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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 929 Records
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2018 (12) TMI 1016 - KERALA HIGH COURT
Liability of tax - secondary machines which are in fact discarded by the petitioner-assessee on installation of a cone crusher - compounding proceedings - Held that:- Though the petitioner submits that the secondary crushers were discarded, there is absolutely nothing to show that the same were not being operated. In fact, the question of law raised by the petitioner, specifically No.4, indicates that the secondary crushers were discarded for reason of the two crushers being worn out, which indicates that the crushers are still existing in the unit. There is absolutely no document produced to evidence that the crushers having been removed or the AO intimated of such removal.
The petitioner is obliged to satisfy the compounding fee for one primary crusher and two secondary crushers. The petitioner as per the second permission granted, has to satisfy the compounding fee for one primary crusher and one cone crusher for the two later quarters of the assessment year.
Revision dismissed.
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2018 (12) TMI 1015 - ALLAHABAD HIGH COURT
Imposition of penalty - Section 34(8) of the U.P. VAT Act, 2008 - alleged delay in deposit of TDS amount - April, 2009 to March, 2010 - Held that:- The facts being not in dispute and as have been noted above, it is clear that the default, if any, was cleared by the applicant-assessee together with interest about four years before issuance of the notice in the case of M/S Yadu Sugar Mill Ltd. Vs. The Commissioner Commercial Taxes [2018 (12) TMI 100 - ALLAHABAD HIGH COURT] a similar position of facts had given rise to the same questions of law as are involved in the present revisions. In that case, the penalties were deleted.
Since the essential facts of the present cases are identical and the questions of law involved in such facts have been answered in the negative i.e. in favour of the assessee and against the revenue.
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2018 (12) TMI 1014 - KERALA HIGH COURT
Recovery proceedings - KVAT Act - petitioner's contention is that the petitioner has inherited no property from his father. Therefore, he cannot be subjected to the recovery proceedings - Held that:- Indeed, the petitioner himself is not an assessee, nor has he owned any tax arrears to the Department. Instead, he was asked to answer the claim against his deceased father. The statutory mandate under Section 27 is unmistakable. A legal heir or representative is liable to answer the claim raised against the deceased only to the extent he has succeeded to the deceased person's estate. At any rate, that is a disputed question of fact - it will suffice if the District Collector, the 7th respondent, passes orders expeditiously on the petitioner's Ext.P9 application. If he has already heard him. Otherwise, he may hear the petitioner on the Ext.P9 and pass orders - petition disposed off.
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2018 (12) TMI 1013 - MADRAS HIGH COURT
Revision of assessment - non declaration of the taxable turnover - assessment years 2012-13, 2013-2014 and 2014-15 - Held that:- Perusal of the contents of the notice dated 14.07.2016 and the present impugned notice dated 24.08.2018 would show that they are one and the same in respect of the allegation with regard to the non declaration of the taxable turnover. Further, the present impugned notice does not anywhere indicate as if the earlier assessment made on 09.09.2016, is sought to be revised based on certain reasons and circumstances.
The impugned notices, even though said to have been issued for revising the assessment already made, are not in conformity with the requirement of law for revising the assessment and therefore, the same cannot be sustained. However, the respondent, the Assessing Officer is entitled to give fresh notice for revising the assessment in accordance with law.
Petition disposed off.
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2018 (12) TMI 1012 - KERALA HIGH COURT
Penalty - Whether the refusal to exercise discretion by the learned Single Judge as against penalty proceedings was proper or not, especially considering the fact that the penalty proceeding taken was under Section 67 of the Kerala Value Added Tax Act, 2003?
Held that:- When a penalty proceeding is initiated there is no question of a permission to file revised return, beyond the period of limitation - In the present case, the notice issued at Ext.P2 was dated 28.03.2018. The assessee has a contention that Ext.P3 communication seeking revised reruns was issued on 27.03.2018, a day before the proceedings had commenced. However, it is to be emphasised that the audited statement was filed long back on 16.05.2017, when the assessee definitely had the knowledge of the shortfall in the returns. There was no cause for the assessee to have, not sought for a revised return immediately thereafter.
The Intelligence Officer had in attempting to find out the correct figures as per the audited report computed the tax evaded so as to determine the penalty; which is a permissible exercise. We hence leave the assessee to a statutory appeal which if filed within one month from today, shall be deemed to be properly filed in time and considered on merits.
Appeal dismissed.
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2018 (12) TMI 1011 - TRIPURA HIGH COURT
Validity of assessment order - TVAT Act - maintainability of petition - availability of alternative effective remedy of appeal - Held that:- The apex court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai [1998 (10) TMI 510 - SUPREME COURT] observed that the alternative remedy may not come as a bar invoking the writ jurisdiction of this court under article 226 of the Constitution of India being plenary in nature and is not limited by any other provision of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition, but has imposed upon itself certain restrictions where an effective or efficacious remedy is available but under three exceptions the alternative statutory remedy may not operate as a bar in entertaining the writ petition filed under article 226 of the Constitution of India.
Although there is no pleadings on record as to why the statutory remedy of appeal is not effective and efficacious remedy available under the Act, 2004, the reason prima facie appears to be a condition of pre-deposit as envisaged under proviso to section 69 of the Act, 2004 but that may not be a reason for this court to entertain the present writ petition under article 226 of the Constitution and this court is clear in its view that as long as the statutory remedy is available under the statute, it is advisable for this court to restrain from exercising its inherent jurisdiction under article 226 of the Constitution.
It may be appropriate to observe that since the period of limitation is 60 days and that has expired pending writ petition, it is deemed appropriate to observe that if statutory appeal under section 69 of the Act, 2004 is being preferred by the petitioner, after due compliance of pre-deposit as mandated under section 69 - petition disposed off.
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2018 (12) TMI 1010 - CHATTISGARH HIGH COURT
Penalty - Concessional rate of tax - forged and fake C-Form - Held that:- The facts are that Form-Cs were produced by the appellant, before the assessing authority. Those Form-Cs are fraudulent and fake. On a defence being put up that they were provided by the purchasers, the assessing authority tried to locate them but then admittedly, even the appellant is neither in a position to identify the dealer or the purchaser, who had supplied him with Form-C. Therefore, it becomes a case where Form-C was not tendered to the seller by any legal entity but by some elusive source which is unidentifiable.
If such lee-way, concession or immunity is granted to such selling dealers, it will open a flood gate where large scale fraudulent forms seeking concessional rates of assessment will be used to avoid payment of taxes by putting the onus on non-existent purchasing dealers, who will only exist for argument or defence but not in reality.
The revisional authority has already reduced the element of penalty from twice the assessed amount to as much as the assessed amount which is the least which could be done under Section 28 (1) of Chhattisgarh Commercial Taxes Act, 1994 - appeal dismissed.
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2018 (12) TMI 1009 - KERALA HIGH COURT
Imposition of penalty - section 67(1) of the KVAT Act - assessment year 2009-2010 - Held that:- Indeed, the proviso is unambiguous, and it only insists that the appellant should remit 20 per cent. of the disputed tax to have the further proceedings stayed till the disposal of the appeal.
There is no room for the authorities to insist that the petitioner, in addition, should provide any security-be it a solvency certificate or a simple bond. Under those circumstances, the demand cannot be sustained.
Petition disposed off.
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2018 (12) TMI 1008 - MADRAS HIGH COURT
Revision of assessment - Jurisdiction - form "C" declarations - higher rate of tax - TNVAT Act - Held that:- Though the petitioner received the notice dated May 7, 2018, no objections were filed. Consequently, the proposal in the notice dated May 7, 2018, was confirmed and the impugned assessment order has been passed. The respondent being an assessing officer of the petitioner has no jurisdiction to revise his own assessment order, which itself is a revision of assessment and there is no such power vested with the respondent to pass the impugned order by invoking the power under section 84 of the TNVAT Act.
The impugned revision of assessment is held to be without jurisdiction - petition allowed - decided in favor of petitioner.
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2018 (12) TMI 1007 - MADRAS HIGH COURT
Principles of natural justice - validity of assessment order - classification of goods - benefit of exemption - entry No. 69 of Part C of the First Schedule to the TNVAT Act - Held that:- The equipment would fall under entry No. 104 of Part B of the First Schedule and without applying the exemption, the rate of tax will be only 5 per cent.
Issuance of Form-H - Held that:- In any event, form H has to be signed by the exporter giving registration number of the exporter under the provisions of the CST Act. Thus, it appears that it is mandatory for the person claiming exemption to produce form H declaration.
So far as the claim of exemption is concerned, the petitioner has to produce form H mandatorily and without the same, the benefit of exemption cannot be granted.
The matter is remitted to the respondent for fresh consideration - appeal allowed by way of remand.
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2018 (12) TMI 1003 - MADRAS HIGH COURT
Reopening of assessment - escaped taxation - levy of penalty - TNGST Act - Held that:- On a perusal of the records of the case, the order of the appellate authority and the Tribunal, which are the final fact finding authority, it is seen that they have come to the conclusion that Slip Nos. 10 and 11, do not point any sales suppression and that therefore, proceedings cannot be initiated under Section 16(1) of the TNGST Act, for reopening of the completed assessment, so as to include therein any turn over, which had escaped taxation.
There is no evidence or materials which would justify initiation of proceedings under Section 16(1) of the TNGST Act - Revision dismissed.
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2018 (12) TMI 919 - MADRAS HIGH COURT
Rectification of order - rejection the reason that the original C-Forms were not filed by the petitioners - inter-state sales - Held that:- There is no dispute to the fact that the petitioners, along with their returns, furnished those C-Forms in original, since in the counter affidavits, the said fact is admitted. However, those original C-Forms were misplaced by the office of the respondent and are not traceable till today. When such being the admitted position of fact, the respondent is not entitled to harp upon Rule 12(3) of the CST (Registration and Turnover) Rules, 1957 and insist the petitioners to furnish the duplicate C-Forms, as prescribed under the above said Rule.
Admittedly, the petitioners have filed the duplicate C-Forms, when they made their representation in pursuant to the orders of assessment passed against them. Therefore, the respondents ought to have considered the duplicate C-Forms and pass appropriate orders, based on such C-Forms, as though the petitioners have complied with in furnishing the C-Forms in respect of their inter-state Sales.
The matter is remitted back to the Assessing Officer for passing fresh orders on the rectification petitions, by considering the duplicate C-Forms already filed by the petitioners - appeal allowed by way of remand.
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2018 (12) TMI 846 - KERALA HIGH COURT
Penalty - initiation of recovery proceedings - Section 55 of the KVAT Act - Held that:- There is no valid reason why this Court should entertain this writ petition disregarding the petitioner's alternative remedy, which also seems to be efficacious.
Petition disposed off leaving it open for the petitioner to approach the appellate authority.
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2018 (12) TMI 770 - KERALA HIGH COURT
Imposition of penalty - receipt of amounts towards a contract, which the assessee had not disclosed in the returns - KVAT Rules - Held that:- On the mere ground of receipt of certain amounts towards mobilisation advance of a contract, there can be no penalty imposed alleging evasion of tax under Section 67, since there is no taxable activity carried out as such by the assessee as is detected by the Intelligence Officer.
This is a clear case in which the assessee, though failed to disclose the amounts in the return, had however entered the same in the books of accounts and no work having been carried out in the subject year. The Intelligence Officer also did not conduct any enquiry as to the incidence of tax, which is the execution of the works contract - the penalty could only be of ₹ 10,000/- for not disclosing the receipt in the returns.
A mere receipt of money, may attract liability to income tax, but sales tax could be levied only if there is a transaction of sale; which the Department has not proved in this case. The receipt alone cannot raise a presumption of taxable transaction or a computation of tax evaded. Unless there is a specific incidence of levy of tax shown, which is the initial burden cast on the Department itself, the Explanation casting only a reverse burden on the assessee cannot be resorted to.
The question of law in favour of the assessee and against the Revenue - penalty of ₹ 10,000/- retained - appeal allowed in part.
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2018 (12) TMI 769 - ALLAHABAD HIGH COURT
Penalty u/s 15A(1)(o) of the U.P. Trade Tax Act, 1948 - intent to evade tax - Held that:- There does not appear to be recorded any finding of fact as to intention to evade tax on part of the assessee. In fact the assessing authority had recorded a finding that it could not be said there was no intention to evade payment of tax. For a valid levy of penalty, a positive finding as to intention to evade tax was a sine qua non. Penalty could not be imposed on a mere possibility of intention to evade tax.
The discrepancy noted in the invoice and the Import Declaration Form No. 31 may have been relevant to make further inquiry. However, it did not itself lead to a finding that the Import Declaration Form contained incorrect or false disclosure. That was a matter to be inquired by the authority at the relevant time. That not being done, the inference drawn by the Tribunal as to intent to evade tax is perverse.
Decided in favor of the assessee and against the revenue - revision allowed.
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2018 (12) TMI 768 - ALLAHABAD HIGH COURT
Imposition of tax liability - works contract - addition of 20% made in the turnover - benefit of section 3-F(2)(B)(i) of the U.P. Trade Tax Act, 1948 - Held that:- Issue as to whether necessary ingredients to attract levy of tax by applying principles of 'works contract' appear to have been extensively dealt with by the assessing authority and also by the tribunal - The assessing authority has relied upon the standard format used for issuing allotment to the buyers. Specific clause of the agreement has been examined to return a finding that construction work undertaken by the revisionist on behalf of the allottees, would amount to a 'works contract'.
The question as to whether import of goods/construction materials from beyond the State of Uttar Pradesh was in furtherance of specific contract and was meant exclusively for it has been specifically urged, but the same does not appear to have been adverted to by the tribunal. - Matter remanded back.
Revision disposed off.
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2018 (12) TMI 712 - ALLAHABAD HIGH COURT
Liability of tax - works contract service - benefit of section 3-F(2)(B)(i) of the U.P. Trade Tax Act, 1948 - Held that:- Considering that tribunal is the highest fact finding authority, it was expected that tribunal would look into all such factual aspects with a greater minuteness/clarity. Considering the fact that in respect of previous year, similar issues raised have already been remitted to the tribunal, where it is reported to be pending, it would be appropriate that this matter be also remitted to the tribunal, for examining the two aspects, which have not been dealt with by it elaborately - appeal allowed by way of remand.
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2018 (12) TMI 657 - BOMBAY HIGH COURT
Jurisdiction - default in payment of tax relates to certain C-Forms - prosecution under which provisions of the Central Sales Tax Act, 1956 read with the Maharashtra Value Added Tax Act, 2002 - Held that:- Since it prima facie appears that the entire issue may be resolved if the Petitioner is able to produce all the C-Forms, we request the Deputy Commissioner of Sales Tax, Pune not to pass any final order on the impugned show cause notice for a period of four weeks from today - Petition disposed off.
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2018 (12) TMI 612 - ALLAHABAD HIGH COURT
Taxability - transfer of right to use of non-exclusive trade mark license - Held that:- The exception carved out Clauses (d) and (e) of the paragraph no. 97 of the decision of the Supreme Court in the case of Bharat Sanchar Nigam Ltd. Vs. Union of India and others, [2006 (3) TMI 1 - SUPREME COURT] as have been found in existence in the facts of the present case, would continue to deprive the revenue from imposing any tax on such transactions.
The Tribunal also appears to have noted that, in the subsequent years, the revenue authorities have themselves accepted the aforesaid position of law and not imposed tax.
Revision dismissed.
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2018 (12) TMI 611 - KERALA HIGH COURT
Location of sale - transfer of property in goods - where the situs of a sale is, when the sale is of a trade mark or patent, admittedly assessable to tax as a sale of intangible, incorporeal goods? - penalty.
Held that:- In the present case, there is no fiction created so as to bring within the concept of sales, a transaction which ordinarily would not have been termed to be sale of goods. In this context, the submission of the assessee that they had been using the trademark or patent rights in their products which could be sold all over India has to be dealt with. It was also pointed out that, just as the transferor, the transferee also gets the right to use the trademark or patent rights on specified goods which could be marketed and sold anywhere in the country.
The consideration of situs of sale insofar as the parties to the transaction herein, the seller and the purchaser, whose principal place of business exist in two different States offers no difficulty insofar as the specific provisions under the CST Act. We are also of the opinion that the amendment to the definition of “sale” in the CST Act though relevant for the six instances where there is a deemed sale of goods, has no effect insofar as the subject transaction. Dehors the amendment, the sale would come within the concept of sale as available under the CST Act, in which instance we have to look at Section 3, having accepted the sale of a trademark or patent rights as a sale of goods.
The situs of the principal place of business, from where the owner of such trademark exercises his right to sell specified goods, under the trademark or enforces his patent rights, which has been obtained by them as a statutory right, is the place where the goods exist.
Section 3 of the CST Act, applies on all fours and the agreement of transfer of the intangible, incorporeal rights; nay goods, occasions the movement of the said goods from Kerala to that other State where the transferee has their principal place of business. The agreement executed in Gujarat and Puducherry does not make the sale within that State or Union Territory, as Section 4 of the CST Act provides that sale of goods is deemed to take place in a State, only when the goods are within the State. Otherwise any goods could be taken by the seller to another State and delivered to the purchaser making it an intra-State sale.
Assessment of non-competition fee - Held that:- There is no sale of goods in the said transaction and it has to be reiterated that the fees are paid by the purchaser outside the State to the assessee within the State. Hence Exhibit P9 to the extent it assess the non-competition fee is set aside - penalty set aside.
Penalty - Held that:- Revision is allowed finding no cause for penalty and as a consequence the revision is rejected.
Revision allowed.
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