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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 61 Records
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2020 (12) TMI 693 - BOMBAY HIGH COURT
Priority of debt - secured creditor or state taxes?, which is prior - Attachment of property - recovery of sales tax dues payable by Respondent - Section 32 of the Maharashtra Value Added Tax Act, 2002 (MVAT Act) and proceedings under the Maharashtra Land Revenue Code - HELD THAT:- Petitioner is a secured creditor as it has a debt / receivable due to it which has been secured by mortgage - From a plain and conjoint reading of Section 31-B of the RDB Act and Section 25-E of the SARFAESI Act it is clear that by virtue of the non-obstante language contained therein, the rights of secured creditors to realise secured debts by sale of assets over which security interest is created, shall have priority over Government dues including revenues, taxes, cesses and rates due to the Central/State Government or to the Local Authority.
Respondent No.2 had claimed first charge on the said property, inter alia, stating that it had initiated recovery proceedings under Sections 33 and 34 of the MVAT Act on 10th March 2016 whereas attachment under Section 32 of the MVAT Act was vide letter dated 28th March, 2018 to the Petitioner. Petitioner had initiated proceedings under the provisions of the RDB Act. It has also taken steps as noted above to enforce the security interest in the said property vide notice dated 27th November 2017 under Section 13(2) of the SARFAESI Act prior to the notice dated 28th March 2018 of Respondent No.2.
The facts in the case at hand being similar to the facts in the case of ASREC (INDIA) LIMITED, A COMPANY VERSUS THE STATE OF MAHARASHTRA, THE OFFICE OF THE SALES TAX AND THE OFFICIAL LIQUIDATOR OF THE HIGH COURT OF BOMBAY AS THE OFFICIAL LIQUIDATOR OF M/S. CRYSTAL MIRAGE PVT. LTD. [2019 (12) TMI 633 - BOMBAY HIGH COURT] that decision would squarely be applicable to the facts of this case that if any Central statute creates priority of a charge in favour of a secured creditor, the same will rank above the charge in favour of a State for a tax due under the value added tax of the State. Therefore, in our view what becomes relevant in the facts of this case is the issue of priority of charge on the said assets of secured debt over tax dues and not whether the charge is first or not in time.
Non-registered mortgage - HELD THAT:- Even if the Petitioner’s mortgage was not registered under Section 26-D of the SARFAESI Act, the alleged non registration, would not affect the legal position on the issue of priority.
The mortgage of the secured creditor viz. the Petitioner Bank gets prior charge over the charge of the Respondents for tax/VAT dues - Petition allowed - decided in favor of petitioner.
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2020 (12) TMI 692 - DELHI HIGH COURT
Request for issuance of Form ‘F’ has been rejected - rejection on the ground that the dealer did not rectify the error in the returns within the specified time period - issuance of Forms ‘F’ pertaining to fourth quarter of the year 2015-16 - HELD THAT:- This Court is of the view that no useful purpose would be served by keeping the petition pending. Consequently, this Court directs the respondent no.1 to allow the amendment sought for by the petitioner in its return of fourth quarter of Year 2015-16. However, this direction shall remain suspended till the Civil Appeals pending before the Supreme Court, taken note of hereinabove, are decided and this direction shall abide by the decision that the Supreme Court renders.
Petition disposed off.
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2020 (12) TMI 691 - MADRAS HIGH COURT
Taxability under VAT - online booking charges charged by a Cinema Hall Owner - Whether the “online booking charges” charged by a Cinema Hall Owner besides the “cost of ticket” for entry into the cinema hall and enjoy the entertainment in the form of a movie, is a part of taxable receipt by the Cinema Owner for the purposes of the Tamil Nadu Entertainment Tax Act, 1939”? - appellant paid service tax on the same - HELD THAT:- Similar issue decided in the case of PVR LTD., (FORMERLY KNOWN AS SPI CINEMAS PVT. LTD.) NEW DELHI VERSUS COMMERCIAL TAX OFFICER [2020 (10) TMI 778 - MADRAS HIGH COURT] where it was held that levy of Service Tax and Entertainment Tax on online ticket booking charges are mutually exclusive. Assessee has paid Service Tax under Finance Act 1994 on such 'online booking charge' for the period from 01.07.2012. The Assessing Authority has also dealt with the definition of Section 3(7)(c) of the Act and has emphasized the words “any payment for any purpose in addition to the payment for admission to the entertainment”. The said reassessment order was passed exercising the powers under Section 7(2) of the Act 1939, and the Assessing Authority not only imposed tax at the rate of 30% on the online booking charges to the extent of ₹ 41,96,277/- but imposed penalty @ 150% under Section 7(3) of the Act to the extent of ₹ 62,94,416/- vide Assessment order dated 21 September 2015, for AY 2010-11.
Following the same, demand set aside - appeal allowed - decided in favor of appellant.
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2020 (12) TMI 690 - MADRAS HIGH COURT
Maintainability of petition - Petitioner did not prefer any appeal before the Appellate Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent beyond the maximum limitation period of three months 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.
This Court is not inclined to delve into the merits of the controversy involved in the matter. At the same time, it is made clear that the Petitioner shall not be precluded from working out its rights for rectification of the impugned order by proceedings under Section 84 of the TNVAT Act, if it is otherwise entitled, in accordance with law and that no view has been expressed by this Court on the correctness or entitlement of the claim made by the Petitioner in that regard - the Writ Petition, which cannot be entertained, is dismissed.
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2020 (12) TMI 689 - MADRAS HIGH COURT
Validity of demand raised - primary ground for challenge is that the spot collection of taxes is wholly illegal and unwarranted, when the assessment for the respective year is still pending - HELD THAT:- It is settled law that recovery of tax in advance by inspecting officials (Enforcement Wing) is illegal. In the counter affidavit filed by the first respondent, in paragraph No.3, the first respondent has admitted that four cheques given by the petitioner on the date of inspection was only towards the payment of tax even though in the impugned demand, they have mentioned that it is towards compounding fees.
Since the collection of cheques from the petitioner is admittedly, towards payment of tax, as per the settled law, the said collection by the second respondent on the date of inspection from the petitioner is illegal without there being any assessment order. It is also admitted fact that no assessment order has been passed pursuant to the impugned notice of demand, dated 17.04.2017.
The impugned demand made by the respondent is illegal without there being an assessment order - Petition allowed - decided in favor of petitioner.
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2020 (12) TMI 686 - BOMBAY HIGH COURT
Grant of an interim order would amount to granting of final relief - HELD THAT:- Writ Petition (Stamp) No.93160 of 2020 is listed for further consideration on 01.12.2020 - In that view of the matter, above Writ Petitions be listed together with Writ Petition (Stamp) No.93160 of 2020 on 01.12.2020.
Writ Petitions be listed together with Writ Petition (Stamp) No.93160 of 2020 on 01.12.2020.
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2020 (12) TMI 632 - MADRAS HIGH COURT
Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- The issue involved in this Writ Petition is squarely covered by a decision of this Court in the case of M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] wherein the identical issue was raised where it was held that Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/s Ramco Cements Ltd can be extended only to those dealers that are party to the decision. This stand is unacceptable in so far as the decision of this Court as well as other High Courts applicable to all dealers that seek benefit thereunder, of course, in accordance with law.
The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate. Let this exercise be carried out within a period of four (4) weeks from date of uploading of this order. The request of the petitioner for issuance of ‘C’ Forms is allowed as a consequence thereof - petition allowed.
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2020 (12) TMI 530 - ANDHRA PRADESH HIGH COURT
Attachment of petitioner Bank Account - clerical and arithmetical mistake or not - whether the application/representation made by the petitioner, to the effect that the demand made by the assessing authority is not enforceable as the unit of the petitioner is in economic zone and the alleged illegality in the order falls within the ambit of words “clerical and arithmetical mistake” as in Rule 60 of A.P. VAT Rules?
HELD THAT:- From Rule 60 of A.P. VAT Rules, it is clear that an application seeking correction of errors can be made within four years from the date of the order, provided there is a clerical or arithmetical error in the order. Therefore, the objection raised by the respondent that the petitioner has come to the court at a belated stage may not be correct. But, the issue is whether there was a clerical or arithmetical error in the order dated 20.3.2018.
The material placed before the court would show that the petitioner herein never challenged the assessment order wherein the petitioner was demanded to pay a sum of ₹ 2,34,369/- as CST for the assessment year 2013-2014. The said order has become final. For reasons best known, two years later i.e., in the month of October, 2020, the petitioner made a request for the relief referred to earlier. Definitely, the reasons for alteration of the relief or modification of the relief as urged in the representation cannot be called as a clerical or arithmetical error. As seen from his representation, the plea of the petitioner is that the demand made is not executable against the petitioner. If that is so, the remedy for the petitioner would be to challenge the order passed by the authority in the year 2018. But, without doing so, allowed the order to attain finality and thereafter, has come forward with a request in the form of a representation indirectly seeking reopening of the assessment.
If the said representation is allowed to be adjudicated, the same would amount to reviewing of the assessment by the very same authority, who has passed the assessment order or reopening of the assessment. In the absence of any provision for reviewing the order, we hold that there is no error, falling within the parameters of Rule 60 of A.P. VAT Rules, warranting interference under Article 226 of the Constitution of India.
Petition dismissed.
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2020 (12) TMI 512 - TELANGANA HIGH COURT
Permission to place the C-Forms which have now been located - order challenged on the short ground that after the appellate order was passed, in the residential house of the Proprietor of the respective petitioners, certain C-Forms had been located on 12.10.2020 which were earlier misplaced; and the details of the traced-out C-Forms are mentioned in para 6 of the affidavit filed in support of the respective Writ Petitions - HELD THAT:- In GODREJ AGROVET LTD. VERSUS COMMERCIAL TAX OFFICER, ELURU, WEST GODAVARI DISTRICT & NOVARTIS HEALTH CARE PVT. LTD. (FORMERLY NOVARTIS NUTRITION INDIA PVT. LTD.) VERSUS COMMERCIAL TAX OFFICER, BENZ CIRCLE, VIJAYAWADA [2005 (10) TMI 516 - ANDHRA PRADESH HIGH COURT], a Division Bench of the Andhra Pradesh High Court considered the question whether the proviso to sub-rule (7) of Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957 enables a dealer to file C-Forms after making of the assessment by the competent authority and answered the question in the affirmative by holding that It shall be open to the dealer to produce the C forms even now before the assessing authority and the same shall be received, provided sufficient cause is shown by the petitioner for the belated filing of the C forms.
The impugned orders passed by respondents 1 and 2 in respect of each of the petitioners herein are set aside and the matters are remitted back to the 2nd respondent for fresh consideration - Petition allowed by way of remand.
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2020 (12) TMI 473 - MADRAS HIGH COURT
Maintainability of petition - remedy of appeal available - time limitation - Petitioner did not prefer any appeal before the Appellate Authority, but has instead filed these Writ Petitions challenging the orders passed by the Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of those orders - HELD THAT:- Though in the order dated 01.09.2006 in the earlier Writ Petitions in W.P. Nos. 15355 and 15356 of 2005 filed by the Petitioner challenging the notices to re-assess the tax, this Court had permitted to proceed further in accordance with law, the assessing authority was unable to do so on account of another order of interim stay passed by this Court in the Writ Petition in W.P. No. 21601 of 2004 filed by Dyers Association of Tirupur, till it had been finally decided by order dated 21.07.2017 in favour of the Respondent. This would go to show that the Respondent could not be faulted for the time taken for the finalization of the proceedings.
The Division Bench of this Court in State of Tamil nadu -vs- Tex-in-Printers [2013 (10) TMI 1279 - MADRAS HIGH COURT] has reiterated that after introduction of Section 3-B and the amendment made to the definition of 'sale' in Section 2(n)(ii) of the TNGST Act, the transfer of goods involved in works contract would amount to 'sale' and the entire turnover has become assessable to tax and that the same view has been expressed by another Division Bench of this Court in State of Tamil Nadu -vs- Tvl. Tamil Nadu Co-operative Textile Processing Mills Limited [2019 (6) TMI 1510 - MADRAS HIGH COURT], meaning thereby that the Petitioner cannot have any grievance for the re-assessment of tax liability based on that settled question of law.
Petition dismissed.
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2020 (12) TMI 363 - KERALA HIGH COURT
Permission requested by the petitioner for settling arrears under the Amnesty Scheme - rejection on the ground that it had not opted for settlement of the arrears for the assessment year 2012-13 - it is the contention of the petitioner that inasmuch as on the date of submission of the application for Amnesty, the liability for the assessment year 2012-13 under the KVAT Act did not exist, on account of the order of the First Appellate Authority in its favour - HELD THAT:- The Amnesty Scheme is one that contains various provisions which have to be reckoned together for the purposes of understanding the true scope and ambit of the Scheme. On a holistic reading of the said provisions, it would appear that the Scheme envisages an option to be exercised by the assessee concerned for settlement of outstanding liabilities under the various enactments covered under the scheme. The benefit under the scheme is conditional in that if an assessee opts for settlement of arrears under any particular enactment, he/she has to opt for settlement of arrears in respect of all the assessment years where such arrears are outstanding.
In the instant case, while it may be a fact that, for the assessment year 2012-13, on the date of submission of the option by the petitioner asssessee, he had a favourable order from the First Appellate Authority, the right of appeal that is granted to the Department under the Statute cannot be rendered ineffective through an unilateral action on the part of the assessee to opt for settlement. The provisions of the Act have to be read holistically so as to not render illusory the rights conferred under the Statute. When so read, it must be found that notwithstanding the submission of option by the assessee in the instant case, the appeal preferred by the Department within the time granted under the Statute cannot be ignored while reckoning the assessment years in which amounts are seen as outstanding from an assessee for the purposes of settlement.
Inasmuch as there was an appeal filed by the department, within the statutory period permitted for doing so, in respect of the assessment year 2012-13 under the KVAT Act, it is for the petitioner to include the demand confirmed against him by the assessment order for the said year also while opting for the benefit of the Amnesty Scheme, in respect of arrears outstanding under the KVAT Act.
Petition is disposed off by directing that if the petitioner includes the liability in respect of the assessment year 2012-13 also, in the application submitted for the benefit of Amnesty, the respondents shall consider the same.
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2020 (12) TMI 315 - MADRAS HIGH COURT
Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- The issue decided in the case of M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] where it was held that the benefit cannot be denied on this ground.
The Appellant State and the Revenue Authorities are directed not to restrict the use of 'C' Forms for the inter-State purchases of six commodities by the Respondent/Assessees and other registered Dealers at concessional rate of tax and they are further directed to permit Online downloading of such Declaration in 'C' Forms to such Dealers. The Circular letter of the Commissioner dated 31.5.2018 stands quashed and set aside along with the consequential Notices and Proceedings initiated against all the Assessees throughout the State of Tamil Nadu.
The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate - petition allowed.
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2020 (12) TMI 314 - MADRAS HIGH COURT
Classification of goods - hybrid cotton seeds - validity of Clarification No. 147/2005 in D. Dis Acts Cell II/39022/05 dated 26.09.2005 issued by the First Respondent - taxable at the rate of 4% under entry No. 6(iii) of the Second Schedule to TNGST Act - grievance is that exemption has been denied for sale of hybrid cotton seeds for seeding purpose by pointing out that as per entry 7 of Part B in the Third Schedule of the TNGST Act - HELD THAT:- It is brought to notice that in respect of person similarly placed to the Petitioner, this Court in TVL. RASI SEEDS (P) LTD. VERSUS THE SPECIAL COMMISSIONER AND COMMISSIONER OF COMMERCIAL TAXES, THE DEPUTY COMMERCIAL TAX OFFICER [2019 (5) TMI 124 - MADRAS HIGH COURT] has set aside the assessment order, where similar claim for exemption was refused, and the matter has been remitted for consideration afresh in the light of the principles laid down in that decision.
Matter remitted to the Second Respondent for fresh consideration - It is incumbent upon the Second Respondent to afford full opportunity of personal hearing, follow the prescribed procedure in consonance with the principles of natural justice, deal with each of the contentions of the Petitioner with particular reference to the principles laid down in the decision in TVL. RASI SEEDS (P) LTD. VERSUS THE SPECIAL COMMISSIONER and pass reasoned order on merits and in accordance with law and communicate the decision taken to the Petitioner under written acknowledgment.
Petition disposed off.
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2020 (12) TMI 280 - ALLAHABAD HIGH COURT
Principles of natural justice - best judgement assessment done by ex-parte order - case of revisionist is that the manner of best judgement assessment was wholly arbitrary and illegal inasmuch as only one bill recovered or produced by the Mobile Squad was found to be non-genuine - Enhancement of taxable turnover - whether determination of turn over is commensurate to the material and evidence available on the record? - inclusion of Inter State Sales - benefit of input tax credit - HELD THAT:- The jurisdiction of the Assessing Authority while taking recourse to the 'best judgement assessment' is well settled. The Supreme Court in the case of S.M. HASAN, S.T.O., JHANSI VERSUS NEW GRAMOPHONE HOUSE, JHANSI [1975 (9) TMI 177 - SUPREME COURT] has categorically held that while assessing, on the basis of 'best judgement', the Assessing Authority has to make the assessment honestly and on the basis of an intelligent well-grounded estimate rather than upon pure surmises. The assessment so made while taking recourse to the 'best judgement assessment' should not be speculative or fanciful but on reasonable guess based upon the material available before the Assessing Authority.
In the present case, admittedly, the one tax invoice, which was found to be fake, was of ₹ 11,970/- and solely on the basis of the said invoice, the evaded sales has been assessed at ₹ 26,15,000/- i.e. 100% of the disclosed sales.
The Assessing Authority is bound to act in a rational manner while resorting to best judgement assessment in view of the facts on record it is clear that only one bill of ₹ 11,570/- was available as material to assess the evaded sales. There was nothing more before the Assessing Authority to form an opinion that sales equal to the declared sales should be determined as evaded sales - the evaded sales should be quantified as ₹ 2,61,500/- that is the 10% of the total disclosed sales for the purposes of determining in the tax liability - The liability of payment of tax shall be calculated for the year 2014-15 treating evaded sales at ₹ 2,61,500/-.
Revision allowed in part.
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2020 (12) TMI 278 - MADRAS HIGH COURT
Levy of Entertainment Tax - Online Booking Charges - Tamil Nadu Entertainment Tax Act, 1939 - HELD THAT:- The present Appeals are squarely covered by the decision of this Court in PVR LTD., (FORMERLY KNOWN AS SPI CINEMAS PVT. LTD.) NEW DELHI VERSUS COMMERCIAL TAX OFFICER [2020 (10) TMI 778 - MADRAS HIGH COURT] which dealt with the question of taxability of the Entertainment Tax on the Online Booking Charges and this Court held that the same are not subject to tax under the provisions of the the Tamil Nadu Entertainment Tax Act, 1939.
These Appeals are squarely covered by the above judgment - Appeal allowed - decided in favor of appellant.
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2020 (12) TMI 277 - MADRAS HIGH COURT
Cancellation of assessments made by the Commercial Tax Officer - Assessment Circle for the years 1996-97, 1997-98 and 1998-99 under the Tamil Nadu General Sales Tax Act, 1999 - HELD THAT:- On a bare perusal of the impugned orders, it is apparent on the face of the record that there has not been any reference to the order dated 20.02.2012 in W.A. Nos. 2089 to 2091 of 2011 passed by the Division Bench of this Court and the contention relating to the limitation raised by the Petitioner has not even been considered. In that view of the matter, it is not possible to sustain the impugned orders, which are set aside and the matters are remitted for fresh consideration.
The Petitioner shall raise all their objections in writing by a comprehensive reply which shall be submitted by 31.12.2020. The Second Respondent shall thereafter afford full opportunity of personal hearing to the Petitioner, deal with each of the objections raised including the question of limitation, and pass reasoned orders on merits and in accordance with law following the prescribed procedure in consonance with the principles of natural justice and communicate the decision taken to the Petitioner on or before 31.03.2021 under written acknowledgment.
Petition disposed off.
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2020 (12) TMI 276 - TRIPURA HIGH COURT
Condonation of inordinate delay in filing the petition - transportation of fertilizers, food grains etc. at various places for and on behalf of the State of Tripura - stand of petitioner is that there was no sale or transfer of the right to use the goods or execution of work order and that therefore; this transaction did not invite Value Added Tax - HELD THAT:- Though, exercise of writ jurisdiction under Article 226 of the Constitution of India is not governed by any statutory provision of limitation, the Courts proceed on the basis that such discretionary exercise of power would not be done in favour of a person who is not vigilant in pursuing his rights and remedies. The Court would not favour a litigant who is tardy, has approached the Court after gross delay that too without any explanation for inordinately long time consumed. In this context, thus, the Courts while exercising writ jurisdiction, invoke the principle of delay and laches, though not limitation.
One of the guiding principles that may persuade the Court to exercise or not to exercise writ jurisdiction is, what is the period of limitation prescribed for filing the suit, if the petitioner had to file such a civil proceeding. If the petitioner has missed the limitation for filing a suit, the Court would be reluctant to exercise the writ jurisdiction, unless of course either there is a valid explanation for delay or there are some special or extraordinary reasons for entertaining petition at such a late stage. This preamble was necessary because in the present cases the taxes were collected during the period between the financial year 2013-2014 to 2015-2016. Present petitions came to be filed on or around 21st August, 2020. There is, thus, minimum delay of only five years in raising the demands. All that the petitioner has offered by way of explanation for such delay is that the petitioner first approached the authorities under RTI Act for collecting information and then made a request for refund of the taxes.
The decision in case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] was distinguished on the ground that the said case arose in the backdrop of the Customs Act and Central Excise and Salt Act. The question of delay and laches was not involved in the said petition.
Petition dismissed.
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2020 (12) TMI 238 - ALLAHABAD HIGH COURT
Maintainability of appeal - appeal dismissed arising out of stay order of appellate authority, without considering prima facie merits - grant of full protection (towards unpaid VAT dues) - rejection of books of accounts - HELD THAT:- It is well settled that while deciding the application for grant of stay the Appellate Authority or the Tribunal is bound to consider 'prima facie case' as pleaded by any assessee and the 'financial hardship', if pleaded by the assessee, while deciding stay application, it cannot refuse to exercise the discretion by refusing to consider prim facie case solely on the ground that any finding recorded at this stage may ultimately affect the outcome of the appeal. Needless to add that prima facie satisfaction which is liable to be recorded cannot have any effect on the final decision which is to be taken by the Appellate Authority as the 'prima facie' consideration, as the names suggest is only 'prima facie' and, ultimately, the appeal has to be decided on its own merits after hearing the parties. The Tribunal cannot escape or refuse to consider the prima facie case at the time of considering the stay application as it is well settled that the parameters for deciding the stay application include prima facie case and financial hardship.
In the present case, the order of the Tribunal is ex facie erroneous, inasmuch as, it refuses even to consider prima facie case while deciding the stay application, thus, there are no hesitation in holding that the order of Tribunal is clearly contrary to the settled law and is liable to be set aside.
The questions framed are answered in favour of the assessee and against the revenue.
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2020 (12) TMI 237 - MADRAS HIGH COURT
Principles of Natural justice - jurisdiction of Respondent to levy tax only on such transaction of sale or purchase - non application of mind - HELD THAT:- As seen from the impugned assessment orders, the respondent has not applied its mind to the VAT Form-201 A filed by the petitioner before the Commercial Tax Department at Gujarat. The respondent has also not applied its mind to the tax invoices enclosed by the petitioner along with the reply dated 19.09.2020. In the impugned order passed by total non application of mind, the respondent has observed that the petitioner had submitted only the annexure details, but, has not submitted the details of the tax paid by the petitioner to the Gujarat Government through their VAT return. However, the petitioner has infact submitted the details sought for by the respondent as per their notice dated 27.08.2020. As seen from the impugned assessment orders, the respondent has not afforded personal hearing to the petitioner before passing of the assessment orders.
This Court is of the considered view that the impugned assessment orders have been passed against the petitioner by total non application of mind and by violation of principles of natural justice - matter is remanded back to the respondent for fresh consideration and the respondent shall pass final orders after giving sufficient opportunity to the petitioner - Petition allowed by way of remand.
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2020 (12) TMI 133 - ALLAHABAD HIGH COURT
Grant of stay for full amount of tax - stay of demand was granted upto the extent of 90% of the tax - Enhancement of turnover - astronomical demand based on presumption without any material on record and arbitrary in nature - HELD THAT:- It is well settled that while deciding the waiver application, the authority concerned has to record a finding as to whether a prima facie case is made out or not and whether the deposit would entail undue financial hardship - It is also well settled that the phrase 'prima facie case' would include even an arguable case, I am unable to understand as to why and what circumstances did the Tribunal direct the deposit of 10% of the amount after having recorded that a prima facie case was made out and the deposit would cause financial hardship to the revisionist.
In view of the fact that the revision is confined to the challenge of the order passed by the Tribunal, this Court in exercise of its revisional power cannot direct any refund of the amount, which according to the counsel for the revisionist, are illegally debited from the account of the revisionist. The revisionist, if so advised, may take appropriate proceedings for refund of the said amount.
The question is decided in favour of the assessee and against the Department - Revision allowed.
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