|
Advanced Search Options
VAT and Sales Tax - Case Laws
Showing 21 to 40 of 62 Records
-
2011 (1) TMI 1286 - KARNATAKA HIGH COURT
Amendment brought into the Third Schedule of entry 23 of the Karnataka Value Added Tax Act, 2003 during 2008 permitting imposition of tax on insecticides that are used other than for agricultural purposes at 12.50 per cent instead of at four per cent challenged
Held that:- Even assuming that the Joint Commissioner would not act other than the way in which instructions were issued by the Commissioner of Commercial Taxes, and it has to be treated as good an order passed by the Commissioner himself in the matter of assessment/reassessment, however, still a reading of the amendment to entry 23 would need interpretation in the background whether, straightaway it falls within the meaning of insecticides only to attract four per cent tax and there could not have been any distinction between using of insecticide for agricultural or horticultural purpose and for domestic purpose, and it is a matter of appreciation of facts as well as question of law is involved.
Petitions are disposed of with liberty to the petitioner to approach the Appellate Tribunal and to take all such contentions. The Appellate Tribunal to dispose of the matter within three months from the date of appearance of the petitioner.
-
2011 (1) TMI 1285 - KERALA HIGH COURT
... ...
... ... ..... g is opted by the assessee and accepted by the Department, assessee has no escape from it, and withdrawal is not permissible, the assessing officer rejected the assessees' applications and assessments were made under section 19 of the Act demanding tax at the compounded rate which is the revised rate prescribed by the Finance Act, 2002. During hearing the Government Pleader relied on the decision of one of us (CNR (J)) in Prakash Jewellery v. State of Kerala 2004 12 KTR 543 (Ker), wherein the position canvassed by the State was accepted by this court and directed the assessing officer to complete the assessment for the year 2002-03 at the compounded rate based on the Finance Act, 2002. We see no reason to deviate from the view taken by the learned single judge in the above referred decision. Following the said decision we allow the revisions by vacating the order of the Tribunal and by restoring the order of the first appellate authority confirming section 19 assessment.
-
2011 (1) TMI 1283 - ALLAHABAD HIGH COURT
Whether assessing authority and the Tribunal have erred in refusing to refund the excess amount?
Held that:- Section 7D provides a lump sum payment in the form of compounding money in lieu of tax payable. Section 2(n) defines "tax" which includes composition money. The applicant applied under the compounding scheme issued by the G.O. dated December 5, 2007 under the turnover slab of ₹ 200 crores. It was open to the assessing authority to accept the said application under the aforesaid slab or to reject it. In the present case the application has been accepted under the turnover slab of ₹ 200 crores. Under the compounding scheme for the turnover slab up to ₹ 200 crores the compounding money payable was ₹ 70 lacs only. Therefore, the assessing authority is not entitled to treat and accept any other amount over and above ₹ 70 lacs as compounding money under the scheme. The assessing authority as well as the Tribunal have erred in treating the entire deposit of ₹ 1 crore as compounding money after accepting the compounding application for the slab below ₹ 200 crores. The assessing authority is only entitled to retain the compounding money which is legally due. Any amount deposited in excess of the compounding money which is not due under the scheme is the excess amount of tax and is liable to be refunded under section 29 of the Act. The assessing authority and the Tribunal have erred in refusing to refund the excess amount. Appeal allowed.
-
2011 (1) TMI 1282 - ALLAHABAD HIGH COURT
Penalty levied under section 10A read with section 10(d) of the Central Sales Tax Act, 1956 challenged
Held that:- For the purpose of levy of penalty under clause (d) of section 10 of the Central Act, the relevant consideration is whether the goods purchased against form C have been used for the purpose for which registration has been granted or not. As stated above, the raw materials, etc., have been used for the printing of lottery tickets for which the registration was granted and, therefore, there was no violation of clause (d) of section 10 of the Central Act.
In the result, all the three revisions are allowed. The penalty levied under section 10A read with section 10(d) of the Central Act is hereby quashed.
-
2011 (1) TMI 1281 - KERALA HIGH COURT
Whether the highest tax payable to be reckoned from out of the preceding years is the assessed tax or the tax due under the return filed by the assessee?
Held that:- If the tax declared as payable in the return is equal or more than the tax found payable under the accounts, then such amount of tax as disclosed in the return has to be reckoned for the purpose of assessment of tax at compounded rate for the relevant year. So long as the provision in the statute does not provide for assessment of tax at compounded rate based on the tax assessed or demanded for any of the preceding three years, the Department cannot raise such a contention before the statutory authorities or before the Tribunal or before this court. We therefore uphold the order of the Tribunal and dismiss this revision case.
-
2011 (1) TMI 1280 - KARNATAKA HIGH COURT
Whether when the assessment order was revised under section 21, the assessment order merged with that revisional order, therefore, the Additional Commissioner of Commercial Taxes had no jurisdiction to again revise the assessment order as it was not in existence at all?
if the Additional Commissioner of Commercial Taxes is exercising his power under section 22, setting aside the order of revisional authority as well as the assessment order, he should have set aside the entire order and should have remitted the matter back to the assessing authority for denovo enquiry and for fresh assessment, he could not have made a restricted remand and decided the other issues?
Held that:- It is not disputed that such a power is vested with the Additional Commissioner of Commercial Taxes. Therefore, when the revisional proceedings were initiated under section 22, revised order passed under section 21, the revision is maintainable and therefore, we do not see any substance in the said contention.
In the instant case, in respect of the matter where material available on record and on undisputed facts, he has passed the orders which is final. On matters where he did not have sufficient material and enquiry was required, he has remanded the matter to the assessing officer for enquiry. Therefore, said conduct cannot be found fault with as it is well within his jurisdiction. Appeal dismissed.
-
2011 (1) TMI 1279 - ANDHRA PRADESH HIGH COURT
... ...
... ... ..... in reading of section 31(4)(a) of the Act and rule 42 of the Rules leaves no doubt that it is well within the competence of the appellate authority either to confirm, reduce, enhance or annul the assessment or penalty or both. However, as mandated by rule 42 of the Rules the issue of notice to the dealer for enhancing or determining correct amount of tax is condition precedent for exercising the power under section 31(4)(a) of the Act. This is conspicuous by its absence, a fact of which is not denied by the special counsel for the respondents. As the impugned order ex facie suffers from a defect; indeed though curable-while setting aside the same, we remit the matter to the first respondent with an observation that all the pleas that may be taken by the petitioner shall be considered by the appellate authority while disposing of the matter, preferably, within a period of eight weeks in accordance with br law after issuing notice. The writ petition is disposed of accordingly.
-
2011 (1) TMI 1278 - MADRAS HIGH COURT
Whether the impugned order is totally arbitrary and amount to colourable exercise of power, as the learned Special Commissioner and Commissioner of Commercial Taxes, has given no reason to arrive at a decision, though he was to act as quasi-judicial authority while deciding a question under section 28-A of the Tamil Nadu General Sales Tax Act?
Whether the "textile machine clearer roller cleaner" is an item, which can only be used in textile machinery, and for no other purpose?
Held that:- The "textile machine clearer roller cleaner" can only be used in textile machinery and no other machinery. Learned counsel for the petitioner, therefore, is correct in contending that the impugned order, passed by the Special Commissioner and Commissioner of Commercial Taxes, cannot be sustained in law.
The contention of the learned counsel for the petitioner that the impugned order is arbitrary and non-speaking, also deserves to be accepted, for the reasons that even though the power exercised by the Special Commissioner and Commissioner of Commercial Taxes, was under section 28A, i.e., statutory power, but order is totally silent, with regard to reasons for coming to the conclusion, especially when with regard to other two items of similar nature, were held to be part of textile machinery.
Consequently, the writ petition is allowed. The impugned order is set aside and the respondents are directed to treat the textile machine clearer roller cleaner, be a part of textile machinery, assessable to four per cent tax
-
2011 (1) TMI 1277 - MADRAS HIGH COURT
... ...
... ... ..... his order, if the returns have not been filed, till date. Thereafter, the respondents shall issue pre-assessment notices, in respect of the assessment years concerned. On receipt of the pre-assessment notices, it would be open to the petitioner to file the objections. On receipt of such objections, the respondents shall pass appropriate orders, as per law. 3. The petitioner shall also file the returns, in respect of the assessment year 2010-11. Thereafter, it would be open to the respondents to pass necessary assessment orders, in respect of the assessment year 2010-11, in accordance with the procedures established by law. 4. The cheques bearing Nos. 207652, 207653 and 207655, dated October 8, 2010, shall be returned to the petitioner, by the second respondent. The impugned attachment notice issued by the second respondent, dated November 19, 2010, is set aside. 5. The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
-
2011 (1) TMI 1276 - GUJARAT HIGH COURT
Condonation of delay of 110 days caused in filing Tax Appeal (Stamp) seeked
Held that:- The applicant has sufficiently explained the delay that has been caused in preferring the tax appeal and that there is no wilful negligence on the part of the applicant, nor has the applicant ever given up the cause. In the circumstances, the delay caused in filing the appeal deserves to be condoned. Application allowed.
-
2011 (1) TMI 1274 - MADRAS HIGH COURT
... ...
... ... ..... dated June 28, 2010 and July 19, 2010, before the first respondent, within a period of fifteen days from today. On submission of such objections by the petitioner, the first respondent shall consider the same and pass appropriate orders thereon, on the merits and in accordance with law, within a period of four weeks thereafter. It is made clear that no recovery proceedings should be initiated against the petitioner based on the notices, dated June 28, 2010, and July 19, 2010, till the first respondent passes appropriate orders, as directed above. The writ petitions are disposed of accordingly. No costs. Connected M.P. No. 1 of 2011 is closed. W.P. Nos. 535 and 536 of 2011 In view of the orders passed in the writ petitions in W.P. No. 533 of 2011 and W.P. No. 534 of 2011, no further orders are required to be passed in W.P. Nos. 535 and 536 of 2011. Hence, the writ petitions in W.P. Nos. 535 and 536 of 2011 are closed. No costs. Connected M.P. Nos. 1 and 1 of 2011 are closed.
-
2011 (1) TMI 1273 - KARNATAKA HIGH COURT
Whether these petitions are to be considered on merits notwithstanding the availability of the statutory remedy of filing the appeal?
Do the impugned orders suffer from the vice of bias? Is the approach of the appellate authority likely to be biased in favour of the Revenue?
Held that:- the courts are not well-equipped to go into the scientific and technological aspects of the matter. It is therefore desirable that the petitioners file the statutory appeals. The appellate authority has to consider the case of the petitioners and the respondents by taking into account the materials placed on record. Given the nature of the subject, it may also be necessary for the appellate authority to embark on a fresh enquiry, perhaps by taking the assistance of the technical persons and technical bodies in the matter.
Thus, It cannot be said with any rate of success that these petitions involve pure and simple questions of law. They involve complicated, scientific and technological questions, which certainly fall within the realm of factual controversies. As held by the apex court in the case of Vicco Laboratories [2007 (11) TMI 21 - SUPREME COURT OF INDIA], the writ court's interference is ruled out where factual adjudication is necessary.
That the Deputy Commissioner has taken part in the proceedings of the committee on the subordinate legislation or is instrumental in filing the review petition are no grounds for alleging the bias. In the instant case, the Deputy Commissioner has passed the similar reassessment orders for different assessment periods on July 31, 2006 and January 12, 2007 long before the meeting of the committee on subordinate legislation. On the similar set of facts, the Deputy Commissioner has passed the similar orders. Therefore he cannot be held to be at fault for passing the impugned orders.
-
2011 (1) TMI 1268 - PUNJAB AND HARYANA HIGH COURT
Whether exclusion of 'sport' as a subject from taxing entry 62, and inclusion of the same in non-taxing entry 33 of the State List of the Seventh Schedule to the Constitution is intentional so as to deprive the State Legislature of their competence to tax 'sport' and leave that competence to Parliament under the residuary entry 97 of the Union List?
Whether the Division Bench judgment of this court in Chrysalis International Pvt. Ltd. v. State of Haryana [2011 (1) TMI 1267 - PUNJAB AND HARYANA HIGH COURT], has been correctly decided by applying the law laid by the honourable Supreme Court in Geeta Enterprises v. State of U. P. [1983 (9) TMI 319 - SUPREME COURT]. The question is 'does the Homer nod'?
Held that:- We hold that the State Legislature is competent to impose entertainment duty/tax on entertainments and amusements, which include sports and accordingly question "(A)" is answered in favour of the Revenue and against the assessee.
The learned judge then went on to observe that "We, in the Supreme Court, do 'nod' despite great care to be correct, and once a clear error in judgment is revealed, no sense of shame or infallibility complex obsesses us or dissuades this court from the anxiety to be ultimately right, not consistently wrong." We are happy to notice that we are saved of Homer's nod. Accordingly, the second question is also answered against the petitioners and in favour of the Revenue.
-
2011 (1) TMI 1267 - PUNJAB AND HARYANA HIGH COURT
Whether such activities [ providing facilities for swimming, games of billiards, pool, etc.] carried out by the persons, who are participating in the sports or such like activity, are liable to entertainment duty under the Punjab Entertainments Duty Act, 1955?
Held that:- here cannot be any variation in the levying of rate of entertainment duty on the basis of the decision having been taken by the Excise and Taxation Commissioner. Unless the procedure laid down, as aforesaid, is complied with, the rate of levy of entertainment duty could not have been varied. Still further, even if any decision has been taken, there cannot be any estoppel against the statute. Consequently, the said argument is without any merit. Prior to June 29, 2001, the entertainment duty at 125 per cent would be payable, but thereafter, it would be payable at 25 per cent.
The notifications dated September 1, 1977 and June 29, 2001, provide that the State Government has published the notification in exercise of the powers conferred by sub-section (1) of section 3 read with first proviso of sub-section (2) of section 3 of the Act. Meaning thereby that the publication of a draft notification has been dispensed with for fixation of rate of entertainment duty. Thus, the argument that the draft notification was not published, is not tenable as the same was expressly dispensed with.
-
2011 (1) TMI 1266 - ALLAHABAD HIGH COURT
Revision under section 11 of the U.P. Trade Tax Act, 1948 is directed against the order of the Tribunal dated May 22, 2003 for the assessment year 1987-88, by which the Tribunal has confirmed the order of the first appellate authority deleting the penalty levied under section 10A of the Central Sales Tax Act, 1956
Held that:- There was no reason for the first appellate authority and the Tribunal to delete the penalty without setting aside the finding of the assessing authority that there was mens rea in misusing the from C. On the facts and circumstances, in my view, the assessee had issued form C in respect of the impugned goods making the false representation that it was registered for such goods. There was absolutely no bona fide belief on the part of the assessee in issuing the form C. In the present case, the mens rea on the part of the assessee in issuing form C is fully established.
In the result, the revision is allowed. The order of the Tribunal dated May 22, 2003 and the order of the first appellate authority dated April 6, 1999 are set aside and the order of the assessing authority is restored.
-
2011 (1) TMI 1265 - ALLAHABAD HIGH COURT
Whether levy of penalty under section 13A(4) of the Act can be said to be unjustified?
Held that:- None of the authorities below has accepted the explanation put forward by the applicant that it has sold only 9 M.T. bitumen against bill No. 79 dated March 1, 2002 which was being transported in Tanker No. U.P. 81 D-4408 from Agra to Jabalpur and further 10.310 M.T. bitumen was loaded in the said tanker at Mathura, which was purchased by Jabalpur party from Indian Oil Corporation Limited and Tanker No. U.A.C. 9078 had been subjected to break down. Admittedly, at the time of inspection, neither the bill of 19.310 M.T. bitumen was produced nor the bill of 9 M.T. bitumen, claimed to have been sold by the applicant, was produced. Bill No. 7924318 dated February 14, 2002 issued by the Indian Oil Corporation Limited and G.R. No. 597 dated March 1, 2002 were produced. In bill No. 7924318 dated February 14, 2002, Tanker No. U.A.C. 9078 was mentioned. There was nothing to show that the said bill and bilties relate to the goods loaded in the tanker. The driver and khalasi of the tanker in their statements have not stated that the goods of Tanker No. U.A.C. 9078 have been loaded in Tanker No. U.P. 81 D-4408. Admittedly, the entries of 19.310 M.T. bitumen, found at the time of inspection, was not found entered in the books of account of the applicant. In the circumstances, levy of penalty under section 13A(4) of the Act cannot be said to be unjustified.Appeal dismissed.
-
2011 (1) TMI 1264 - GAUHATI HIGH COURT
Whether the contractee-Election Department can supersede/override the decision of the taxing authority like respondent No. 5, the Commissioner of Taxes, who is appointed for carrying out the purpose of the Act?
Whether the supply of materials in question comes within the purview of the works contract or is wholly exempted from the purview of VAT in view of the provisions of section 9 read with entry at serial No. 5 of the First Schedule to the Act, 2003?
Held that:- This court is of the opinion that the petitioner is not supposed to pay the VAT against supply of the printing materials to the Election Department in connection with general elections to Lok Sabha, 2009. Consequently, the impugned orders dated April 2, 2009 and April 27, 2009 (annexures F and H, respectively) are quashed and the letter dated September 23, 2009 (annexure-Motor Vehicles Act, 1988) is also set aside. In the result, the writ petition is allowed.
-
2011 (1) TMI 1263 - ALLAHABAD HIGH COURT
Whether the Tribunal failed to look into sub-section (3) of section 21 of the Act which provides that if the notice is served within the period provided under sub-section (2) of section 21 of the Act the assessment order may be made within six months after expiration of such period?
Held that:- Section 21(2) of the Act says that except as otherwise provided in this section, no order of assessment or reassessment be passed after the expiry of two years from the end of such assessment year and further the proviso provided that the Commissioner may authorise the assessing authority to make such assessment or reassessment after the expiration of two years but not after the expiration of six years from the end of such year. Therefore, sub-section (2) provides limitation for eight years for passing the order.
Sub-section (2) is subject to the other provision of the section. It is subject to sub-section (3) which provides that if the notice is served within the period specified in sub-section (2) the assessment may be made within six months after the expiration of such period. In this way sub-section (3) extends six months further period for passing the order.
In view of the above, the order of the Tribunal is erroneous and liable to be set aside. Thus, the Tribunal is required to decide the appeal on the merits. Revision allowed.
-
2011 (1) TMI 1262 - PUNJAB AND HARYANA HIGH COURT
Whether, in the facts and circumstances of the case, clean air equipment (laminar flow clean air equipment) and accessories thereof are electrical appliances under entry 18, Schedule A of the Act or industrial machinery (general goods)?
Whether the assessee was liable to pay interest under section 25(5) of the Act ibid. in view of the honourable Supreme Court of India judgment in J.K. Synthetics Ltd. v. Commercial Taxes Officer reported in [1994 (5) TMI 233 - SUPREME COURT]?
Held that:- There is no dispute that the equipment in question is run with the electrical energy and provides filtered air. No distinction can be made on the basis of domestic purpose or the industrial purpose for use of the article. We, thus, do not find any reason to take a view different from the one taken by the Tribunal. The question is, thus, answered against the assessee and in favour of the Revenue.
Now coming to question (ii), it is not disputed on behalf of the State that in view of the Constitution Bench judgment of the honourable Supreme Court in J.K. Synthetics Ltd. v. Commercial Taxes Officer [supra] the levy of interest was effective from the date of issuance of demand notice and not from the date of filing of return. The said question, thus, stands answered in favour of the assessee and against the Revenue.
-
2011 (1) TMI 1261 - MADRAS HIGH COURT
When an appeal in MTA No. 106 of 2008 filed by the petitioner in regard to the levy of tax of ₹ 77,656 (rupees seventy seven thousand six hundred and fifty six only) and the penalty levied for ₹ 92,568 (rupees ninety two thousand five hundred and sixty eight only) are pending before the Sales Tax Appellate Tribunal, (AB) Madurai, then it is not open to the second respondent/Deputy Commercial Tax Officer, Virudhunagar, to issue prerevision notice dated April 24, 2008 in reference Asst. No. 5720959/97-98 and the same is per se illegal in the eye of law.
Held that:- Inasmuch as the appeal filed by the petitioner in MTA No. 106 of 2008 before the Sales Tax Appellate Tribunal (AB), Madurai is pending as on date and since the same has not been disposed of till date, this court is of the considered view that it is not open to the second respondent/Deputy Commercial Tax Officer I, Virudhunagar, to issue the pre revisional notice dated April 24, 2008 claiming tax due on the wilful non-disclosure at ₹ 77,656 and the penalty proposed at 150 per cent as per section 16(2) of the Act at ₹ 1,16,484 and the same is per se illegal and invalid one.
Resultantly, this court exercises its inherent power under writ jurisdiction and sets aside the pre-revision notice dated April 24, 2008 issued by the second respondent and allows the writ petition to prevent an aberration of justice.
|
