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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 628 Records
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2020 (12) TMI 1341
Maintainability of appeal - non-compliance with the requirement of pre-deposit - whether the appellate authority was right in rejecting the appeal of the petitioner for want of payment of 12.5% of the disputed tax? - HELD THAT:- From a reading of the provisions of Section 31(1), 31(2) and 31(3)(a) of A.P. VAT Act, it is clear that any VAT dealer objecting to "any order" passed or proceeding recorded by any authority under the provisions of the Act other than an order passed by Additional Commissioner or Joint Commissioner or Deputy Commissioner, may within 30 days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed. It is to be noted here that the word used is 'any order' passed and not 'order of assessment'. Hence, the argument of the learned Government Pleader that appeal itself may not lie cannot be accepted. The word 'any order' referred to in Section 31 cannot be limited to only assessment orders. If that was the intention of the Legislature, the same would have been incorporated therein. In the absence of the same, the endorsement made by the Assistant Commissioner on 21.11.2019 can be challenged in an appeal.
Payment of 12.5% of the difference of tax assessed by the authority prescribed - HELD THAT:- A reading of material placed before the Court does not show that the dispute or the lis between the parties was with regard to payment of any tax or collection of difference of tax or the penalty imposed therein. In fact, the Counsel for the petitioner submits that he is not disputing, at this stage, any tax liability or interest or penalty, but, his request before the authority, at this stage, is only to consider Form-H, which he has received at a belated stage. It is no doubt true that there is a delay in making an application before the authority concerned for accepting the Form-H, but, the request before the authority was only to receive Form-H, which he has received at a belated stage, but the same was rejected. The same does not relate to collection of tax or payment of tax as the assessment was complete and the same was not challenged - Further, the proviso categorically states that an appeal shall not be admitted by the appellate authority unless the dealer produced proof of payment of tax admitted to be due and proof of payment of 12.5% of difference of tax assessed by the authority prescribed and the tax admitted by the appellant for the relevant tax period in respect of which appeal is preferred. Here the appeal does not relate to imposing tax for the relevant tax period, but for a different purpose i.e., refusing to accept 'H' Form. Therefore, we are of the view that insisting on payment of 12.5% of difference of tax may not be proper.
The impugned order is set aside, directing the 2nd respondent-Appellate Deputy Commissioner (CT), Tirupati, to entertain the appeal of the petitioner against the endorsement of the 1st respondent-Assistant Commissioner (ST), Ongole-I Circle, dated 21.11.2019 and deal with the appeal without insisting on payment of 12.5% of tax, in accordance with the law - Petition allowed.
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2020 (12) TMI 1327
Principles of natural justice - validity of assessment order filed in the rectification application - seeking reconsideration of issue afresh based on the documents relied on by the petitioner - HELD THAT:- Ext.P14 order passed by the 2nd respondent in Ext.P13 rectification application filed by the petitioner is one in violation of the principles of natural justice, since the petitioner was not afforded with an opportunity of being heard. Therefore, the said order is liable to be set aside and the 2nd respondent has to reconsider that application, with notice to the petitioner and after affording it an opportunity of being heard.
This writ petition is allowed by setting aside Ext.P14 order dated 18.11.2020 of the 2nd respondent, by directing the 2nd respondent to reconsider Ext.P13 rectification application filed by the petitioner and take an appropriate decision, with notice to the petitioner and after affording it an opportunity of being heard. A decision in this regard shall be taken as expeditiously as possible, at any rate, within a period of one month from this date.
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2020 (12) TMI 1288
Auction purchase - issuance of final sale certificate to the auction purchaser - HELD THAT:- We should hear this matter finally and decide the rights of the respective parties over the secured assets. We may only say that till the disposal of this petition, the Bank may not proceed to issue the final sale certificate.
Let notice be issued to the respondents, returnable on 17.12.2020. Mr. Antani, the learned AGP, waives service of notice for and on behalf of the respondents Nos.1 and 2, whereas the respondent No.3 shall be served by the Bank through E-mail or through direct service.
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2020 (12) TMI 1287
Sale of property by way of auction - account of the borrower was declared or classified as NPA - issue of notice under Section 13(2) of the SARFAESI Act - mortgaged properties were tried to be put on auction but the Bank failed - HELD THAT:- At this stage, Mr. Kavina pointed out that the law is well settled in view of the two pronouncements of this Court that the Bank will have precedence over the charge of the State in view of Section 26E of the SARFAESI Act. According to Mr. Kavina, the State may not be able to enforce such charge in view of the settled position of law, but in the process, the Bank will also loose its legitimate dues.
Mr. Antani is requested to immediately get in touch with the authority concerned and discuss the matter. It should not happen that the State also fails in enforcing its charge, and at the same time, the Bank would also loose its legitimate dues. In other words, in this imbroglio, the public exchequer should not suffer. In the peculiar fact situation, we are adjourning this matter for tomorrow. The Registry shall prepare a Board and notify this matter for hearing
Let this matter come up tomorrow for further hearing as a special case. Post the matter on 12th December, 2020.
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2020 (12) TMI 1286
Sale of property by way of auction - buyer who has offered to purchase the property - entire exercise is required to be completed within 90 days - HELD THAT:- The matter is filed before the registry long back and if the aforesaid exercise is not completed within time limit, it would be again very difficult for the petitioner bank to find the buyer. It is also noted that the petitioner has filed two sets of the petition before the registry.
Under the circumstances, office is directed to place this matter before Appropriate Division Bench on 11.12.2020.
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2020 (12) TMI 1285
Validity of attachment order - overriding of charges of the Respondent under Section 48 of the VAT Act - first priority of the bank over the dues vis-a-vis. the Value Added Tax dues under the VAT Act, 2003, which the State Government wants to recover from the assets of the defaulter i.e. the respondent No.3 - HELD THAT:- The issue is nor more res-integra as decided in the case of Kalupur Commercial Coop. Bank Ltd. Vs. State of Gujarat [2019 (9) TMI 1018 - GUJARAT HIGH COURT] where it was held that
Thus, the Bank i.e. the writ applicant has the first charge over the secured assets. The State cannot rely upon the Section 48 of the VAT Act for the purpose of seeking precedence over the claim of the Bank.
The communication addressed by the respondent No.2 to the Talati of Bhunava Gram Panchayat, Taluka Gondal, Dist. Rajkot, to mutate appropriate charge over the immovable properties of the borrower (the respondent No.3) in the revenue record is not sustainable - Application allowed.
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2020 (12) TMI 1281
Validity of assessment order - applicability of time limitation in reopening and reassessing the returns filed by the appellant for the year 2005-06 - inter-State Trade on C forms - HELD THAT:- The impugned order at annexure A passed by the first respondent confine itself to validity of the order of reassessment on the ground that the authorities were not beyond the period of limitation in reopening and reassessing the returns filed by the appellant for the year 2005-06. It does not go into the actual calculations as to whether the taxes, interest and penalty demanded by the order of respondent No. 2 is correct or not.
The respondent No. 2 as per the provisions of section 9 of the KVAT Act ought to have relooked as to whether there is any error apparent on the face of the record as mentioned by the appellant. He has failed to do so - the matter is remanded back and respondent No. 2 is directed to consider the request of the appellant and pass such orders in accordance with law - appeal allowed by way of remand.
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2020 (12) TMI 1268
Maintainability of petition - instead of filing appeal, petitioner has filed this petition beyond limitation period - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Viewed from that perspective, this Court is not inclined to delve into the merits of the controversy involved in the matter.
The Writ Petition is dismissed.
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2020 (12) TMI 1267
Maintainability of petition - instead of filing appeal, petitioner has filed this petition beyond limitation period - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Viewed from that perspective, this Court is not inclined to delve into the merits of the controversy involved in the matter.
The Writ Petition is dismissed.
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2020 (12) TMI 1266
Maintainability of petition - instead of filing appeal, petitioner has filed this petition beyond limitation period - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Viewed from that perspective, this Court is not inclined to delve into the merits of the controversy involved in the matter.
The Writ Petition is dismissed.
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2020 (12) TMI 1265
Maintainability of petition - instead of filing appeal, petitioner has filed this petition beyond limitation period - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Viewed from that perspective, this Court is not inclined to delve into the merits of the controversy involved in the matter.
The Writ Petition is dismissed.
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2020 (12) TMI 1264
Permission to withdraw the petition - availability of effective alternative remedy to challenge the impugned order by way of revision under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- These Writ Petitions are dismissed as withdrawn with liberty to resort to the required procedure. It is made clear that for the purpose of reckoning limitation for availing the aforesaid remedy, the period from the date of filing of the Writ Petition, viz., 22.11.2018, till the date on which the certified copy of this order is made ready by the Registry, shall be excluded.
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2020 (12) TMI 1231
Maintainability of petiotion - entitled to file appeal but not done so - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter.
The Writ Petition, which cannot be entertained, is dismissed.
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2020 (12) TMI 1220
Maintainability of petition - time limitation for filing revision petition lapsed - Petitioner did not prefer any Revision Petition before the authority, but has instead filed this Writ Petition challenging the order passed by the Second Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Since the order fixing the compounding fee in respect of the Petitioner for the year 2015-2016 has attained finality, the consequential notice dated 03.03.2017 for recovery of the amount due cannot be interdicted.
Petition dismissed.
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2020 (12) TMI 1171
Reassessment order - input credit which was allowed in the original assessment, is now disallowed - jurisdiction - time limitation - violation of the principles of natural justice - whether the impugned order of reassessment once again raising a demand by disallowing the very same input tax credit which was disallowed in the original assessment, is tenable in law? - Section 35 of the Gujarat VAT Act, 2003 - HELD THAT:- The provisions of Section 35 of the Act, 2003 would indicate that after a dealer has been assessed under Sections 33, 34 and 35 of the Act as the case may be in any particular year, if the Commissioner has reason to believe that the the whole or any part of the taxable turnover of the dealer in respect of any period, has escaped assessment or has been under assessed or has been assessed at a rate lower than the rate at which it is assessable or wrongly been allowed any deduction therefrom, or has wrongly been allowed any tax credit therein, the Commissioner may serve a notice on the dealer and after giving an opportunity of hearing, proceed to pass appropriate order to determine the best of his judgment, the amount of tax due from the dealer.
In this petition, it is the original assessment order disallowing the credit which is made the subject matter of challenge. This Court is yet to adjudicate this writ application. If ultimately the writ applicant is not successful in the Special Civil Application No.18263 of 2019, then he will have to pay the tax as assessed - the impugned reassessment order is not tenable in law as there was no scope for the authority to invoke Section 35 of the VAT Act.
The impugned order of reassessment order is quashed and set aside - Application allowed.
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2020 (12) TMI 1170
Principles of Natural Justice - service of SCN - petitioner contends that the alleged show-cause notice dt.10.07.2019 was served on the petitioner by e-mail only on 16.11.2019 along with personal hearing notice - HELD THAT:- The 1st respondent was bound to taken into account the response filed by petitioner on 20.11.2019 to the show-cause notice dt.10.07.2019 issued by the 1st respondent before passing the impugned assessment order. He also ought to have considered the CST returns filed by the petitioner. Failure to do so, has vitiated the impugned order.
The matter is remitted to the 1st respondent for fresh consideration; the 1st respondent is directed to provide a personal hearing to the petitioner - Petition allowed by way of remand.
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2020 (12) TMI 1169
Validity of attachment of property - recovery of arrears of property tax - petitioner requested to remove the encumbrance on the ground that she is a bonafide purchaser of the property for valuable consideration - HELD THAT:- It is very clear that the petitioner purchased the property only after obtaining encumbrance on 08.08.2014. On the date of encumbrance dated 08.08.2014, there was no attachment made by the first respondent. The petitioner purchased the property from Rajiv under sale deed dated 04.09.2014, registered as document No.2758 of 2014 in Sub Registrar's Office, Kanniyakumari District. As seen from the sale deed dated 04.09.2014, the petitioner has paid a sale consideration of ₹ 13,43,048/- for the extent of property 3.850 cents situated at Agasteeswaram Taluk, Kanniyakumari District - Admittedly, the attachment over the property was executed by the first respondent only on 06.10.2015 for the arrears of property tax payable by V.S.K.Radha Krishnan, the father of the petitioner's vendor R.Rajiv. The respondents have also not produced any iota of evidence against the petitioner before this Court that the petitioner was aware of the proceedings initiated by the first respondent against the father of the petitioner's vendor for arrears of property tax.
In the case on hand, the petitioner is a bonafide purchaser and has taken the property free of all encumbrance and she has no notice either actual or constructive about the proceedings initiated by the first respondent against the vendor's father Mr.Radha Krishnan for arrears of tax.
The encumbrance (Attachment) reflected in the encumbrance as on 06.10.2015, will have to be removed by the second respondent, within a period of one week from the date of receipt of a copy of this order - Petition allowed.
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2020 (12) TMI 1168
Demand of differential amount of tax due with interest and penalty - Verification of the sales transactions of the Petitioner during the year 2014-2015 - HELD THAT:- The issue decided in the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] where it was held that this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed orders reversing the Input Tax Credit with no appreciable impact on the revenue collection.
The concerned assessing officer shall issue fresh show cause notice with all required details in respect of levy of tax for mismatch invoices and the Petitioner shall be entitled to submit his explanation within the prescribed time. It is made clear that the Petitioner shall not be entitled to raise any plea of limitation when the fresh show cause notice is issued - It shall be incumbent upon the assessing officer to afford opportunity of hearing to the Petitioner following the prescribed procedure - petition allowed by way of remand.
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2020 (12) TMI 1167
Violation of principles of Natural Justice - Validity of assessment order - assessment order assailed on the ground that the said orders have been passed at the fag end of the limitation period, that too during the period when the lockdown announced by the State Government was in force - HELD THAT:- Admittedly, as can be seen from the G.O. Ms. No. 45, General Administration, dated 22.03.2020, issued by the Government of Telangana, wherein it is stated that consequent upon the Covid-19 being declared as a pandemic by the World Health Organization, the State Government, as an emergency measure to prevent and contain the spread of virus, is notifying lockdown in the entire State of Telangana with immediate effect, initially till 31 March 2020. By the said G.O issued, the Government had prescribed certain regulations and measures to be followed during the said period. The said period of lockdown was extended from time to time till the end of June, 2020. It is only thereafter, certain relaxations were given.
It is not the case of the respondent authorities that the petitioners belong to the category of business entities/ undertakings whose activities were permitted by the above regulations. On the contrary, it is the case of the petitioners that the petitioners being commercial establishments, offices were required to keep their businesses closed upon issue of the above G.O by the Government of Telangana, with immediate effect. If the petitioners had not complied with the above regulation and had kept their offices functioning thereby violating the same, the petitioners were liable to be proceeded against under the provisions of Epidemics Diseases Act, 1897 and the Disaster Management Act, 2005 - Taking note of the regulation no.7 and also the consequences of violation thereof specified in regulation no.22, the petitioners cannot be expected to keep their business establishments, offices functioning after 22.03.2020.
While on one hand the petitioners acted in consonance / compliance with the Government order issued to prevent and contain the spread of virus, the assessing authority on the other hand fastened the petitioners with the liability to tax by passing the impugned order of assessment, behind their back. The said action on the part of the respondent authorities cannot be upheld even though the authority may have compelling reasons to do so, having regard to the limitation to make assessment getting over - this court is of the view that the petitioners were prevented to represent themselves before their respective assessing authorities for getting the assessments completed from 22.03.2020 onwards.
The impugned order of assessment passed by the respective assessment authorities would have to be considered as having been passed without affording adequate opportunity to the petitioners and as such is in violation of principles of natural justice - the matters are remitted back to the respective authority to pass orders afresh after issuing notice to the concerned petitioner - Petition allowed by way of remand.
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2020 (12) TMI 1166
Validity of assessment order - Transfer of title of goods - seeking direction to First Appellate Authority to hear appeal without insisting for pre-deposit as required under Section 62(5) of the PVAT Act - HELD THAT:- The respondent issued Form ‘C’ for all the years in question and in case of doubt must have stopped as well initiate appropriate steps instead of waiting for framing assessment at fag end of limitation period. It would be harsh if petitioner is required to deposit 25% of tax, interest and penalty. Penalty imposed is 200% and it is a case of interpretation and not fraud.
Keeping in mind that petitioner has prime facie case on merits, we direct the petitioner to make pre-deposit of 25% of tax and further some amount towards interest, which would make a total deposit ₹ 7.5 Crore towards the condition of pre-deposit for hearing of the three appeals for assessment years concerned. We make it clear that petitioner shall make deposit of ₹ 7.5 Crore within one month from the date of receipt of certified copy of this order and it would be in respect of Assessment years 2010-11, 2011-12 and 2012-13 - On furnishing of proof of deposit, First Appellate Authority i.e. Deputy Excise and Taxation Commissioner (Appeals) shall hear and decide appeals preferably within three (03) months - petition disposed off.
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