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VAT and Sales Tax - Case Laws
Showing 101 to 120 of 1180 Records
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2016 (12) TMI 188 - KARNATAKA HIGH COURT
Recovery of tax dues from the debtors - Remittance by the debtors of the petitioner company of the moneys owed to the petitioner company - Section 45(1) of the KVAT Act, 2003 - Held that: - Though such a prayer is opposed by the learned counsel for the Revenue, this Court considers it expedient to grant some breathing time to the petitioner-company to approach the Hon’ble Supreme Court in pending Civil Appeal No.8505/2011 for the purpose of obtaining the interim relief, if any, in the present case
Writ petitions are disposed of with a direction to the petitioner-company to deposit a further sum of ₹ 10 Lakhs within a period of four weeks from today with the first respondent-authority, as undertaken by the petitioner subject to the final decision of the matter by the Hon’ble Supreme Court with a liberty to the petitioner to approach the Hon’ble Supreme Court for seeking the aforesaid interim relief as prayed for.
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2016 (12) TMI 132 - MADRAS HIGH COURT
Cancellation of the registration certificate - TNVAT Act, 2006 - belated filing of returns - principles of natural justice - Held that: - it is seen that the impugned order of cancellation has been passed in violation of the principles of natural justice without taking into consideration the objections dated 21.10.2016 to the show cause notice dated 20.10.2016. Further in the show cause notice, the petitioner was granted 15 days' time to give their objections and the objections given by the petitioner are well within the 15 days' time. Therefore, it is not known as to how the respondent could have passed a cancellation order on the very same day - the date on which the show case notice was issued i.e 20.10.2016. Further, there is no plausible explanation as to why the official has signed the order only on 15.11.2016. In any event, the reason for cancellation of the petitioner's registration is for non filing of the returns for the months of July, August and September 2016 and this defect does not exist any longer, since the petitioner filed the returns and paid taxes and the copies in proof of the same have been filed in the typed set of papers. For all the above reasons, the impugned order is held to be illegal.
Registration restored to petitioner - appeal allowed - decided in favor of petitioner-assessee.
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2016 (12) TMI 131 - MADRAS HIGH COURT
Validity of order of assessment - TNVAT Act, 2006 - petitioner was not given sufficient time to respond to the pre-assessment notice, as only three days was granted - principles of natural justice - Held that: - this Court is of the view that sufficient time should have been granted to the dealer to produce the documents and contest the proposal. According three days time, in the considered opinion of this Court, is inadequate and hence for that reason, this Court is inclined to interfere with the impugned order in respect of the above heads, as well as the consequential penalty which has been levied in the impugned order - Writ Petition is partly allowed, the impugned order in so far as it pertain to Sl.Nos. (1),(4) (5) & (6) viz. Reversal of ITC due, Tax Due on Sales return, Interest, tax Due on Sales suppression and penalty under section 27(3) and 27(4) of the Act are set aside and the matter is remanded to the respondent for fresh consideration and the petitioner is granted fifteen days time from the date of receipt of a copy of this order to submit relevant documents and on receipt of the documents and objections, the respondent shall afford an opportunity of personal hearing and redo the assessment in accordance with law.
Petition allowed by way of remand.
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2016 (12) TMI 130 - MADRAS HIGH COURT
Revision of assessment - principles pf natural justice - Held that: - Firstly, the respondent should have dealt with the petitioner's representation, dated 22.04.2013. In the representation, apart from the fact that the petitioner has given certain explanation and requested time for production of the declaration forms. Apart from that specifically, they sought for personal hearing. The Hon'ble Division Bench of this Court in several decisions has held that when a request is made by the dealer for grant of opportunity of personal hearing, it should be granted. Therefore, whether it is a revision of assessment under Section 22(4) or 27(4), when there is a request made by the dealer for personal hearing, the Assessing Officer should grant the same. The reason being that it will facilitate in the Assessment Proceedings and ensure that correct rate of taxes are recovered by the Department. This having not been is sufficient to hold that the impugned orders are in violation of the principles of natural justice.
With regard to furnishing of "C" Forms and "F" Forms and other declaration forms, time and again, this Court has held that these forms are produced by the dealers only to avail the concessional rate of tax and there may be various reasons as to why the dealer cannot produce the forms within a time frame and the dealer should not be prevented from producing the form as and when they are able to secure the same, as it has to be furnished by the other end dealer.
The impugned orders are in violation of principles of natural justice. Accordingly, these Writ Petitions are allowed and the impugned orders are set-aside and the matters are remanded to the respondent for fresh consideration with a direction to the respondent to accept "C" Forms and "F" Forms and other declarations, which are available with the petitioner and it should be produced by the petitioner within a period of four weeks.
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2016 (12) TMI 129 - MADRAS HIGH COURT
Principles of natural justice - Held that: - In the impugned assessment order, the respondent has stated that the reply given by the dealer is routine and general in nature and does not reflect the branch-wise and day-wise details and that the sales reported can be verified with the Bill Tallying System to ascertain the correctness. If such was the opinion of the respondent, then it is all the more a valid reason for the respondent to have called upon the petitioner for personal appearance and directed them to produce all the details, more particularly the Bill Tallying System. However, this has not been done. Therefore, the impugned order has to be held to be in violation of principles of natural justice.
Matter is remanded to the respondent for fresh consideration, who shall afford an opportunity of personal hearing to the petitioner, produce all records and if necessary call for records, including Bill Tallying System and after making a thorough verification, consider the objections raised by the petitioner and thereafter redo the assessment - appeal allowed by way of remand.
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2016 (12) TMI 128 - RAJASTHAN HIGH COURT
Levy of penalty u/Sec.78(10A) of the Act - inter stste transport of goods - failure to produce any documents - Held that: - the Driver was carrying all necessary papers, invoices and no tax was due makes out a case that the vehicle was carrying the goods along with requisite documents without intention to avoid or evade tax. That being so, the discretion vested in the assessing authority was not liable to be exercised even if there was technical violation of sub-sec. 10-A to impose the penalty equal to 50% of the value of the goods, though as noticed by us no case of violation of sub-sec. (10-A) was spelt out in notice under Sec. 78. Thus, penalty came to be imposed without affording opportunity to the driver to defend himself. The levy of penalty thus being in breach of requirements of sub-sec. (10-A) and in breach of principles of natural justice, could not have been sustained.
Penalty u/s 78 (10A) of the Act not levied - petition dismissed - decided against Revenue.
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2016 (12) TMI 127 - MADRAS HIGH COURT
Levy of turnover tax - high sea sales - the main grievance of the petitioner is that he was not afforded personal hearing before passing the impugned order inspite of his request insofar as relating to the the disallowance of exemption on high sea sales turnover of ₹ 7,18,29,120/- - Held that: - since the Department is safeguarded by the attachment made in the bank account, I am inclined to set aside the impugned order dated 13.7.2016 insofar as it relates to the disallowance of exemption on high sea sales turnover of ₹ 7,18,29,120/-, and remit the matter back to the authority concerned for affording an opportunity of personal hearing to the petitioner in respect of disallowance of exemption on high sea sales turnover of ₹ 7,18,29,120/-, and to proceed in accordance with law, within a period of 8 weeks from the date of receipt of a copy of this order - petition allowed - decided in favor of petitioner.
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2016 (12) TMI 70 - MADRAS HIGH COURT
Condonation of delay of 120 days - limitation period prescribed in the proviso to Section 36(1) of the Act - Held that: - As per Section 36(1) of the Act, the limitation period for filing appeal by the Government is 120 days, whereas it is 60 days for others. Therefore, it is clear that within 120 days, the Government should have filed appeal. It is further specified that the Appellate Authority is empowered to admit the appeal presented by the Government, after further period of 120 days, if sufficient cause is given for not filing the appeal within the limitation period. Therefore, it is clear that appellate authority is empowered to condone the delay upto 120 days after the expiry of the limitation period as specified in the proviso to Section 36 of the Act. Since the statute provides for a specific period of limitation, the authority concerned cannot condone the delay beyond the period of 240 days i.e. 120 days of limitation period and 120 days of delay. This clear exclusion renders the appeal filed by the Government beyond the period of 240 days as one barred by limitation.
The condonation of delay period is beyond the period prescribed by the statutory provisions and the same is not legally sustainable and therefore, this Court has come to the conclusion that since the second respondent has filed the appeal beyond the period of limitation as prescribed under Section 36(1) of the Act, the impugned order passed by the first respondent/Tribunal is liable to be set aside - delay not condoned - appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 69 - KARNATAKA HIGH COURT
Denial of benefit of input tax credit - the Petitioner paid purchase tax under Section 3(2) of KVAT Act on the purchase of sand from unregistered dealers - the petitioner has not filed any revised return either within the prescribed period of 6 months or even thereafter and the claim for input tax credit is made for the first time only after the re-assessment proceedings were concluded - Held that: - the Tribunal has rightly held that as per the provisions of Section 35(4) read with the decision of this Court in the case of CENTUM INDUSTRIES [2015 (10) TMI 47 - KARNATAKA HIGH COURT], no input tax credit would be available as claimed by the assessee - the contention raised that the matter is pending before the Apex Court against the decision of the Centum Industries case and therefore this Court may not conclude on the question of law because the issue is already covered by the decision of this Court and it is not the case of the assessee that the Apex Court has stayed the operation of the decision of this Court.
So far as the second contention for claiming tax credit though no reference whatsoever is made by separately showing the amount of tax in the Bills or tax invoice.
Petition dismissed - decided in favor of revenue.
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2016 (12) TMI 68 - KARNATAKA HIGH COURT
Works contract - commodities of bitumen and jelly - duty chargeable at 4% or 12.5% - Held that: - the Tribunal in the impugned order has considered that the amendment has come into effect from 1st of April 2006. Therefore, for the respective period of 2005 -2006, the amendment did not exist on the statute book. Resonantly, the duty as was prevailing prior to 1.4.2006 for the respective items will be considered for the chargeability. The Tribunal has recorded that for the jelly as well as bitumen which are the material being used, 4% is the duty provided as per the III Schedule vide item No.83 and 11/15 respectively and accordingly, the duty to the extent of 4% is maintained.
When the amendment was not on the statute book for specifically providing duty/Tax on works contract, it cannot be said that duty chargeable would fall in the category of residuary item at the rate of 12.5%. The view taken by the Tribunal is that, whatever the items are utilized in execution of the works contract will have to be considered separately for the purpose of chargeability. Of course, the benefit is already gr anted for the Iron and Steel by the First Appellate Authority to the extent of 32.5% of the total amount of the purchase. For the cement, the Tribunal had found that it would be 12.5%, whereas, for jelly, it would be 4% and for bitumen, it would be 4%. The view taken by the Tribunal, more particularly, in the absence of any amendment in the statute book providing for separate chargeability of the works contract cannot be said to be erroneous.
Petition dismissed.
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2016 (12) TMI 67 - RAJASTHAN HIGH COURT
Levy of Turnover tax - composition/exemption fees - Held that: - bare perusal of the Sec. 13A itself makes it explicitly clear when it mentions "whose total turnover in a year exceeds 3 lac rupees" should mean that it has to be computed on the basis of annual turnover and not on the basis of proportionate or part of the turnover or quarterly basis. Admittedly, Notification dt. 12.7.2004 with regard to the assessment of the turnover tax and the exemption fee in lieu of turnover tax had been rescinded, therefore, assessment of the annual turnover or the exemption fee on any part of the same of the assessee for the assessment year 2003-04, could not be made applicable - petition dismissed.
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2016 (12) TMI 66 - RAJASTHAN HIGH COURT
Whether in the facts and circumstances of the case the Rajasthan Tax Board was justified in law in holding the goods namely "Mobile Cranes wire ropes" liable to tax @ 4% under schedule IV despite of the facts that there is no specific entry of the same and they are liable for tax as per rate prescribed under schedule-V? - Held that: - the user of Wire Ropes being mainly to put in the Mobile Cranes, is certainly integral part of the Mobile Cranes and was entitled to the same rate of tax - petition dismissed - decided against Revenue.
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2016 (12) TMI 65 - MADHYA PRADESH HIGH COURT
Printing of currency notes for Government of India - Business or not - petitioner, dealer or not - currency notes, goods or not - Held that: - Petitioner is only engaged in printing and selling of bank notes to the Reserve Bank of India, therefore, there is a sale transaction between petitioner and the Reserve Bank of India and after sale the said goods become Bank Note or currency and before such transaction it is merely goods under the definition of VAT Act, 2002
It is clear that the Union is not exempted from the levy of indirect tax under Article 285 of the Constitution.
The applicability of protection under Article 285 of the Constitution of India is also liable to be rejected and the petitioner would not be entitled for the benefit as held by the Apex Court in the case of Karya Palak Engineer, CPWD, Bikaner vs. Rajasthan Taxation Board, Ajmer and others [2004 (8) TMI 114 - SUPREME COURT OF INDIA], where it was held that Union is not exempted from the levy of indirect tax under Article 285 of the Constitution.The levy under the local Act being a single point tax and the appellant having suffered the same when it purchased the material in question and same material cannot be subjected to another levy on its transfer to the contractor. This argument requires consideration of factual matrix of the case concerned, whether the levy in question is a single point tax and material purchased by the appellants had suffered the levy at the point of purchase by appellants or not are matters to be decided by the authorities concerned and if the same is not already decided and has not become final, it will be open to the appellants to urge this question before the appropriate authorities.
Petition dismissed - decided in favor of Department.
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2016 (12) TMI 64 - KARNATAKA HIGH COURT
Valuation - sale turnover - Section 62(6) of the KVAT Act - cost of the sale of items, other than liquor, would be approximately 50% and accordingly, the tax was assessed and penalty was also imposed at the rate of 10% - jurisdiction of revisional authority - Held that: - The records show that the Assessing Officer assessed at the rate of 50% of the total sales without considering any margin of profit whereas the first appellate authority assessed at 10% by accepting the exempted figure of sales of liquor. Since the judicial scrutiny of the present appeal insofar as this Court is concerned has to be limited to the question of law and the fact finding inquiry cannot be undertaken by this Court. We find that the matter should be relegated to the revisional authority to undertake such exercise as it is the ultimate fact finding authority. Hence, we find it appropriate to interfere with the order of the revisional authority since no proper and satisfactory reasons are recorded to arrive at the factual conclusion as to whether figures arrived at by the assessing officer was correct or not and consequently, the finding recorded is without proper reasons being assigned by the revisional authority - the impugned order passed by the revisional authority is set aside and the matter is remanded to the revisional authority on the limited point of examination about the proportion of sale of food and drink items which is subject to VAT. After the aforesaid exercise is undertaken, the appropriate consequential order may be passed after giving an opportunity of hearing both sides and in accordance with law.
Attachment of bank property - Held that: - as such the tax liability is more than the amount recovered, but, on reasonable condition to deposit the amount or to furnish appropriate bank guarantee, the appellant may be permitted to operate the bank account - after the appellant furnishes bank guarantee of ₹ 2,50,000/-, he may be permitted to operate the bank account, subject to final order which may be passed by the revisional authority.
Appeal disposed off - decided partly in favor of appellant, only on the issue of attachment of bank property.
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2016 (12) TMI 60 - KARNATAKA HIGH COURT
Breach of principles of natural justice - the revised proposition notice was given by the respondent-Assessing Authority only on 19.08.2016 and even though the officer concerned was under transfer, he passed the impugned reassessment order dated 25.08.2016 - the issues regarding sales returns etc. have not been properly appreciated by the respondent-Assessing Authority - Held that: - the petitioner-assessee has an effective alternative remedy of appeal against the impugned reassessment order passed by the respondent-Assessing Authority, these writ petitions are not maintainable and the petitioner-assessee deserves to be relegated back to the Appellate Authority.
Applicability of rate of tax on chargers is concerned - Held that: - the mobile battery chargers have been held to be only the accessories of mobile phones and they cannot be treated as part of the mobile phones itself. It will definitely attract a separate rate of tax as in the present case, it is rightly charged at 14.5% and the difference of tax at 9% was demanded by the respondent-Assessing Authority, as the petitioner-assessee had charged and collected the tax only at the rate of 5.5% on the sale of mobile battery chargers.
Except the aforesaid issue of rate of tax, the petitioner-assessee is relegated to the Appellate forum - appeal disposed off.
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2016 (12) TMI 8 - MADRAS HIGH COURT
Input tax credit - registration number of suppliers cancelled - Held that: - the question would be as to why the then Assessing Officer did not proceed further pursuant to the notices dated 09.03.2012. Since no action was taken pursuant to the notice dated 09.03.2012, it is prima facie clear that the then Assessing Officer was satisfied with the petitioner's explanation dated 25.03.2012 supported by the letter given by M/s.Super Flames dated 02.04.2012. Thus, the respondent should objectively assessed the entire situation and then come to a conclusion. For the above reasons, this Court is of the view that the matter should be send back to the respondent for re-consideration - petition allowed by way of remand.
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2016 (12) TMI 7 - ALLAHABAD HIGH COURT
Levy of penalty - evasion of sales tax - Detention of goods and truck - inter-state sale or intra-state sale - Held that: - A concurrent finding of fact has been recorded by the authorities including the Tribunal that the statement of the driver of the truck was recorded on oath and he narrated the events in detail starting from the place at Indore where the goods in questions were actually loaded and terminating with the point where the tanker was intercepted. The Tribunal has found that the statement of the driver was not under any pressure, but it was given by him on oath. Under the circumstances, it was established by the department that the goods were imported by the assessee from Indore (MP) from undisclosed dealer and the same was attempted to be transported under the cover of bill issued by the assessee from Agra with intent to evade payment of tax. Thus, I do not find any infirmity in the impugned order of the Tribunal upholding imposition of penalty of ₹ 50,000/- under Section 15A (1)(0) of the Act.
Since, this Court has upheld the penalty and found the transaction in question to be evaded sale of the assessee and as such determination of turn over of imported refined oil by the assessing authority as upheld by the Tribunal to the extent of ₹ 17 lacs is wholly justified. The Tribunal itself has considered the facts in detail and substantially reduced the turnover of imported reined oil from ₹ 70 lacs to 17 lacs. Under the circumstances, I do not find any good reason to interfere with the impugned order of Tribunal. No question of law arises.
Revision dismissed.
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2016 (12) TMI 6 - RAJASTHAN HIGH COURT
Replacement of defective parts during warranty period - whether amounting to sales transaction? - liable to VAT or sales tax? - Held that: - Both the counsels for the Revenue as well as the assessees after arguing for some time contended during the Course of hearing, that all these petitions be disposed off by this Court, to be governed in the light of the judgment pending before Apex Court in the case of M/s Marudhara Motors [2009 (3) TMI 956 - RAJASTHAN HIGH COURT], to avoid multiplication of litigation which otherwise can be saved by disposing off all these petitions and in observing that all the cases would be governed by the fate of M/s Marudhara Motors pending decision before the Apex Court.
To avoid multiplication of the litigation it would be appropriate to dispose off all the petitions as raised by the Revenue to avoid multiplicity of litigation to be governed by the judgment of M/s Marudhara Motors by the Apex Court. If the civil appeal in M/s Marudhara Motors is allowed by the Apex Court in favour of the revenue then these revision petitions would be allowed automatically. However, if the Judgment of this court in M/s Marudhara Motors is upheld by the Apex Court, then all these petitions would stand automatically dismissed.
It would be appropriate to dispose off the present petitions to say and to hold that the outcome of these petitions would be governed finally by the outcome of the SLP pending before the Apex Court on the same challenge in the case of M/s Marudhara Motors.
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2016 (12) TMI 5 - RAJASTHAN HIGH COURT
Imposition of penalty u/s 76(6) of the Act - Rajasthan VAT Act, 2003 - VAT declaration form 47 - punching of form - Held that: - reliance placed on the decision of the case of ITC Agrotech Limited, through its Manager Ramlal Verma Versus Assistant Commercial Taxes Officer, Anti Evasion 1, Circle 2, Jaipur [2016 (9) TMI 1086 - RAJASTHAN HIGH COURT] where it was held that punching was introduced later-on and if the declaration form is not duly punched, then it is a material deficiency and penalty even in such cases is required to be imposed.
The punching admittedly having not been done, it being a material deficiency, the order passed by the Tax Board is just and proper - the declaration form has to be complete in all respect and finding the form even incomplete in respect of material particulars and punching, the order of Tax Board does not call for any interference by this court - penalty rightly imposed - petition dismissed - decided against appellant-assessee.
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2016 (12) TMI 4 - RAJASTHAN HIGH COURT
Imposition of penalty u/Sec. 78(5) - Declaration form ST-18-A - Held that: - the order of both the appellate authority is required to be interfered with and quashed and set aside & taking into consideration the fact that the driver may have produced bills, vouchers & builty etc. but declaration Form ST-18- A which was mandatory under Rule 53 ought to have been carried duly filled in and admittedly such declaration Form ST-18-A was neither produced at the time of interception of the vehicle nor later on and in the light of judgment of the Apex court in the case of Guljag Industries Vs. Commercial Taxes Officer [2007 (8) TMI 344 - SUPREME Court] which has considered the self same controversy at length, the penalty is inevitable.
Mens rea is not essential for imposition of penalty.
Penalty upheld - decided against Assessee.
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