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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 650 Records
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2021 (12) TMI 1491 - MADRAS HIGH COURT
Refund of the amounts which was deducted by the Chennai Corporation for the Works Contract rendered by the petitioner for the Chennai Corporation.
It is the case of the petitioner that the petitioner has rendered works contract for Chennai Corporation and that there was a delay on the part of the Chennai Corporation issuing Form T, as a result of which, the tax which was deducted by the Chennai Corporation and paid to the Revenue which could not be adjusted against the tax liability of the petitioner.
HELD THAT:- Considering the fact that the representations dated 07.11.2018 and 02.07.2021 of the petitioner has not evoked any response from the respondents, this Writ Petition is disposed at the the time of admission without expressing any opinion on the merits of the case by directing the respondents to pass appropriate orders on the representations of the petitioner within a period of forty five days from the date of receipt of a copy of this order.
Petition disposed off.
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2021 (12) TMI 1469 - CALCUTTA HIGH COURT
Violation of principles of natural justice - Rejection of the petitioner’s application for revision - application passed ex parte - HELD THAT:- On perusal of record it appears that the petitioner is habitual defaulter in appearance both before the Appellate Authority as well as Revisional Authority as appears from record and which is reflected from the recording of the Revisional Authority.
On perusal of the contents of the impugned order of the Revisional Authority, it is not that type of case where it can be called there is violation of principle of natural justice.
Petition dismissed.
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2021 (12) TMI 1466 - MADRAS HIGH COURT
Transition of tax deducted at source under Section 140 of the TNGST Act, 2017 - HELD THAT:- Since the issue dealt by the learned single Judge in M/s DMR Constructions Vs. The Assistant Commissioner. The Government Advocate (Taxes) [2021 (4) TMI 261 - MADRAS HIGH COURT] and in the present case are one and the same that is whether the tax deducted at source under Section 5 read with Section 13 of TNVAT ACT, 2006 could be transited under Section 140 of the TNGST Act, 2017 and since the learned Government Advocate (Taxes) concedes the case and states that the respondent/Commercial Tax Department has accepted and since no contra order has been cited - the same present writ petition is followed.
Petition allowed.
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2021 (12) TMI 1464 - SC ORDER
Levy of penalty - differential tax of duty - HELD THAT:- So far as imposing the penalty is concerned, the learned Single Judge set aside the same also on quashing and setting aside the levy of differential tax. However, so far as the Division Bench is concerned, the Division Bench has not at all addressed anything on the levy of penalty. From the impugned judgment and order passed by the Division Bench, it appears that there is no discussion by the Division Bench on the levy of penalty.
Therefore, so far as the levy of penalty is concerned, the liberty reserved in favour of the petitioner to approach the Division Bench of the High Court by way of Review Petition(s) and as and when such Revision Petition(s) is/are filed within a period of four weeks from today, the same may be considered in accordance with law and on merits.
The present Special Leave Petitions stand disposed of.
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2021 (12) TMI 1444 - ORISSA HIGH COURT
Maintainability of reassessment under Section 43 of the OVAT Act - absence of completion of assessment under Sections 39, 40, 42 or 44 of the OVAT Act - HELD THAT:- The present writ petition is allowed. Consequently, the impugned order of reassessment is hereby quashed.
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2021 (12) TMI 1376 - MADRAS HIGH COURT
Time Limitation for re-opening of the assessment - rejection on the ground that the amendment of Section 27(1) of the Act was made in the year 2012 vide G.O.Ms.No.82, Commercial Taxes and Registration (B1) Department, 18.06.2012 - Section 27 of the TNVAT Act, 2006 - HELD THAT:- As far as the merits of the case for the Assessment Year 2011-2012 is concerned, this Court is not inclined to entertain the plea, particularly in the light of the fact that the petitioner has been negligent in not filing reply to the notices dated 22.06.2018 either within the time stipulated in the notices dated 22.06.2018 or after the expiry of time sought for by the petitioner by letter dated 19.07.2018 was granted - The only fault lies in the entire proceedings is that the respondent has not called the petitioner for a personal hearing before passing impugned Assessment Orders. However, the fact remains that the petitioner was also.
This Court is incapable of deciding the case on merits merely based on the affidavit of the petitioner without any other documents. It is not possible for the Court to get into the disputed questions of fact - considering the fact that the petitioner is facing huge demand of tax and penalty, this case is remitted back to the respondent to reconsider the issue subject to the petitioner depositing a 25% of the demand in the respective impugned Assessment Orders as a condition for the case to be heard. The amount shall be deposited by the petitioner within a period of three months from the date of receipt of a copy of this order.
Writ petition disposed off.
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2021 (12) TMI 1187 - ANDHRA PRADESH HIGH COURT
Principles of Natural Justice - CST assessment Orders for the Financial Year 2016-17 and Financial Year 2017-18 - opportunity of personal hearing was not provided to the petitioner - HELD THAT:- The court does not find the present case to be one of such nature where the High Court should straightaway interfere, as there is an efficacious statutory remedy of appeal available to the petitioner. In the considered opinion of the court, the petitioner should first avail the statutory remedy and whatever points have been argued before this Court can very well be argued and appreciated before the Appellate Authority.
There has been lapse on the part of the petitioner which now is sought to be explained as a mistake and error committed by the petitioner. Once the petitioner itself admits that there were lapses and error on its part, it cannot be termed that there has been gross miscarriage of justice by the authorities requiring interference by the High Court at the very first instance. Moreover, at the cost of repetition, all the points available to the petitioner which have also been argued before the Court can very well to be raised and appreciated by the Appellate Authority.
The writ petition stands disposed of giving liberty to the petitioner to approach respondent no.3/Appellate Authority against the order impugned.
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2021 (12) TMI 1046 - BOMBAY HIGH COURT
Attachment of secured assets - recovery of sales tax dues - Section 26-E of the SARFAESI Act and Section 31-B of the Recovery of Debts and Bankruptcy Act, 2002 - HELD THAT:- In the case of the Cosmos Cooperative Bank .v/s. State of Maharashtra and other [2019 (11) TMI 1689 - BOMBAY HIGH COURT], the Division Bench of this Court at the Principal seat at Bombay has held that on harmonious reading of Section 26-E of the SARFAESI Act and Section 37 of the MVAT Act it would be clear that the secured creditor would have a first charge over an asset and the charge created in favour of the State of Maharashtra under Section 37 of the MVAT Act would be subject to the first charge created by the Central Legislation namely, Section 26-E of the SARFAESI Act.
In view of this settled legal position and in the background of the facts established in this case, the action initiated by the respondent Nos.1, 2 and 3 to the extent of two properties cannot be sustained.
Petition allowed.
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2021 (12) TMI 953 - MADRAS HIGH COURT
Principles of natural justice - pre-revisional notices - sheet-anchor submission of learned Senior Counsel is if one more opportunity is given to the writ petitioner dealer, the writ petitioner dealer would now produce the books of accounts and the matter can be given a quietus by passing revisional orders afresh - HELD THAT:- A careful perusal of the impugned orders reveal that it has not been referred to in all the impugned orders but in any event, the impugned orders deal with objections that have been raised by the dealer. The correctness or otherwise of the conclusions arrived at vide the impugned orders will have to be tested only in an appeal ie., in a statutory appeal under Section 51 of TN VAT Act. One of the reasons for this is, the matter turns heavily on facts and the appellate authority under Section 51 of TN VAT Act can also look at the books of accounts and come to a conclusion with regard to the points that are being urged.
There is no disputation or disagreement that alternate remedy is available to the writ petitioner by way of a statutory appeal under Section 51 of TN VAT Act. The alternate remedy rule no doubt is not an absolute rule. In other words, the alternate remedy rule is a rule of discretion. It is not only a rule of discretion, it is a self restraint qua writ jurisdiction.
The campaign of the writ petitioner qua the impugned orders in the captioned four writ petitions fail and the writ petitions are dismissed albeit making it clear that if the writ petitioner chooses the alternate remedy route and files statutory appeals, the same will be considered (subject of course to limitation and pre-deposit condition) by the appellate authority on its own merits and in accordance with law - this Court also makes it clear that this is the third round of litigation in the first tier of tax assessment and therefore, this Court is of the view that it is time that the dealer moves on to the appellate authority which is also an authority which can go into facts including examination of books of accounts.
Writ Petitions are dismissed.
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2021 (12) TMI 952 - KERALA HIGH COURT
Evasion of tax - Broiler Chicken Birds - undervaluation - suppression of actual sale value of chicken - HELD THAT:- In the case on hand, we would like not to confer or deny the power of the Appellate Authority on general principles of law viz., the Appellate Authority has inherent power of remand etc. The appeal being a statutory remedy under the Act, we may endeavour to trace whether such power is available to the Appellate Authority or not under the scheme of subsection (5) of Section 55.
In case on hand, the Appellate Authority once is convinced that the penalty order imposed needs to be annulled on the ground of violation of principles of natural justice, then instead of deciding the case on merits the Deputy Commissioner can certainly invoke the power under Clause (c), viz. pass such other orders he may think fit, and complete the adjudication of appeal filed before him. The argument of Revenue denies this functional proprietary conferred by clause (a) of subsection (5) of Section 55. The Deputy Commissioner, on a case-to-case basis, either does the assessment/decides the penalty himself or calls upon the Primary Authority to redo the procedure in accordance with law. In the case on hand, the table, read with the findings of the Deputy Commissioner shown in paragraph 8 supra, justify the remand to the Primary Authority.
As matter of fact, there is violation of principles of natural justice and denial of reasonable opportunity to the dealer, thus warranting setting aside the penalty order in Annexure-A, and the Appellate Authority has rightly, within its powers and jurisdiction, remitted the matter to the Primary Authority for consideration and decision afresh. The power of remand is available and no exception to the findings recorded by the Tribunal and the Appellate Authority on the remand is warranted.
Revision dismissed.
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2021 (12) TMI 900 - MADRAS HIGH COURT
Levy of Entry Tax - purchase of MMV Hydraulic Mobile Crane - Section 3 of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 - HELD THAT:- On facts of the present case and a collecting, a reading of the documents filed indicates that the imported Escorts Crane was registered as a 'motor vehicle' before the Pondicherry Regional Transport Authority. It was registered as “MMV Hydraulic Mobile Crane” and was registered as PY 01 C 9412 on 21.11.1994. It was initially purchased by CRANE OPERATORS and later sold to one Mr.Shanmugam of M/s.Balagi Agencies and thereafter it was purchased by the petitioner on 03.10.1998.
A reading of the proviso (b) to Section 3(1) of the Act makes it clear that no tax shall be levied and collected, if the owner of such vehicle applies for the assignment of new registration mark in Tamil Nadu after a period of 15 or 18 months from the date of its registration, as the case may be, as per proviso (a) & (b) to Section 3(1) of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990.
The vehicle was first registered in the year 1994 in the Union Territory of Pondicherry. It was imported into the State by the petitioner only during October, 1998. Therefore, the purchase by the petitioner was beyond the period of 15/18 months after its registration. It was not necessary for the petitioner to have a prior registration of the vehicles in his own name in the Union Territory of Pondicherry to claim exemption under proviso (b) to Section 3(1) of the Act. There is no scope to levy entry tax on the petitioner under proviso (b) to Section 3(1) of the Act on the imported “MMV Hydraulic Mobile Crane” purchased from a seller in Union Territory of Pondicherry.
Petition allowed.
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2021 (12) TMI 899 - DELHI HIGH COURT
Rectification of mistake - remedial measure by which the inadvertent and bonafide error can be corrected - Seeking to amend the tax period of the challan - tax period to be reflected as for the 2nd quarter of 2016-17 instead of 2nd quarter of 2015-16 - HELD THAT:- Imposition of penalty is called for where the assessee fails to furnish returns by the due date, which is not the position in the present case. Admittedly, Petitioner has deposited the requisite tax for the relevant quarter of the assessment period but has inadvertently mentioned the wrong period in the challan and therefore, cannot be, saddled with the liability of penalty.
The issue can be resolved by issuing a writ of mandamus to the Respondent to treat and read the period ‘01.08.2015 to 31.08.2015’ mentioned in the challan dated 29.09.2016, bearing No. 0510133290920160000156, issued by the HDFC Bank Ltd., as ‘01.08.2016 to 31.08.2016’. This will obviate the lengthy and complicated procedure of applying for refund and deposit on the part of the Petitioner and will also save him from any penalty under the Tax Statute.
The Respondent is directed to read the period ‘01.08.2015 to 31.08.2015’ mentioned in the challan dated 29.09.2016, bearing No. 0510133290920160000156, issued by the HDFC Bank Ltd., as ‘01.08.2016 to 31.08.2016’ - the Respondent is directed to accept the returns for the 2nd quarter of 2016-2017 - petition allowed.
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2021 (12) TMI 845 - MADRAS HIGH COURT
Reopening of assessment - Section 27 of the Tamil Nadu Value Added Tax Act, 2006 - attachment of Bank Accounts - Assessment Years namely 2010-2011, 2011-2012, 2012-2013, 2013-2014, 2014- 2015 and 2015-2016 - HELD THAT:- The proper method was to determine tax by invoking best judgement method under the Act. Considering the fact that the said petitioner has also not participated in the proceedings before the respondents by responding to the notice issued prior to the assessment order dated 21.12.2018 nor paid any amount. The impugned orders dated 21.12.2018 are quashed subject to the petitioner in W.P.No.11414 of 2021 etc., batch in depositing a sum of ₹ 25 lakhs within a period of 60 days from the dated of receipt of copy of this order with the respondent as and when such deposit is made by the petitioner within the aforesaid period, in two instalments the respondent shall take up the case and pass fresh order on merits and in accordance with law.
The impugned orders which stand quashed subject to payment of the amount within the prescribed period, shall be treated as Show Cause Notice to the petitioner - petition disposed off.
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2021 (12) TMI 844 - MADRAS HIGH COURT
Evasion of tax - sales suppression - inter-state sale or not - Section 3 of the Central Sales Tax Act, 1956 - HELD THAT:- Admittedly, the petitioner is a registered dealer under the TNGST and CST Acts and an assessee on the file of the second respondent herein. It could be seen that in respect of the assessment years in question, the second respondent passed the orders treating the amounts mentioned in the quotations recovered from the petitioner, as sales suppression and imposing tax at 10% along with penalty under section 9(2) of CST Act r/w Section 16 of the TNGST Act. On appeal, the said assessment orders were set aside by the First Appellate Authority, after holding that if the transaction was to be treated as an inter state sale in terms of Section 3(a) of the CST Act, there must be a sale of goods and movement of such goods from the one state to another, as a result or as an integral part of the sale, whereas, in this case, there was no proof available with respect to delivery of goods.
In the absence of any material evidence with respect to movement of goods, the quotations recovered from the business place of the petitioner, cannot be treated as sales. Hence, there was no inter-state sale taken place, as rightly held by the first Appellate Authority.
This court has no hesitation to set aside the orders passed by the Tribunal - Petition allowed.
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2021 (12) TMI 789 - ORISSA HIGH COURT
Levy of penalty under Section 10-A of the CST Act - case of the Department was that the Petitioner had purchased offset printing machine, camera and lens, computer and fax machine on the strength of the declaration in Form ‘C’ although he was not entitled to make such purchases - HELD THAT:- Although in the impugned orders of the STO and the Tribunal, the expression ‘mens rea’ may not be used as such, it is present, perhaps not in so many words, in the various findings of the Tribunal as has been noticed \herein before. In more than one place the Tribunal has found that the Petitioner had an “unscrupulous intention” in making a petition for issuance of ‘C’ Forms so as to lead the officials to begin to believe that he was entitled to procuring goods on the strength of the registration certificate”.
In another place the Tribunal finds that the Petitioner in fact made a misrepresentation to the officials “knowing fully well” that he was not entitled to be issued with ‘C’ Forms on the strength of the R.C. He is further said to have managed to obtain ‘C’ Forms by such misguiding petition.
The Court is inclined to agree with the learned A.S.C. that although in so many words it has not been stated that the Petitioner has mens rea, the findings in fact indicate that he did - Revision Petitions are dismissed.
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2021 (12) TMI 788 - MADRAS HIGH COURT
Exercise of jurisdiction erroneously - Erroneous application of provisions of the Tamil Nadu Value Added Tax Act, 2006 - Validity of assessment orders - HELD THAT:- Power of judicial review of the High Court under Article 226 of the Constitution of India is to scrutinise the processes and the procedures adopted by the competent authorities for arriving a particular decision in accordance with law, but not the decision itself. Thus, the High Court cannot entertain an adjudicative process regarding the mixed question of fact and law with reference to the documents and evidences in original. High Court cannot resolve the disputed issues between the parties only based on the affidavits filed in the writ petitions. There is a possibility of omissions and commissions. Thus, adjudication before the appellate authority with reference to such disputed findings of the original authority would be of greater importance.
Institutional respect is of paramount importance. Even the point of jurisdiction, limitation, error apparent on the face of the record, are on merits and all are to be adjudicated before the appellate authority and the appellate authority, more specifically, the Appellate Tribunal or the Commissioner (Appeals), as the case may be, is empowered to adjudicate all such legal grounds raised by the respective parties and make a finding on merits. Thus, usurping the powers of the appellate authorities by the High Court by invoking its powers under Article 226 of the Constitution of India is certainly unwarranted. The parties must be provided an opportunity to approach the appropriate authorities for redressal of their grievances in the manner known to law. In the event of entertaining all such writ petitions, the High Court will not only be overburdened, but usurping the powers of the appellate authority, which is certainly not desirable.
Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liability, undoubtedly, the purpose and object of the Act is defeated.
Large number of writ petitions are filed without exhausting the statutory appeal remedies and High Court is also entertaining such writ petitions in a routine manner. Keeping such writ petitions pending for long time would cause prejudice to the interest of the assessee also. Thus, such statutory provisions regarding the appeal are to be decided at the first instance, enabling the litigants to avail the remedy by following the procedures as contemplated under law. Such writ petitions are filed may be on the ground of jurisdiction or otherwise - In the absence of exhausting such remedies, High Court is losing the benefit of deciding the matter on merits, as the High Court cannot conduct a trial or examine the original records in the writ proceedings under Article 226 of the Constitution of India. Thus, the Courts shall not provide unnecessary opportunities to the assessee to escape from the liability merely on the ground of jurisdictional error, which is rectifiable.
This Court has no hesitation in arriving a conclusion that the petitioners are bound to exhaust the statutory appellate remedy as contemplated under the provisions of the TNVAT Act. Thus, the petitioners are at liberty to approach the appellate authority by filing appeal/revision and by following the procedures contemplated - Petition dismissed.
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2021 (12) TMI 670 - SUPREME COURT
Suit for recovery - mortgage transactions - defence of the respondent was that there was no relationship of mortgagor and mortgagee between the parties but that the relationship was as landlord and tenant - whether the alleged bills forming the claim in the suits have been raised on the basis of the fictitious and fraudulent transactions? - HELD THAT:- The respondents have admitted that no sales tax is payable by a dealer to a dealer. By necessary implication, the respondents are admitting the appellant to be a dealer as also the respondents to be dealer under the Delhi Sales Tax Act, 1975. It is only on account of sales made by a dealer to a dealer that the sales tax is not be payable as the incidence of payment of tax would be when the goods are sold to a consumer. The respondents as wholesaler, were getting the benefit of trade discount, which is an agreed term of sale.
The witness examined by respondent no.1 in his cross examination admitted his signature or that of the representative of company on invoices, debit notes and on ST-1 Form. The respondent had led no evidence in respect of fraud or duress apart from self-serving statement. The consignment of goods was sent from the month of November 1985 to January 1986. The respondent had signed large number of documents during this period. However, no complaint was made to any person or authority or even to the plaintiff. It is a denial of receipt of goods without any basis raised only in the written statement filed. Such stand is wholly bereft of any truth and is thus rejected.
The debit notes stamped and signed by the respondents were in respect of trade discount on the wholesale price mentioned in the invoice. Having accepted the trade discount, which is evident from the stamp and signatures not only on the debit notes but also on the invoice as well as on ST-1 Form, shows that the goods were actually lifted by the respondents for which payment has not been made. The respondents have taken up wholly untenable ground that the documents were signed under duress - The High Court in the appeal has gravely erred in setting aside the reasoned order of the learned Single Bench on the grounds which were not even raised by the respondents.
The suit is decreed for recovery of ₹ 96,41,765.31 and future interest on the principal sum of ₹ 71,82,266/- @9% p.a. from the date of filing of the suit till realisation - Appeal allowed.
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2021 (12) TMI 615 - MADRAS HIGH COURT
Input tax credit - purchases made by the petitioner only after the date of cancellation of the registration - alternative remedy of appeal as per Section 51 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The facts on records indicate that the purchases were made by the petitioner long after the cancellation of the registration of Front Line Polymers on 04.01.2017 and one day after the cancellation of registration of Sri Kannan Chemicals on 22.07.2016. Therefore, there is no merits in this writ petition and it is liable to be dismissed.
The petitioner is allowed to exercise the alternate remedy by filing a statutory appeal before the Appellate Commissioner within a period of 30 days from the date of receipt of copy of this order, subject to the petitioner depositing 25% of the disputed tax along with the appeal.
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2021 (12) TMI 577 - ORISSA HIGH COURT
Maintainability of reassessment under Section 43 of the OVAT Act - absence of completion of assessment under Sections 39, 40, 42 or 44 of the OVAT Act - HELD THAT:- A comparison of the language used in the amended Section 43 (1) of the OVAT Act with its version prior to 1st October, 2015 makes it clear that a new system has been put in place as far as reopening of returns filed as “self-assessment’ is concerned. Now such reopening is permitted even if there was no formal acceptance of the return originally filed. The concept of a “deemed’ acceptance of the return has been introduced for the first time since 1st October, 2015. This is not a mere procedural change. Further, the amending statute itself makes it clear that the amendments are with effect from 1st October, 2015 and not with retrospective effect from an earlier date. Therefore, the Court is precluded from presuming that the amendment to Sections 39 (2) and 43 (1) of the OVAT Act and correspondingly to Rule 50 of the OVAT Rules are either merely clarificatory or retrospective.
The picture that emerges is that if the self-assessment under Section 39 of the OVAT Act for tax periods prior to 1st October, 2015 are not “accepted’ either by a formal communication or an acknowledgment by the Department, then such assessment cannot be sought to be re-opened under Section 43 (1) of the OVAT Act and further subject to the fulfillment of other requirements of that provision as it stood prior to 1st October, 2015.
The reopening of the assessment sought to be made in the present case under Section 43 (1) of the OVAT Act is held to be bad in law - Revision petition disposed off.
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2021 (12) TMI 576 - KERALA HIGH COURT
Seeking reconsideration of application for rectification of mistake - opportunity of being heard also sought - validity of assessment order - HELD THAT:- Ext.P5 is received by the respondents on 26.3.2021 and the grievance of the appellant at Ext.P5 is not disposed of till date. Hence, the prayer of the appellant with a direction to dispose of Ext.P5, can be granted. The 2nd respondent is directed to dispose of Ext.P5, as expeditiously as possible, preferably within four weeks from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the appellant. The appellant is also given liberty to re-submit Ext.P5 accompanied by a copy of this judgment within one week from today.
Appeal disposed off.
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