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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 76 Records
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2017 (10) TMI 643 - ALLAHABAD HIGH COURT
Levy of purchase tax - purchases made by the Branch Office effected within the State of U.P - separate legal entity of Branch Office and the Head Office - Held that: - A Branch Office does not of its own have a separate and distinct legal existence. Be it a Head Office or a Branch Office, they are only arms of the one singular entity which is the concern. This issue need not detain the Court as it has been authoritatively ruled upon in English Electric Company. That there can possibly be no contract of sale between the offices of one entity/concern is a proposition which cannot be open to doubt or debate.
Both the authorities below lost sight of the unambiguous and undisputed declaration made by the revisionist that all purchases which were being effected within the State of U.P. were exclusively for being transmitted outside the State where its Head Office was situate. There was thus, an unbroken and inextricable link between the purchases made in the State of U.P. and their consequential dispatch to the State of Jammu & Kashmir - no evidence was relied upon to establish a disconnect between the purchase of goods and their dispatch outside this State. This was therefore clearly a purchase in the course of inter-State trade and commerce referable to Section 3(a) of the 1956 Act.
There is no material to establish that the purchase of goods and their dispatch to the State of Jammu & Kashmir were not part of the same transaction. The movement of the goods from this State to the State of Jammu & Kashmir was occasioned by and directly linked to the purchases effected by the revisionist within the State - revision allowed.
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2017 (10) TMI 642 - MADRAS HIGH COURT
Refund of wrong reversal of input tax credit - Rate of VAT - inter-state sale - Natural Gases - Appellant purchases Natural Gases from Oil and Natural Gas Commission (ONGC) and would re-sell the same to various customers - rate of tax 4% or 12.5%? - C-Form - According to the appellant, rejection of refund is in violation of Article 265 of the Constitution, which mandates that no tax shall be levied or collected, except by authority of law - Section 41 of the TNVAT Act, 2006, as amended with effect from April 1, 2012 - Held that: - The learned Single Judge while disposing of the Writ Petition has directed the appellant to avail the Appeal remedy and to prefer an Appeal as against the impugned order dated 26.06.2015 passed by the Commercial Tax Officer within a period of 30 days. The learned Single Judge, while disposing of the Writ Petition, has also taken into consideration the submission made by the respondent counsel with regard to the reference made under Section 27 of TNVAT Act, and came to the conclusion that when there is an alternative remedy available, bypassing the same, the Writ Petition filed by the petitioner cannot be entertained. Despite there being an alternative remedy, Writ remedy under Article 226 of the Constitution can be invoked only under such circumstances when principles of natural Justice is violated on the face of the record.
In the present case, the appellant has to avail the appeal remedy under the statute, which cannot be given a go-by, by invoking the Writ Jurisdiction directly. Therefore, no interference is warranted against the order passed by the learned Single Judge.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 607 - MADRAS HIGH COURT
Reversal of ITC - stock transfer of goods covered by Form F - TNVAT Act - Held that: - The Court took into consideration the amendment to the TNAVT Act, 2006 by notification in G.O.(Ms)No.18, Commercial Taxes and Registration (B1) Department, dated 29.01.2016 whereby a separate column was given in Annexure 12 for Stock Transfer/Consignment sales without Form F Section 19(2). This having not been brought to the Assessing Officer, the Court sets aside the reversal of Input Tax Credit reversal for Stock Transfer covered by Form F and remanded the matter to the respondent for fresh consideration.
With regard to the levy of penalty is concerned, it is seen that the entire turnover has been culled out from the books of accounts and the petitioner has been called upon to furnish the details which the petitioner has promptly complied with - it has to be seen as to whether it is a case where penalty could have been imposed under Section 27(4) of the Act. There is no allegation that the petitioner has wilfully failed to disclose the assessable turnover or the conduct of the dealer was contemporaneous with an intent to develop the revenue or to somehow avoid payment of tax. Unless these ingredients are established, the question of levy of penalty does not arise. Therefore, to that extent, this Court is fully convinced that the levy of penalty under Section 27(4) is not conferred.
The matter is remanded to the respondent for fresh consideration with a direction to call upon the petitioner to appear in person and explain the incongruity of the transaction and after obtaining the explanation, the respondent is directed to redo the assessment in accordance with law - appeal allowed by way of remand.
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2017 (10) TMI 606 - ALLAHABAD HIGH COURT
Levy of tax - Subsequent sale - Form C - Whether Commercial Tax Tribunal was legally justified in deleting the amount of tax on otherwise subsequent sale as provided u/s 3b read with Section 6(2) of Central Sales Tax Act and according to the provisions of 9(1) proviso the State of U.P. where the dealer is registered and from where form-C has to be issued, State of U.P. has power to levy tax on such kind of central sale?
Held that: - once the contract was given over for execution to sub-contractors, there was no transfer of property in goods by the principal contractor nor would it be permissible to view the subcontracting as involving a re-transfer - the property in such contract passes by accretion.
The Court is of the considered view that once the transaction had been taxed in the hands of the sub-contractors, no subsequent transfer of property in goods occurred so as to warrant the Department taking the position that there was a subsequent sale - revision dismissed.
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2017 (10) TMI 605 - MADRAS HIGH COURT
CFS - Validity of Form U notice issued under Rule 9(4) of the Tamil Nadu Value Added Tax Act, 2006 - whether petitioner could be teated as Garnishee or not? - Held that: - Admittedly, the petitioner is not a garnishee as they are only CFS duly licensed by the Customs Department. The amount, which they have recovered by sale of the goods is the amount which is lawfully due to them and the sale proceeds of the steel did not cover the entire dues and it is stated that some more amount is recoverable from the third respondent. Thus, the petitioner is not required to pay any monies to the third respondent, but the case is vice versa.
Identical issue arose for consideration before this Court in the case of Tvl.Sical Multimodal and Rail Transport Ltd., v. The Assistant Commissioner (CT), Cholavaram Assessment Circle and others [2015 (11) TMI 689 - MADRAS HIGH COURT], wherein the The correctness of such notice was challenged in the writ petition and the writ petition was allowed and a direction was issued to refund the amount, which was recovered by the Commercial Taxes Department by attaching the bank account of the petitioner.
The petitioner cannot be treated as a garnishee of the third respondent and the impugned Form U notice is wholly without jurisdiction - petition allowed - decided in favor of petitioner.
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2017 (10) TMI 604 - MADRAS HIGH COURT
Validity of assessment order - the petitioners have violated the conditions of the EOU status, as they have not qualified themselves for exemption and there is a shortfall in the export of the goods - Held that: - when the Assessing Officer issued a notice to establish whether the petitioners have fulfilled their export obligations, it was the duty on the part of the petitioners to appear before the Assessing Officer and produce necessary documents in support of their stand. The petitioners have failed to do so - there is no error in the impugned assessment orders, dated 18.04.2005 nor in the consequential demand, which are impugned in these Writ petitions.
The petitioners should be directed to go back to the Assessing Officer and clearly explain their stand as to how the allegation made against them is unsustainable - petition disposed off.
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2017 (10) TMI 545 - MADRAS HIGH COURT
Validity of notice of attachment/garnishee order - tax arrear - case of petitioner is that on account of severe financial crunch and since the policy of the Government with regard to liquor trade is in a nebulous state, the petitioner is unable to raise finances from the open market and therefore, pleads that the petitioner may be granted sufficient time to pay arrears with interest in equated monthly instalments - Held that: - this Court is inclined to grant some indulgence to the petitioner considering the fact that the petitioner is undergoing severe financial crisis - petition allowed.
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2017 (10) TMI 544 - MADRAS HIGH COURT
Cancellation of registration - TNVAT Act - opportunity of being heard - Held that: - the revisional authority accepts the fact that the registering authority did not afford an opportunity for personal hearing to the petitioner when Sections 39(14) and 39(15) of TNVAT Act, 2006, mandates that an opportunity of personal hearing should be granted to the dealer before cancellation. Therefore, the revisional authority fell in error in holding that since the petitioner themselves filed an application for cancellation, the failure to afford an opportunity for personal hearing by the registering authority is not fatal.
With regard to the cancellation of the petitioner's registration, the same is vitiated on two grounds, namely, the same has been passed without affording an opportunity of personal hearing, which is mandatorily required to be provided and secondly, the cancellation has been done with retrospective effect which is also illegal. Therefore, on these two grounds, the registration cancellation order dated 13.04.2017 calls for interference.
Petition allowed - decided in favor of petitioner.
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2017 (10) TMI 543 - MADRAS HIGH COURT
Validity of assessment order - TNVAT Act - rectification of assessment u/s 84 - purchase from Registration Certificate cancelled dealers - purchase omissions - assessment for the year 2014-15 - Held that: - the respondent while completing the assessment pointed out that as per the web report, the registration was cancelled prior to the date of purchase and therefore, the Input Tax Credit claimed by the petitioner from registration cancelled dealer is liable to be reversed. The legal position which has been settled by this Court is that the retrospective cancellation of the registration cannot be a reason to deny Input Tax Credit for a purchasing dealer. There may be cases where a selling dealer might have suppressed the fact of cancellation of registration. So far as the purchase omission is concerned, the petitioner's explanation is that there is a small error in Annexure I filed by the petitioner wherein at Serial Nos.26 and 27, the name of the selling dealers had got interchanged, as a result of which there is a mismatch of the TIN Number. This being a factual position, the petitioner has to raise the same before the Assessing Officer for which liberty is granted to the petitioner to file an application under Section 84 of the Act - liberty to the petitioner to file an application under Section 84 of TNVAT Act - the assessment under the head purchase from registration cancelled dealer is set aside - appeal allowed in part.
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2017 (10) TMI 491 - SUPREME COURT
Levy of Entry tax - goods imported from different countries and brought into local area of a State - The State legislations are also questioned on the ground that the entry tax legislations do not contemplate levy of an entry tax on goods imported from outside the country - Whether Section 2(d) read with Section 3 of Orissa Entry Tax Act, 1999, Section 2(d) read with Section 2(d) of Kerala Act, 1994 and Bihar Act, 1993 (before its amendment in 2003), never intended to levy any entry tax on the goods, entering into local area of State from any place outside the territory of India? - Held that: - It is well known rule of statutory interpretation that by process of interpretation the provision cannot be rewritten nor any word can be introduced. The expression “any place” before the words “outside the State” is also indicative of vide extent. The words 'any place' cannot be limited to a place within the territory of India when no such indication is discernible from the provisions of the Act - The Entry tax legislations are referable to Entry 52 of List II of Seventh Schedule of the Constitution. Entry 52 also provided a legislative field, namely, 'taxes on the entries of goods into a local area for consumption, use or sale therein'. Legislation is thus concerned only with entry of goods into a local area for consumption, use or sale. The origin of goods has no relevance with regard to chargeability of entry tax - definition clause, Section 2(d) read with Section 3 does not exclude the charging of the entry tax on goods entering into local area for consumption, use or sale from outside the country.
In Section 2(d) the word used is 'any place outside that local area or outside the State'. The word 'any' is a word of very wide meaning and use of word 'any' excludes any limitation. We, thus, are of the view that all the three legislations clearly did not exclude goods coming from outside the territory of India and the definition of entry of goods read with charging section clearly included all goods entering into a local area. Thus, the submissions of learned counsel for the petitioners that entry tax legislation did not include imported goods cannot be accepted.
Entry 41 & 83 of List I and Entry 52 of List II - Whether Entry Tax Legislations in question intrude into exclusive legislative domain of Parliament as reserved under Entry 41 and Entry 83 List I? - Whether levy of entry tax on goods imported from outside territory of India is legislation trenching the field of “import and export”, “duties of custom” reserved to Parliament? - Held that: - The Constitution of India, Part XI, Chapter I deals with legislative relations, legislative powers of Parliament and State Legislatures are clearly demarcated. Power to tax is an incidence of sovereignty and there is a clear demarcation of taxing field, which has been earmarked to the Parliament as well as to the State Legislatures. Taxing power of both Union and State Legislatures are mutually exclusive and has been clearly demarcated. This is further clear by the fact that in List III, i.e. Concurrent List, no taxing entry is included except the entry of stamp duty & levying of fee in respect of any of the matters in List III but not including fees taken in any Court - The distribution of power between Union and States is done in a mutually exclusive manner as is reflected by precise and clear field of legislation as allocated under different list under the Seventh Schedule. No assumption of any overlapping between a subject allocated to Union and State arises. When the field of legislation falls in one or other in Union or State Lists, the legislation falling under the State entry has always been upheld. The Scheme of distribution of legislative power between Union and States in the Constitution of India relies on the distribution of legislative power between the Federal Government and Provincial Government as contained in Seventh Schedule of the Government of India Act, 1935. The Government of India Act, 1935 has been referred to as Constitution Act by the Privy Council - there is no clash/overlap between entry levied by the State under Entry 52 List II and the custom duty levied by the Union under Entry 83 List I. We have also arrived at the same conclusion in view of the foregoing discussions. We thus hold that entry tax legislations do not intrude in the legislative field reserved for Parliament under Entry 41 and under Entry 83 of List I. - The State Legislature is fully competent to impose tax on the entry of goods into a local area for consumption, sale and use. We thus repel the submission of petitioner that entry tax legislation of the State encroaches in the Parliament’s field.
Import and its extent - Whether the importation of goods, imported from a territory outside the India continues till the goods reach in the premises/factory of the importer, during which period State at no point of time is legislative competence to impose any tax? - Held that: - Import and export are concepts which denote trade between different countries. The term “import” signifies etymologically “to bring in”. To import goods into the territory of India means to bring them into the territory of India from abroad - The submissions of the writ petitioners on the strength of Section 5(3) that even first sale after the import should be treated during the course of the import is not supported by the concept as contained in Section 5 of the 1956 Act and the reliance on the said provision is wholly misplaced - taxing event with regard to levy of customs duty by Parliament and levy of entry tax by States under Entry 52 List II are entirely different and separate. The taxing event pertaining to levy of entry tax occurs only after the taxing event of levy of customs duty is over. Thus, the State Legislation imposing entry tax in no manner encroaches upon the Parliamentary Legislation under Entry 41 and Entry 83 - There is no invalidity in levy of entry tax by the States.
Original/Unbroken Package Theory - Whether doctrine of unbroken package as evolved by the American Court are to apply with regard to imported goods of the petitioners prohibiting the State from levying any tax till the goods are first sold/dealt by the importer? - Held that: - The Original Package/ Unbroken Package is a theory which was evolved by U.S. Supreme Court in reference to the imported goods. The genesis of the theory is from the Chief Justice Marshall, in the case of Brown Vs. The State of Maryland, 6 L.Ed. 678. State of Maryland has enacted a law that all importers of foreign articles or commodities shall, before they are authorized to sell, take out a license for which they shall pay fifty dollars - it is clear that the U.S. Supreme Court itself has abandoned the Original Package theory and it has been held that imported goods are not immuned from nondiscriminatory ad valorem taxes imposed by the State - Goods imported after having been released from customs barriers are not immuned from any kind of State taxation, which fall equally on other similar goods and the submission of the learned counsel for the petitioner that immunity from State taxation shall continue till it reaches in the premises where it is to be taken for consumption, sale and use cannot be accepted.
Non-inclusion of Custom Duty in purchase value - Whether in the definition of purchase value as contained in Entry Tax Legislations in question, noninclusion of custom duty is indicator of fact that the legislature never intended to levy entry tax on imported goods? - Held that: - From the definition of purchase value given in 2(j) three aspects are noticeable. Firstly, purchase value means the value of scheduled goods as ascertained from original invoice or bill. Secondly, it includes insurance charges excise duty and other charges mentioned therein. And thirdly, other charges incidental to the purchase of such goods. The original invoice or bill of scheduled goods, generally include the entire value including the import duty or custom duty and in any event the inclusion of 'all other charges incidental to the purchase of such goods' has to necessarily mean all charges including custom duty which is incidental to the purchase. Thus, noninclusion of custom duty specifically in definition of purchase value in 2(j) is inconsequential and cannot lead to mean that the legislature never intended to include the imported goods under the entry tax legislation - We thus do not find any substance in the submission of petitioner that noninclusion of custom duty in definition of purchase value leads to conclusion that entry tax is not payable on entry tax.
Whether Entry Tax Legislations are not covered by Entry 52 List II since the Entry 52 is in essence entry of levying octroi which can be levied only by local authorities and the State has no legislative competence to impose entry tax under Entry 52 List II? - Held that: - It is well settled that the nomenclature or form of a tax is not a decisive factor to find out the nature of the tax. It is the matter of legislative policy as to how the tax is to be collected. The definition of taxation as given in Article 266 (28) that tax includes general or local tax does not in any manner support the contention of the petitioner that tax under Entry 52 is only a local tax which ought to be collected through local bodies. It is the matter of legislative policy that whether a tax is collected as a general tax or a local tax. The nature of tax, measure of tax and machinery for tax collection are all different aspects. The submission of the petitioner that tax in Entry 52 should be collected by local authorities and State has no legislative competence to levy such tax is fallacious. It is well within the jurisdiction of the legislature to formulate its policy regarding levy of tax and its collection. Entry 52 of List II has to be given its wide and full meaning and no limitation in the legislative power of the State can be read as contended by counsel for the petitioner - Further, any pre-constitutional tax practice cannot put any fetter on Constitution farmers to define any tax, to elaborate the concept of tax or to move away or forward from any kind of earlier levy - taxes which are to be used by the local authorities can be collected by the local authorities as well as by the State Government. It is the matter of legislative policy as to how the tax is collected and distributed. Under List II Entry 5, the State has legislative power to lay down powers of the Municipal Corporation by legislation. It is again legislative policy that as what machinery is to be provided by the State legislature regarding collection of taxes on the entry of goods into a local area for consumption, use or sale. No capital can be made on the submission that since tax is not being collected by local authorities it is beyond the power of the State under Entry 52 List II. - We thus do not find any substance in the submission of the learned counsel for the petitioner that entry tax legislation is not covered by Entry 52 List II.
Expression “MACHINERY AND EQUIPMENT” as used in the SCHEDULE OF ORISSA ACT 1999 - Whether a plant, imported in knocked out condition is covered by the Part II of the Schedule of Orissa Act, 1999? - Held that: - The Plant in a knocked out condition is nothing but a collection of machineries. The plant being a wide term including machinery also, we fail to see how a knocked out plant shall not be covered by Item No. 9 of Part II of the Schedule. Machinery and equipments are wide words which shall also cover plant in a knocked out condition. We thus reject the contention of the counsel for the petitioner that a plant which is imported in knocked out condition is not covered by the Part II of Schedule of Orissa Act, 1999 - A plant imported in knocked out condition is fully covered with the definition of machinery and equipment under Part II of Schedule of the Orissa Act, 1999.
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2017 (10) TMI 490 - BOMBAY HIGH COURT
Valuation - Interpretation of Statute - clause (29) of section 2 of the Bombay Sales Tax Act, 1959 and clause (h) of Section 2 of the Central Sales Tax Act, 1956 - insurance charges and carrying charges - includibility - whether insurance charges and carrying charges forms part of sale price - Whether on the facts and in the circumstances of the case and on a true and correct interpretation of clause (29) of section 2 of the Bombay Sales Tax Act, 1959 and clause (h) of Section 2 of the Central Sales Tax Act, 1956, the Tribunal was justified in law in holding that the insurance charges and carrying charges do not form part of the sale price?
Held that: - Section 19 of the Sale of Goods Act, 1930, deals with the property passes when intended to pass - The passing of the property in goods depends upon the intention of the parties, as is evident from the terms of the contract, the conduct of the parties, and the circumstances of the case. Under subsection (3) of Section 19, unless a different intention appears, the rules contained in Sections 20 to 24 are the rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. It is thus, the transfer of right to use the goods is deemed to be sale of goods, attracting the incidence of tax.
In the present case, passing of the property in goods to the buyer is at the place and time of spot delivery. After the sale is complete, even if the assesseesellor retains the possession of the goods sold and incurs the expenditure of insurance and carrying the goods at the destination of the buyer, he performs these functions in his capacity as a 'bailee', as contemplated by Section 148 of the Indian Contract Act, 1872, who shall be entitled to reimbursement of such expenses from the 'bailor', as specified under Section 158 therein. Such charges of insurance and carrying incurred by the assesseesellor cannot, therefore, constitute a 'sale price' within the meaning of Section 2(29) of the BST Act.
The Tribunal was justified in holding that the insurance charges and carrying charges do not form part of the sale price for the reason that the sale was completed at the point of spot delivery and the insurance and carrying charges were incurred thereafter - question is answered in the affirmative - decided against Revenue.
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2017 (10) TMI 489 - GUJARAT HIGH COURT
Attachment of Bank Account - provisional attachment - Held that: - Sub-section (2) of Section 45, however, provides that every such provisional attachment shall cease to have effect after expiry of one year from the date of the order - In the present case, this period of one year is over long back. It is, therefore, declared that the order dated 13.07.2016 is no longer effective.
Refund of amount recovered by the respondents from the petitioner's bank account - Held that: - admittedly, no assessment was framed before affecting such recovery. The recovery is also affected without the petitioner's consent and directly from the bank. The respondents shall refund the said sum of ₹ 1,63,000/- at this stage without interest to the petitioner. However, if under the order of assessment any further liability arises, the period during which the amount remained with the department would incur statutory interest in favor of the petitioner.
Petition disposed off.
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2017 (10) TMI 488 - MADRAS HIGH COURT
Re-determination of the turnover in respect of the stock transfer - Form 'F' Declaration - whether such documents can be insisted upon, and what would be the scope of enquiry that could be conducted by the Assessing Officer on submission of Form 'F' Declaration? - Held that: - if a declaration is filed and on an inquiry made pursuant thereto, or in furtherance thereof, the particulars furnished are found to be correct by the Assessing Authority, the result thereof, which is evidenced by the expression ''thereupon'' shall, in view of the legal fiction created, would be a transaction otherwise than as a result of an inter-state sale. Once such a legal fiction is drawn, the same would continue to have its effect, not only while making an order of assessment in terms of the State law, but also for the purpose of invoking the powers of the assessment contained in section 9 (2) of the Central Sales Tax Act. The legal fiction continues to have effect even in relation to the powers of reassessment contained in the State Tax Law. e.g., Section 16 of the TNGST Act, 1959.
There is no allegation of fraud, misrepresentation, collusion levelled by the respondent against the petitioner/dealer. In the absence of such allegation, the scope of enquiry cannot be extended to conduct roving enquiry in the matter and such, enquiry, at best, can be conducted only on the ground of fraud, or misrepresentation, or collusion, etc - petition allowed in part.
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2017 (10) TMI 487 - MADRAS HIGH COURT
Mismatch between the Annexure 1 and Annexure 2 returns filed by the petitioner and the other end dealer - Held that: - the Assessing Officer has taken certain efforts to furnish the invoice numbers and other details, though it may be true in respect of certain transactions, the full details have not been mentioned. In any event, wherever full details have been given, the dealer was bound to give proper explanation. If the dealer wants further information, he should have asked the Assessing Officer by submitting a representation. However, in the instant case, the dealer did not resort to such a procedure, but merely, submitted an objection without giving any proper details. Therefore, substantial part of the fault lies on the dealer. Assuming that the petitioner had furnished all those details, then the Assessing Officer has to embark upon an enquiry reconcile the details furnished by the dealer with that of the information available in the website and then complete the assessment.
This Court is of the view that the petitioner can be afforded one more opportunity to explain with regard to the transactions - the Writ Petitions are disposed of, by directing the petitioner to pay 15% of the disputed tax for each of the assessment years, within a period of fifteen days from the date of receipt of a copy of this order.
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2017 (10) TMI 486 - MADRAS HIGH COURT
Validity of demand notices - case of petitioner is that the amounts mentioned in both the notices are different, and the petitioner is at a loss to understand as to how a demand for the same period, within 15 days can increase from ₹ 60,38,152/- to ₹ 98,34,537/- - attachment of Bank Account - Held that: - The fact remains that the petitioner is yet to file his return for March 2017 and the learned Additional Government Pleader submitted that unless and until, the return is filed, the assessment cannot be completed - learned counsel for the petitioner submits that since the order of attachment of the bank account has already been lifted, he will instruct his client to file the return upto date within one week from today.
After the return is filed by the petitioner upto the current period, within the time, the respondent shall issue a show cause notice to the petitioner and the authorised representative of the petitioner shall appear before the respondent, without seeking for any adjournment - petition dismissed.
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2017 (10) TMI 428 - SUPREME COURT
Levy of sales tax - Tobacco - there is a conflict between the Kothari Products [2000 (1) TMI 823 - SUPREME COURT OF INDIA] line of judgments and the Agra Belting Works [1987 (4) TMI 82 - SUPREME COURT OF INDIA] line of judgments, together with the aforesaid conundrum insofar as the doctrine of precedent qua this Court is concerned - Held that: - the Hon’ble Chief Justice of India is requested to constitute an appropriate Bench in order to decide as to whether the Kothari Products [2000 (1) TMI 823 - SUPREME COURT OF INDIA] line or the Agra Belting Works [1987 (4) TMI 82 - SUPREME COURT OF INDIA] line is correct in law and other associated issues - matter referred to the Larger Bench.
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2017 (10) TMI 427 - MADRAS HIGH COURT
Cancellation of registrations - TNVAT Act - The Joint Commissioner hold that the second respondent Mr.Nirmal Kumar Bohra, has obtained registration showing himself as proprietor of M/s.B.S.Silver Emporium by submitting manipulated documents to the office of the Assistant Commissioner, Peddunaickenpet Assessment Circle - Held that: - the petitioner has not been afforded an opportunity to putforth their contentions. Infact, copy of the impugned order has not been communicated to the petitioner and he has obtained the same under the Right to Information Act. The first respondent has set aside the order passed by the Joint Commissioner (CT), Chennai North Division, dated 19.11.2015 - The cancellation of the registration by the Assistant Commissioner was at the instance of the petitioner herein. When the Joint Commissioner heard R.P.No.69 of 2015, she had issued notice to the petitioner herein, heard the second respondent and the petitioner herein and by a detailed and speaking order, dismissed the Revision Petition. Copy of the order, dated 19.11.2015, in R.P.No.69 of 2015, has been communicated to the petitioner. Challenging the said order dated 19.11.2015, further revision was filed by the second respondent before the first respondent. Thus, the elementary principle that should have been followed by the first respondent is to issue notice to the second respondent,(the revision petitioner) as well as the petitioner herein, who is a proper and necessary party to the proceedings.
The matter is to be remanded to the first respondent for fresh consideration, then the registration certificate issued to the second respondent should not be cancelled in the interregnum - petition allowed by way of remand.
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2017 (10) TMI 426 - MADHYA PRADESH HIGH COURT
Classification of goods - levy of sales tax - Brake Fluid - The petitioner's contention is that Brake Fluid cannot be categorized as Lubricant and therefore, Sales Tax / Commercial Tax cannot be charged by treating as a Lubricant - whether the tax can be charged in respect of Brake Fluid by treating it under Entry No.9 Part-III of Schedule-II which prescribes the rate of tax in respect of description of goods as Lubricant @ 15% or tax has to be charged by treating the Brake Fluid under the residuary entry being Entry No.1 of Part-VII of Schedule-II which is @ 8%?
Held that: - Brake Fluid is a different kind of liquid altogether which is never used for the purpose of lubrication. Earlier the braking system in vehicles used to be mechanical braking system, like the braking system which we have in bicycle and the moment the pressure is applied to liver of the brake, it is transmitted mechanically to the brake pads which were fixed to the wheel of the vehicle as they are fixed at the wheel of the bicycle - With passage of time Hydraulic Brake System came into existence and the Brake Fluid was introduced. The Brake Fluid perform the same job which was being performed by the mechanical system and it transfers the force on the brake pads fixed on the brake drums (Brake Shoe). It is not at all lubricating either the brake or any part which is under the braking system. Today we have pressure brake also which exclusively work on air pressure and if the logic canvassed by the State Government is considered then the State Government will charge Sales Tax on air also as lubricants because air is again being used in braking system in some of the modern age braking system.
Reliance placed in the case of Commissioner, Trade Tax, U. P., Lucknow Vs. H. C. S. Comnet System Ltd. [2014 (1) TMI 1648 - ALLAHABAD HIGH COURT], where the Allahabad High Court was dealing with an issue relating to VSAT and the issue before the Court was whether VSAT (Very Small Aperture Terminals) and Satellite Receiver can be treated as one entry or the two item separately - The High Court has held that The functioning of “VSAT” and “Satellite receiver” is different, their actual use is different, they are differently known by the people who deal therein, and work differently. It would not be correct to treat a “VSAT” as a “satellite receiver”, so as to attract tax-ability under entry 75(i) of Notification dated January 29, 2000 issued under section 3A(1)(d) of the U. P. Trade Tax Act, 1948. Since it is not separately mentioned in entry 75(i) and 75(ii), it would be covered by entry 75(iii), being an item of electronic goods, not covered by any other item in entry 75 and would be taxable under entry 75(iii).
By no stretch of imagination, Brake Fluid and Lubricant can be treated as under one entry - petition allowed - decided in favor of petitioner.
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2017 (10) TMI 425 - BOMBAY HIGH COURT
Omission by respondent No. 2 to look into the requests made by the petitioners respectively on 24.08.2012, 21.02.2013, 18.09.2013, 18.03.2014 and one application dated 07.02.2015 - petitioner pray that before proceeding further with the proceedings for assessment in terms of notice dated 06.06.2012, these applications moved by them must be decided - Held that: - the stance of the petitioners in their letters to the respondents and this state of affairs, therefore, clearly show that the burden is upon the petitioners to demonstrate that they are not dealers and, therefore, action under Section 23(4) of the 2002 Act cannot be taken against them. They have to demonstrate that sales invoices are not genuine - The material on record, therefore, is sufficient to empower the respondents to proceed against the petitioners. They have given sufficient opportunity to the petitioners and the petitioners have continued to claim that their bankers were not giving details or then burden was upon the respondents to establish that the petitioners were dealers.
The grievance made in the present writ petition is misconceived and erroneous - petition dismissed - decided against petitioner.
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2017 (10) TMI 392 - MADRAS HIGH COURT
Detention of imported goods - import of surgical and other allied equipments - the goods imported by the petitioner from Germany on 18.04.2017, was sought to be detained and one time tax has been demanded and compounding fee being two times of the one time tax has also been demanded - Held that: - The import effected by the petitioner has not been disputed by the second respondent, rather admitted as the petitioner has a valid import licence. In such circumstances, the only fact that has to be ascertained is whether the suspicion in the minds of the second respondent that the goods are meant for sale within the State of Tamil Nadu is correct or not. For this purpose, this Court directed the Joint Commissioner (CT), Enforcement, Coimbatore, to submit a report. Upon due verification, a report has been submitted, which clearly states that the imported equipment is used by the petitioner in their hospital. This goes to show that the import has been effected by the petitioner using the import licence granted in their favour and the goods are put to use in their hospital. Thus, there is no grounds to treat the transaction as a sale within the State of Tamil Nadu - petition allowed - decided in favor of petitioner.
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