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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 77 Records
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2020 (3) TMI 1456 - MADRAS HIGH COURT
Time Limitation - Validity of summons/preassessment notices - assessment could be made beyond the period of three years or not - Section 24(5) of the Pondicherry Value Added Tax Act - HELD THAT:- The writ petitions filed by the petitioner are premature and have been rightly dismissed by the learned Single Judge. The objections with regard to the limitation and other objections, if any, were required to be filed before the learned assessing authority himself and in that event, the assessing authority, would have record his findings on such objections during the course of assessment proceedings. The learned counsel for the petitioner has ill advised the petitioner to prefer these writ petitions.
The learned Single Judge has rightly dismissed the writ petitions with liberty to raise the objections before the assessing authority and relegated the assessing authority to decide the issue after affording an opportunity of personal hearing on the objections raised - Appeal dismissed.
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2020 (3) TMI 1448 - PUNJAB AND HARYANA HIGH COURT
Condonation of delay of 469 days in filing the appeal - sufficient explanation for delay was given or not - HELD THAT:- The Supreme Court has in STATE OF UP. VERSUS AMAR NATH YADAV [2014 (5) TMI 823 - SUPREME COURT] followed its earlier decision in OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT] where it was observed Condonation of delay is an exception and should not be used as an anticipated benefit for the Government Departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
More recently, the Supreme Court in THE STATE OF BIHAR & ORS. VERSUS DEO KUMAR SINGH & ORS. [2019 (5) TMI 1660 - SC ORDER] has reiterated the position in Chief Post Master General holding that The law of limitation apparently does not apply to the State Government according to its conduct. That such condonation of delay is no more admissible on the pretext of Government working lethargy is clear from the judgment of this court in The Chief Post Master General v. Living Media India Ltd.
The Court does not find a satisfactory explanation for a delay of 469 days in filing the appeal to have been offered by the Applicant/Appellant. The application is accordingly dismissed.
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2020 (3) TMI 1424 - TELANGANA HIGH COURT
Validity of assessment order - liability of the petitioner towards VAT and penalty arrived at by the Assessing Authorities under the Telangana VAT Act, 2005 - HELD THAT:- Since the petitioner had already paid 12.5% or more of the disputed tax pending appeals before the Appellate Deputy Commissioner and the Telangana VAT Appellate Tribunal, we are of the considered opinion that the respondents are not justified in refusing to grant the petitioner stay of collection of the balance disputed tax and issuing Garnishee orders to the petitioner’s banker for recovery of the balance disputed tax.
Petition allowed.
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2020 (3) TMI 1317 - KERALA HIGH COURT
Interpretation of statute - Sub Entry 27 of Entry 36 of the IIIrd Schedule - Classification of goods - Ayurvedic Baby Soap - Ayurvedic Tooth Paste - Ayurvedic Mouth Wash - Baby gift pack and - Ayurvedic Baby Powder - eligibility for concessional rate of tax in terms of the newly introduced Clause 27 under Entry No. 36 of the IIIrd Schedule to the KVAT Act, 2003 - HELD THAT:- The 'Authority for Clarification' has found against the assessee on the ground that the products in question do not have therapeutic or prophylactic use and therefore they are not 'medicaments'. It is further stated that Soap, Tooth Paste and Mouth Wash are toilet articles and Baby Powder is more of a toilet article than a cosmetic. In the case of Gift Pack, it is found that the major items in the pack are taxable at 14.5% and that the pack therefore attracts tax at the same rate.
Tooth paste and tooth powder - HELD THAT:- Apex Court in SARIN CHEMICAL LABORATORY VERSUS COMMISSIONER OF SALES TAX, UP. [1970 (8) TMI 64 - SUPREME COURT] held that Tooth Paste and Tooth Powder are toilet articles and will not be Cosmetics in common parlance. In the above view of the matter, contention raised by the petitioners with regard to Tooth Paste which is one of the products, for which clarification is sought for has to fail.
Baby soap - HELD THAT:- Rule 23 of the Rules of Interpretation specifically excludes Soaps from the purview of Entry 36. In view of the fact that Soaps stand specifically excluded under Rule 23, we are not called upon to decide the question whether Baby Soap is a toilet article in common parlance or not. The clarification given in Annexure-IV order with regard to Soap also is therefore perfectly sustainable.
Mouth Wash - Gift Packs - Ayurvedic Baby Powder - HELD THAT:- The issue with regard to the exigibility of tax at concessional rates under Sub Entry 27 of Entry 36 of the IIIrd Schedule with regard to Baby Powder, Baby Gift Pack and Mouth Wash are issues which require a reconsideration and a reasoned order at the hands of the clarificatory authority.
The findings contained in Annexure A4 order of clarification with regard to Baby Soap and Tooth Paste as contained in the impugned order - With respect to other products the matter is remanded to the 'Authority for Clarification' for reconsideration and a reasoned order on the exigibility of tax to three other products, i.e., Baby Powder, Mouth Wash and Baby Gift Pack.
Appeal allowed by way of remand.
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2020 (3) TMI 1261 - KARNATAKA HIGH COURT
Levy of Entry Tax - dredgers - ocean going vessels/ships - Machinery or not - Karnataka Tax on Entry of Goods Act, 1979 - Whether the dredger would partake the character or definition of a machinery as defined under Entry 52 of 1st Schedule of the ‘KTEG Act’ or otherwise?
HELD THAT:- Under the Central Excise Act similar issue came up for consideration before the Appellate Tribunal in the matter of Collector of Customs, Bombay v. Dredging Corporation of India Ltd.[1986 (9) TMI 333 - CEGAT, NEW DELHI], whereunder the Tribunal had held that “dredgers” are to be considered as “ocean going vessels” against which order a Civil Appeal No. 5/87 [1991 (55) E.L.T. A33 (S.C.)] had been filed by the Collector of Customs, Bombay and the said appeal came to be withdrawn by order dated 7-5-1991.
The statutory authorities under different enactments have consistently held that ‘dredgers’ are to be considered as “ocean going vessels”. In fact, the dredger which has been registered as a ship under the Merchant Shipping Act, 1958 has also been recognized by the Income Tax Department as a ship.
Thus, the question has to be answered in favour of the respondent-assessee and against the petitioner-Revenue by arriving at a conclusion that ‘dredgers’ are ‘ocean going vessels i.e., ship’ and it cannot be termed, considered or held as “machinery” referable to entry 52 of 1st schedule of KTEG Act - revision dismissed.
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2020 (3) TMI 1256 - KERALA HIGH COURT
Best Judgement Assessment - KVAT Act - reason for completing the assessment on best of judgment basis is that the petitioner had failed to produce the audited statement along with the returns - HELD THAT:- In view of the limited relief sought and in the light of Exhibit P2- Division Bench judgment of this Court, the writ petition is disposed of directing the first respondent to consider Exhibit P4-rectification application and to pass a reasoned order thereon - In the meanwhile, recovery proceedings pursuant to Exhibit P1-order shall be kept in abeyance.
Petition disposed off.
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2020 (3) TMI 1154 - MADRAS HIGH COURT
Permission for withdrawal of petition - Input tax credit - time limitation - validity of the prescription of entitlement of credit of input tax being limited within a time prescription as contained in Rule 117 of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- The petition is dismissed as withdrawn.
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2020 (3) TMI 1151 - JHARKHAND HIGH COURT
Imposition of penalties u/s 10-A of the CST Act - purchase of High Speed Diesel - allegation that High Speed Diesel purchased by the petitioners for manufacturing process, were not being used fully in the manufacturing process, rather they were being used for other purposes also - offence under section 10(d) of the Central Sales Tax Act - HELD THAT:- The impugned orders passed by the Appellate Authority cannot be sustained in the eyes of law, as the matter of deletion of High Speed Diesel from the CST registration of the petitioners was not sub-judice before the Appellate Authority. The only matter that was sub-judice before the Appellate Authority was the imposition of penalty upon the petitioners under Section 10-A of the CST Act. Both these issues are separate issues, and it cannot be said that the decision in the appeals filed by the petitioners would depend upon the decision of the High Court in the other pending writ applications. Irrespective of the results in the writ applications filed challenging the deletion of High Speed Diesel from the CST registration, the legality or otherwise of the penalty imposed under Section 10-A of the CST Act may be adjudicated.
There appears to be no reason for dismissing the appeals awaiting the decision of the High Court. The impugned orders are prima-facie not sustainable in the eyes of law - matters are remanded back to the Appellate Authority for adjudication of the appeals filed by the appellants on their own merits - application allowed by way of remand.
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2020 (3) TMI 1127 - SC ORDER
Filing of the appeals before statutory authorities and recovery of dues under various laws in the situation of outburst of Corona Virus pandemic - HELD THAT:- Issue notice. - In the meantime, there shall be ex-parte ad-interim stay of the impugned judgment and order(s).
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2020 (3) TMI 1126 - TRIPURA HIGH COURT
Levy of penalty - storage of goods even in an undisclosed unregistered godown - Section 66 of the Tripura Value Added Tax Act, 2004 - petitioner opted for Compounding of Offences - HELD THAT:- In the present case, it was not merely a case of the goods being found at an unregistered godown, as can be seen from the detention order the allegations also were that on the date of the raid the petitioner failed to produce relevant documents regarding compliance of the provisions of the VAT Act in respect of transport of taxable goods. Section 75 of the VAT Act makes several acts and omissions by a dealer punishable. Had the petitioner contested the notice on merits and opposed the proposal for imposing penalty or handing down punishment, all aspects could have been gone into. The petitioner instead opted for compounding of offence. Thereupon the Superintendent of Taxes passed the composition order. Petitioner now cannot challenge it on merits.
Petition dismissed.
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2020 (3) TMI 1095 - KERALA HIGH COURT
Filing of the appeals before statutory authorities and recovery of dues under various laws in the situation of outburst of Corona Virus pandemic - HELD THAT:- This present scenario of outburst of deadly corona virus is very precarious and sensitive, as the lawyers and the staff rendering assistance to this Court and the Judges are vulnerable, thus in order to prevent such rampant of spread by taking preventive measures, I deem it appropriate to issue general directions to the departments concerned like the banks, financial institutions, Income tax authorities, authorities dealing with the erstwhile KVAT, GST, recovery of tax on motor vehicles and building tax to defer the recovery proceedings or coercive measures till 06.04.2020.
In order to overcome the apprehension that this general order may cause impediment or hindrance to persons who are willing to opt for the Amnesty Scheme, it is made clear that this order will not be an impediment for any of such defaulters to avail the Amnesty scheme as and when such scheme is promulgated or in vogue. It is also made clear that the borrowers of the bank, if want to pay off the dues of the bank, it will be open to them to abide by any of the RBI directives or any other directive which is likely to come into place de hors this order - Similarly, defaulters of GST, KVAT, Building tax, Motor Vehicles tax etc. who are willing to pay the demanded amount subject to certain conditions which the department would have fixed within their power to relax or otherwise, would not be bound by this order.
In cases wherein tax authorities are required to complete the assessment proceedings before 31.3.2020, they can be deferred subject to the order of this Court but it is made clear that the assessees would not raise the objection of limitation - The adjudicating authorities already seized of the proceedings and communicated for appearance on a particular date there is likelihood of the party may be handicapped in not approaching on a fixed date in view of the present situation. In such circumstance, the adjudicating authorities are directed not to pass any adverse order till 06.04.2020.
The Registry is directed to list all the matters pending in this regard batch-wise post 06.04.2020.
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2020 (3) TMI 1094 - KERALA HIGH COURT
Principles of natural justice - opportunity to cross-examine denied - difference on account of certain inter-state transaction reflected in the return as well as the details available from the check post - presumption of certain facts - Section 114(g) of the Indian Evidence Act - HELD THAT:- Pith and substance of the facts revealed, which are not being mentioned again in order to avoid repetition would reveal that the petitioner had been afforded an opportunity to crossexamine the witnesses. In case the other evidence which has been sought are not produced, the petitioner can always derive the benefits of provisions of Section 114(g) of the Indian Evidence Act.
Provisions of Section 114(g) of the Indian Evidence Act enables the authority or the court to presume existence of certain facts. The petitioner can always take the benefit of such provisions at the relevant point of time by making submissions in an appropriate forum and competent authority but not through the process of this Court, as it appears to be a adoption of a dilatory tactics.
Petition dismissed.
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2020 (3) TMI 1093 - KERALA HIGH COURT
Maintainability of petition - non-compliance with the condition of pre-deposit - non-application of mind - HELD THAT:- The Tribunal, after considering the records relating to assessment, passed Ext.P2 order dated 29.03.2010, wherein the Tribunal found that both, the contentions raised by the assessee and the arguments put forth by the Revenue, have not been considered by the authorities below - The Tribunal therefore remanded the matter solely for the purpose of giving the assessee and the Revenue an opportunity to reiterate their contentions with supporting evidences and to enable the assessing authority to pass a speaking order considering all the aspects.
A reading of Ext.P9 would show that the Fast Track Assessment Team, after narrating the factual sequences, only recorded the contentions of the assessee - The manner in which the Fast Track Assessment Team has passed Ext.P9 order is not justifiable. The remand as per Ext.P2 order by the Tribunal was for the sole requirement to consider and meet the objections raised by the petitioner. While the fact being so, the 3rd respondent-Fast Track Assessment Team could not have passed an order in the nature of Ext.P9, without answering the contentions raised by the petitioner. In such circumstances, Ext.P9 order is liable to be set aside.
The case is remitted to the 3rd respondent for reconsideration.
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2020 (3) TMI 1092 - MADRAS HIGH COURT
Levy of Interest u/s 24 (3) of TNVAT Act - incorrect availment of deferral for the assessment years 2001-02 and 2002-03 - adequate reasons for levy of interest given or not - HELD THAT:- This Court, in order to give an opportunity, by treating the impugned orders as show cause notices, directs the petitioner to submit the required documents to correlate the production figure before the authority / respondent, within a period of four weeks from the date of receipt of a copy of this order - The respondent shall consider the same and pass appropriate orders afresh.
Petition disposed off.
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2020 (3) TMI 1091 - MADRAS HIGH COURT
Principles of Natural Justice - Validity of assessment order - main ground of attack by the petitioner is that no opportunity was granted to the petitioner for production of documentary evidence before the authority for passing appropriate orders - HELD THAT:- Admittedly, the cause of action for issuing the pre-revision notices was on the basis of the proposal submitted by the Enforcement Wing Officials, pursuant to an inspection conducted in the place of business of the petitioner. When the petitioner submitted their objections to the pre-revision notices, the Assessing Officer has to independently adjudicate the matter and he shall not be influenced by the directions issued by the Enforcement Wing Officials. But he has not done so in this case.
Further, no reasonable opportunity was provided to the petitioner for production of necessary documentary evidence before the authority for passing appropriate orders, as per Section 27(2) of the TNVAT Act.
This Court is inclined to set-aside the assessment orders dated 29.10.2015 and are set-aside accordingly. The matters are restored to the file of the Assessing Officer / first respondent - petition allowed by way of remand.
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2020 (3) TMI 1090 - MADRAS HIGH COURT
Audit of the business operations of the petitioner - Section 64 (4) of the TNVAT Act - Whether the inspection done by the second respondent, who is below the rank of Commissioner is against the provisions of law? - HELD THAT:- Section 64 (4) of the Act empowers the Commissioner to order for audit of any registered dealers and such audit is required to be done by an Officer not below the rank of Deputy Commercial Tax Officer and such responsibility cannot be delegated to others or usurped by others - In the case on hand, the Joint Commissioner (CT) Enforcement I, who is subordinate to the Commissioner, has ordered for audit, which is against the provisions of the Act. Based on the same, the first respondent has passed the impugned assessment orders, which are as rightly contended by the learned counsel for the petitioner, liable to be set-aside.
This Court is inclined to set-aside the impugned assessment orders and remit the matters back to the authority, for passing orders afresh, after providing due opportunity to the petitioner, for production of necessary accounts as well as filing proper objections - Petition allowed by way of remand.
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2020 (3) TMI 1051 - KERALA HIGH COURT
Re-assessment of the proceedings u/s 17D of the Kerala General Sales Tax Act, 1963 - escaped turnover - method of fast track completion of assessment - time limitation - case of Revenue is that once Section 17(D) of the Act, 1963 do not envisage any period of limitation, the argument that the applicability of Section 19 of the Act, 1963 would not apply and impugned order noticing the escaped turn over cannot be said to be erroneous or barred by law of limitation - HELD THAT:- On perusal of the aforementioned provisions, particularly Section 19 of the Act, 1963 empowers the assessing authority may, at any time within five years from the expiry of the year to which the tax relates, proceed to determine the best of its judgement in respect of the turn over alleged to have escaped assessment to tax - There was an amendment in Section 17 whereby the assessment relating to year up to and including 2004-05 running as on 31st March, 2010 or to be completed on or before 31.03.2011.
However, in the instant case the Ext.P2 notice was issued on 20.11.2019 followed by an assessment order dated 14.12.2009 and Ext.P4 notice, Ext.P7 order commanding the petitioner to pay the penalty and interest under the KGST Act, 1963. There is no justification for this department or a material placed on record as per the provision of Section 17D, in the absence of any statutory period referred to Section 17D escaped assessment way of fast track assessment can be taken almost 14 years later. The reasonable period can be extended upto the period referred to other provisions regarding the escaped assessment under Section 19.
Even from perusal of the assessment order and the notice there is no reference to the additional material forming an opinion to undertake the fast track assessment.
Demand not sustainable - petition allowed.
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2020 (3) TMI 1050 - PUNJAB & HARYANA HIGH COURT
Classification of goods - Mango Drink under the brand name “Slice” - whether fall under Entry 100D of Schedule-C of the HVAT Act or not? - taxable @ 12.5% or 5%? - HELD THAT:- An Entry similar to Entry 100-D came up for consideration before the Gauhati High Court in Pepsico India Holding Pvt. Ltd. v. State of Assam [2009 (4) TMI 853 - GAUHATI HIGH COURT]. This was in the context of classifying 'Potato Chips' sold under the brand name 'Lays' and 'Uncle Chips' under the Entry 80 Part A of the Second Schedule to the Assam Value Added Tax Act, 2003 (Assam VAT Act) - It was held that potato chips” manufactured and sold by the petitioner-company under the brand name “Lays” and “Uncle Chips” would be covered by entry 80 of Part A of the Second Schedule to the Assam Value Added Tax Act, 2003 during the relevant period.
This Court is satisfied that both the RA and Tribunal erred in holding that product in question i.e. 'Slice' is not covered under Entry 100-D of Schedule C to the HVAT Act. The impugned orders of the RA as well as the Tribunal are accordingly set aside. The question of law framed is answered in the negative i.e. in favour of Appellant/Assessee and against the Respondent.
Appeal allowed.
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2020 (3) TMI 1045 - GUJARAT HIGH COURT
Attachment of property - CIRP proceedings - first charge over all the properties and assets in view of Section 48 of the Gujarat VAT Act, 2003 - lifting of attachment sought so that they can be put to sale by the liquidator and thereupon the sale proceedings be distributed under Section 53 of the I&B Code in order of priority prescribed - Section 48 of the Gujarat Value Added Tax Act, 2003 - HELD THAT:- Issue Notice to the respondents returnable on 16.01.2020.
In the meantime, pending the hearing and final disposal of the petition, the operation, implementation and execution of the impugned order dated 18.11.2019 passed in Misc. Application No. 2357 of 2019 in Company Petition (IB) No. 1514 (MB)/2017 is stayed.
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2020 (3) TMI 997 - GAUHATI HIGH COURT
Levy of Luxury Tax - concealment of sales - suo-moto power of revision - Sections 36 (1) of the AGST Act and 82 (1) of the AVAT Act - HELD THAT:- Considering the view taken by the appellate authority as regards the acceptance of the seized documents for the purpose of the assessments made and the view taken by the revisional authority and the learned Assam Board of Revenue that the petitioner assessee failed to provide the required evidence to arrive at a conclusion that the information contained in the seized documents were related to some other hotel and were procured for the purpose of making a sale projection, we are required to examine whether the view taken by the appellate authority in the order dated 29.01.2015 can be termed to be ‘erroneous order’ and ‘prejudicial to the interests of the revenue’.
From the point of view whether there was any incorrect assumption of facts or incorrect application of law by the appellate authority in respect of the seized documents, we take note of that the appellate authority had rejected the seized documents by accepting the statement of the Manager (F & A) of the petitioner assessee that the information contained therein relates to some other hotel and were obtained for the purpose of making a sales projection of the hotel before a financial institution. No further evidence had been brought in by the petitioner assessee that the information contained in the seized documents were of some other hotel and if yes, as to of which hotel, nor any evidence had been brought in that it was used for the purpose for making a sales projection before any financial institution for obtaining a loan - Merely because a stand was taken by the assessee, the burden of proof would not shift to the department. In such view, it would have to be construed that there was an incorrect assumption of facts by the appellate authority.
The two circumstances required to exist for the purpose of invoking the suo-moto revisional power under Sections 36 (1) of the AGST Act and 82 (1) of the AVAT Act are present in the instant case and therefore we do not find any infirmity in the exercise of any suo-moto power by the Addl. Commissioner of Taxes in the order 28.10.2015.
The contention of the petitioner assessee that in view of the provisions of Section 33(2)(b), providing for an appeal by the Commissioner against the appellate order, the suo-moto power of revision against such appellate order would not be maintainable, is liable to be rejected.
Revision dismissed.
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