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VAT and Sales Tax - Case Laws
Showing 21 to 40 of 1179 Records
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2016 (12) TMI 1306 - MADRAS HIGH COURT
Detention of goods - goods detained on the basis of mere allegation - compounding of offences - jurisdiction of respondent to act as assessing officer - Held that: - the respondent could not have detained the goods by comparing the contents of the Invoice, which accompanied the subject goods with the Department's website, and then, gone on to detain the goods on the ostensible ground that the petitioner has not filed his returns - the Compounding Notice issued by the respondent is beyond his jurisdiction, as he has donned the robes of an Assessing Officer, which is not permissible in law.
Petition allowed in favor of petitioner.
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2016 (12) TMI 1305 - ALLAHABAD HIGH COURT
Sale u/s 2(ac) of the Act - spare parts given to the customers by way of replacement under warranty scheme - whether the transaction in question is a sale within the meaning of Section 2(ac) of the Act and consequently, liable to tax under Section 3 of the Act? - Held that: - There is no obligation on the part of the respondent-assessee under the warranty of the manufacturer to consumers to replace the defective parts. The respondent-assessee is not even a party to that warranty. The supply of parts by the respondent-assessee to consumers to replace the defective parts and receipt of consideration through credit notes in lieu thereof from the manufacturer is a separate transaction of sale.
Credit notes received by the respondent-assessee for specific amount in terms of money towards price of the spare parts supplied by the respondent-assessee to consumers in fulfillment of the warranty obligations of the manufacturer towards consumer, construed valuable consideration in lieu of the price of such spare parts and thus a transaction of sale within the meaning of Section 2(ac) of the U.P. Act has emerged attracting liability to tax under Section 3 of the Act.
The manufacturer is warrantor and the consumer is warrantee to whom the warrantor has made a statement or representation with regard to his product i.e. motor vehicle. Thus, in the present set of facts the manufacturer being warrantor has made certain promise with regard to its product to consumers (warrantee) called warranty. The respondent assessee has not given warranty to consumers. Supply of parts by him is a sale for consideration received by him through credit notes.
Revision allowed - decided against Respondent-assessee.
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2016 (12) TMI 1304 - ALLAHABAD HIGH COURT
Demand to deposit tax arrear - Entertainment tax - computation error - Held that: - It appears that number '452' is a typographical error since after deducting 302 cable connections from 759 cable connections, the balance would come to 457 cable connections. Thus, the fact of conducting the survey in presence of the petitioners and fact of 457 cable connections are admitted by the petitioners as per their grounds of appeal - no error or perversity in the findings of fact recorded by the appellate authority. The petitioners could not demonstrate even before this court any error in computation of entertainment tax - petition dismissed.
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2016 (12) TMI 1300 - ALLAHABAD HIGH COURT
Seizure of goods with an option to pay penalty - Section 48(7) of the U.P. VAT Act, 2008 - Form-21 - Held that: - I find that the Tribunal has acted in a most arbitrary manner and has completely failed to discharge the statutory obligation under Rule 63(4) of the U.P. VAT Rules, 2008 - impugned order to be stayed.
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2016 (12) TMI 1257 - BOMBAY HIGH COURT
Sale transaction or service - VAT liability or service tax - treatment to an indoor patient - medicines consumed on treatment of indoor patient would attract tax liability or not? - the case of Hindustan Lever Limited [2016 (7) TMI 76 - SUPREME COURT] referred - Held that: - in the case referred it was found that the consideration of sales tax in fixing the price of the goods and sale of such goods along with identical goods on which taxes are collected along with price has not resulted in an implied collection of tax in respect of such sales tax exempted goods also - Whether they would govern the set of facts brought before us in the present matter has to be determined at the hearing of the appeal. Equally, whether this is a case on par with a treatment during the course of which a stent is inserted in the body or not should equally be determined at the stage of final hearing. Whether drugs or medicines sold from the pharmacy and the case of a stent being fixed or inserted in the body are similar or not must be determined by the Tribunal - matter remanded back.
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2016 (12) TMI 1256 - GUJARAT HIGH COURT
Levy of Entry Tax - goods purchased by individual consumers through electronic commerce portals for their personal use and consumption - Held that: - reliance placed on the decision of the case of [2016 (11) TMI 545 - SUPREME COURT OF INDIA], where it was held that seeking to levy Entry Tax on goods purchased by individual consumers through electronic commerce portals for their personal use and consumption, the constitutional validity which are challenged in the present writ petitions and the levy of Entry Tax on such goods purchased within the State of Gujarat are required to be held intra vires and constitutionally valid - petition fails - dismissed.
The specified goods brought into the State of Gujarat by the respective petitioners, it has already suffered Central Sales Tax, and therefore, CST paid on such specified goods brought by the petitioners into the State of Gujarat, either there shall be set off to the extent the amount of tax/CST already paid and/or amount of tax leviable under the Entry Tax Act, 2001 is required to be reduced to the extent of amount of tax paid; if any, under the CST on the purchase of specified goods in the course of inter-state trade or commerce is concerned - the concerned importers have to make appropriate claim before the appropriate authority claiming the benefit under subsection (2) of Section 4 of the Entry Tax Act, 2001 as required under Rule 5 of the Entry Tax Rules and as and when such claims are made, the appropriate authority is required to consider the same in accordance with subsection (2) of Section 4 of the Entry Tax Act, 2001, however, subject to concern person to prove by producing necessary Challan, the payment of CST in other State on such goods brought/imported within the State of Gujarat and having followed the procedure as required under Rule 5 of the Entry Tax Rules, 2001 - Appeal disposed of.
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2016 (12) TMI 1255 - MADRAS HIGH COURT
Revision of tax - excess entry tax paid by the petitioner for the relevant assessment years - refund claim - unjust enrichment - Held that: - The specific case of the petitioner is that this liability has not been passed on to the customers. Thus, since there is a binding direction issued by this Court, the respondent ought to have passed an order within the time frame fixed by the Court. Failure to obey the order amounts to committing contempt and as long as the order has not been complied with, the disobedience continues and this Court can even at this juncture initiate contempt proceedings. The petitioner is entitled to know as to why the petitioner's applicable for refund should not be ordered. Therefore, the respondent has to necessarily passed a speaking order as this Court has found that the two primary reasons stated in the written instructions dated 02.08.2016 are not tenable - petition allowed by way of remand.
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2016 (12) TMI 1254 - GUJARAT HIGH COURT
Whether on the facts and circumstances of the case, the Gujarat Value Added Tax Tribunal was justified in law in holding that under Section 62 of the Act, where there are two determination orders; the first will not hold the field till the second order?
Held that: - the subsequent determination order shall not be applicable and/or affect the transaction/sale which had taken place prior to the second determination order, as, at the time when the transaction/sale had taken place, the first determination order was in force and in existence which was binding to all - appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 1203 - ORISSA HIGH COURT
Validity of order of assessment - Orissa Entry Tax Act - escapement of assessment of tax for the tax period from 1.4.2008 to 31.7.2015 - petitioner claim that no tax under the heading of “Odisha Entry Tax” has been evaded by it for the period in question, but the authorities without appreciating the defence statement filed by it, has passed order on the same date i.e. on 6.11.2015 putting liability of penalty on the petitioner - Held that: - Under the Taxation Rule the assessee is required to furnish self assessment and the authority is required to assess the same and there is no provision provided under the Act to communicate in case of acceptance of the assessment. Although under the provision of Orissa Value Added Act under Section 38 read with Section 7(10) each and every return in relation to any tax period furnished by a registered dealer shall be subject to scrutiny by the assessing authority to verify the correctness of the calculation, application of correct rate of tax and interest etc. and in case of any mistake, detected in course of scrutiny, the assessing authority shall serve a notice in the prescribed form as we find even from the provision of section 7 or subsection (11) and as such, if the authorities have not issued any notice under Section 7(11), then the assessment made by the registered dealer under the provisions of Section 9 will be said to be accepted.
Whether the the order impugned of demand has been passed mechanically and without consideration of the second proviso to Rule 3(4) of the Rules? - Held that: - the second proviso stipulates a provision of relaxation in making payment of tax liability where declaration in Form E16 from the buying manufacturer is furnished. The contention of the petitioner is that while passing the order, the assessing authority has not appreciated the second proviso to Rule 3(4) of the Rules, 1999, but we are not in agreement with the said contention for the reason that the petitioner nowhere, has stated as to whether it has given declaration in Form E16 so as to avail the benefit as provided under the second proviso to Rule 3(4) of the Rules, 1999, which is the condition stipulated in the said statutory provision.
Prior to 1.7.2012 reassessment for the period of five years was provided under the statute, but after 1.7.2012 the period of five years has been extended to seven years.
Petition disposed off - petitioner free to approach appellate forum if he so wishes.
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2016 (12) TMI 1150 - ALLAHABAD HIGH COURT
Release of confiscated goods - discrepancies found in stock of dry chilly - order of release of the goods without security by Tribunal - is Tribunal justified in doing so?
Held that: - The discrepancy was explained by the respondent assessee but the explanation was found to be unsatisfactory by the Mobile Squad Authority. The stand of the assessee that no discrepancies whatsoever was found in his books of accounts, is the matter to be examined at the time of penalty proceedings, if any, or at the time of assessment proceedings. However, it can not be said that there was absolutely no material before the Mobile Squad Authority to seize the goods and to demand security - therefore, ends of justice should be better served if the goods are directed to be released on deposit of the security in the form of other than cash or bank guarantee for an amount equivalent to the amount of tax as may be involved with respect to the seized goods.
Goods to be released on payment of security - appeal disposed off - decided partly in favor of respondent-assessee.
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2016 (12) TMI 1149 - ALLAHABAD HIGH COURT
Release of confiscate goods - requirement of Form 21 - Held that: - if the respondent assessee deposits the cash security as offered, the goods shall be released - merits of the case not examined - decided partly in favor of resppondent-assessee.
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2016 (12) TMI 1098 - PUNJAB AND HARYANA HIGH COURT
Whether in the facts and circumstances of the case on combined reading of Section 14(6), Section 24 and Rule 33, can interest be charged from the contractor for late deposit of TDS by contractee - Held that: - Rule 33(5) of the Rules provides that the amount of tax deducted by a contractee is to be paid by him to the department within 15 days of the close of the month - the payee to whom certificate of deduction and payment of tax has been furnished, shall be entitled to take credit thereof subject to verification of documents and correctness of the certificate - Merely on presumption about deduction or payment of tax by the contractee on his behalf, a contractor cannot absolve himself from liability to pay tax as per the returns filed - Even if there is delayed payment of tax by the contractee, the contractor shall be entitled to claim benefit thereof at the time of framing of assessment and circulation of interest and entitlement of refund, if any, shall be determined at that time - As the assessing authority found that the tax had not been deposited in time, interest on account of delayed payment of tax was levied - On account of proofs attached by the appellant along with the returns showing payment of tax on his behalf by the contractees, deduction to the tune of ₹ 94,05,576/- was granted - Appeal disposed of.
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2016 (12) TMI 1097 - PATNA HIGH COURT
When the re-opening of assessments can be made? - reassessment under Section 31 of the Act - Held that: - the provisions of the section 31 are on similar lines as the un-amended provisions of Section 147 of the Income Tax Act and that they provide for two categories of cases; but even the provisions of Section 147 of the Income-tax Act amended in the year 1989 make it clear that there must be reason to believe that there has been under-assessment or escaped assessment, etc. and as has been held in the case of Kelvinator [2010 (1) TMI 11 - SUPREME COURT OF INDIA] by the Apex Court, it should not be a mere change of opinion, otherwise it would amount to arbitrary exercise of power by the assessing officer to reopen the assessment. The said law emphatically laid down by the Supreme Court in Kelvinator's case is squarely applicable in the present matter also and it has to be held that reassessment cannot be made on a mere change of opinion. - Decided in favor of assessee.
Whether the decision of the Supreme Court subsequent to the assessments can be considered a mere change of opinion? - Held that: - a subsequent reversal of legal position by the judgment of the Supreme Court does not authorize the Department to reopen the assessment which stood closed on the basis of law at the relevant time.
Cases where no assessment was done earlier - Held that:- If the assessing authority had no occasion to form an opinion during the course of such deemed assessment of the returns filed by the petitioner, and subsequently a notice was issued under Section 31 (1) of the Act, or assessment made under Section 27, albeit on the ground of decision rendered by the Supreme Court, it could not be said that there has been any change of opinion. For the said reason, I am of the view that so far as the remaining eight cases are concerned, the plea of the petitioners regarding change of opinion is not applicable. - Decided against the assessee.
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2016 (12) TMI 1023 - CHHATTISGARH HIGH COURT
Valuation - whether the freight charges for transporting dolomite by the petitioners to the respondent/Bhilai Steel Plant would be a part of sale price and hence exigible to commercial tax or not? - Section 2(u) of the Act, 1994 - Held that: - clause-13 of the agreement provides break-up of the landed cost per tonne of dolomite which includes freight by road on pre-paid door delivery basis. Thus, the freight charges were already included in the 'sale price' by express agreement entered between the parties - reliance placed on the case of Hindustan Sugar Mills [1978 (8) TMI 186 - SUPREME COURT OF INDIA] to hold that first part of the definition would apply in the present case also and the exclusion clause is irrelevant and cannot be called in aid by the petitioners.
The assessment order has only referred to separate billing of freight charges by the petitioners but it has not dealt with the issue as to whether the freight charges are part of 'sale price' or not so as to conclude that it cannot be included in the taxable turn over. There being no finding to this effect by Assessing Officer, it is a case where there is omission or escape to deal with the issue by the Assessing Officer and Section 28 has rightly been invoked for initiating escapement proceeding.
By clause 14 of the agreement, the parties have bound themselves that the price of contract shall remain firm during the currency of contract and as such, no escalation is payable on any amount whatsoever including freight, however, any change in the statutory levies viz. Royalty, Sales Tax and Labour Welfare Cess during the pendency of the contract shall be borne by the buyer as per the actuals against the documentary evidence/Government notification. Admittedly, there is no change in the statutory levies like Royalty, Sales Tax and Labour Welfare Cess. It is a case where freight charges were part of 'sale price' but it escaped assessment, therefore, liability which fallen on the assessee on the date of assessment for the relevant year has been saddled on him and they have not been made liable to any additional statutory levy.
Petition dismissed - decided against petitioner.
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2016 (12) TMI 1022 - MADRAS HIGH COURT
Validity of assessment order - failure to call for documents - independent application of mind - Held that: - if the respondents/Assessing Officers was of the opinion that documents are required to be produced, then the dealer can be directed to appear in person and produce the documents and this will avoid unnecessary litigation and also will ensure prompt collection of correct rate and quantum of tax - the petitioner is directed to file objections under Section 84 of the Tamil Nadu Value Added Tax for rectification of the assessment in which the petitioner is entitled to raise all contentions and produce the documents and that application will be filed within a period of one week from the date of receipt of a copy of this order. On receipt of the same, the respondents shall consider the same and pass orders within a period of two weeks.
Petition disposed off - decided in favor of petitioner.
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2016 (12) TMI 1021 - MADRAS HIGH COURT
Maintainability of appeal - appeal was filed against the rectified order - Held that: - similar issue was decided in the case of Artis Leathers Versus The Assistant Commissioner (CT) , The Appellate Deputy Commissioner (CT) (FAC) [2016 (9) TMI 824 - MADRAS HIGH COURT], where it was held that as against the order of rectification passed resulting in the modification of the original order passed, the assessee has the right of appeal before the appellate forum.
Petition allowed in favor of petitioner.
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2016 (12) TMI 1020 - GUJARAT HIGH COURT
Maintainability of appeal - non-deposit of amount of pre-deposit - Held that: - on non-compliance of the order dated 4/4/2016 on non deposit of the amount of pre-deposit as per the order dated 4/4/2016, when the learned tribunal has dismissed the appeal, thereafter it cannot be said that the learned tribunal has committed any error - when the appellant has failed to deposit ₹ 29,29,979/- towards the amount of pre-deposit as ordered earlier vide order dated 4/4/2016 and when the learned tribunal has dismissed the said appeal on non-deposit of amount of pre-deposit, no substantial question of law arise - appeal dismissed.
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2016 (12) TMI 960 - KERALA HIGH COURT
Valuation - inclusion of quantity discount given to the dealers as part of the turnover is justified or not? - Held that: - Section 7 only indicates that the dealer who allows trade discount or incentive in terms of quantity in goods in relation to any sale effected by him. The quantity so allowed as trade discount or incentive shall be deemed to be a sale by the dealer. Statute does not say that the said trade discount shall form part of the turnover of the dealer. This aspect has been clarified by the Commissioner in the circular along with the illustration. - There is no evidence to show that the end customer was given the benefit of trade discount, is not at all a matter, which the petitioner is concerned. As far as the petitioner is concerned, he had effected sale of goods by providing the quantity discount and the turnover is only with respect to the consideration received by the petitioner for the quantity which is actually sold and the discount given to the dealer in question. Under such circumstances, I am of the view that this writ petition is to be allowed - The assessing authority is directed to reconsider the matter afresh in accordance with the observations made above and Circular No.5/05 of the Commissioner of Commercial Taxes - appeal by way of remand.
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2016 (12) TMI 959 - KARNATAKA HIGH COURT
Classification of product - interpretation of statute - Whether the product of the petitioner as vegetable fat spread can be said as included in Entry No.32 of the III Schedule or not?
Held that: - If the market parlance test is considered, we do find that the product as vegetable fat spread is having separate marketability and different use hence cannot be said as same as that of the edible oil - Hence, we find that applying the market parlance test, the product of the petitioner-appellant cannot be considered as falling under Entry No.31.
If the contention of the learned counsel for the appellant is further considered to trace the composition of product then also as stated by the appellant himself the product contains 80% of edible oil - In addition thereto the product also contains starch, not less than 10 ppm and not more than 150 ppm, as per the standard prescribed by Food Safety and Standard Authorities of the Ministry of Family Welfare. Therefore, it is not that the product of the appellant contains only vegetable oil. When the product contains addition of starch and other items may be in the residuary 20% in contradiction to 80% being the vegetable oil and of her edible oils, then also it is difficult to conclude that the product of the appellant can be termed as only of edible oil - The aforesaid coupled with the aspects that the meaning of any Entry is to be considered it is to be read in comparison and in contradiction to other entries in the very schedule. As recorded by us hereinabove for certain type of oils which are also used as edible oils separate entries are provided and for certain types of concentrates of the milk used as spreader (cottage cheese) separate entries are provided. Under these circumstances, we do not find that the second test of composition of the product even if applied with the product of the appellant in comparison to the contents of the edible oils or in comparison with the product of edible oil commodity would meet with the test so as to include the product under Entry No.31 of the Schedule.
The view taken by the Advance Ruling Authority cannot be said to be erroneous - the Advance Ruling Authority clarified that the product is an unscheduled commodity and therefore, tax at the rate of 14.5% would be chargeable.
The product of the appellant would fall in the category of unscheduled product as held by the Advance Ruling Authority - appeal dismissed - decided against appellant.
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2016 (12) TMI 958 - JHARKHAND HIGH COURT
Carry forward of Input Tax Credit - Held that: - originally because of Explanation (1) to section 19 of the Act,2005, this petitioner was not permitted to carry forward Input Tax Credit from the month of January, 2015 to February, 2015. By now, an amendment has been carried out in Explanation (1) to Section 19 of the Act, 2005 by Amendment Notification dated 4th November, 2016, which is made effective from 7th May, 2011. Hence, we, hereby direct the respondents to allow this petitioner to carry forward Input Tax Credit for the month of January, 2015 to February, 2015 and for subsequent months, as per the amended version of Explanation (1) to Section 19 of the Jharkhand Value Added Tax Act, 2005 and the assessment will be carried out of this petitioner by the Assessing Officer, in accordance with law - petition allowed - decided in favor of petitioner.
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