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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 94 Records
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2017 (3) TMI 1111
Validity of assessment order - Natural justice - The main grievance of the petitioner in these writ petitions is that the respondent has passed the impugned orders of assessment without considering the material supplied by the petitioner along with their reply to the notice - Held that: - the respondent has not intimated the petitioner about the date of personal hearing in pursuant to the objections filed by them. When such being the factual position, the only conclusion that can be arrived is that the respondent though stated that an opportunity of personal hearing would be given to the petitioner, has, infact, not afforded such opportunity to the petitioner by not informing the date of such hearing. Therefore, it is evident that the petitioner was not given such personal hearing and consequently, as rightly argued by the learned counsel for the petitioner, the impugned orders of assessment suffers on the ground of violation of natural justice - impugned order set aside - matter is remitted back to the respondent for passing fresh orders of assessment - appeal allowed by way of remand.
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2017 (3) TMI 1110
Principles of natural justice - the petitioner was not at all informed on what date they should appear for personal hearing - circular dated 20.04.2001 - Held that: - when the assessee asks for personal hearing, the same should be given by the assessing authority - In this case, the assessing authority himself though has offered such opportunity, as could be seen from the notice dated 29.12.2016 itself, unfortunately, has not subsequently communicated the date of such personal hearing, especially when the petitioner has specifically made such request through their communications dated 31.12.2016 and 11.01.2017. - the assessing authority, even after receipt of communications, has not given such opportunity of personal hearing to the petitioner and on the other hand, passed the impugned order of the assessment based on the reply submitted by the petitioner already.
Such course of action adopted by the assessing authority is not in strict compliance of the principles of natural justice - matter remitted back to the assessing authority to pass fresh assessment order - appeal allowed by way of remand.
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2017 (3) TMI 1064
Re-opening of assessment - escaped assessment - whether an ‘audit objection’ can be construed as ‘information’ within the meaning of Section 19 of the State Act based on which the assessing officer was satisfied that reasonable grounds exist to believe that any part of the turnover of the appellant-Company had escaped assessment under Section 19 of the State Act?
Held that: - Sub-Section (1) of Section 19 very clearly prescribes that the competent authority, upon information, if satisfied that reasonable ground exists to believe that any turnover of a registered dealer or a dealer to whom grant of registration certificate has been refused in respect of any period has, for any reason, escaped assessment or any turnover of any such dealer assessed under sub-Section (5) of Section 17 has been under-assessed or assessed at a rate lower than that which was correctly applicable, may, within eight years from the date of order of assessment, proceed to assess or reassess the amount of tax in respect of such turnover - There are a catena of judgments of this Court holding that assessment proceedings can be reopened if the audit objection points out the factual information already available in the records and that it was overlooked or not taken into consideration. Similarly, if audit points out some information or facts available outside the record or any arithmetical mistake, assessment can be re-opened.
The Assessing Officer 20 was not satisfied on the basis of information given by the audit party that any of the turnover of the appellant-Company had escaped assessment so as to invoke Section 19 of the State Act - the assessing officer had to issue notice on the ground of direction issued by the audit party and not on his personal satisfaction which is not permissible under law - reopening of assessment not permissible.
Appeal allowed - decided in favor of appellant.
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2017 (3) TMI 1063
Liability of tax - transfer of stock was not backed by any Form-F - The assessing authority was of the opinion that there exists a statutory presumption of sale, unless such transfer beyond the State was backed by Form-F - whether mere absence of Form-F would be conclusive that the sale has taken place justifying demand of tax? - Held that: - The provision is categorical and clear, inasmuch as any transfer of stock, which is not backed by Form-F, would be deemed for all purposes to have been occasioned as a result of sale - Prior to its amendment in the year 2002, such statutory presumption of sale was apparently not in existence - Once a statutory presumption is drawn regarding sale in the absence of Form-F, and the assessee has not been able to put forth any material, which may have been responsible for non-submission of Form-F, the first appellate authority and the tribunal were not justified in interfering with the order of assessing authority, holding the assessee liable to payment of tax - demand justified - revision disposed off.
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2017 (3) TMI 1010
Input tax credit - whether the Appellant Assessees are entitled to input tax credit on purchase of duty entitlement pass book scrips - DEPB Credit - the decision inn the case of 2015 (10) TMI 291 - DELHI HIGH COURT [2015 (10) TMI 291 - DELHI HIGH COURT] contested - Held that: - the leave is granted.
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2017 (3) TMI 1009
Input tax credit - penalty - demand on the ground that end dealers i.e., the sellers, have not reported the sales transactions entered into between them and the petitioner - Held that: - The respondent i.e., Assessing Officer, could have only come to a conclusion that the subject transactions were bogus, based on substantive material, and not that because objections were not filed by the petitioner, the assertions made in the pre-assessment notice would have to be deemed to be correct. Furthermore, if, material was available with respondent to come to the conclusion that the transaction were bogus, adequate opportunity had to be given to the petitioner to meet the charge. The impugned order shows that there is no discussion on this aspect of the matter - impugned order set aside - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 826
Input Tax Credit - denial on the ground that the information concerning the selling dealers did not match with the information provided by the petitioner - retrospective cancellation of the registration certificate of seller - Held that: - neither the pre assessment notices nor the assessment orders advert to the sellers qua whom there is a mismatch in the available information. Clearly, there is an absence of material particulars both in the pre-assessment notices, and, in the assessment orders - the matter requires re-examination.
Cancellation of registration certificate of the sellers - Held that: - the effective date of cancellation of registration certificate, precedes the date of the invoice, while in other cases, the effective date follows the date of the invoice. If, the effective date of cancellation of registration certificate follows the date of invoice, then, the fact the registration certificate was valid on the date, when, the transaction took place, is an aspect, which attains criticality - The petitioner's/assesse's transaction cannot be impacted by subsequent cancellation of registration.
Petition disposed off - The respondent/Assessing Officer will, thereafter, redo the assessment - petition allowed by way of remand.
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2017 (3) TMI 755
Whether the sales tax dues constitute a first charge over the property? - Held that: - this Court held that the sales tax dues constitute a first charge over the property by virtue of the provisions of Section 38(C) of the Bombay Sales Tax Act. The question involved in this writ petition stands answered against the petitioner - petition dismissed - decided against petitioner.
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2017 (3) TMI 754
Natural justice - cancellation of sales tax registration - petitioner was not been served with the impugned order and that he came to know of the cancellation of his registration upon by downloading the information from the internet - Held that: - the petitioner had no knowledge of the notice - notice is required to be issued before taking any steps towards cancellation of registration of a dealer - impugned order quashed for breach of principles of natural justice - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 699
Rate of tax - Levy of tax on sale of Battery-parts - the decision in the case of Assistant Commercial Taxes Officer, Ward-II, Ajmer Versus M/s Everlast Battery Manufacturing Company [2017 (3) TMI 668 - RAJASTHAN HIGH COURT] contested, where it has been held that battery parts are also to be considered as part of battery and the same rate should be applied - Held that: - petition dismissed.
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2017 (3) TMI 698
Imposition of penalty u/s 61 of VAT Act - non-payment of tax - manufacture of Bidi - the decision in the case of ASSTT. COMMISSIONER, ANTI EVASION-II, JAIPUR Versus M/s. PATAKA INDUSTRIES PVT. LTD. [2017 (3) TMI 669 - RAJASTHAN HIGH COURT] contested - Held that: - Application for exemption from filing official translation is allowed - SLP dismissed.
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2017 (3) TMI 697
Condonation of delay of 548 days - denial on the ground that the delay was not explained properly - Held that: - from the date of alleged breach the cancellation order is passed after a period of approximately 12 years. Under the circumstances and in the aforesaid facts and circumstance, the learned Tribunal has committed any error in quashing and setting aside the order passed by the Deputy Commissioner cancelling exemption registration/ certificate abinitio. Under the circumstances, appeal lack merits and therefore, to issue rule in the present application and called upon the dealer, thereafter to condone the delay and thereafter dismissed the appeal would be exercise in futility and it will cause undue hardship to the dealer as the dealer is required to be incurred expenditure for engaging lawyer etc in appeal, which lack merits - delay not condoned - appeal dismissed - decided against appellant.
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2017 (3) TMI 696
Validity of assessment order - inter-state sales - C-Forms - Held that: - It is true that the notice sent to the petitioner on 09.08.2016 has not referred to the proposal on exemption claimed u/s 8 (2-A) of the CST Act. Further, the assessment order proceeded to impose tax on the said head also. Therefore, it is evident that the tax imposed on such head is without affording an opportunity of hearing to the petitioner. Thus, it is in violation of the principles of natural justice. On that ground alone, the said imposition of tax under the impugned assessment order dated 31.12.2016 is liable to be set aside for the purpose of remitting the matter to the Assessing Authority to issue a fresh proposal and thereafter pass an assessment order, after hearing the petitioner - appeal allowed by way of remand.
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2017 (3) TMI 669
Imposition of penalty u/s 61 of VAT Act - non-payment of tax - manufacture of Bidi - Held that: - It is an admitted fact that though goods were being sold through challan but it was mentioned “VAT Payable as per Schedule, if applicable as on date”. Therefore, the assessee was not hiding anything from the Revenue. It is also noticed that on perusal of the impugned order that as per notification dt.17.02.2004, the assessee was entitled to deposit the tax on or before 14 days of the close of the month and such notification was in force and therefore the assessee deposited the entire tax on or before 14 days of the close of the month - penalty set aside - appeal dismissed - decided against Revenue.
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2017 (3) TMI 668
Rate of tax - Levy of tax on sale of Battery-parts - whether the battery plates and battery material is part of the battery or not? - Held that: - reliance was placed in the case of Assistant Commercial Tax Officer Vs. M/s. Swastik Agencies, Ajmer [2015 (11) TMI 1390 - RAJASTHAN HIGH COURT] where it has been held that battery parts are also to be considered as part of battery and the same rate should be applied - petition dismissed - decided against Revenue.
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2017 (3) TMI 627
Entertainment tax - who is liable to pay - the grievance of the petitioner (MSOs) is that by virtue of the circular dated 17.12.2012 they are being foisted with the liability to collect and pay entertainment tax when, according to them, such liability/responsibility is that of the cable operators - also it is contended that the circular dated 17.12.2012 is, in any event, without the authority of law and cannot be sustained in view of the provisions of the said Act and the said Rules - Held that: - tax is levied on entertainment. It is not on the content provider or the content transporter or the person entertained. The subscriber may be the person on whom the incidence of the tax falls. But, that is not the subject matter of the tax. The tax is collected by the proprietor and paid to the Government in the manner prescribed.
If there is any ambiguity or vagueness associated with any of the components of the tax which includes the person who is liable to pay the tax, then the validity of the tax/levy itself would be in jeopardy and if that was the case, then it would be for the Legislature to do the needful in the matter. Fortunately for us, the Legislative intent is clear as indicated above. It is only the circular dated 17.12.2012 which has brought in the ambiguity - Such ambiguity is impermissible in law particularly in the field of taxation. We do not understand as to how the Entertainment Tax Officer held the MSOs and LCOs jointly and severally responsible for payment of entertainment tax. It appears that because of the change over to the new system, the Entertainment Tax Officer was finding it difficult administratively to regulate the collection of taxes and it is perhaps for this reason that in the circular dated 17.12.2012, it is mentioned that ‘it would be ideal for the Department in the changed situation” to collect tax only through MSOs.
The circular dated 17.12.2012 is without any authority of law. The respondents claim that the said circular has been issued in exercise of the powers u/s 46 of the said Act. That power is given to the Commissioner. We have not been shown any provision whereby the Entertainment Tax Officer derives its power from the Commissioner. In any event, the Commissioner can only issue directions which are not inconsistent with the provisions of the said Act or the Rules.
MSOs to the extent that they directly provide cable service to the subscribers without the intervention of any LCO, would be regarded as the ‘proprietors’ u/s 7(1) and would be liable to collect and pay the entertainment tax to the Government. However, where the MSOs provide the service through the LCOs, the individual LCOs having their own subscriber networks, would be regarded as the proprietors in respect of their individual networks and would be liable to collect the entertainment tax and pay the same to the Government.
Petition allowed - decided in favor of petitioner.
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2017 (3) TMI 626
Natural justice - petitioner had no intimation as to whether or not, his request for adjournment was accepted by the respondent. In other words, according to the petitioner, the passing of the impugned orders, came as a surprise, no opportunity of being heard was given to them - Held that: - The petitioner is right in contending that he had no clue as to whether or not his request for adjournment had been considered. Therefore, quite naturally, the petitioner would have been taken by surprise, when the impugned orders were passed. Therefore, notwithstanding the fact that the orders were passed after a period of one month had expired, which is the period of accommodation sought for by the petitioner, the grievance of the petitioner did not get addressed, which is that he had no opportunity to present his case - impugned order set aside - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 625
Recovery of dues - auction sale - a sum of ₹ 14,30,734/- was adjusted as against the sales tax arrears payable by the partnership firm A.K.Sivaprakasa Mudaliar and sons and out of the remaining amount, a sum of ₹ 6,85,541/- was adjusted against the dues of a proprietary concern Sri Lakshmi Traders in which the wife of late A.K.Lala Lajapathy namely, Tmt.Devaki Ammal was the sole proprietor - jurisdiction of the officer - Held that: - the Revenue Recovery Act proceedings has been done by the first respondent and not the territorial Assistant Commissioner - Section 29(4) of the Act states that the territorial Assistant Commissioner and the Assistant Commissioner (Assessment) may subject to control and supervision of the Deputy Commissioner and the Commissioner of Commercial Taxes, delegate the power vested in them under Sub-sections (1) and (2) of Section 29 to any officer not below the rank of the Assistant Commercial Tax Officer. Admittedly, the first respondent is an officer below in rank than that of a Assistant Commissioner.
Whether all the legal heirs should be issued notice of such sale? - Held that: - The contention raised by the respondent in the counter affidavit in page 3 that they need not inform all the legal heirs is an incorrect stands since the property which is individual property of late A.K.Lala Lajapathy is brought for sale and on the date when it is brought for sale, the owner of the property is no more and he has left behind his widow, two sons and nine daughters. This is also one other inherent defect.
Notice period - Held that: - the auction notice should give 30 clear days to enable any objection to be filed and this 30 days is required to be computed from the date of publication in the district gazette and such publication was admittedly effected only on 22.09.2004 and the auction was held on 22.10.2004, well before the expiry of 30 days. This is also one other inherent defect in the proceedings.
Lastly, it has to be pointed out that if the property is sold for recovery of the tax dues of A.K.Sivaprakasa Mudaliar and sons, which is a registered dealer, then adjustment could have been made only as against the said dues and there is no jurisdiction for the respondents to adjust the balance amount towards the alleged dues payable by a proprietorship concern namely, M/s.Lakshmi Traders which was a separate entity having a separate registration.
Petition allowed - decided in favor of petitioner.
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2017 (3) TMI 582
Reversal of ITC u/s 19(16) of the TNVAT Act, 2006 - verification of web report of buyer and seller as per Annexure-I revealed that the Assessee had claimed certain amount as ITC, but the other end dealers have not paid VAT as per Annexure-II of the sellers - Held that: - power has been vested in the department under Section 19(16) of the TNVAT Act, 2006, whereby reversal of ITC can be made by the department. Therefore, this Court cannot find fault with the proposal by way of notice for reversal issued by the department on 23.05.2016, where 15 days time was given to the petitioner and personal hearing date was also given - the impugned orders though have been passed after giving an opportunity of two weeks time to the petitioner, can be interfered with by this Court, because, the item-wise details between Annexures I and II for the alleged discrepancy since has not been submitted or furnished by the department and the petitioner is now able to collect all the details to give a suitable defence or reply to the department to satisfy themselves that there is no discrepancy between Annexures I and II, which is the very basis for reversal of ITC under Section 19(16), this Court is inclined to interfere with the impugned orders - impugned order quashed - matter remitted for reconsideration - appeal allowed by way of remand.
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2017 (3) TMI 581
Recovery of tax dues - Whether the cheque in question was obtained by the respondent by coercion or it was given voluntarily by the petitioner? - the petitioner has clearly stated that the cheque was obtained from her forcibly. Further, when the respondent sent a reply stating that it was given towards tax payment, the petitioner has again indicated that the liability itself is not established and it is in dispute and therefore, there is no scope for handing over cheque towards payment of taxes - Held that: - Unless the liability attains finality through legal process, i.e. except through procedure established by law, the respondents have not right to demand the tax - The facts and circumstances and the correspondence between the parties would go to show that the cheque could not been given voluntarily - first respondent is directed to return the petitioner's cheque dated 17.09.2016 - petition allowed - decided in favor of petitioner.
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