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VAT and Sales Tax - Case Laws
Showing 21 to 40 of 929 Records
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2018 (12) TMI 1413 - MADRAS HIGH COURT
Jurisdiction - suo motu revisional powers - second sale exemption - Whether on the facts and in the circumstances of the case, the Joint Commissioner is right in law in exercising suo motu revisional powers under Section 37 of the Act in setting aside the order of the Appellate Authority? - Held that:- In the case on hand, the documents namely, the validity of the registration certificate is upto 31.03.1990 is not disputed by the Department. The payment made through Banking channels have been found to be correct. Therefore, the petitioner has discharged the onus cast upon them to prove that the first seller is real and identifiable person. By merely relying upon the Village Administrative Officer certificate, these records produced by the appellant could not have been discredited by the respondent.
The cancellation of the registration of the selling dealer with effect from 01.04.1990 would have no impact on the transaction in question particularly on the appellant and the liability to pay tax cannot be shifted on the appellant - appeal allowed.
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2018 (12) TMI 1358 - MADRAS HIGH COURT
Penalty u/s 22(2) of the TNGST Act - there was no excess collection of sales tax, but there was only recoupment of entry tax collected in excess - Held that:- The Assessing Officer did not dispute the fact that the entire amount of tax collected by the dealer i.e. by way of sales tax at 8% and by way of recoupment of entry tax paid being a sum of ₹ 87,144/- was remitted to the treasury. Unfortunately, the Tribunal committed a factual mistake in stating that the excess amount collected was not paid over to the State. On a perusal of the assessment order dated 27.12.2002 and the erratum order dated 31.1.2003, it is clear that the dealer paid the sales tax as well as collection made by way of recoupment of entry tax into the treasury.
Can it be stated that the dealer has contravened the provisions of Section 22(1) of the Act. This question has been answered in favour of the dealer - the levy of penalty made by the Assessing Officer is unsustainable and the First Appellate Authority is right in allowing the appeal - revision allowed.
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2018 (12) TMI 1357 - MADRAS HIGH COURT
Principles of natural justice - validity of revised assessment order - TNVAT Act - it is alleged that impugned orders passed without providing an opportunity of personal hearing and without independent application of mind - Held that:- Admittedly, notices were issued by the respondent, for which, objections were filed by the petitioner. The respondent, thereafter, ought to have fixed a date for personal hearing and communicated the same to the petitioner. A reading of the impugned orders reveal that no such exercise was done by the respondent.
A Division Bench of this Court in G.V. COTTON MILLS (P) LTD. VERSUS THE ASSISTANT COMMISSIONER (CT) AVARAYAMPALAYAM ASSESSMENT CIRCLE, COIMBATORE [2018 (3) TMI 1617 - MADRAS HIGH COURT] has held that the opportunity of personal hearing cannot be denied, even if the objections not filed - In this case, admittedly, the petitioner has submitted his objections. But, the respondent, after receipt of the said objections, has passed the impugned orders, without giving an opportunity of personal hearing.
The impugned orders, dated 23.03.2018, passed by the respondent are set aside and the matter is remanded back to the file of the respondent for fresh consideration - appeal allowed by way of remand.
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2018 (12) TMI 1356 - TELANGANA AND ANDHRA PRADESH HIGH COURT
Composition Scheme - APGST Act - whether the assessing authority could have levied tax on the tax component of the works executed by the petitioner? - Held that:- It is no doubt true that the amended Section 4(7)(b) of the Act enables every dealer executing works contract, in lieu of the amount of tax payable by him under Section 4(7)(a) of the Act, to opt to pay by way of composition at the rate of 5% of the total amount received or receivable by him. If the legislature had stopped there, the revenue may have been justified in contending that, since the total amount received or receivable by a dealer would include the tax levied on the total consideration, they were justified in levying tax on the total amount received or receivable which includes the tax component also.
Since the tax which can be levied under Section 4(7)(b) of the Act is on the total amount received or receivable by the dealer towards execution of the works contract, it is only on the total value of the works contract executed by the dealer, could tax have been levied.
The matter is remanded to the assessing authority who shall, after giving the petitioner a reasonable opportunity of being heard, examine whether VAT was levied on the VAT component of the total amount received or receivable by the petitioner in the execution of the works contract - petition allowed by way of remand.
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2018 (12) TMI 1285 - BOMBAY HIGH COURT
Principles of Natural Justice - grievance of the petitioner is that the Dy. Commissioner of State Tax passed the impugned order dated 19.3.2018 confirming the show cause notice without considering the various submissions made by the petitioner in its reply dated 17.3.2018 - Held that:- There is an efficacious alternative remedy of filing appeal under Section 26 of the MVAT Act available to the petitioner to challenge the impugned order dated 19.3.2018. The Appellate Authority would necessarily examine all the grievances of the petitioner and pass appropriate order in accordance with law. Thus, there is no reason to entertain this petition - petition disposed off.
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2018 (12) TMI 1284 - KERALA HIGH COURT
Validity of recovery proceedings - constitutional validity of provisions of Section 26C of the Kerala General Sales Tax Act, 1963 - validity of proceedings against the Director of a private limited company - Held that:- Section 26C specifically speaks of joint and several liability of every person who was a Director of a private limited company only if the tax or other amounts recoverable under the Act cannot be recovered for any reason from the private company - Hence the proceedings has to be taken first against the company and there should also be sufficient material to show that the recovering authorities were not able to recover the amounts from the assessee company. There is no such averments made by the Government in the counter affidavit also.
Since Section 26C contains a specific clause that it would be subject to the Companies Act, if any statutory right or protection is available to the Director under the Companies Act contravention of the same could be taken as a defense against the recovery.
Petition allowed - decided in favor of petitioner.
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2018 (12) TMI 1283 - BOMBAY HIGH COURT
Taxability under MVAT Act - distribution income/subscription charges collected from sub-distributors - Held that:- If the factual aspects or law had undergone any change since the order was passed by the Deputy Commissioner on 12th January, 2007, the same has not been brought on record nor stated in the impugned order. In absence of difference in relevant facts or applicable legal provisions of development of law at the hands of higher authority or court, the respondent No. 2 could not have taken a decision different from what the Deputy Commissioner in his order dated 12th October, 2007 had done.
The principle of administrative and judicial hierarchy and the requirement of following binding proceedings even by Departmental Authority exercising quasijudicial functions is all too well settled.
The impugned appellate order dated 31st January, 2017 is set aside. The proceedings are placed back before the appellate authority for fresh disposal of the appeal in accordance with law - petition allowed by way of remand.
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2018 (12) TMI 1282 - MADRAS HIGH COURT
Maintainability of rectification petition - Section 84 of TNVAT Act - grievance of the petitioner against the said orders of assessment is that the same was passed without affording an opportunity of personal hearing to the petitioner - principles of natural justice - Held that:- This Court has repeatedly held that providing such an opportunity of personal hearing is mandatory, especially, when the Assessing Officer chooses to impose penalty - the very revision of assessment orders passed in this case on 31.05.2018 without affording an opportunity of personal hearing to the petitioner, cannot be sustained on the ground of violation of principles of natural justice - petition allowed - decided in favor of petitioner.
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2018 (12) TMI 1281 - MADRAS HIGH COURT
Validity of assessment order - imposition of penalty - case of petitioner is that the Assessing Officer has failed to record any reasons and his satisfaction that the escapement of tax was due to non-disclosure of the turn over by the Assessee - Held that:- It is true that the petitioner has admitted the tax liability and paid the same before the Inspecting Officials in respect of the assessment years 2007-2008, 2011-2012, 2012-2013 and 2013-2014. Thereafter, the Assessing Officer has chosen to issue the notices of proposal for imposing penalty. It is evident that the Assessing Officer has not indicated the exact date of personal hearing to the petitioner. It is true that the petitioner did not file any reply to the notices of proposal - also, the perusal of the orders of assessment would show that the Assessing Officer has simply imposed the penalty only on the reason that the petitioner did not file any reply, without recording his satisfaction that the escapement of tax was due to willful non-disclosure of the turn over by the petitioner - thus, the Assessing Officer, if chooses to impose penalty, should specifically record his satisfaction in the order of assessment that the escapement of tax is due to willful nondisclosure of the turn over by the Assessee, since the order of assessment is being passed by way of quasi judicial proceedings and therefore, such orders should contain reasons justifying the conclusions. Therefore, this Court is inclined to set aside the impugned orders passed in respect of penalty in all the assessment years and remit the matter back to the Assessing Officer for reconsidering the issue once again, after receiving the reply from the petitioner.
Assessment years 2014-2015, 2015-2016 & 2016- 2017 - Held that:- It is not in dispute that one of the issue considered in those assessment years is mis-match issue - in respect of the mismatch issue.
The matters are remitted back to the Assessing Officer to redo the assessments only in respect of mis-match issue and penalty - petition allowed by way of remand.
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2018 (12) TMI 1280 - MADRAS HIGH COURT
Restoration of penalty u/s 27(3) of the TNVAT Act - it was alleged that sales turnover was disproportionate to the purchases - TNVAT Act - Held that:- The Appellate Deputy Commissioner rightly considered the petitioner's plea and deleted penalty. The reasons assigned by the Tribunal for restoring the penalty are not convincing and are not in accordance with the law - It is not disputed by the Revenue that the alleged difference in turnover was found out only from the books of accounts i.e. the returns filed by the assessee under the Income Tax Act, 1961 and the monthly returns filed under the TNVAT Act. In such circumstances, there can be no allegation of willful non disclosure of taxable turnover.
The penalty, which has been restored by the Tribunal, is set aside - tax case revision allowed.
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2018 (12) TMI 1279 - BOMBAY HIGH COURT
Non-compliance with pre-deposit - Section 26 (6B)(c) of the Maharashtra Value Added Tax Act, 2002 - retrospective effect of amendment - Whether the Tribunal has committed an error in dismissing the appeal as not maintainable for want of deposit of 10% of the amount assessed, so as to give retrospective effect to the amendment introduced on 15.04.2017 to Section 26 of the Maharashtra Value Added Tax Act, 2002?
Held that:- The assessment order concerning appellant for the financial year 201011 was passed on 30/10/2014, of which review proceedings were initiated on 13/4/2017, upon which review order was passed on 27/7/2017, which was challenged by way of appeal before Tribunal on 25/9/2017, which appeal came to be dismissed by the impugned order dated 22/2/2018 and before order of review was passed on 27/7/2017, Section 26(6B) of the Act of 2002 came to be inserted by amendment with effect from 15/4/2017 - The impugned order reveals that appeal came to be dismissed by the Tribunal observing that first appellate order was passed on 27/7/2017 and before that date, amended provisions came into effect from 15/4/2017, which required appellant to deposit 10% of the disputed tax along with appeal as a precondition of admission of appeal, however, appellant has not complied with said mandatory provisions of Section 26(6B) of the Act of 2002 and since said amount was not deposited, appeal came to be dismissed.
Admittedly review proceedings in respect of assessment order passed on 30/10/2014 for the financial year 201011 were initiated on 13/4/2017, which came to be decided on 27/7/2017 while the amended provisions of Section 26(6B) of the Act of 2002 came into force with effect from 15/4/2017 - the relevant date to hold applicability of amended provisions or otherwise shall be the date on which proceedings were initiated and not the date of decision.
Thus, the Tribunal has committed an error in dismissing the appeal as not maintainable for non payment of amount aforesaid, i.e. 10% of the amount assessed.
Whether recovery proceedings initiated by respondent no.5 during the pendency of appeal are legal or otherwise? - Held that:- In the case in hand, though appellant has submitted Form 314 along with his application for withdrawal of recovery proceedings before respondent nos.4 and 5, no steps are taken to act upon his request. On the contrary, it is the case of appellant that he is orally informed that no steps for withdrawal of recovery proceedings shall be taken - thus, before expiry of period prescribed to prefer an appeal, respondent nos.4 and 5 were not competent to initiate recovery proceedings against appellant or for enforcing notice issued to the appellant pending appeal.
Appeal disposed off.
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2018 (12) TMI 1233 - SC ORDER
Classification of goods - Rate of tax - bakery shortening - Held that:- Delay condoned - The Leave is granted.
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2018 (12) TMI 1232 - ALLAHABAD HIGH COURT
Imposition of penalty u/s 15A(1)(o) of the U.P. Trade Tax Act, 1948 - no intent to evade payment of tax - Held that:- There was no evidence led by the revenue to establish that non-production of Form-31 at the first instance was a conscious act by the assessee. The further evidence that had been led by the assessee to establish that the transaction was one of stock transfer and was duly disclosed, merited acceptance. The fact that the assessee had filled up Form D-3 under the Haryana Act disclosing the transportation of goods to the statutory authority does appears to have raised presumption in it's favour that the transaction was not proposed to be concealed.
Penalty may be imposed under Section 15A(1)(o) of the Act for contravention of Section 28A(6) of the Act, an intention to evade is sine qua non before the goods may be seized, by virtue of section 28A (6) of the Act - In the facts of the present case, there is no finding has been shown to have been recorded as to intention to evade tax. Penalty appears to have been levied merely on account of absence of Form 31 being produced at the first instance, when the goods reached the entry check post at Bhopura.
Revision allowed.
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2018 (12) TMI 1231 - KERALA HIGH COURT
Assessment of tax - compounding of tax - whether the M-Sand produced by the various writ petitioners by using a vertical/horizontal shaft impactor machine is liable to separate assessment under the Kerala Value Added Tax Act, 2003 even when the dealers had opted for compounding under Section 8 of the Act?
Held that:- Section 8(b) is very clear and indicates compounding fee only on the specific machines provided there under with respect to a dealer producing granite metals. True, the legislature never contemplated the introduction of vertical or horizontal shaft impactors for the purpose of producing M-Sand from the granite metal produced by a separate process through an impactor. The exemption granted, did not exclude such production by a separate machine other than that specified in clause (b) of Section 8 - The exemption granted as per the proviso applies across the board to any production of manufactured sand made by the dealers producing granite metals whether it be from the machines as specified in Clause (b) or otherwise. The compounding scheme also is for the dealers or the crushing units and on option exercised, they are absolved from regular assessment of the goods produced in the crusher units whether it be larger or smaller aggregates of granite metal or M-Sand by a VSI/HSI.
The legislature having found that there is a loss of tax insofar as the M- Sand produced by a different machine had from the assessment year 2014-15 provided a compounding fee for the VSI/HSI.
M-sand, as the provision existed in the subject assessment year was not exigible to tax when compounding has been applied for and sanctioned - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1230 - MADRAS HIGH COURT
Validity of re-assessment done - reassessment done on mere suspicion when there was misclassification of turnover on taxable and exempted goods - deletion of assessment in the absence of valid records in respect of heavy profit under exempted sales and heavy loss under taxable goods - Held that:- The Revision of assessment was done by the Assessing Officer invoking his power under Section 16(1) of the TNGST Act. The question would be as to whether the said power could have been invoked in the facts and circumstances of the case. The First Appellate Authority found that the Assessing Officer had revised the assessment based on his working that there was shortage of taxable turnover to the extent of ₹ 36,87,078/- and excess accounting of sales tax under exempted goods to an extent of ₹ 37,07,091/-.
The First Appellate Authority rightly held that there can be no two best judgement, assessment for the same dealer for the same year. Next, the First Appellate Authority considered whether the Assessing Officer could have invoked Section 36 of the TNGST Act and after examining the facts found that the Revision of assessment itself was the case of change of opinion and no finding has been recorded that there has been any suppression on the part of the dealer.
The orders passed by the First Appellate Authority as confirmed by the Tribunal are perfectly legal and valid - Tax Case Revision is dismissed.
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2018 (12) TMI 1162 - BOMBAY HIGH COURT
Classification of goods - multi function printers - classifiable under Entry 84.71 of the Notification No. VAT-1505/CR116/Taxation-1 dated 1st April, 2005 or not - MVAT Act - Held that:- Multi-functional printers are modular units which connect to the computer/computer network and are used in automation activity of printing. The heart of the multi-functional printers consists of a printing mechanism to perform the basic function of printing. In addition to the primary function of printing, other incidental functions performed by the multi-functional printers are scanning and copying or scanning, copying and fax. However, the essential function of the product is nothing but printing - A multi-functional printer is sold and marketed as a printer with additional capabilities such as copy, fax and scan. Thus, the understanding in the commercial parlance and of the end customer/user is that of a printer, with supplementary features and capabilities. Rather than having to invest in four separate machines of printer, scanner, fax and copier, the user can obtain all these capabilities by purchasing a multi-functional printer.
The printers sold by the appellant are classifiable under Entry 84.71 of the IT Products Notification as “laser jet printers”. The specific entry must prevail over the residuary entry and hence, the appellant’s goods cannot be classified under the residuary entry.
The appellant’s products have been rightly classified as attracting the rate of duty at 12.5% - substantial questions of law concurrently answered in favour of the Revenue and against the appellant-assessee - appeal dismissed.
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2018 (12) TMI 1161 - ALLAHABAD HIGH COURT
Time limitation for making assessment - service of order - Levy of entry tax - suppressed purchasers of sugar brought side from local area - UP VAT Act - Held that:- There is no explanation in the counter affidavit as to why the modes of service of the orders as prescribed under Rule 72 of the U.P. VAT Rules was not observed for serving of the order by the Department.
There being no explanation in the counter affidavit for nonobserving any of the modes of service of order as prescribed under Rules and the Circulars the irresistible conclusion is that the order was antedated - the impugned orders for Assessment Year 2013-14 U.P. and Assessment Year 2013-14 Entry Tax passed by the Deputy Commissioner, Commercial Tax, Sector-8, Meerut (respondent no. 1) both dated 28.10.2016 and served on 13.9.2017 is quashed as being beyond the prescribed period of limitation provided under Section 29 sub-section 6 of the U.P. Value Added Tax Act - petition allowed.
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2018 (12) TMI 1093 - MADRAS HIGH COURT
Condonation of delay in filing appeal - Imposition of penalty - petitioner has paid the tax liability even before issuing the notice of proposal on 09.05.2016 - assessment year 2014-15 - Held that:- Since such Appellate Authority is empowered to entertain the appeal only within a period of 60 days including the condonable period, this Court is inclined to give an indulgence to the petitioner to approach the Appellate Authority and file the appeal so as to enable such authority to decide the merits of the matter in accordance with law - petition disposed off.
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2018 (12) TMI 1092 - MADRAS HIGH COURT
Validity of assessment order - lack of Jurisdiction - Principles of natural justice - Held that:- On a perusal of the objections given by the assessee dated 24.2.2017, it is clear that the assessee was fully aware as to what is the case they have to meet. Therefore, we are of the view that it cannot be stated that there had been violation of the principles of natural justice.
On a reading of the assessment orders dated 28.7.2017, it is found that the Assessing Officer had given reasons, which, in his opinion, would justify his action in adding 25% to the assessee’s reported turnover - the assessee cannot contend that there had been violation of the principles of natural justice.
Jurisdiction - Held that:- Undoubtedly, Section 27 of the State Enactment empowers the respondent to revise the assessments. The assessee’s case before us is not questioning the jurisdiction of the respondent under Section 27 of the State Enactment, but as to the manner, in which, he has exercised his jurisdiction and the effect of the assessments, which had attained finality in the State of Andhra Pradesh wherein the assessee’s marketing companies have been assessed and the turnover have been exempted.
There is no error in the said impugned common order passed by the learned Single Judge in dismissing the said writ petitions and simultaneously granting liberty to the assessee to file appeals before the First Appellate Authority - appeal dismissed.
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2018 (12) TMI 1082 - KERALA HIGH COURT
Reopening of assessment - rate of tax - non-stick cookware and aluminum utensils - reopening on the ground that assessee having returned only 4% tax, for the turnover of non-stick cookware dealt with by the assessee; which was levied tax @ 12% - time limitation - Held that:- Clause (d) of sub-section (2) of Section 17D provides for reopening of assessment, but however only when there is fresh receipt of materials pertaining to tax evasion - In the present case, there is no fresh material obtained by the Department and the assessment was reopened only on the finding that there was a mistake in the return in so far as showing the tax leviable on non-stick cookware at 4%, as against the actual levy at 12% - the proviso to clause (d) enables reopening with the prior permission of the Commissioner, in which event the issue of fresh receipt of materials would not at all arise. Hence, when there is an order of the Commissioner definitely there could be a reopening made even in the absence of receipt of fresh materials.
Time limitation - Held that:- There is no question of there being a limitation in so far as a reopening is concerned, either by receipt of fresh materials or by permission obtained from the Commissioner. Section 17D is a code by itself and is not controlled by the provisions of the KGST Act, which are in conflict with the scheme as envisaged therein.
The issues decided herein cannot be reopened in the quantum appeal if at all filed - revision rejected.
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