|
Advanced Search Options
VAT and Sales Tax - Case Laws
Showing 61 to 80 of 929 Records
-
2018 (12) TMI 592 - SC ORDER
Entitlement to Interest on refund amount - relevant date for calculation of interest - pre-deposit of amount - Held that:- Issue notice.
-
2018 (12) TMI 541 - ALLAHABAD HIGH COURT
Undisclosed sales turnover - Rejection of books of accounts - rejection solely on the ground that the account books and the stock register could not be produced during the survey conducted on 21.04.2012 - Held that:- There does appear to exist undisclosed stock having been discovered by the authorities on 21.04.2012 during the course of survey proceedings. Though, the quantity of excess/undisclosed stock discovered during that survey may itself not be such as may justify the total enhancement made to the turnover, however, it cannot be lost sight that in the present case, the assessee was found to have been indulged in purchase/manufacture and sale of goods outside its regular books of accounts.
The books of accounts were not produced on the date of survey and the finding with respect to the shortage and excess in the stock appears to be based entirely on facts, the further finding recorded by the authorities that the assessee had engaged in concealment of his turnover does not appear to suffer from any perversity - the rejection of books of accounts was rightly upheld.
Estimation of turnover - Held that:- Though, the goods are claimed to be excisable goods and it is further claimed that there is no other material to establish concealment of turnover, the authorities appear to have rightly considered the electricity consumption disclosed by the assessee itself in the earlier year. In the given facts of the case, the same does not appear to be irrelevant or arbitrary.
Consumption of electricity - Held that:- The assessee having remained engaged in the same activity in the earlier years, and the manufacturing activities have also been the same, the consumption of electricity, in such facts, offered a fair basis to make a guess of the estimated turnover - in the present case, rejection of books of account was made on valid basis. Therefore, the authorities have not erred in looking into the electricity consumption for the purpose of making an estimation of concealed turnover. The presentation arising on account of excisable nature of goods stood rebutted by discovery of undisclosed stocks.
Benefit of purchase tax - Held that:- Once the assessee deposits the tax on estimated purchase, he would be entitled for the corresponding benefit against payment of tax on turnover of sale.
Revision disposed off.
-
2018 (12) TMI 540 - KERALA HIGH COURT
Non-compliance with pre-deposit - appellant pleads for some more time to comply with the Tribunal's directions - Held that:- This Court will not interfere with the discretion of the Tribunal in imposing any condition to sustain a stay, more particularly when that discretion has a statutory sanction. Nevertheless, given the persistent plea the petitioner's counsel advanced about the petitioner's acute financial problems, this Court may take considerate view of the situation.
Petition disposed off holding that the petitioner shall deposit the amount as the Tribunal directed, in three equal monthly instalments.
-
2018 (12) TMI 539 - KERALA HIGH COURT
Validity of assessment order - petitioner again challenged the Ext.P4 order in the second appeal, before the Appellate Tribunal, the second respondent. The petitioner, in the appeals, filed stay petitions, too - Held that:- The petitioner has exercised on time his statutory remedy of filing second appeals. True, before the Tribunal, stay petitions are pending. Procedural fairness demands that the authorities wait, before taking further steps, until the appellate authority decides on the stay petitions - petition disposed off directing the respondent authority to defer coercive steps until the second respondent considers the stay petitions.
-
2018 (12) TMI 538 - MADRAS HIGH COURT
Principles of natural justice - validity of assessment order - case of petitioner is that the Assessing Officer did not comply with the principles of natural justice while passing the orders of assessment - Held that:- It is seen that the Assessing Officer issued the notice of proposal on 21.06.2018, wherein, he has stated that the petitioner can also avail an opportunity being heard in person on any working day within the period of 10 days. Therefore, it is evident that the exact date of personal hearing is not indicated by the Assessing Officer.
In the absence of any communication from the Assessing Officer, the petitioner is justified in not making their appearance before the Assessing Officer, since the date of such hearing was not intimated to the petitioner in writing.
The matter has to go back to the Assessing Officer for reconsidering the whole issue after giving due opportunity of personal hearing to the petitioner exactly intimating the date of such hearing, more particularly, when the Assessing Officer has proposed to impose penalty also under Section 27(3)(c) of the Tamil Nadu Value Added Tax Act, 2006 - petition allowed by way of remand.
-
2018 (12) TMI 486 - KERALA HIGH COURT
Service of notice - the Intelligence Officer set the petitioner ex-parte and issued the Ext.P5 penalty proceedings - principles of natural justice.
Whether the petitioner has been served a statutory notice or in the alternative, whether there is any deemed service of notice on the petitioner?
Held that:- Given the penal consequence that flow from Ext.P6, I reckon the authorities could have taken a little more effort to ensure service of notice, for it has at its disposal the petitioner's alternative address, too. Indeed, the Government Pleader with access to the records could inform the Court that the petitioner perhaps has taken undue advantage of the system - also, nothing prevented the assessing authority to record that reason in Ext.P6 and then reckon it as a deemed service. Further, at variance from Ext.P6, the Department cannot supply fresh reasons at this stage.
Impugned order set aside - matter remanded to the third respondent.
-
2018 (12) TMI 485 - PUNJAB AND HARYANA HIGH COURT
Levy of Tax - chemicals used as consumables in the process of job work of dyeing of fabric - property in the goods has passed on to the principals - Held that:- The matter is no longer res integra. This Court in a recent judgment in M/s AP Processors, Plot No.103, Sector 24, Faridabad through its partner Shri Arvind Jain vs. State of Haryana through Principal Secretary to Government of Haryana, Excise and Taxation Department, Civil Secretariat, Haryana, Chandigarh [2018 (5) TMI 1797 - PUNJAB AND HARYANA HIGH COURT] has already settled the legal issue against the respondent-revenue. Therein, after considering the relevant statutory provisions and the entire case law on the point, it has been concluded that the chemicals used in the job work are taxable but the pertinent question to be answered would be as to how much of dyes/colours are taxable which is transferred to the fabric when the whole quantity of consumable is not transferred.
The tax on the entire value of chemicals consumed during the process of dyeing and job work are not to be included for the purpose of levy of VAT as substantial portion of the same is not transferred to the principal eventually.
The matter is remanded to the Assessing Officer to decide the matter afresh.
-
2018 (12) TMI 484 - KERALA HIGH COURT
Compounding Scheme - main contention raised in the first appeal was that the total tax as per the return or accounts of a particular year has to be taken without any segregation of the Head Office and branches - Circular No. 42/2006 - Whether the Tribunal was correct in having found that computation of compounded tax, on the basis of the highest tax conceded in the returns or accounts in the three consecutive preceding years, should be on a consolidated basis without segregation of the Head Office and branches? - Held that:- Section 8(f)(i) speaks of the highest tax payable by the assessee in the earlier three years either under the KGST Act or KVAT Act to be taken as the basis for determining the compounded tax payable. Explanation II, however, makes it very clear that a branch has to be treated as an independent place of business for the purpose of computing the tax payable as compounded tax. Sub-clause (iii) is with respect to a branch opened in the subject year, wherein there is prescribed an average of the tax paid or payable by the dealer, in respect of the principal place of business and all branches. Hence, the intention of the legislature is clear in the said year and the tax conceded in the accounts of each of the branch and the Head Office had to be specifically taken for determining the compounded tax payable at 200% as payable for each of such distinct business place.
Circular No.42/2006 also is in tandem with the provision. Based on the time in which the new branch was opened, there is a further provision made under sub-clause (iv) of Section 8(f). All these would together indicate that the specific intention of the legislature was to provide for compounded tax, taking the separate tax paid by each of the branches and computing the compounded tax for that particular branch on the basis of the highest tax conceded by it in the returns or accounts in the last three preceding years - decided against assessee.
Whether the computation has to be made on the basis of the tax conceded in the returns or accounts or that determined in assessment? - Held that:- The words employed in the provision being very clear, we are in perfect agreement with the judgment of the other Division Bench in M/s.Malabar Ornaments (P) Ltd. [2011 (1) TMI 1281 - KERALA HIGH COURT], where it was held that the highest tax has to be taken as conceded in the return or accounts, which is the specific words employed in sub-clause (i) of Section 8(f) - decided in favor of assessee.
Non-inclusion of purchase tax under Section 5A and additional sales tax under Section 5D - Held that:- The compounding provision having spoken of the highest tax payable, does not draw a distinction between purchase tax or additional sales tax - purchase tax is also includable for determining the highest tax payable that is conceded in the accounts or returns in the years in which the KGST Act was applicable, but not includable in the VAT period, i.e., 2005-06 - decided partly in favor of assessee and partly in favor of Revenue.
Includibility of purchase tax component under Section 5D of the KGST Act - Held that:- The assessee had filed an application for compounding under the KGST Act and the same was allowed. It was subsequently in the course of the assessment year that Section 5D was brought in the statute book, increasing the tax payable under Section 5 and Section 5A by a percentage. The AOs directed the dealers who applied under the compounding provision, to pay the additional levy under Section 5D. This Court found the levy to be permissible - The dealers who were paying tax under the compounding scheme were not paying tax under Section 5 and 5A and, hence, could not be directed to pay additional tax, was the finding.
If the assessees herein were regularly assessed under Section 5 & 5A and paid the additional sales tax under Section 5D for any of the years under the KGST regime, then the same would also be includable for determining the highest tax payable in the preceding three years. However, in the case of the assessees having opted for compounding the tax payable in either of the years under the KGST Act, even if there was additional sales tax levied and paid, the same would not be includable for determining the highest tax payable - decided partly in favour of the assessee and partly in favour of the Revenue.
The AO is directed to re-do the assessment - revision disposed off.
-
2018 (12) TMI 483 - PUNJAB AND HARYANA HIGH COURT
Levy of tax with interest - deemed sales of dyes, chemicals, consumable, machinery parts and packing materials involved in the job works of the third parties - Held that:- Issue is decided in the case of M/S A.P. PROCESSORS [2018 (5) TMI 1797 - PUNJAB AND HARYANA HIGH COURT], where the matter is remanded to the Assessing Officer to work out the details of quantity of chemicals, dyes and colours that would get washed out in the process of dyeing and printing of fabrics undertaken by the appellant.
Since the issue has been decided against the revenue, at this stage, a prayer was made by the learned counsel for the appellant- revenue that as the appellant-revenue is in the process of challenging the judgment in M/s A. P. Processors's case before the Apex Court, liberty be granted to revive the appeals in case the judgment in the said case is varied or some contrary order is passed by the Supreme Court - petition dismissed.
-
2018 (12) TMI 482 - KERALA HIGH COURT
Levy of Turnover tax - turnover of saw mill - Section 2(xliv) of the Kerala Value Added Tax Act, 2003 - amounts shown as labour charges were deleted - Held that:- No examination of records or facts by the first appellate authority. The first appellate authority merely stated that “the further case of the appellant that he deals only with timber like pincoda etc is also found correct as per his books of accounts. Since the sawing charges collected is not related to the timber sold by the appellant, the receipt cannot be classified as one coming under section 2(xliv) and hence cannot be taxed” (sic). Obviously this finding has been rendered without looking into the records and the finding is belied by the specific invoice pointed out from the records by the learned Government Pleader - answered against the assessee and in favour of the Revenue.
Inclusion of separate job works u/s 2(xliv) - contention of the assessee was that the job works did not relate to the goods manufactured and sold by the assessee - any mandate in Rule 58(1)(x) of the Kerala Value Added Tax Rules, 2005 for showing the complete name and address of the person from whom such job work was taken especially in view of Section 40A(2) specifying the requirement of complete address only in case of invoices issued in respect of a taxable sale or not.
Held that:- A register was maintained, but it did not contain the entire particulars - also, the AO had issued notices to many of the persons shown in the register, which notices could not be served for reason of there being insufficient address. The assessee had also not sought for summoning any particular person as revealed from the register for the purpose of giving evidence, nor was such contention taken at any of the higher levels of appeal provided by the statute.
The Assessing Officer cannot be faulted for having added back the sawing charges, in the context of no proof of job-works having been effectively adduced before him. The Assessing Officer was perfectly right in having treated the actual charges levied for sawing; an essential activity in the process of manufacture of furniture to be part of consideration of the goods sold - decided against the assessee and in favour of the Revenue.
Revision dismissed.
-
2018 (12) TMI 481 - KERALA HIGH COURT
Deletion of penalty - Jurisdiction - power of Appellate Authority to delete penalty - Estimation of taxable turnover on the basis of electricity consumed - First Appellate Authority deleted the estimation made finding that penalty has been imposed merely on technical reason of non-production of books of accounts - whether deletion of penalty on this ground is sustainable?
Held that:- An Intelligence Officer invoking his power under Section 45 A of the KGST Act or Section 67 of the KVAT Act (in pari materia provisions) has been held to have no power to carry out an estimation. Estimation is a reasonable and rational reckoning of taxable turnover; which necessarily is a guess work based on various factors, aspects and activity of the concerned dealer, arriving at a probabilistic approximate determination of the taxable turnover; on the best of judgment of the taxation officer. There could be no estimation carried out in penalty proceedings and the evasion attempted has to be based on the clear materials or particulars, revealed at an inspection or offence detected otherwise. If the taxable turnover sought to be evaded cannot be clearly determined and quantified going by the provision, there can be only an imposition of penalty of ₹ 10,000/-.
However, that would not preclude the Assessing Officer from proceeding for best judgment assessment based on any of these factors relevant to the activity of the dealer; on there being no production of books of accounts or even when there is production; by rejection of the same. In that event, the Assessing Officer could make an estimation which is the power and authority conferred by the statute for best judgment.
On detection of an offence or any other defect on inspection or otherwise where the tax or other amounts sought to be evaded is not practicable of quantification; the Intelligence Officers should immediately transfer the files to the Assessing Officer after imposing a penalty not exceeding ₹ 10,000/-. When that is not done it is a clear reflection of the lack of team work insofar as the functioning of the Department.
The questions of law framed is answered in favour of the assessees and against the revenue.
-
2018 (12) TMI 480 - PUNJAB AND HARYANA HIGH COURT
Levy of tax - sale or not - health care services provided by the petitioner to indoor patients in the hospital - Held that:- The issue is squarely covered by the judgment of Division Bench of this Court passed in M/s Fortis Health Care Limited's case [2015 (2) TMI 1014 - PUNJAB & HARYANA HIGH COURT], where it was held that The supply of drugs, medicines, implant, stents, valves and other implants are integral to a medical services/procedures and cannot be severed to infer a sale as defined under the Punjab or the Haryana Act and therefore, are not exigible to value added tax - petition allowed - decided in favor of petitioner.
-
2018 (12) TMI 479 - PUNJAB AND HARYANA HIGH COURT
Input tax credit - purchase of Generator sets and its parts which are capital goods and used in the generation of electricity - electricity further used for running the plant and machinery for production of goods - Held that:- Considering the fact that the State itself issued clarification in the case of M/s Bhaskar Gensets Private Limited, Gurgaon, clarifying the legal issue in favour of the appellant and subsequent thereto even the Tribunal has accepted the appeal in the case of other assessee, we do not find any reason to decline the same relief to the appellant.
The substantial question of law is answered in negative - Tribunal was not justified in declining the relief of input tax credit to the appellant of the tax paid on purchase of diesel set for generating power for running the plant and machinery for production of goods, as the same is available in terms of the clarification issued by the department itself - decided in favor of assessee.
-
2018 (12) TMI 422 - ALLAHABAD HIGH COURT
Input tax credit - Denial of credit treating the same to be excess tax paid on purchase in comparison to the tax payable on such purchase - Held that:- It is undisputed that the amount with respect to which the I.T.C. being claimed is admittedly the amount paid by the assessee by way of tax on purchase of goods that have given rise to the dispute - The language of Section 13(1)(a) [table entry 1(1)] read with Section 2(p) of the Act, is sufficiently clear and provides that the input tax credit would be referable to the entire amount of tax i.e. the aggregate amount of tax paid or payable, in respect of the purchase of goods. Insofar as the legislature has itself contemplated that amount paid, may itself give rise to input tax, there is no room to enter into any exercise of interpretation to restrict the plain meaning of the word 'paid'.
While, it is undisputed that the sale was made by the assessee within the State, the reasoning offered by the authorities based solely on the excess realization of tax made by the seller cannot be sustained.
Merely because the selling dealer may have acted with abundant caution in realizing the higher amount to avoid any litigation with the State authorities and in absence of any allegation of the assessee had passed on the liability of higher tax paid, the question of law raised in the present case is answered in the negative i.e. in favour of the assessee and against the revenue - revision allowed.
-
2018 (12) TMI 421 - PUNJAB AND HARYANA HIGH COURT
Compliance with pre-deposit - section 62(5) of the Punjab VAT Act, 2005 - Whether on the facts and in the circumstances of the case, the Ld. Tribunal was justified in rejecting the pleas of the appellant for not having the sufficient means to comply with the condition of pre-deposit U/s 62(5) of the Punjab VAT Act, 2005?
Held that:- The Assessing Officer while framing the assessment had noticed that in the absence of original purchase invoices and supporting documents like bank statement, GRs, in/out register or any other proof of movement of goods, the Input Tax Credit (ITC) claim cannot be allowed to the appellant. The ITC claimed on an amount of ₹ 55,205,933/- was disallowed. Accordingly, the Assessing Officer framed the assessment vide order, Annexure A-2, creating demand of ₹ 1,09,86,225/- including the interest and penalty.
The order of the First Appellate Authority and dismissed the appeal by holding that neither the appellant had pleaded that it had gone insolvent or was not in possession of any funds, nor it deposited any amount in terms of Section 62 (5) of the Act. The appellant had not filed any affidavit to the effect that it had gone into losses and was unable to pay even 10% of the tax demand.
The appellant has failed to pin point any illegality or perversity in the aforesaid findings recorded by the authorities below which may warrant interference by this Court. No substantial question of law as claimed by the appellant arises in this appeal - appeal dismissed.
-
2018 (12) TMI 420 - KERALA HIGH COURT
Limitation for completion of assessment under Section 6(5) of the Central Sales Tax Rules, 1957 - the challenge is against the issuance of notice and completion of assessments beyond the four year period as provided under sub-rule (7) & (8) of Rule 6 of the CST Rules - Held that:- Reliance is placed on sub-clause (iii) to contend that the CST assessment has to be treated as pending for the purpose of Section 23 and the time limit mentioned therein shall not be applicable in such cases. We have to notice that the amendments have been brought in after the limitation expired in certain cases, which is before us for consideration - In any event, we have to emphasise that the provision brought in is for extension of period for the purpose of Section 25, which speaks of an assessment of escaped turnover and not the initial completion of assessment. We are of the opinion that the provision would have no application to the present set of cases.
The cases in which notices alone were issued and completion of assessment has not been effected, wherever it has been upheld, necessarily the assessee would be entitled to file objections within 30 days from the date of receipt of the certified copy of this judgment and the Assessing Officer would complete the proceedings in accordance with law, leaving open the remedy of the assessee to file statutory appeals as against the quantum, but not against the question of limitation.
It is made clear that the assessment orders wherever they have been upheld, have been upheld only on the question of limitation.
-
2018 (12) TMI 419 - KERALA HIGH COURT
Input tax Credit - credit at the rate at which the assessee paid it on purchases - Whether the Tribunal was right in having allowed the input tax credit to the goods at the rate in which the assessee-respondent purchased it without reference to the rate of tax levied as per the Schedule to the Kerala Value Added Tax Act, 2003?
Held that:- Admittedly, there was an amendment made bringing 'paints' as a commodity taxable at 20% under a table appended to Section 6(1)(a) of the Kerala Value Added Tax Act, 2003. Obviously, various assessees dealing in similar products had purchased the same at 20% and had sold it also at 20%. Later, the Commissioner had come out with a circular bearing No.43/2006, wherein specific items of paints taxable at 20% were enumerated. Later, a further circular was issued bearing No.52/2006 wherein 'synthetic enamel paints' were excluded. The general purpose of the amendment and the circulars would indicate that what was sought to be taxed at the higher rate were those items which are more expensive and not commonly used.
The input tax credit can be only at the rate at which the commodity is taxed as per the Schedule to the Act. If there is tax payment in excess of the rate available in the Schedule, then necessarily such collection to that extent would be forfeited by the State and the person who has paid the said tax would have to claim refund.
However, since the confusion created by the departmental circular for certain items, credit allowed to the extent of confusion so created.
Decided in favor of Revenue.
-
2018 (12) TMI 355 - BOMBAY HIGH COURT
Denial of input tax credit - Principles of natural justice - validity of assessment order - case of petitioner is that during the assessment proceedings, the assessing authority had not either provided the details of such dealer, nor called upon the petitioner to clarify the position in this regard - Held that:- The impugned order suffers from gross violation of principles of natural justice.
The departmental authority cannot unilaterally come to the conclusion that the petitioner's sales or purchases were not genuine and therefore, tax credit in relation to such transactions was liable to be disallowed - Any such finding must be preceded by an opportunity of hearing to the petitioner.
Impugned order st aside - proceedings are placed back before the adjudicating authority for passing a fresh order in accordance with law - petition allowed by way of remand.
-
2018 (12) TMI 354 - KERALA HIGH COURT
Taxability - transfer of trade mark to sister concerns - whether the transfer of trade mark to sister concerns would lead to a transfer of right to use, thus making the transaction taxable under the Kerala Value Added Tax Act, 2003? - Held that:- It is only appropriate that there be a remand to the last fact finding authority, the tribunal to further examine the facts; specifically the terms of the agreement of franchise. The assessee shall produce the agreement before the Tribunal and the Tribunal shall examine the same.
Both the assessee and the State would have right to file a revision from the order of the Tribunal since we have not expressed anything on the merits of the matter - revision disposed off.
-
2018 (12) TMI 353 - KERALA HIGH COURT
Input tax credit - Section 11 of the KVAT Act, 2003 - stock transfer is in the course of export or not - assessee claimed input tax credit of the tax paid on purchase of raw materials from registered dealers to the extent of the stock transfer on consignment, made to the godown of the assessee at Tamil Nadu - Held that:- Unless the assessee proves that the stock transfer was in pursuance of an export order, there cannot be a contention raised that the stock transfer was in the course of export merely for the reason that the goods have been identified under the Central Excise Act to be exported. Even if there is no diversion of goods and if there is no export, then necessarily the intention is not served and it cannot be said that the benefit conferred specifically for the export of goods should also be extended to those goods manufactured for export, but eventually not actually exported.
The mere fact that the goods so consigned is manufactured under a Unique Product Code enabling exemption from excise duty and specifically earmarked for export would not by that alone qualify for the consignment to be treated as a consignment made in the course of export - It is also to be stated that merely for the reason that the manufactured goods are first consigned to the godown at Tamil Nadu and then exported, it would not result in dis-entitling the assessee to a claim that the stock transfer is in the course of export. This would have to be proved by sufficient documents, which the assessee could produce before the Assessing Authority.
The stock transfer destined to Tamil Nadu cannot be said to be in the course of export, since the destination of the foreign buyer is not clear at the time stock transfer originates.
The consideration as to whether a specific stock transfer on consignment, is in the course of export has to be considered by the Assessing Authority - Appeal allowed by way of remand.
........
|
