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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 94 Records
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2017 (3) TMI 1939
Validity of Notices under Sections 25, 26, 55 and 61 of the Rajasthan Value Added Tax, 2003 apart from assessment order - few petitions were filed at the stage of notices under Sections 25 or 26 of the Act of 2003, whereas, other petitions were filed after order of assessment pursuant to the notice under challenge.
HELD THAT:- It would not be appropriate for this Court to deal with the issues raised in reference to the notices under Sections 25 and 26 of the Act of 2003 as all those issues can be raised before the Appellate Authority having been decided by the Assessing Authority. The petitioners had raised all the relevant issues before the Assessing Authority and the order of assessment has been passed after considering those issues thus in the facts and circumstances of the case, there are no reason to set aside the impugned notices or the orders of assessment, rather, it can be challenged by way of appeal. The limitation to prefer appeal has already expired thus it would be appropriate to give liberty to the petitioners to prefer an appeal against the order of assessment within a period of 60 (sixty) days from the date of pronouncement of this judgment and, in that case, issue of limitation would not come in their way, as agreed by learned counsel for the respondents.
The direction aforesaid has been given on an agreement of learned counsel for the respondents as otherwise the period of limitation to maintain appeal is of 60 days from the date of assessment order.
All these writ petitions are dismissed.
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2017 (3) TMI 1917
Levy of Entry Tax - violation of Article 301 meaning thereby it will not be treated as a hindrance in trade, commerce and intercourse - HELD THAT:- In some of the cases, particularly in the writ petition filed by M/s. Vedanta Aluminium Ltd. this issue was specifically raised in the High Court out of which SLP(C) No. 8199 of 2008 arises. But the High Court did not decide it. Instead the High Court in the impugned judgment has gone by the rate of Entry Tax vis-a-viz the rate of VAT/Sales Tax. Since, in order to decide the question proper pleadings are required, which are not before us, it may not be possible for this Court to decide the issue. In these circumstances, we permit the Appellants/Assessees to file fresh writ petitions with adequate material in the High Court. These petitions shall be filed within four weeks. The interim order passed in these cases shall continue for a period of four weeks. We make it clear that if the applications for stay are filed before the High Court, the High Court shall be competent to decide these applications on their own merits and would not influenced by continuation of stay granted by this Court as these stay orders were granted before answering the reference by the Nine Judge Bench and we have continued the same for four weeks only to enable the Assessees to approach the High Court in the meantime.
The interim orders dated 03.02.2010 were passed in these cases directing the Appellants to pay 33% of the tax - in many other cases coming from other States, interim stay was given subject to deposit of 50% of the tax amount.
Appeal disposed off.
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2017 (3) TMI 1916
Levy of Entry Tax - levy is compensatory in nature or not - HELD THAT:- The issue decided in the case of JINDAL STAINLESS LTD. AND ANR. VERSUS STATE OF HARYANA AND ORS. [2016 (11) TMI 545 - SUPREME COURT] where it was held that States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods produced within the State fall equally. Such measures if taken would not contravene Article 304(a) of the Constitution. The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular benches hearing the matters, and the issue is decided in favour of the State.
These appeals are allowed.
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2017 (3) TMI 1910
Validity of assessment order - main ground on which the impugned orders have been challenged is that an opportunity of personal hearing has not been granted - principles of natural justice - HELD THAT:- In the light of the fact that the petitioner has not been afforded an opportunity of personal hearing as mandated and as pointed out by the Hon'ble Division Bench in V SELLADURAI VERSUS CHIEF COMMISSIONER OF INCOME-TAX (OSD) AND ANOTHER [2007 (8) TMI 69 - HIGH COURT, MADRAS], this Court is of the view that the matter should be decided afresh after due opportunity to the petitioner.
The impugned orders are set aside and the matters are remitted back to the respondent for fresh consideration - Petition allowed by way of remand.
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2017 (3) TMI 1856
Maintainability of appeal - monetary limit involved in the appeal - HELD THAT:- The tax effect involved in these appeals is only ₹ 1.5 lakhs.
The appeal cannot be entertained - the appeal is dismissed.
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2017 (3) TMI 1842
Principles of natural justice - assessment was made based on the Web Report - assessment made without furnishing the details of such report and without conducting any enquiry at all levels - HELD THAT:- The matter is remitted back to the Assessing Authority to redo the assessment after following the procedures/ directions issued by this Court in the above said batch of cases - Petition allowed by way of remand.
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2017 (3) TMI 1798
Issuance of C-Forms - AO rejected the request made by the Petitioner for issuance of C-Forms in relation to the inter-state purchases - HELD THAT:- Leave granted.
List the matter for final hearing in the month of July, 2017.
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2017 (3) TMI 1708
Works contract or sale - Supply of Printed Materials - whether transaction is related to works contract or sale? - What is the rate of tax on printed flex/vinyl advertising material supplied to customers? - Held that:- The Applicant has received orders for the supply of printed vinyl / flex with advertisement. The advertisement text / content is as per specification and governed by Copyright Act (being art work /design).This is very typical nature of transaction in which goods belongs to the customers, when they came into existence. The view taken by Hon. Apex Court in the case of Sarvodaya Printing Press [1998 (8) TMI 512 - SUPREME COURT OF INDIA] is to be accepted and it is held that the transaction is works contract. The applicant has used vinyl / flex and printing ink which are incorporated while executing the works contract is to be held taxable at prescribed rate of tax as per provision of law.
Mounting charges - Whether the mounting charges collected form the part of sale price - Held that:- The customers pay for sale of printed vinyl / flex banners and mounting charges for mounting activities. The applicant also received consideration for the precise size and specific period of hoarding. The sale is completed when applicant put the material on hoarding as per direction given by customer. The mounting of vinyl on hoarding cannot be treated as installation and thus cannot be excluded from sale price.
Hoardings - Whether activity of leasing out the hoarding to the customer for specific period for remuneration is 'a sale' within the meaning of Section 2(24) of the Act? - Held that:- The transactions of leasing of the hoarding for a particular fixed period and for valuable consideration thus constitute a transfer of right to use goods and the transaction between the applicant and its customer is a 'lease' transaction is exigible to VAT under MVAT Act. The customers have enjoyed the right to use hoardings of definite size for definite period. The transaction of transfer of hoarding by the applicant to his clients is liable to be treated as transaction involving transfer of right to use goods. Hence, it is covered by the definition of "sale" as provided in section 2(24) Maharashtra Value Added Tax, 2002 i.e. sub clause "(iv) the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration."
The jurisdictional facts, as to whether the items in question constitute "goods" or "immoveable property", are required to be examined by the assessing authority in the light of the principles, and the judgments.
Prospective effect - Held that:- The applicant is very well aware about the tax liability on said transactions. The applicant is well aware of the pros and cons of litigations. The applicant has preferred the path of litigation in spite of the clear legal position - The applicant cannot prove existence of circumstances which warrant us to use the discretionary power. In fact use of such discretionary powers in the absence of compelling circumstances would be detrimental to legitimate government revenue and would wipe out the legitimate tax liability. In these circumstances, we do not allow the use of prospective effect as a tool to protect or to wipe of legitimate tax liability.
Ruling:- The transaction of supplying printed material on flex/ vinyl as per the order of customers is held to be works contract - Since, the transaction held as works contract, it shall liable to tax accordingly.
The Mounting charges received by applicant form the part of sale price and liable to tax under MVAT ACT, 2002 - The factual aspect, whether goods in question are movable or immovable is to be decided by assessing officer / jurisdictional authority/investigating authority in view of principles and test applied as indicated above with respect to said subject matter in this order. On the verification, if concerned officer comes to conclusion that "goods are movable" then the transaction related to lease of hoarding is to be held taxable.
If the transaction related to lease of hoarding is held as taxable then the "charges received from customers" will be the sale price.
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2017 (3) TMI 1695
Classification of goods - Potato Chips - processed vegetables - Whether the Tax Board is justified in holding that ‘Potato Chips’ are not classifiable as ‘Processed Vegetable’ under entry 107 of Schedule IV, just because of the fact that branded namkeen (including dried potato chips), are kept outside the purview of entry 131 of the same Schedule, a general entry dealing with sweetmeats and unbranded namkeen?
Held that:- It cannot be disputed that Potato is a vegetable, and after going through the process of slicing, frying and spicing, “Potato Chips” does not cease to be a vegetable. It is irrelevant as to whether it becomes a snack item or not, but then it does not take a snack item outside the entry of 'Processed Vegetables'. The characteristics of Potato does not change and merely because by processing Potato, “Potato Chips” are produced/manufactured, it will certainly remain as Potato and would be a 'Processed Vegetable'.
Material is available on record that the Ministry of Food Processing Industry has understood processing of Potato Wafers or Chips as Vegetable Processing Industry and even the Govt. of India has understood “Potato Chips” to be a Vegetable Product for the purposes of classification under the Central Excise Tariff Act - “Potato Chips” can certainly be taken within the definition of entry 107 taking within its compass all other species including “Potato Chips” belonging to the common genus of the 'Processed Vegetables', and if any particular item is classifiable under a specific entry in a Schedule, such item or commodity must not be relegated to the Residuary entry. Even if common parlance test is applied, it can always be noticed that it would certainly fall within the category of 'Processed Vegetables'.
The claim of the petitioner is justified - “Potato Chips” would fall in the category of entry 107 to be charged with tax @ 4%, and once rate of 4% has been held to be well reasoned and justified, which was claimed by the petitioner, then question of levy of interest and penalty does not arise.
Petition allowed - decided in favor of assessee.
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2017 (3) TMI 1691
Converting, absorbing and regularising the petitioner’s services in an equivalent category post with all consequential benefits - The stand taken by the authorities that the petitioner could not be considered for such absorption and regularisation by virtue of G.O.Ms.No.212 dated 22.04.1994 was dealt with on merits and rejected by the Tribunal - Held that:- The manner in which the Commercial Tax Authorities and more particularly, the Commissioner, Commercial Taxes, State of Andhra Pradesh, dealt with the petitioner’s case pursuant to the order dated 19.06.2012 passed by the Tribunal in O.A.No.12567 of 2009 leaves this Court with no option but to set aside the proceedings dated 30.10.2012 of the Commissioner, Commercial Taxes, State of Andhra Pradesh, and remit the matter to him for consideration of the whole issue afresh - petition allowed by way of remand.
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2017 (3) TMI 1690
Doctrine of frustration - presence of disturbing element in the contract, preventing performance of the Contract - Payment of Compounding Tax - Whether the petitioner, carrying on a quarry and crusher unit, be permitted to withdraw from the compounding applied for in the year 2016-17, for reason of failure to obtain licenses from the local authority, to carry on the quarry and crusher operations?
Held that:- It was stated that the contract was not an ordinary contract for sale and purchase. It was an integral part of a development scheme and there was no time limit within which the roads and drains were to be made. The first requisition order was passed nearly 15 months after the contract and the work was not commenced even within that time. Even when the contract was entered into, the war had already commenced and requisition orders for military purposes were normal events. There was also scarcity of materials and various restrictions by the Government, due to the prevailing war situation - The ground on which frustration was claimed, did not amount to a supervening circumstance, which alone could be successfully alleged to claim frustration under Section 56.
To plead frustration under Section 56 of the Contract Act, there should be a supervening impossibility, which was never in the contemplation of the parties at the time when the contract was entered into - the petitioner did not have a D & O license at the time, when the petitioner approached the Appellate Authority for being permitted to pay tax under the compounding scheme. The petitioner also did not press for a D & O licence with respect to the quarry, since no such permit could have been issued to the petitioner without an Environmental Clearance. The petitioner's prayer for consideration of the D & O license for the crusher unit was also on the ground that even if he cannot quarry mineral, he could obtain minerals from other quarries and carry on the crusher operations - It cannot at all be said that the dismissal of the writ petition was a supervising impossibility, which stood against the petitioner's performance of the obligation under the compounding scheme. It is established that there was no supervening subsequent event, which was not in the contemplation of the petitioner, when the petitioner had applied for compounding.
The petitioner wanted the best of both worlds; the entitlement under the compounding scheme if the unit was permitted and a regular assessment if not permitted. The petitioner with eyes open, without any license or permit applied for compounding and on denial of the license seeks to turn around and plead frustration - The claim at best is that the obligation under the scheme, which the petitioner voluntarily opted, is onerous.
The petitioner hence cannot be permitted to wriggle out of the obligation to pay the compounding tax.
Petition dismissed.
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2017 (3) TMI 1653
Whether the abovementioned fuels like natural gas, furnace oil, diesel oil and naphtha would come within the meaning of the expression "raw materials" "processing materials" or "consumable stores"?
Held that: - the issue is covered by the decision in the case of Ami Pigment Pvt. Ltd. and Others vs. State of Gujarat [2010 (2) TMI 1068 - GAUHATI HIGH COURT], where it was held that to the extent of use of electricity for the purposes other than manufacturing activities or not connected therewith would not be considered as raw materials, processing materials or consumable stores - petition dismissed.
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2017 (3) TMI 1652
Sealing of Business Premises - non-production of concerned books of account for verification - Section 52(1)(f) of the KVAT Act - Held that: - Section 52(1)(f) clearly reveals that a specific power to seal is being granted to the officer authorised by the Commissioner. The said power can be exercised only when "the owner or the person-in-charge of the business or any other person-incharge of the business or any other person-in-occupation either leaves the premises or is not available or fails or refuses to open any box or receptacle, godown or building or any part of the godown or building when called upon to do so" - The said power cannot be extended ad infinitum to be exercised in the circumstances not prescribed by law.
Admittedly, in the present case, at the time of inspection, the petitioner was not only present, but also had cooperated with the inspection. Thus, his presence cannot be denied. Moreover, the Revenue cannot claim that he had refused to open any part of the building, or prevented the CTO to inspect the site. Hence, none of the circumstances mentioned in section 52(1) (f) of the KVAT Act, is satisfied in the present case. Therefore, the CTO was not justified in directing that the premises should be sealed forthwith.
Petition allowed - decided in favor of petitioner.
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2017 (3) TMI 1651
Exemption from payment of Sales Tax / Commercial Tax as also Central Sales Tax - effect of subsequent notification - petitioner's contention is that the State of Madhya Pradesh with an aim and object to encourage the generation and consumption of electricity generated through non-conventional power generation system, issued a notification dated 28/02/1995 and granted exemption from payment of Sales Tax / Commercial Tax as also Central Sales Tax subject to fulfillment of certain terms and conditions as mentioned in the notification - The petitioner's contention is that subsequent notification cannot be made applicable with retrospective effect and amount which has been accrued upon power generation system and purchasers like the Company, cannot be extinguished on account of subsequent notification issued by the State Government.
Held that: - the State / respondents vide notification dated 28/02/1995 granted exemption to the dealers who will set up non-conventional power set up from the non-conventional sources, meaning thereby, the State respondents with the intention to promote the use of nonconventional sources has issued the notification. Further State respondents has included the dealers who will consume such power will be given exemption in commercial tax for those years from the date of commencement of the consumption - It is pertinent to mention that the notification dated 28/02/1995 do not provide for any cutoff date for the dealers / investors to set up plant. The State respondent respectfully submit that the MPGST, 1958 stood repealed by the enactment of the M.P. Commercial Tax Act, 1994 and Section 17 of the Act of 1994.
In the considered opinion of this Court, no retrospective withdrawal of exemption is permissible - In the case of State of M. P. Vs. G. S. Dall & Flour Mills [1990 (9) TMI 70 - SUPREME Court], the apex Court has held that while a notification can be prospective or retrospective, only a prospective operation can be given to a notification rescinding an exemption granted earlier.
The subsequent notification cannot be construed to have a retrospective operation. A right which has already accrued in favour of the petitioner cannot be extinguished by a subsequent notification, specially when the petitioner has acted upon on the basis of first notification dated 28/02/1995 - the impugned notification to the extent it is made applicable with retrospective effect is hereby quashed.
The matter is remanded back to the State Level Committee to pass a fresh order by taking into account the first notification issued by the State Government dated 28/02/1995 - petition disposed off.
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2017 (3) TMI 1650
Prior permission as required under Section 29(7) of Act, 2008 - Circular issued by Commissioner dated 25.05.2016 - power of Commissioner to issue such Circular - Held that: - Assessing Authority has not relied on any Circular and in any case the validity of Circular is not under challenge before this Court. Therefore, it would not be proper for this Court to make any comment thereon - So far as question, whether there is any escape of assessment of tax or that supply in question was for domestic purpose or not, has to be examined by Taxing authority concerned and the petitioner has statuary remedy including hierarchy of appeal etc., and, therefore, those aspects need not be examined in this writ petition - petition dismissed.
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2017 (3) TMI 1649
Detention of goods - it was alleged that the goods transported by the petitioner was not accompanied by the documents prescribed in Sub-Section 5 of Section 67 of the Tamil Nadu VAT Act, 2006 and that the respondent had reason to believe that there was sale of the goods liable to tax - Held that: - considering the fact that the very impugned proceedings is only the detention notice, this Court is of the view that the petitioner must approach the respondent and give the explanation as discussed - this writ petition is disposed of by granting liberty to the petitioner to approach the respondent and file their explanation within a period of seven days.
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2017 (3) TMI 1648
Benefit of deferment of tax - H.P. VAT Act, 2005 - whether the principle of promissory estoppel is applicable to the facts of the instant case?
Held that: - Admittedly, the notification dated 23.7.1999, remained in force fully for a period of 5 years, whereby the deferred payment of sales tax was available to the units relating to Mini Steel Plants induction / Arc / Submerged furnaces and / or rolling mills, only available up till 23.07.2004. After 23.7.2004, the notification ceased to exist and it is only vide notification dated 30.3.2005, that the scheme for making deferred payment of tax was extended to the ‘A’ & ‘B’ category areas, but as the unit of the petitioner was manufacturing SS/MS Ingot, billets and TOR SARIA, which admittedly fall in the negative list, the petitioner obviously was not entitled to the deferred payment of tax.
It has come on record that even the commercial production was commenced by the petitioner almost 16 months after issuance of the notification dated 30.3.2005. Thus, it is evidently clear that the petitioner was not even born during the currency of the notification dated 23.7.1999, which as observed earlier was valid only for five years up till 23.7.2004.
The petitioner had taken no steps whatsoever for setting up its industrial unit during the currency of the notification dated 23.7.1999, which remained operative up till 5 years i.e. 23.7.2004 and whatever steps were taken to set-up the industry including the registration with the Industry Department was taken after 23.07.2004 i.e. after the scheme has come to an end. All the other effective steps for setting up the industrial unit were taken by the petitioner when the notification dated 30.3.2005 had been issued. However, since the goods manufactured by the petitioner fell within the negative list, it was not entitled to the benefit of the Scheme.
The doctrine of promissory estoppel is clearly not attracted, as the unit of the petitioner admittedly falls within the negative list and it is therefore not entitled to the benefit of deferred payment of tax that too under the notification dated 23.7.1999.
Petition dismissed - decided against petitioner.
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2017 (3) TMI 1646
Jurisdiction - power of State authorities to proceed with reassessment exercise - burden of proof - Held that: - this Court finds that for reassessment proceedings, once the basis to discard the figures disclosed by the assessee had not been accepted by the department itself, the authorities were not justified in relying upon disclosure made by M/s Bhawani Brick Field, Daurala, after its stand was specifically disbelieved by the department itself - it is settled that in reassessment proceedings, the onus to establish that the disclosure was incorrect, was upon the department, and it could not have been shifted upon the assessee. The onus was otherwise not discharged by the department.
The order passed by the Tribunal in reassessment proceeding is not liable to be sustained - revision allowed in favor of assessee.
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2017 (3) TMI 1558
Inter-state sales - detention of goods on the ground that the petitioner is an un-registered dealer in Tamil Nadu - Held that: - there appears to be a non-application of mind, on the part of the respondent in passing the impugned order - Absolutely there is no consideration of the objections raised by the petitioner dated 25.03.2017, apart from the fact that the order itself was passed without waiting till 27.03.2017, for the petitioner to react on the notice dated 27.03.2017, even assuming that the reply given by the petitioner dated 25.03.2017 has not reached the respondent before passing the impugned order - matter allowed by way of remand.
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2017 (3) TMI 1556
Jurisdiction - assessment - Held that: - this Court is of the opinion that the present case is not the one where exercise of discretion under Article 226 of the Constitution of India is warranted given that the petitioner has not exhausted its appellate remedies. At the same time, peculiar circumstances are such that the filing of an appeal would expose the petitioner to an immediate liability of fulfilling the pre-deposit condition. Consequently, in the event, the petitioner prefers appeal/objections to the Special Commissioner under Section 74 of the DVAT Act, within three weeks from today, the same shall be deemed to have been in compliance with the limitation period and shall be heard and dealt with on the merits - petition allowed.
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