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VAT and Sales Tax - Case Laws
Showing 41 to 47 of 47 Records
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2022 (11) TMI 217 - CHHATTISGARH HIGH COURT
Maintainability of petition - availability of efficacious alternative statutory remedy of filing of appeal - inter-state purchase of HSD at concessional tax rates against C-Forms - deletion of entry in registration certificate - Section 49 (4) of Chhattisgarh Value Added Tax, 2005 - whether proper notice was issued to petitioners for Sales Tax (Central) or not? - HELD THAT:- Normally writ petitions filed by-passing alternate statutory remedy available under the law are not to be entertained, but there is no absolute bar. The bar created by Courts is self-restrained.
Recently, in case of Assistant Commissioner of Sales Tax & others vs. Commercial Steel Limited [2021 (9) TMI 480 - SUPREME COURT], Hon'ble Supreme Court while dealing with question of maintainability of writ petition has held that the High Court having regard to the facts of the case, can exercise discretion to entertain or not to entertain writ petition. An alternative remedy is not an absolute bar for invoking writ jurisdiction of the High Court under Article 226 of the Constitution of India and in cases where the authority against whom writ is filed is shown to have had no jurisdiction or had usurped jurisdiction without any legal foundation, writ petition can be entertained.
In the case at hand, petitioners, who are registered dealers under the Act of 2005 as also the Act of 1956, have been awarded contract by South Eastern Coalfields Ltd. for execution of work of excavating overburden (all kinds of strata/ overburden in situ), loading into tippers, transportation and unloading of excavated materials; sprinkling & spreading of material at the site shown and other related works, awarded to them by South Eastern Coalfields Ltd. under contract. After award of contract, petitioners submitted application seeking inclusion of 'high-speed diesel (HSD) and 'mining' in their registration certificates under the Act of 2005 and in certificate under the Act of 1956. Accordingly, their registration certificates were amended - The petitioners have raised the ground that respondent Department had not issued proper notice under Section 49 (3) of the Act of 2005 for deleting entries 'mining' and 'high-speed diesel (HSD)' from their registration certificates and deleted entries 'mining' and 'high-speed diesel (HSD)' from the registration certificates of petitioners issued under the Act of 1956. In some case, after deletion of entries from registration certificate, consequential order of recovery of tax with penalty has been passed against petitioners concerned.
It is apparent that respondent Department had suo motu decided revision No.146 K.C. - 1/20 (Central) without issuing notice and without giving opportunity of being heard to registered dealer i.e. petitioner herien, which is mandatory under the provisions of Section 49 (3) the Act of 2005 and Rule 9 of the Rules of 1957.
This Court is of the view that the order impugned with respect to suo motu revision No.146 K.C.-1/20 (Central) is passed in violation of provisions of the Act of 2005 as also the Rules of 1957 as no notice under Section 49 (3) of the Act of 2005 was issued giving opportunity of hearing to registered dealer before amending registration certificate issued in Form-B under Rule 5 of the Rules of 1957 by deleting entries made thereunder. Hence, in the opinion of this Court there was violation of principles of natural justice. This being the position, the impugned order is liable to be and is hereby quashed - petition allowed.
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2022 (11) TMI 147 - MADRAS HIGH COURT
Exemption of turnover - movement of goods otherwise than by way of sale to a consignment agent of the petitioner - Form-F filed before the second respondent along with sale list - second respondent refused to accept the claim, stating merely on the strength of Form-F and sale list, such inference cannot be made - HELD THAT:- The provisions of Section 6-A of the Central Sales Tax Act,1956, and Rule 4 (3-A) of the Central Sale Tax (Tamil Nadu) Rules, 1957 is perused. The Division Bench of this Court in A DHANDAPANI VERSUS STATE OF TAMIL NADU AND ANOTHER [1994 (9) TMI 326 - MADRAS HIGH COURT] has laid down that the requirement to discharge the burden to prove.
The petitioner has not satisfied the requirement, as laid down in the above decision, regarding the discharge of burden to prove - That apart, the scope of revision under Article 226 of the Constitution of India is confined only to the decision making process and not the decision per se.
There are no error in the procedure adopted by the first respondent Tribunal while allowing the State's Appeal - this Writ Petition is devoid of merit and is dismissed.
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2022 (11) TMI 146 - MADRAS HIGH COURT
Validity of assessment order - sale on loan transaction - alleged stock transfer effected by the Petitioner - petitioner was unable to produce any evidence as a conclusive proof - HELD THAT:- The definition of 'sale' in Section 2(g) of the Central Sales Tax Act, 1956 has been given in a very wide interpretation - To hold to state that there was no “sale” on account of loan transactions, the documents of the petitioner should have clearly established the same. In this case, they have not established the same.
The order of the Tribunal is well reasoned and does not suffer from any infirmity. It requires no interference. That apart, the Assesee has neither produced any contract nor the agreement to prove the contention that there was a loan transaction. The Tribunal being the ultimate fact finding authority, finding arrived by it cannot be interfered.
The petition is dismissed.
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2022 (11) TMI 145 - KERALA HIGH COURT
Validity of assessment order - petitioner submits that Ext.P3 order is passed by the third respondent without considering any of the objections raised by the petitioner such as opportunity for cross-examination of the consignors shown in the list, their details and address and an opportunity of hearing etc. - non-application of mind - HELD THAT:- On a perusal of Ext.P3 order, it is seen that the 3rd respondent have given a voluminous list of unaccounted sales and unaccounted purchases. Further, the order does not reflect any detailed consideration of the issues raised by the petitioner such as the details of the respective consignors or the request for cross-examination made by the petitioner etc. Further, the request of the petitioner for opportunity of hearing was totally ignored by the 3rd respondent and Ext.P3 does not reflect any consideration on the said aspect. More over, the details of the list obtained from the KVATIS is out of reach of the petitioner since the list does not contain any address or details of the dealers for the petitioner to cross-verify the same.
Though Ext.P3 order contains a voluminous list of the details of the dealer's name and value of the goods, the concluding portion of the order is very cryptic - the petitioner should be given an opportunity to present his case before the third respondent after affording an opportunity of hearing.
The third respondent is directed to reconsider the entire issue on merits in accordance with law, after affording an opportunity of hearing to the petitioner, within a period of three months from the date of receipt of a certified copy of this judgment - Petition disposed off.
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2022 (11) TMI 93 - MADRAS HIGH COURT
Validity of assessment order - Taxability - fly ash procured from the Tamil Nadu Electricity Board (TNEB) - exemption claimed in respect of supplies to be made to Special Economic Zones (SEZ) - ban imposed by the Central Government in transacting in fly ash, for preservation and protection of the environment by way of Notification dated 14.09.1999 - HELD THAT:- The impugned proceedings were triggered by an audit slip wherein there was reference to Section 18 of the Act. The petitioner has specifically disavowed all reference to Section 18 stating that the claim of exemption is not under Section 18 but only under the Government Order as aforesaid. Despite the multiple rounds of prior litigation in this matter, in the present impugned notices as well, the assessing authority merely repeats the same proposals contained in the audit note - The officer proposes, in the impugned notice, to assess the value of the material taking the price at which other suppliers have effected the sale, as a base. While he initially states that the actual turnover must be brought to tax, he goes on to state that the value of fly ash at which other suppliers have supplied the goods to the cement industry will be adopted as the basis of assessment, notwithstanding that the petitioner has set out the actual value at which the fly ash has been procured duly supported by a certificate from the chartered accountant.
Supply to developers of SEZ - HELD THAT:- The officer again reiterates that the ingredients of Section 18 of the Act have not been satisfied. Despite the settled position that an assessment should proceed on an independent application of mind by the officer, though naturally, he would take note of the objections raised by audit, and inspite of the submissions of the petitioner that no claim has been made in terms of Section 18, the authority repeatedly refers to Section 18.
In light of the reiteration of the same errors by the assessing authority to which learned Government Pleader will accede, the impugned notice shall not be pursued. Let a fresh notice be issued and if and when such notices are issued, responses will be filed by the assessee and assessments be completed expeditiously - the respondent is permitted to issue notices within four (4) weeks from today, bearing note of the flaws pointed out above. If no notice is issued within the aforesaid time frame, the returns of the petitioner for the periods in question will be deemed to have been accepted.
Petition disposed off.
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2022 (11) TMI 92 - KERALA HIGH COURT
Restoration of penalty - reversal of finding of the Deputy Commissioner’s (Appeals) - release of detained goods - main reason for the detention of goods is that the consignment was not declared as per section 46(3)(e) of the Act - HELD THAT:- The sub section (e) to Section 46(3) of the Act mandates that goods when are imported to the state, through coastal cargo, through air and through the Railways, a declaration has to be furnished before the Tax Commercial Officer having jurisdiction over the place of import. This measure has been incorporated in the Act to ensure that the department has knowledge of the import of the goods into the State, so that evasion of tax is averted. The petitioner does not have a case that it has declared the goods before the Commercial Tax department and filed form 8FA as provided in section 46(3)(e) of the Act. Rule 66(6)(ba) of the KVAT Rules prescribes that declaration referred to in clause (e) of sub section 3 of section 46 of the Act shall be in form 8FA, which shall be prepared in duplicate and separate declaration has to be prepared in respect of each consignee.
The mandatory documents which are to be accompanied with the consignment are not accompanied would give rise to suspicion regarding the genuineness of the transport and attempt of evasion of tax. Sub section (2) of section 47 of the Act gives power to the officer that if he has reason to suspect that the goods transported are not covered by proper and genuine documents (in cases where such documents are necessary), for reasons to be recorded in writing, detain the goods and allow further transport only on furnishing security for the double the amount of tax likely to be evaded as estimated by the officer.
The Tribunal has intrinsically examined the circumstances read with documents, which have bearing on the issues in hand before recording and finding against the petitioner herein. It is this finding which is reviewed in our jurisdiction. Further the Tribunal, being the second fact-finding body, has entered into a finding that the proper documents which are necessary for transportation of goods were not available at the time of transport and hence, the contention of the petitioner that proper documents were accompanied by the goods is factually incorrect. The Tribunal also took note of the fact that the intelligence officer has noted in his order that the no books of accounts were produced before him and also of the fact that no declaration in form 8FA was produced along with the reply though the petitioner had a contention that in respect of goods brought to Kerala form 8FA was uploaded not at the time of interception but later. The Intelligence Officer also verified the declaration in KVAT Act and confirmed that the same was not declared. As per section 46(3)(e) of the Act, declaration should have been done on the arrival of goods into the state on 29.11.2013 itself.
The Tribunal is justified in reversing the order of the Deputy Commissioner (Appeals) as the mandatory provision under section 46(3) of the Act, specifically sub clause (e), declaration was not made by the petitioner to the commercial department to make them aware of such import to the state. The contention that the delivery note and self-declaration were available with the consignment is not enough to show that all the documents necessary for the movement of goods from one state to another as per prescribed under section 46 of the Act is complied. The burden of proving that there was no evasion of tax is on the petitioner and he has not discharged the same before the enquiry officer and thus the Intelligence Officer was justified in imposing penalty - On going through the order of the Tribunal, as well as that of Deputy Commissioner (Appeals) and the Intelligence Officer, it is opined that the tribunal was right in reversing the order of the Deputy Commissioner and restoring the order of the intelligence officer. There is no illegality or impropriety in the order passed by the Tribunal, and hence the questions of the law are answered against the petitioner and in favour of the State.
The Revision does not warrant interference - the revision is dismissed.
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2022 (11) TMI 38 - DELHI HIGH COURT
Permission to revise the returns - issuance of appropriate C Forms - correction of functioning of the DVAT Portal - HELD THAT:- The instant writ petition is disposed of, with a direction to revise returns for the periods mentioned in the relevant prayer clauses incorporated in the writ petition.
Furthermore, the respondents will also issue C-Forms and/or F-Forms to the petitioner, subject to verification of entitlement on merits and not on the ground of limitation - Petition disposed off.
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