Held that: - when the writ petition was filed by the petitioner before the High Court the tax that being demanded was for the assessment year 2008-09. The words, "future period" in the order of the Supreme Court would denote any tax liability that would arise or accrue after the date of the order passed by the Supreme Court, i.e., after 18th of January, 2012. - even if any assessment order is passed after 18th of January, 2012 but relates to any assessment year prior to 18th of January, 2012 would come under the category requiring the accrued tax liability/arrears to be paid up to 50% and the balance 50% by way of bank guarantee. The words "future period" would include such demand for the period subsequent to 18th of January, 2012.
The impugned demand notice requiring the petitioner to pay further amount towards the interest compound is patently misconceived and based on wrong interpretation of the interim order of the Supreme Court - the petitioner has already deposited 50% of the accrued tax liability alongwith interest for the assessment year 2008-09 and therefore, was not required to pay any further amount - petition allowed - decided in favor of petitioner.
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2015 (12) TMI 1603 - DELHI HIGH COURT
Validity of assessment order - principles of natural justice - Held that: - It is not the case of the petitioner herein that he was not put on notice or that the authority, who passed the order of assessment, is not having the jurisdiction. On the other hand, the competent authority has passed the order of assessment, after giving due opportunity of hearing to the petitioner which he failed to utilise. Therefore, when the present assessment order having been passed by the competent authority, after giving opportunity of hearing to the petitioner, the same cannot be questioned under Article 226 of the Constitution of India, as the petitioner has to raise all those grounds only before the appellate authority who is also a fact finding authority - Writ Petition is not maintainable.
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2015 (12) TMI 1534 - SC ORDER
Benefit of input tax credit (ITC) on Packing material - finished goods were stock transferred - High Court held that appellant is not entitled to the benefit of ITC in respect of packing materials used for its finished goods, which were stock transferred. Even the Circular of 2008, does not as such clearly provide for the grant of such benefit. Lack of clarity and place for doubt in a stray sentence in a Circular cannot be seized upon by the appellant to claim that, contrary to the clear mandate of the Legislature, it should be given the benefit of ITC for the years 2008-2009, 2009-2010 and 2010-2011 reported in [2015 (10) TMI 290 - UTTARAKHAND HIGH COURT] - Apex Court dismissed the Special Leave Petitions
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2015 (12) TMI 1477 - RAJASTHAN HIGH COURT
Levying of tax under the Rajasthan Tax on Entry of Motor Vehicles Into Local Area Act, 198 - Jurisdiction of AO - Held that:- when one statute make a reference to another Act then it cannot be said that provision of that Act cannot be read into it, and as observed earlier when all the provisions of Rajasthan Sales Tax Act, 1954 are made applicable mutatis mutandis to the provisions under the Act, therefore, the assessment order passed by the Assistant Commissioner, Anti Evasion Wing, though may not be proper but the entire assessment order could not have been quashed and set aside for all times to come. At least when liability under the Act is fastened on an assessee who imports vehicle into the State of Rajasthan for personal use and such intention is to use the vehicle for all times to come, the provisions of the Act cannot be made redundant as held by the Tax Board that the Assistant Commissioner, Anti Evasion Wing had no jurisdiction.
CTO under Section 3(2)(b) had the jurisdiction to assess the assessee according to the area where one ordinarily resides or carries on business or provides any service, therefore, in the instant case assessment will have to be passed by the CTO in accordance with the place of residence or the place of business or place of providing service. In case the respondent-assessee is already assessed to tax by a particular CTO, the same officer would have jurisdiction to assess the assessee and in case some of the assessees are not assessed to sales tax, then the CTO will get jurisdiction to assess according to the place of residence of the person. - order of the Tax Board is quashed and set aside, the order of Dy. Commissioner(Appeals) insofar as direction to assess the assessee by the Assessing Officer (CTO) having jurisdiction, as above, is upheld - Decided in favour of Revenue.
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2015 (12) TMI 1476 - GUJARAT HIGH COURT
Failure to VAT - Attachment of the petitioners' bank accounts and immovable property in the form of residential flat and office premises as per the details given in the petitions - Held that:- in the opinion of this court, the Government revenue is sufficiently secure in view of the attachment of the residential premises and office premises. Under the circumstances, the respondents do not appear to be justified in further attaching all the bank accounts of both the petitioners. In the opinion of this court, the attachment of the bank accounts must, in all probability, have brought the business of the petitioners to a standstill, inasmuch as, they would not be in a position to encash the cheques received by them nor make other payments by way of cheque. However, having regard to the submissions advanced by the learned Assistant Government Pleader, this court is of the view that while releasing the attachment of the bank accounts, the petitioners are required to be put to certain terms to maintain a particular balance in the bank accounts. - Decided in favour of assessee.
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2015 (12) TMI 1475 - MADRAS HIGH COURT
Detention of goods - petitioner has not raised any inter-state sale invoice or delivery notice in Form JJ required under CST Act - Imposition of compounding fees - Held that:- petition stands disposed of with a direction to the respondents to release the goods forthwith on condition that the petitioner pays the one time tax of a sum of ₹ 2,13,516. As regards the compounding fee demanded, it is always open to the petitioner to agitate the same in the manner known to law - Appeal disposed of.
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2015 (12) TMI 1474 - GUJARAT HIGH COURT
Levy of purchase tax - Whether the Tribunal has erred in holding that “Naptha” was not “taxable goods” and so purchase tax cannot be levied under section 15B of the Sales Tax Act - Held that:- Controversy involved in the present case stands concluded by the judgment and order of even date rendered by this Court in Tax Appeals [2015 (12) TMI 119 - GUJARAT HIGH COURT] - there being no infirmity in the impugned order of the Tribunal, the same does not give rise to any question of law, much less, a substantial question of law so as to warrant interference. - Appeal disposed of.
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