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VAT and Sales Tax - Case Laws
Showing 161 to 180 of 1180 Records
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2016 (11) TMI 1183 - MADHYA PRADESH HIGH COURT
Validity of assessment order - ex-parte assessment order - assessment order passed without granting time to petitioner - principles of natural justice - Held that: - we are of the considered view that as statutory remedy of appeal and second appeal are available in the facts and circumstances of the case, we are not inclined to interfere in this matter, granting liberty to the petitioner to take recourse available of filing an appeal, writ petition is disposed of. In case appeal is filed within a period of 30 days from the date of receipt of certified copy of this order, learned Tribunal shall proceed on merits in accordance with law and shall not reject the appeal on the ground of delay - petition disposed off.
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2016 (11) TMI 1182 - MADHYA PRADESH HIGH COURT
Attachment of bank property - interim stay restored to petitioner on application - Held that: - Keeping in view the circumstances of the case and the fact that the appeal is pending before the appellate authority, we direct that on the petitioner filing a certified copy of this order alongwith a detailed representation before the appellate authority, ventilating the grievance as are raised in the writ petition, the appellate authority shall consider the same and pass an appropriate order on the same within a period of 7 days of its presentation - petition disposed off - decided in favor of petitioner.
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2016 (11) TMI 1180 - MADHYA PRADESH HIGH COURT
Imposition of VAT - ‘inter-state sale’ treated as ‘intra-state sale’ - Held that: - if the goods moved in the course of ‘inter-state’ movement and reaches the buyer in satisfaction of a contract of a purchase and there is a nexus between the movement of goods and the contract entered into, for which the movement of the goods takes place, then such a sale is deemed to be in the course of inter-state trade or commerce, and based on the contract of sale as is provided in the contract.
The Assessing Officer has not discharged the statutory function properly and has passed an order of assessment imposing liability on the petitioner without adverting to consider relevant factual aspects and legal question, as are indicated hereinabove. Infact the learned Assessing Officer should have gone into the contract in detail, analysed it and then recorded a finding as to whether the sale in question or the transaction is an ‘inter-state sale’ or ‘intra-state sale’. This having not been done, we are of the considered view that this petition should be allowed and matter remanded back to the Assessing Officer for reconsideration.
Appeal allowed by way of remand.
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2016 (11) TMI 1133 - MADRAS HIGH COURT
Validity of assessment order - Liability of cross verification of the annexures of the buyer and the seller in the intranet website of the Department - Levy of tax on payment of excise duty and penalty thereon on the same - Held that: - it is seen that the respondent referred to the document and the details furnished by the petitioner, but curiously enough confirmed the proposal by stating that the monthly returns filed by the other end dealer are not only sufficient proof to authenticate the purchase and sale transaction and that the genuineness and correctness could be proved by furnishing original purchase and sales bill, payment made for the transaction by bank statement, transportation details, loading and unloading charges paid to the cooly, stock register extract, delivery challans received and issued reconciling the stock register, etc. - t this juncture, this Court would point out that the above observations made by the respondent in the impugned assessment orders, were not forming part of the pre-revision notice. In other words, these details were not called for from the petitioner while issuing the pre-revision notice. Therefore, if the respondent had any doubts with regard to the documents produced by the petitioner or the details furnished by them or if, in his opinion, they are insufficient, the Assessing Officer should have issued a notice to the dealer and called upon them to produce the documents. However, completing the assessments on the above lines is wholly unreasonable and arbitrary. Therefore, finding on the said issue calls for interference.
Matters are remanded back to the respondent for fresh consideration - petition allowed by way of remand.
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2016 (11) TMI 1132 - MADRAS HIGH COURT
Public auction - property on equity mortgage - sales tax arrears - Held that: - as per section 42[2] of the Tamil Nadu Value Added Tax Act, 2002, any tax assessed or amount due under the Act from a dealer or a person, have priority over all other claims against the property of the said dealer or person and the analogous provision under the Tamil Nadu General Sales Tax Act, vis-a-vis, the SARFAESI Act - the State has got priority over the Bank dues.
Whether the petitioner claims to be the bona fide purchaser? - Held that: - The Bank, after receipt of the communication of the Sales Tax Authorities, calling upon them to pay the sales tax arrears, also took a stand that their dues will prevail over the sales tax arrears and even in the Auction-Sale proceedings [the contents of which have been extracted in paragraph 4 of this order], the Bank had clearly given assurance that they will take care of the sales tax issue and in the light of the said assurance only, the petitioner has paid the entire bid amount and requested the respondents 3 and 4 to execute the Sale Deed free of all encumbrances which include the sales tax arrears. However, the Bank, in their impugned communications dated 25.10.2010 and 24.11.2010, had made a turn around stating that the request/demand made by the petitioner cannot be acted upon as he has purchased the properties knowing pretty well about the attachment from the Sales Tax Department and they are prepared to execute the Sale Deed, subject to the incorporation of the clause regarding sales tax arrears. In the considered opinion of the Court, the stand taken by the respondents 3 and 4 is wholly untenable as the borrower submitted his bid subject to the clearance of the sales tax arrears/dues by them and the communication and the reply dated 10.03.2010 and 15.04.2010 sent by the Axis Bank to the Commercial Tax Authority would also indicate that they have taken a consistent stand that their claim will have priority over the sales tax arrears and even in the Auction Sale proceedings also, a positive assurance has been given to the borrower that the said issue will be taken care of by the Bank. Therefore, the respondents 3 and 4 cannot resile from that promise or undertaking.
The respondents 3 and 4 - M/s.Axis Bank, is at liberty to execute the Sale Deed in favour of the petitioner in respect of the auction property free of all encumbrances which include the sales tax arrears claimed by the respondents 1 and 2 ; or in the alternative, refund the sale consideration with or without interest to the petitioner and in the event of the amount being refunded without interest, the petitioner / auction purchaser is at liberty to invoke the common law remedy and recover the same - petition disposed off - decided in favor of petitioner.
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2016 (11) TMI 1080 - BOMBAY HIGH COURT
Recovery of any alleged Sales Tax dues - discharge certificate - sale of property - The SARFAESI Act - The SARFAESI Act is an Act which enables regulation of securitisation and reconstruction of financial assets and enforcement of security interest or matters incidental thereto - Held that: - the Petitioners, having no knowledge (either actual or constructive) of the dues of the Sales Tax Authorities before they purchased the said property, the Sale Tax Authorities cannot recover their dues from the Petitioners by enforcing their charge against the said property.
The Sales Tax Authorities cannot recover the dues of the Defaulter Company from the Petitioners (save and except to the extent of ₹ 18,38,709/-) by enforcing their charge under Section 38C of the BST Act on the said property. However, it is clarified that our order and direction does not mean that the Sales Tax Authorities cannot proceed against the Defaulter Company - Equally, we must clarify that we have not entered into any controversy regarding the priority the Sales Tax Authorities may have on the sale proceeds received from the sale of the said property to the Petitioners. The priority, if any, of the Sales Tax Authorities is not in issue before us, and therefore, we should not be understood to have rendered any finding in that regard. The issue of priorities between the Sales Tax Authorities and Respondent Nos.1 and 2 shall be decided in appropriate proceedings before the appropriate forum and in accordance with law.
Petition disposed off - decided in favor of petitioner.
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2016 (11) TMI 1079 - BOMBAY HIGH COURT
Interpretation of the Schedule Entries C-II-17 and C-II-46A appended to the Bombay Sales Tax Act, 1959 - hard-anodised utensils - whether Tribunal legally justified in holding that the hard-anodised utensils sold by the appellant under his sale invoice dated 12.01.1995 is a heat-resistent cookware under the Schedule Entry C-II- 46A and hence does not get covered by the Schedule Entry C-II-17? - Held that: - if cookware, serveware and kitchenware (which would obviously include utensils) is heat resistant or non-stick by virtue of any coating (whether formed, applied or treated), on the utensils, then the same would clearly fall within Schedule Entries C-II-46A (heat resistant) or C-II- 46B (non-stick) [before amendment], and C-II-26 [after amendment], as the case may be. Therefore, they cannot be classified under Schedule Entries C-II-17 (before amendment) or C-II-24 (after amendment). This is the clear intention of the Legislature in classifying different products in different Entries.
Whether the Tribunal legally justified in holding that the hard-anodised utensils sold by the appellant under his sales invoice dated 06.02.1996 falls under Schedule Entry C-II-26 and hence would not get covered by the Schedule Entry C-II-24? - Held that: - satilon coating is a hard anodizing coating which is not brushed or sprayed on. It is an integral part of the metal built up molecule to the thickness of more than 50 microns, under very carefully controlled conditions, through electrolysis. Satilon forms an extremely stable surface that is nontoxic, non-staining and non-reactive with foods. It is a naturally dark grey colour. No pigment is added. Satilon does not tarnish, stays looking new for years and makes the utensil non-stick. It will not scratch, is highly abrasion resistant and is 2.4 times harder than stainless steel - the products of the Applicant cannot be classified under Schedule Entry C-II-17 (prior to amendment) and CII- 24 (after amendment).
We have no hesitation in holding that the products of the Applicant sold under its invoice dated 12th January, 1995 would fall under Schedule Entry C-II-46B and the Applicant’s products sold under its invoice 6th February, 1996 would fall under Schedule Entry C-II-26. The Sales Tax References are answered in the aforesaid terms.
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2016 (11) TMI 1078 - UTTARAKHAND HIGH COURT
Condonation of delay - Held that: - We find no reasonable explanation for the delay, particularly for the period immediately after obtaining the copy of the judgment, which was received on 02.02.2013, except the vague allegations contained in paragraphs 4 & 5. The question of translation of the documents comes at much later stage. We are not impressed by the reasons for delay - Application for condonation of delay dismissed.
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2016 (11) TMI 1077 - MADHYA PRADESH HIGH COURT
Imposition of penalty - against the tax liability imposed, an appeal is already pending before the appellate authority and the appellate authority has stayed recovery of the tax amount as assessed, at this stage, initiation of the penalty proceedings is not permissible - Held that: - the fact remains that at the stage, when only a show-cause notice is issued for imposing penalty, the appeal itself may not be maintainable but without going into this aspect of the matter and keeping in view the orders passed in various cases, identical in nature, interest of justice would be met if further proceedings into the show-cause notice Annexure P-7 is directed to be kept in abeyance and liberty is granted to the department to proceed in accordance to law after the appellate proceedings come to an end, the department shall have liberty to initiate penalty proceedings, for the present, directing the respondents that the notice Annexure P-7 shall be kept in abeyance till decision on the appeal which is pending before the appellate authority, we dispose of this writ petition - petition disposed off.
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2016 (11) TMI 1076 - MADHYA PRADESH HIGH COURT
Works contract - applicability of the provisions of M.P. VAT Act, 2002 on works contract - Held that: - The legal question with regard to imposition of liability only with effect from the date the agreement is entered into is a question legal in nature based on the law laid down in the case of Larsen & Toubro Ltd. [2013 (9) TMI 853 - SUPREME COURT] and this aspect of the matter has to be considered. That apart, finding the order identical in nature, not to be a speaking order without disclosing any reason, similar order has been quashed by this Court in W.P. No.1767/2014 and in certain other cases.
Order impugned Annexure P/2 and all consequential action thereto stands quashed and the matter remanded back to the Assessing Officer for reconsideration keeping in view the observations made herein above. The petitioner shall appear before the Assessing Officer on 22nd August, 2016 and on the same being done, the Assessing Officer shall proceed in accordance with law - petition allowed - decided in favor of petitioner.
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2016 (11) TMI 1075 - MADHYA PRADESH HIGH COURT
Imposition of VAT and Entry Tax under the VAT Act, 2002 and Central Sales Tax - Article 226 of the Constitution - pre-deposit not made - Held that: - there are substantial and cogent material available on record to show that petitioner's Company has been declared as sick industry, there is an order passed by the Board under the SICA and even in the matter of recovery of sales tax certain prohibition has been imposed by the Board. Taking note of all the circumstances, it is a fit case where the condition of pre deposit amount can be waived and the appeal directed to be decided on merit, as material are available on record to show that petitioner would suffer irreparable loss resulting in injustice to them in case the appeal is not decided on merit. Accordingly, looking to the financial condition of the petitioner, we allow this petition, direct for waiver of pre deposit amount and direct the Appellate Authority to proceed after hearing all concern - Appeals are restored to its original file and petitioner's appearing before the Appellate Authority along with certified copy of this order, the Appellate Authority shall proceed to decide the appeal in accordance to law on merit.
Petition allowed - decided in favor of petitioner.
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2016 (11) TMI 1074 - MADHYA PRADESH HIGH COURT
Deduction in respect of the branch transfers in absence of declarations - whether branch transfers to be treated as inter-State sales liable to Central Sales Tax? - rectification of mistake - revisional authority ought to have exercised its powers under section 71 of the MPCT Act to rectify the mistake within the statutory period and if within one year the order has not been rectified, then petitioner is entitled to get it rectified in its term of the said application - Held that: - the contention of the petitioner is liable to be rejected on the ground that sub-section (2) of section (1) has specifically provided that rectification is limited for correcting any clerical or arithmetical mistake or any error arising therein from any accidental slip or omission. The application for rectification which the petitioner has filed as Annexure P/16 is nothing but in the nature of appeal or revision in which the petitioner wants to recall the order dated 27.08.2013 which is beyond the scope of section 71 of the MPCT Act, 1994, therefore, there is no substance in the argument of the petitioner that by virtue of sub-section (2) if the application has not been decided within the specified time, the petitioner shall be entitled to have the order rectified in accordance with his application - The scope of section 71 cannot be enlarged to the extent of reviving or recalling the entire order on merit. The scope is very limited only to correct the mistakes or any error arising therein for accidental slip or omission - petition dismissed - decided against petitioner.
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2016 (11) TMI 981 - RAJASTHAN HIGH COURT
Non service of notice - Rajasthan Tax Board, a statutory body - Held that: - the declaration form ST-18C was filed before the AO himself on a show cause notice and judgment of apex court in State of Rajasthan & Another v. D.P. Metals [2001 (10) TMI 881 - SUPREME COURT OF INDIA] squarely applies, where it was held that The quantum of penalty under the circumstances enumerated in section 78(5) cannot, in our opinion, be regarded as illegal. The quantum of tax levied by the taxing statute, the conditions subject to which it is levied, the manner in which it is sought to be recovered, are all matters within the competence of the Legislature, and in dealing with the contention raised by a citizen that the taxing statute contravenes article 19, courts would naturally be circumspect and cautious" as such there cannot, in the present case, be any valid challenge to the rate of penalty provided for in section 78(5) of the Act.
Petition dismissed - decided against petitioner.
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2016 (11) TMI 980 - MADHYA PRADESH HIGH COURT
Trade discount - authorised dealer of reputed motor vehicle manufacturers - applicant allows discount at the time of sale of vehicles to its customers as per the policy of the company, however, since the invoices are to be raised for full value of the vehicles, discount is allowed by issue of credit notes to the respective customers. Such discount being as per the company policy has the effect of reducing the sell price of the vehicle. The discount is described as rebate in the credit notes issued to the customers. The customer, thus, pays the net amount after reducing the rebate allowed to him by way of credit notes. The applicant, while filing its returns for the period under consideration, while computing its taxable turnover, claimed deduction of discount / rebate allowed by it to its customers - whether deduction claim of trade discount justified?
Held that: - no useful purpose would be served by calling upon the Tribunal to state the case and make a reference. Thus, to avoid unnecessary wastage of time, we think it appropriate to decide the matter. Since the facts are admitted and the law has been settled by their Lordship of the Supreme Court, we think that the question as raised by the assessee has to be answered in its favour. Resultantly, we do so. It is held that the Tribunal was not justified in rejecting the claim of the applicant by holding that the assessee is not entitled for the Trade Discount and, therefore, the orders of the second Appellate Authority dated 14/08/2007 and order passed in rejecting the application under Section 70(1) dated 28/07/2016 are liable to be set aside - the matter is remitted to the Board to decide the second appeal afresh and decide the same in accordance with law - application disposed off.
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2016 (11) TMI 979 - MADHYA PRADESH HIGH COURT
Jurisdiction of AO - M. P. Commercial Tax Act - the Assessing Officer did not consider the grounds raised in the application and rejected the application on the ground that inspite of the notice, petitioner did not appear - Held that: - Keeping in view the manner in which the application has been rejected in a casual manner without adverting to consider the grounds raised in the application which is not permissible, the order dated 29/07/16 Annexure P-5 is quashed and we restore the application filed under Section 34 of the M. P. V. A. T. Act and direct the Assessing Officer to hear the petitioner and decide the application afresh by a speaking order - petition allowed - decided in favor of petitioner.
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2016 (11) TMI 978 - RAJASTHAN HIGH COURT
Input Tax Credit - The respondent-assessees are carrying on separate business but they sold the goods at a rate lower than the price shown in the VAT invoice keeping in view the discount/incentive received by them from the respective dealers - Held that: - reliance placed on the decision of the case of Assistant Commissioner, Circle-A Vs. Assistant Commissioner, Circle-A, Commercial Taxes, Bharatpur (Rajasthan) and others Versus Bhagwati Building Material Store and other [2016 (10) TMI 13 - RAJASTHAN HIGH COURT] where it was held that Input Tax Credit is allowable as per VAT invoice irrespective of sale value of the goods.
ITC allowed - petition dismissed - decided in favor of respondent-assessee.
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2016 (11) TMI 977 - RAJASTHAN HIGH COURT
Levy of penalty for not following procedure for movement of vehicle carrying goods - Imposition of penalty u/Sec.76(6) of the Act - incomplete declaration in Form VAT-47 - Held that: - in view of Notification dt.08.07.2009, the goods were notified and they were required to be carried with a declaration Form VAT-47 and in fact the declaration Form VAT-47 was carried but was incomplete in all respects. It is not a case where the assessee was not carrying a declaration Form VAT-47 and same was produced and another in pursuance to a show cause notice - the original declaration Form VAT-47 was incomplete and thereafter a fresh declaration Form VAT-47 has been obtained from the department on the next day and then has been placed before the Assessing Officer which in my view has rightly been held by the Tax Board to be improper. There is also a finding recorded by the Dy. Commissioner (A) that there was no punching of the declaration Form VAT-47 and once punching is not found, this Court has already taken a view in 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 1085 - RAJASTHAN HIGH COURT] holding that the punching having been introduced in VAT laws as an additional feature, it is also required to be taken care of by the assessee, that the punching is to be done and if not then there is a serious deficiency.
Penalty rightly imposed - decided against appellant-assessee.
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2016 (11) TMI 976 - RAJASTHAN HIGH COURT
Imposition of penalty u/s 78 (5) - declaration form ST-18A - Held that: - Though the Dy. Comm. (Appeals) has elaborately discussed that the goods were purchased from Steel Authority of India Ltd and was being supplied to Rajasthan State Electricity Board an undertaking of state and exemption certificate was also available with the driver/incharge and produced which proved that even in the case declaration form ST 18-A may not be required to be carried. There is a specific finding of fact recorded by the Dy. Comm. (Appeals) and not controverted even by the Assessing Officer about such exemption certificate being available - the order imposing penalty by the AO was not justified and had rightly been deleted by Dy. Comm. (Appeals) and upheld by the Tax Board though for different reasons - petition dismissed.
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2016 (11) TMI 899 - ALLAHABAD HIGH COURT
Assessment of turnover - best judgement assessment - suppression of facts - Held that: - While it is true that the Tribunal is the last fact finding authority, this Court cannot at the same time shut its eye or gloss over findings which have come to be recorded in the total absence of cogent and reliable material nor can findings of fact so recorded by the authorities be affirmed even though they may be wholly perverse - the two loose papers which were found in the business premises were not established to be connected in any manner with the business of assessee. The mere fact that these two loose papers were found in a desk present in the business premises would not on its own form sufficient ground for rejection of the books of accounts. More importantly and as this Court noticed above, the affidavits and the explanation which was submitted in respect of the two loose papers was not accorded any consideration. The Court notes that while the Act places the burden of proof in respect of special facts on the assessee, the burden to prove the occurrence of a taxable event lies solely on the shoulder of the revenue. This burden in the facts of the present case did not stand discharged - revision allowed.
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2016 (11) TMI 898 - ALLAHABAD HIGH COURT
Works contract - benefit of deduction - Site Establishment Expenses - Consumables - Maintenance Charges in respect of Plant & Machinery - Material covered by section 3/ 4/5 of the Central Sales Tax Act - Held that: - whether the articles had been transferred in the execution of the works contract could not be left to mere supposition and it was the obligation of the assessing authority as well as the first appellate authority to record and arrive at a concrete conclusion as to whether there had in fact been a transfer of property in those goods in the execution of the works contract or not?
Held that: - on mere presumptions, the assessing authority could not be permitted to bring to tax the articles which had been transferred in the execution of the works contract. Surprisingly however, after having held that the assessing authority had clearly erred in proceeding on a mere assumption that 60% of the value of the articles alone had been utilized in the execution of works contract it has proceeded to hold that 75% of the value of the articles in question were liable to be apportioned towards the temporary establishment whereas 25% of the value of the articles in question were liable to be attributed to the execution of the works contract. Insofar as the benefit of articles which are covered by Sections 3,4 and 5 of the Central Sales Tax Act are concerned, it has proceeded to hold that no material was placed which would indicate that these goods were brought from outside the State exclusively for the purposes of execution of the works contract. Both these findings in the opinion of this Court, are wholly conjectural and based entirely on surmises - this Court is of the opinion that the facts of the case would merit a remand of the matter to the Tribunal which shall now proceeded to consider the matter afresh - revision allowed - matter remanded.
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