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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 929 Records
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2018 (12) TMI 1972
Validity of assessment order - disallowance of input tax credit on the purchase of certain inputs during the financial years 2011-12 and 2012-13, up to December 2012 - main thrust of the argument of Mr. S. Ravi, learned senior counsel appearing for the petitioner is that what was done by the petitioner was only a sale in the course of Inter State Trade and Commerce and that by ignoring the fact that the sale was made in-transit, the 3rd respondent levied VAT.
HELD THAT:- A serious error of law was committed by the Assessing Authority in thinking that in respect of a works contract, the property in goods cannot pass by transfer of documents of title to the goods, but can pass only when goods are incorporated. There is no basis for such a presumption. The conclusion drawn by the Assessing Officer that the provisions of Section 3(b) and Section 6(2) of the Central Sales Tax Act, 1956 will not apply to inter-State works contract sales, is also contrary to the decision of the Supreme Court in 20TH CENTURY FINANCE CORPN. LTD. AND ANOTHER VERSUS STATE OF MAHARSHTRA [2000 (5) TMI 980 - SUPREME COURT].
Section 3 of the Central Sales Tax Act, 1956 indicates two situations in which sale or purchase of goods will be deemed to take place in the course of inter-State trade or commerce. The first situation is where the movement of goods takes place from one State to another. The second is where a sale or purchase is effected by a transfer of documents of title to the goods during the movement from one State to another - Similarly, sub-section (2) of Section 6 of the Central Sales Tax Act, 1956 makes it clear that where a sale of any goods in the course of inter-State trade or commerce is effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement, effected to a registered dealer, shall be exempt from tax, if the goods are of the description referred to in Section 8(3). This exemption is subject to the registered dealer effecting the sale, fulfilling certain conditions contained in the proviso thereto.
Thus, the conclusion of the Assessing Authority that a works contract carried out on turnkey basis is not covered by Section 3(b) and Section 6(2) of the Central Sales Tax Act, 1956, is completely wrong.
It is clear from the decision of the Supreme Court in 20th Century Finance Corporation that the works contracts are also subject to the provisions of Sections 3 and 6 of the Central Sales Tax Act, 1956. In fact, the definition of the expression “works contract” was inserted in Section 2(ja) of the Central Sales Tax Act, 1956, by way of Amendment Act No.18/2005. Once a sale is deemed to take place even in a works contract, in respect of the goods involved in the execution of the works contract, there is no escape from the conclusion that the same will also be subject to the provisions of the Central Sales Tax Act, 1956.
Holding that the provisions of Section 6(2) will prevail over Section 6(1), this Court held that all subsequent sale of goods during their movement from one State to another are exempt from tax and that the object was to avoid cascading effect of multiple taxation. Unfortunately, this aspect was not appreciated by the Assessing Officer. In fact, the decision in Larsen and Toubro Ltd., was actually misread by the Assessing Authority.
Merely because invoices were drawn on Gujarat State Petroleum Corporation, it could not have been presumed that there were two independent sales. What the Assessing Authority ought to have seen in the ultimate analysis was that there were only three parties viz., (i) Gujarat State Petroleum Corporation, who was the end user, (ii) the petitioner who was the contractor who procured the material and (iii) the suppliers of materials. The internal arrangement that the petitioner and Gujarat State Petroleum Corporation had as between themselves, could not be interpreted to mean that there were two different sales - therefore, it is clear that the Assessing Authority committed a serious error in law in thinking that there cannot be a sale in transit in respect of works contracts and that Sections 3 and 6 of the Central Sales Tax Act, 1956, may not apply to a works contract. Even in respect of a works contract, a sale in the course of inter-State trade or commerce can take place in transit, by transfer of documents of title. Since the Assessing Authority thought that it was not possible, it was clearly in error on a most important issue of law. Hence, the impugned order is liable to be set aside.
Petition allowed.
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2018 (12) TMI 1911
Calling for the records on the file of the fourth respondent - vires of notification issued by the Government of Tamil Nadu in G.O.Ms.No.149, dated 12.10.2009 - HELD THAT:- The petitioner has to approach the revisional authority and seek remedy under Section 57 of the TNVAT Act - It is open to the Writ Petitioner to file revision petition before the revisional authority within a period of three weeks from the date of receipt of a copy of this order.
If such revision petition is filed, the revisional authority shall consider the said revision petition and pass appropriate orders on merits and in accordance with law, and by also taking note of the order already passed by the Joint Commissioner (CT) Salem, dated 05.06.2010.
Taking note of the order of interim stay, the impugned order shall be kept in abeyance till the decision is taken by the revisional authority, in the event of the petitioner filing the said revision petition within the said time - Petition disposed off.
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2018 (12) TMI 1900
Revision of assessment - cross-examination of other end dealers - Section 81 of the TNVAT Act, 2006 - HELD THAT:- When the petitioner's concluded assessment is sought to be revised on the strength of the returns filed by the other end dealer and the petitioner wants to cross examine the other end dealer also, it is the duty of the assessing officer to make him available. Section 81 of the TNVAT Act, 2006 confers all the powers conferred on a court by the Code of Civil Procedure, 1908, for the purpose of summoning and enforcing the attendance of any person and examining him on oath or affirmation; and compelling the production of any document. Section 81 of the TNVAT Act, 2006 does not merely confer a power. It is coupled with a duty also.
In this case, the respondent miserably failed to exercise the said statutory power given to him. The assessing officer ought to have done a cross verification with the other end dealer and also made an enquiry with the other end dealer.
The matter is remitted to the file of the respondent to pass orders afresh in accordance with law - Petition allowed by way of remand.
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2018 (12) TMI 1895
Input Tax Credit - discounts given in the form of issuance of a credit note but Tax was paid only on the original purchase price - grievance of the Assessing Officer appears to be that the writ petitioner's purchase turnover being lower, he cannot claim ITC on the original purchase price - HELD THAT:- The stand of respondent / Assessing Officer cannot be accepted. It clearly runs counter to the statutory scheme set out in TNVAT Rules, 2006. Section 2(41) of the Act defines what is “turnover”. The Explanation (II) (ii) of Section 2 (41) states that any discount on the price allowed in respect of any sale shall not be included in the turnover.
In the case on hand, it is beyond dispute that the tax already paid by the selling dealer has not at all been disturbed. Therefore, the very approach of the second respondent is contrary to the statute.
Petition allowed - decided in favor of petitioner.
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2018 (12) TMI 1885
Validity of reassessment proceedings - change of opinion - levy of purchase tax - penalty u/s 27(3) of the T.N.V.A.T. Act - Works Contract - HELD THAT:- The petitioners herein are works contractors. The purchase tax under Section 12 of the T.N.V.A.T. Act has been levied on them. It has been held in the decision of THE STATE OF TAMIL NADU VERSUS EAST COAST CONSTRUCTIONS AND INDUSTRIES [1985 (2) TMI 239 - MADRAS HIGH COURT] that where the goods have been used in the construction of buildings, such user cannot be said to be a disposal of goods as contemplated by Clause (b) of Section 7-A(1) of the Tamil Nadu General Sales Tax Act, 1959. The said provision is in pari materia with Clause (b) of Section 12 of the T.N.V.A.T. Act. The transaction in which the petitioners are engaged is said to constitute deemed sales.
Therefore, when the petitioners have already been visited with tax on that count, they cannot also be saddled with levy of purchase tax - petition allowed.
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2018 (12) TMI 1826
100% EOU - Jurisdiction - power of to disallow the refund claimed by the respondent - Section 18(2) and 18(3) of the TNVAT Act, 2006 - HELD THAT:- This Court after considering the fact that the respondent has sold the goods to a company which is located in the Special Economic Zone and it is not disputed that 100% of the goods were also exported without any exemption, held that Section 18(1) of the Tamil Nadu Value Added Tax Act,2006 gets attracted as the sale falls under Section 5(3) of the Central Sales Tax Act, 1956.
The Writ Petitions were thus allowed and the impugned order of the appellant was quashed holding that reversal of income tax concession has been done on a misconception and misreading of the provisions of Section 18 of the Tamil Nadu Value Added Tax Act,1956.
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2018 (12) TMI 1824
Maintainability of petition - availability of alternative remedy of appeal - Composition Scheme - Whether Tamil Nadu Act 27 of 2011 has to be retrospectively applied? - HELD THAT:- The fact that 01.04.2012 has been notified as the date on which the Act is to come into force cannot be put against the petitioner - The general principles concerning retrospectivity have been authoritatively laid down by the Five Judges Bench by the Honble Supreme Court in the decision of COMMISSIONER OF INCOME TAX (CENTRAL) -I, NEW DELHI VERSUS VATIKA TOWNSHIP PRIVATE LIMITED [2014 (9) TMI 576 - SUPREME COURT] where it was held that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective.
Applying the aforesaid standard, there cannot be any difficulty in coming to the conclusion that Tamil Nadu Act 27 of 2011 must be given retrospective application. As rightly pointed out by the learned counsel appearing for the petitioner, this is evident from the statement of objections and reasons annexed to the amendment Act. The legislature was aware that a literal construction of the unamended Section 3(4)(b) of the Act resulted in levy of tax under Section 3(2) of the Act on the entire turn over of the dealer. The dealer was faced with such a levy even though he had not collected any tax on the turnover upto ₹ 50.00 lakhs. In order to rectify the situation the amendment Act was introduced.
The intent and object of the legislature is clearly evident by the use of the expression ?substituted?. Therefore, it will have to be necessarily construed as retrospective. In fact, that is the object which the legislature intend to subserve. Therefore, the Tamil Nadu Act 27 of 2011 being a substitutive amendment will cover the case of the writ petitioner also.
The matter is remitted to the file of the respondent to pass orders afresh in accordance with law after affording an opportunity of personal hearing to the petitioner - petition allowed by way of remand.
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2018 (12) TMI 1802
Violation of principles of natural justice - main grievance of petitioner is that the Assessing Officer has concluding the assessment without affording an opportunity of personal hearing - HELD THAT:- Perusal of the materials placed before this court would show that after issuance of the first notice dated 18.01.2016, the petitioner has filed a detailed reply on 14.06.2016, wherein and whereby, they sought for personal hearing. While issuing the second notice styled as final notice dated 17.10.2018, the Assessing Officer has dealt with the reply submitted by the petitioner dated 14.06.2016 and consequently, called upon the petitioner to appear for the personal hearing on 29.10.2018. Therefore, it is evident that the Assessing Officer has given the opportunity of personal hearing to the petitioner only after receipt of the objections raised from them and not before the same.
There is no point in saying that the petitioner should have been given an opportunity of personal hearing in pursuant to the second reply especially, when they have failed to utilise the opportunity given through the notice dated 17.102.018. Therefore, the contention of the petitioner, as if the personal hearing was not given to them, is not sustainable. Since this Court finds that the impugned orders of assessment were passed after following the principles of natural justice, the merits of the assessment touching upon the issues dealt with therein have to be canvassed only before the next fact finding authority.
The writ petitions are disposed of by granting liberty to the petitioner to file the statutory appeal before the concerned appellate authority by complying with all other requirements within a period of two weeks from the date of receipt of a copy of this order.
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2018 (12) TMI 1768
Stay on appeal - inter-state purchase of goods - mistake in C-form - amount reflected in wrong column - correction of the mistake - HELD THAT:- The present writ petition is disposed off directing that the petitioner would be issued segregated and separate C-forms in terms of the prayer Clause-A to the writ petition (subject to verification of entitlement or merits and not on the ground of limitation).
However, this direction would remain suspended till Civil Appeals pending in the Supreme Court against the decision in the case of the petitioner are decided.
Petition disposed off.
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2018 (12) TMI 1743
Levy of purchase tax - purchase of pulses, grams and chillies from vendors whose turn over admittedly does not exceed ₹ 5,00/- crores in an assessment year - sale of goods to other States to their branches/agents for making consignment sales - Section 12 of the TNVAT Act, 2006.
The pointed contention of the petitioners counsel is that even though the goods on hand can be brought within the purview of Entry No.41 Part B of the First Schedule, applying the general principle of law that the special will prevail over the general, the goods in question will have to be necessarily treated as exempted goods.
HELD THAT:- The IV Schedule is in two parts. Part A and B. Part A has been omitted by Tamil Nadu Act No.30 of 2011. There is only Part B now. There are as many as 81 Entries in part B. If one runs through the various entries, it can be seen that Entry 1(i) to Entry 64(A) refer only to goods - Entry 68, does not exempt the goods as such. It only exempts the transactions, namely, sale of the goods referred to therein if purchased from any dealer whose turn over in respect of the goods does not exceed ₹ 5,00/- crores in a year.
For the said provision of section 12 to apply, a sale or purchase in respect of the goods must be liable to tax. The goods on hand can obviously be not brought within the scope of Entry 41 of Part B of First Schedule only because of the specific entry, namely, Entry 68 in Part B of the IV Schedule. They are not levied with tax in the turn over of the seller is below ₹ 5,00/- crores. Therefore, the phrase “in circumstances in which no tax is payable” will get attracted - It can be seen from Section 12(1) of the Act and it can be seen from the counter affidavit filed by the respondents that there is a larger object behind incorporation of Section 12 of the Act. It was introduced to ensure that the State will not lose its revenue at least at one stage. The petitioners after purchasing the goods in question have transferred the same to their branches/agents, who are in other States by effecting consignment sales.
The stand of the respondent authority will have to be sustained - Petition dismissed.
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2018 (12) TMI 1695
Principles of Natural Justice - petitioner did not reply to SCN but filed Form 501 certificates - impugned order challenged by petitioner after 20 months - HELD THAT:- The postal acknowledgment card contains the signature of someone else and in the light of the averments made in the affidavit, the objection to the belated filing of the writ petition, need not be put against the petitioner.
There was no communication after filing of the 501 certificates either to the petitioner or to his authorized representative - petitioner deserves one more opportunity.
Matter remanded back for re-hearing - petition allowed by way of remand.
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2018 (12) TMI 1645
Benefit of statutory forms (C-Forms) - benefit of lower rate of VAT - disallowance on the ground that the issuing authority in Haryana had cancelled it with retrospective effect - HELD THAT:- Learned Standing Counsel appearing on behalf of the GNCTD at the outset mentioned that the impugned order may be treated as withdrawn and formal orders in that regard will be issued.
The respondents are directed to proceed and complete the assessment in accordance with law - petition disposed off.
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2018 (12) TMI 1629
Validity of assessment order - case of petitioner is that the equal addition made by the Assessing Officer cannot be sustained, since the equal time addition for probable omission is not called for - Held that:- This Court, at this stage is not willing to express any view, as admittedly, the petitioner ought to have agitated the matter before the next fact finding authority viz., the Appellate Authority, by filing a regular appeal. In this case, they have not chosen to file such reply. Therefore, this Court is not inclined to entertain these writ petitions.
However, the factual aspects of the matter have to be agitated and adjudicated before the next fact finding authority viz., the Appellate Authority. Hence, this Court is inclined to grant liberty to the petitioner to file a statutory appeal as against the impugned orders subject to a condition that the petitioner should pay 50% of the tax liability before the Assessing Officer.
Petition disposed off.
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2018 (12) TMI 1572
Sale to an unregistered dealer - inter-State sale of surgical ECG Electrodes to various institutions - N/N. II (1)/CTE/38/76 dated 20.12.1975 issued under Section 8(5) of the Central Sales Tax Act, 1956 - whether exemption under notification for sale to an unregistered dealer remained unaffected by the amendment to Section 8(5)(a) and Section 8(5)(b) of the CST Act, 1956 or not?
Held that:- Clause 145 of the Notes on Clauses issued to the Finance Bill 2002 makes it clear that the object of amending Section 8(5) of the CST Act by Finance Act 2002 is inter alia to make furnishing of form 'C' compulsory by the dealer except in respect of exempted goods and to withdraw powers of the State Governments to waive the requirement of 'C' form specified under Section 8(4) of the CST Act. In other words, as per the notes on clauses, Section 8(5) was amended by Finance Act with a view to withdraw the powers of the State Governments to waive the requirement of form 'C' specified under Section 8(4), so that compliance of Section 8(4) becomes mandatory in respect of sales of goods to the registered dealer or the Government covered under Section 8(1) except when exempted.
The impugned orders have been passed only on the ground that the Notification is deemed to have been withdrawn. However, there is no document on record to show that the 1975 notification granting exemption had been withdrawn with effect from 13.05.2002 and therefore sale to unregistered dealer was no longer available or not exempted.
The impugned orders are set aside and the case is remitted back to the original authority to pass a speaking order after giving the petitioner an opportunity to make additional submission - petition allowed by way of remand.
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2018 (12) TMI 1571
Concessional rate of tax - form XVII declarations - revision of assessment for the year 2002-2003 - Held that:- As the revised assessment order dated 10.03.2006 does not discusses as to how the proposals contained in notice dated03.02.3006 are sustainable, it is not sustainable. However, in the impugned order, there are some discussion by comparing few paragraphs in the M/s.Aditya Envirotech Private Ltd, that the goods will fall under the eighth schedule of the TNGST Act - the issue relating to classification of goods cannot be decided on merits under Article 226 of the Constitution of India as they relate to several disputed questions off act which has to be addressed in a proper assessment proceedings and thereafter, before in an appeal before the Appellate authority.
In this case, the petitioner has not filed the second appeal before the Appellate authority against the impugned order. At the same time, it would unfair to direct the petitioner to file an appeal. It is noticed that there is no discussion on the basis on which the claim for exemption has been denied to the petitioner - The petitioner has also not clarified as to how the goods in question were assessable to tax under Section 3(5) of the Act. The petitioner has merely claimed concession based on the strength of Form 17 given by the buyer and has stated that if at all there was any tax payable, it ought to have been recovered from the buyer.
The end of justice will be met if the case is remanded back for reconsideration of the issue as to whether the sewing machine sold by the petitioner during the relevant assessment year fell within the purview of Eighth Schedule for the petitioner to claim concession/exemption under Section 3 (5) of the TNGST Act - Petition allowed by way of remand.
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2018 (12) TMI 1542
Huge suppression of taxable turnover by the dealer - Validity of assessment proceedings - PGST Act - failure on the part of first appellate authority to perform the statutory duties enshrined upon him - PVAT Act - correctness of the orders passed by the Assessing Officer, the first appellate authority and the Appellate Tribunal in its entirety - penalty u/s 24(3) of the Act - penalty u/s 13(3) of the Act - opportunity of cross examination of the officials not provided - intent to evade present or not - burden of proof.
Principles of natural justice - details furnished by the dealer in the Form C declarations - whether the dealer was justified in contending that they should be given an opportunity to cross verify the details furnished by the HPCL, cross examination of their officers, before the assessment proceedings could be completed? - Held that:- The documents, namely, the form of declaration in Form C is a document generated by the petitioners/dealers. Therefore, whatever statement made in such declaration will fully bind the dealer. In such circumstances, there is a clear estoppel against the dealer to contend something contrary to the Form C declaration. The theory as propounded by the dealer that blank forms were handed over to the HPCL is a false statement. The documents were verified by the first appellate authority and there is a clear finding to the effect that the dealer has signed all pages of the declarations. Thus, the dealer, at the very first instance, has come out with the false statement. As mentioned above, the counterfoil has to be retained by the petitioner/dealer and therefore, they cannot feign ignorance of the details contained therein - it is too late for the dealer to contend that they are not aware of the details contained in the Form C declaration and if they still persist to contend so, even before others, their action has to be strongly deprecated, as they are perpetutately false representation.
The Oil Corporation, HPCL has not only given the copy of the C-Form retained by them, which in fact, was issued by the dealer to them, but also has given the copies of the delivery details. Therefore, if the petitioner/dealer was a rightful person, the first step he should have taken is to verify these details with his selling dealers, namely, HPCL, who has granted dealership to do such business. Instead of adopting such a modus operandi, the petitioner/dealer has proceeded at a tangent by blaming the State Corporation without any details by making vague allegations, which cannot be appreciated. Thus, the fundamental basis on which the dealer has built up his case has crumbled because of the above fact that the Form C declaration is a solemn form made by the petitioner/dealer and is estopped from contending otherwise. Therefore, the initial burden has been fully discharged by the Department and it is for the petitioner/dealer to disprove the allegation against them and prove their innocence.
No iota of evidence has been produced by the dealer to dislodge his own declaration made in Form C. Thus, we are of the clear view the question of applying Section 101 of the Indian Evidence Act, 1872 would not arise.
It is not clear as to why the Department had not proceeded further in the matter, especially when they are contesting the present proceedings by filing tax case revisions to sustain the orders passed by the assessing authority. Thus, the first contention, regarding the requirement for cross examination, has to necessarily fail and accordingly, decided against the dealer.
It was also contended that no reasons were given by the authorities as well as the Tribunal - Held that:- We wholly disagree with such a contention after going through the orders passed by the Assessing Officer. Admittedly, an Assessing Officer cannot be expected to write a judgment or a judicial order. We find that the Assessing Officer has analysed the objections given by the dealer and assigned reasons in paragraph 4 of his order. Therefore, we do not agree with the submission that the order is devoid of merits.
Burden of proof - Held that:- The burden of proof had remained with the dealer and it is not for the Department to establish anything in the matter, as it is a document generated by the dealer.
Levy of penalty - requirement of mens rea - CST Act - Held that:- The issue revolves around a Form C declaration and if according to the dealer, he had submitted the blank forms, it would amount to an offence. However, the first appellate authority found that there was no blank forms but, signed by them in all pages including annexure along with invoice bills - If that is so, then the details furnished therein should obviously tally with the return filed by the dealer. If there is discrepancy in that, the burden is on the dealer to disprove the same, more particularly, when the allegation is there is large scale suppression of taxable turnover.
Mens rea is writ large on the face of the record. There is no further proof required to establish the blameworthy conduct of the dealer. Though we may not be fully justified in examining the past conduct of the dealer, especially when they had succeeded in the earlier writ petitions, which also arose out of the same type of transaction in the previous years and the Department having not filed an appeal yet, this would be a clear indicator as regards the modus operandi of the dealer. Thus, we safely conclude that there was sufficient mens rea on the part of the dealer and this can be gathered from their conduct and the Assessing Officer was justified in imposing penalty, as confirmed by the first appellate authority.
There is no case for exercising any sympathy in such cases more particularly, when the transactions are all financial transactions especially dealing with the petroleum products, which can be handled only by licensed dealers such as the petitioner.
There is no error in the decision making process as done by the Assessing Officer and such order was rightly affirmed by the first appellate authority as well as by the Tribunal - the Tax Case Revisions filed by the petitioners/dealers are dismissed and the questions of law framed in those revisions are answered against the petitioners - the order passed by the Assessing Officer is restored.
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2018 (12) TMI 1468
Maintainability of petition - availability of statutory appellate remedy - validity of assessment orders passed in respect of the assessment years 2014-15 and 2015-16 - interpretation of statute - Entry No.108 of Part B of Schedule I and Section 15 of TNVAT Act, 2006 read with Schedule IV, Part B, Entry 54 of the said Act - slaughtering, cleaning and cutting the poultry/live chicken - whether fall within the meaning of 'processing' - classified under Entry 108 of Part-B of Schedule-I or not.
Held that:- Entry 108 deals with the poultry, which has undergone the process such as slaughtering, defeathering, cleaning and cutting so as to enable the consumer of the same to carry it to the next stage of cooking. Certainly, the petitioner is not entitled to take shelter under the word "meat" referred to under Entry 54 especially, when the word "poultry" is specifically referred to therein, apart from the word 'meat', while describing the goods under such Entry. Even otherwise, 'meat' referred to under Entry 54 is a meat other than branded, processed and packed. Thus, it is evident that if an act of process takes place in respect of the poultry, such poultry will not fall under Entry 54, since, the term 'poultry' referred to therein would certainly indicate poultry as such or live poultry and not the processed one. Therefore, if the poultry is processed, the same would certainly fall under Entry 108 of Part B of I Schedule only and not under Entry 54 of Part B of IV Schedule.
Whether the admitted activities carried on by the petitioner viz., slaughtering, defeathering, cleaning and cutting the poultry would be construed as an act of processing? - Held that:- The above said activities carried on by the petitioner on the poultry, that too, with the aid of the sophisticated machineries, would certainly fall under the purview of 'processing' and consequently, supply of such chicken which undergone such process, would certainly fall under Entry 108 in Part B of I Schedule and not under Entry 54 in Part B of IV Schedule.
Thus, the activities carried on by the petitioner viz., defeathering, cleaning and cutting the chicken would certainly fall under the purview of processing and consequently, such sale would fall under Entry 108 of Part B of Schedule I and not Entry 54 of Part B of Schedule IV, as claimed by the petitioner - the Assessing Authority has rightly brought the turnover to tax by bringing such sale under Entry 108.
Petition dismissed - decided against petitioner.
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2018 (12) TMI 1416
Validity of assessment order - Held that:- The petitioner has exercised on time his statutory remedy of filing an appeal. It appears that he has also filed a stay petition. Procedural fairness demands that the authorities may wait, before taking further steps, until the appellate authority decides on the stay petition - the writ petition disposed off directing the respondent authority to defer coercive steps until the 2nd respondent considers the stay petition.
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2018 (12) TMI 1415
Imposition of penalty u/s 54(1)(15)(i) of UPVAT Act, 2008 - absence of Transit Declaration Form - absence of documents referred to under Section 52 - failure of the assessee to establish that the goods were meant for delivery outside the State - It was the case of the revenue that though the goods had been detained and the truck along with goods parked inside Police Station Mathura Refinery, Mathura, the driver of the truck, without being permitted, drove away the truck.
Held that:- While the conduct of the driver of the truck, as alleged by the revenue, even if is found to be true, may result in other penalties including one under Section 54 (1)(22) of the Act, however, in face of evidence that the goods were meant for being transported from outside the State of Uttar Pradesh to outside State of Uttar Pradesh, no penalty may arise merely because of that conduct offered by the driver of the truck - at present, it is seen that at the stage of detention of goods itself, the assessee had disclosed the exact value and quantity of goods along with details of the seller and the purchaser both of whom were located outside the State of Uttar Pradesh. The documents that were produced by the assessee by way of proof to disbelieve the allegation of transaction again pertains to same two dealer, with respect to the same commodity and quantity of the goods.
In the first place, the assessee appears to have discharged the burden cast on him to prove that the goods were transported from outside the State of Uttar Pradesh and that they had actually been delivered outside the State, as disclosed in the tax invoice. On the other hand, the revenue has failed to lead any evidence to prove the charge under Section 54(1)(15)(i) of the Act.
In view of the fact that no such evidence was led, the imposition of penalty has wrongly been upheld - decided in favor of the assessee and against the revenue.
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2018 (12) TMI 1414
Provisional attachment of Bank Accounts - section 45(1) of the Gujarat Value Added Tax Act, 2003 - Held that:- An order under section 45(1) of the Act would enure during the pendency of the proceedings of assessment or re-assessment, but once the assessment orders is passed, the authority concerned have to resort to the other provisions provided under the Act for recovery of the amount payable under the assessment orders if the dealer does not pay the same within the statutory time limit, however, they cannot continue with the provisional attachment made under sub-section (1) of section 45 of the Act. The continuance of the impugned orders after the making of the assessment orders, therefore, cannot be sustained.
The continuance of the orders of provisional attachment under section 45(1) of the Act after the passing of the final assessment orders being bad in law, the second respondent is directed to forthwith lift the attachment of the bank accounts of the petitioner under the orders dated 16.10.2018 - Petition allowed in part.
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