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VAT and Sales Tax - Case Laws
Showing 61 to 80 of 94 Records
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2017 (3) TMI 536
Reversal of ITC - the assessment are sought to be re-opened and the ITC availed by the dealers are directed to be reversed, when a mismatch occurs, when either the purchaser or the seller fails to report the transaction in their annexure I or II returns respectively. Therefore, the first aspect to be looked into is, how this process of verification could be done by the Assessing Officer - The revenue objects to the maintainability of the Writ Petitions on the ground that the Act provides for an effective and efficacious alternate remedy and they seek for a direction upon the dealers to avail the alternate remedy and dismiss the Writ Petitions as not maintainable.
Held that: - The Commissioner took note of the fact that mismatch reports have been generated by the Business Intelligent Unit, Interstate Investigation Cell, Enforcement Division and also by the Assessing Officers in the circles as a part of returns scrutiny or revision of assessment and that while such mismatch reports have been communicated in the form of notice to the dealer, the dealer wise mismatch projections alone are being enclosed and no detailed information provided. It was further observed that unless invoice wise data of mismatches are provided for each dealer, the dealer under analysis will not be able to come to a conclusion as to specific transactions for which, the tax is being demanded. Not providing invoice wise data of mismatch would tantamount to violation of principles of natural justice rendering the notices to be struck down by Appellate Forums and the High Courts.
The problems on account of the mismatch is a Pan India problem and to my mind, the procedure adopted under the Delhi VAT Act regime and the circulars issued under the said Act, appear to be a more transparent system and assessee friendly. This can be borne in mind by the Revenue for necessary follow up action.
In the instant case, there is no challenge to the statutory provisions and the complaint of all the dealer is largely on the procedure adopted by the respective Assessing Officers. The Principal Secretary and Commissioner of Commercial Taxes was conscious of the problems faced by the dealers as complaints were received which had lead to issuance of a circular as early as on 01.04.2015. The directions contained in the said circular are very pointed direction, but it is sad to note that the circular remains only on paper and seldom Assessing Officers follow the circular resulting in several assessments being set aside by the Court and remanded for denova consideration. Thus, this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed orders reversing the Input Tax Credit with no appreciable impact on the revenue collection.
Matters are remanded to the respective Assessing Officers, to undertake a fresh exercise by conducting a thorough enquiry in consultation with the Assessing Officers of the other end dealer - petition allowed by way of remand.
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2017 (3) TMI 535
Works Contract - the supply of machine crushed track ballast would come within the fold of works contract or not? - deduction of 85% towards labour and service charges - Whether the ballast or boulder or chips is exigible to tax at the rate of 4% or 12% of the taxable list? - Held that: - although the ballasts supplied at Serial No.1 are also required to be loaded to the Railway wagons. It is needless to opine that the loading of ballasts supplied is a labour charge and the same cannot be termed as a sale after going through the contents of the deed of contract. On the other hand, the supply and delivery of stacks including all other nature of works as agreed to between the parties as per Serial No.1 is a sale. The order of the Tribunal is correct for deducting the loading charges while computing the sales tax.
Whether the sale of ballasts or boulders or chips including all incidental charges as per Serial No.1 of the tender schedule stated above “mineral” or not? - Held that: - the word “mineral” is a word of common parlance used in various way but cannot be used in narrow sense. Similarly, it appears from the aforesaid decision that entries in the schedules of sales tax and excise statutes draws colour from the other words therein because of the principle of noscitur a sociis. Thus depending on the aforesaid doctrine in the present context, we have to see whether the ballast is a mineral even if it is not to be defined as mineral under the Act, 1957 or Rules made thereunder. Since the facts are clear in this case to show that the ballast has been prepared from the spalls which are extracted from the quarry taken by the opposite parties on payment of royalty and it has not been defined separately in the tax list, it is to be understood with common parlance - taking the “common parlance test” without going to the reasons by the Tribunal, the result is same to the effect that the ballasts, boulders or chips are nothing but “mineral” under Sales Tax Act exigible to tax at the rate of 4% as per Entry 117 of the taxable list.
Whether such fresh plea can be raised in the second appeal without the same being raised in the forums below? - applicable rate of tax - Held that: - there it is question of law as interpreted by parties - It is trite in law that the question of law can be raised at any stage. Moreover, the contention of the State that such plea of exigibility to tax at the rate of 4% of the taxable list before the Tribunal is barred by limitation is not acceptable as the said being question of law can be raised at any stage.
Revision dismissed - decided against revisionist.
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2017 (3) TMI 534
Condonation of delay - delay in filing appeal - Held that: - the appeals have been filed within six weeks as has been directed by the Hon'ble Supreme Court. Once the appeals have been entertained now the only limitation left is three month outer time limit as given in the order dated 18.12.2015, within which the appeals shall be disposed of by the appellate authority. That is the reason why the appellate authority, as informed by the learned Senior Counsel appearing for the petitioner, has fixed the date of hearing on 20.02.2017. Therefore, within the three months time stipulated in the said order of the Division Bench, the appeals would be expeditiously considered and decided. In view of the time stipulation, it has to be scrupulously followed by the petitioner as well the appellate authority are concerned - petition allowed - decided in favor of appellant.
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2017 (3) TMI 487
Recovery of tax dues under MVAT - priority of banks over statutory dues - The petitioner bank extended the financial assistance to the respondent No.2 - Company and in order to secure the finances the Company mortgaged its immovable property as well as hypothecated its assets in favour of petitioner-bank - default in repayment of loan - auction sale - The petitioner contends that the petitioner bank being a secured creditor has preferential claim over the secured assets and is entitled to take appropriate steps for realization of the amount due and recoverable from Respondent No.2 Company - Held that: - in view of provisions of Section 529A of the Companies Act, priority is given to the dues of the secured creditor and the workers over the statutory charge claimed by the State - the secured creditors fall under two categories; those who desire to go before the Company Court and those who like to stand outside the winding up.
It is open for the petitioner to stand outside the winding up proceedings and claim enforcement of its Security Interest. If the petitioner instead of deciding to stand outside preferred to go before the Company Court for decision, it would become necessary to relinquish its security in accordance with Insolvency Rules mentioned in Section 529. The petitioner is a Secured Creditor in accordance with IInd clause u/s 529-A(i) (b) read with proviso (c) to Section 529 (I) having overriding preferential claim and opts to stand outside winding up to realize its security. In view of clause (c) to the proviso to Section 529 (I) the priority of the Secured Creditor who stand outside the winding up is confined to workmens portion as defined in Section 529 (iii) (c). The petitioner who stands outside the winding up proceedings in view of provisions of Section 529-A can surely have priority over the claim of the State in respect of statutory dues.
The petitioner bank has a priority claim over the statutory dues claimed by respondent no.1. - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 486
Liability of interest - Section 8 (1) of the Act - there was a bonafide dispute with regard to liability to pay tax, and the assessment order was passed after nearly 3 ˝ years - Held that: - there was no dispute relating to classification of goods or the rate of tax payable. The turnover and the rate of tax were clearly mentioned in the books of account and therefore, the present case was fully covered by the explanation to Section 8(1) of the Act - The intent of Section 8(1) read with explanation is clear, that once the assessee is found to have admitted its turnover, in the books of account, and rate of tax is not in issue, the total tax payable becomes the admitted tax. Any set off claimed by the assessee, if is disallowed and is accepted by the assessee, would not form a valid basis for assessee to contend that the amount of tax payable was not admitted - the Tribunal was justified in holding that the assessee is liable to pay interest under Section 8(1) of the Act, upon the shortfall in payment of tax - revision fails - decided against applicant.
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2017 (3) TMI 485
Refund claim - Section 38(7)(d) - Section 38(3) - processing of VAT refund claims - furnishing of particulars and details relating to refund - the decision in the case of Vizien Organics, M/s Munshi Ram Ram Parkash, Mangla Enterprises, Dhanjal Engg. Works, M/s Goel Oil Company, M/s Arun Electronics, Power Industries Proprieto Sh. Tarun Bansal, M/s. Ludhiana Auto Supply CO., Versus Commissioner, Trade & Taxes & Anr. [2017 (1) TMI 1168 - DELHI HIGH COURT], contested - Held that: - the operation is stayed in the meantime the notice is issued - petition disposed off.
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2017 (3) TMI 441
Release of bank guarantee - petitioner claim that the bank guarantee should be discharged and handed over to the petitioner, in view of the fact that delay in disposal of the revision petition is resulting in financial detriment to the petitioner - Held that: - the respondent no.1 is directed to dispose of the revision petition, as expeditiously as possible, though, not later than six weeks from the date of receipt of a copy of this order, after affording personal hearing to the petitioner and/ or its authorised representative - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 440
Principles of natural justice - though objections were called for and hearing was posted on 05.11.2016 in Ext.P3, the assessee admittedly filed his objections only on 29.11.2016. The assessment proceedings at that point was not over and the Assessing Officer took note of the objections in the order passed. The Assessing Officer has stated in Ext.P5 that the assessee could have availed of the opportunity for hearing on 29.11.2016, when the objection was filed - Held that: - the order of assessment itself has to be set aside on grounds of violation of principles of natural justice - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 401
Legality and validity of suo motu revisional order passed by the Joint Commissioner - the assessee has been deprived of his right to object to the levy of higher rate of tax of 12.5% on the sale of second hand Tippers - Held that: - once all the orders passed by the authorities below were set aside by the learned Tribunal, the learned Tribunal ought to have directed the assessing authority to pass fresh orders in accordance with law. Not having done that, even though the records were sent back to the assessing authority under the impugned order, we are of the opinion that the assessee as well as the purchaser of the second hand Tippers have been deprived of their legal rights to raise their contentions before the assessing authority, even though the orders of the lower authorities were set at naught and matter was sent back by the Tribunal to square one, in the absence of any further directions by the learned Tribunal, this difficulty has arisen - matter will now stand restored back to the assessing authority and the assessing authority will be required to undertake the assessment procedure afresh - petition allowed by way of remand.
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2017 (3) TMI 400
Natural justice - validity of assessment order - petitioner's claim that no personal hearing was given and that objections could not be filed within 15 days from the date of receipt of a copy of the pre-assessment notice - Held that: - Circular, cannot whittle down the width and amplitude of what the statute provides for. Therefore, the circular will have to be read in consonance with the provisions of the statute, if it is to be sustained. Non-provision of personal hearing impregnates the impugned order with illegality - the impugned order is set aside - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 340
Seizure - penalty - vehicle was intercepted by the mobile squad, the details of purchaser and seller, who were situated in other States, were not found to be registered and their TIN number was found wrong at the website concerned - Held that: - the very transaction of sale is doubted for the reason that description of purchaser and seller does not match with the records, and the details furnished relates to some other person, this Court would not be justified in holding that proceedings for penalty cannot be initiated at all. The interest of the assessee can always be protected, but the interest of revenue has also to be safeguarded - this Court would not be justified in holding at this stage that no penalty proceedings can be initiated - revision disposed off.
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2017 (3) TMI 339
Applicability of compounded rate for works contract - KVAT - . The petitioner's contention is that the petitioner had applied for a compounding in the year 2015-16 but, had specifically not filed any application for the year 2016-17 and there was no compounding applied for that particular work, ie; the second contract obtained by the petitioner. - Held that: - From the time of introduction of the 4th proviso, necessarily there is a mandate to continue the compounding when applied for and allowed in an year; at least of that work commenced in the year. However, the proviso was introduced only after the commencement of the subject assessment year being 2016-17. The petitioner had not applied for a compounding in that year. The mere fact that the petitioner's work, which commenced in the previous year, had been compounded for that year would not require continuance under the scheme in the subsequent year, for reason of there being no provision available requiring such a continuance.
It is pertinent that though the petitioner filed a quarterly return and not a monthly return, the petitioner did not show the tax payable under the compounded scheme, but however made a self assessment under the regular scheme itself. In such circumstance, the omission to file a monthly return can only be considered an inadvertent omission.
Petition allowed - decided in favor of petitioner.
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2017 (3) TMI 338
Validity of assessment order - natural justice - notice for the assessment year 2009-10 was issued by the Excise and Taxation Officer, Sangrur to the petitioner under Section 29(2) of the Punjab Value Added Tax Act, 2005 for 9.3.2015. On 10.3.2015, the order was reserved, however, the petitioner was granted opportunity to give written submissions till 16.3.2015. The petitioner submitted written reply on 16.3.2015. On 20.3.2015, notice was issued to show cause as to why penal action be not taken under Section 56 of the VAT Act, which was issued for 26.3.2015. The notice was issued only under the VAT Act. No proceedings had taken place on 26.3.2015. As the assessment order had not been passed, the petitioner submitted his objections on 1.4.2015 and on the same day, vide separate letter filed reply to the penalty notice as well. There is no order sheet prepared for penalty proceedings.
Held that: - the assessment orders deserve to be set aside merely on the ground of violation of principles of natural justice. The matter was not dealt with properly. It was quite in haste towards the end. The assessment proceedings may have started earlier but the assessment was put on fast track after this Court directed the authorities to decide the claim of the petitioner for refund of the tax for the previous years.
It is well settled that a quasi-judicial authority, while acting in exercise of its statutory power must act fairly with an open mind. Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi-judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness.
The orders of assessments having been passed in haste without observing the principles of natural justice, deserve to be set aside - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 279
Interpretation of statute - proviso to Section 19(2)(v) of the TNVAT Act, 2006 - reversal of input tax credit - petitioner claims that all along, in consonance with the provisions of the 2006 Act, in particular, Section 19(2)(ii) of the 2006 Act, it was claiming Input Tax Credit (ITC) in respect of inputs, which had suffered tax, as they were being used in manufacturing the final product, i.e., Asbestos cement sheets/Hi-tech cement sheets.
Held that: - A plain reading of the provisions of sub-section (1) and sub-section (2) of Section 19 of the 2006 Act would show that, as long as specified goods, which suffer tax are used for any of the purposes set out in clauses (i) to (vi) of sub-section (2) of Section 19, the assessee should be able to claim the ITC, with a caveat in so far as clause (v) is concerned. The caveat being, the limitation, which is encapsulated in the proviso to Section 19(2) of the 2006 Act. Therefore, the limitation provided in the proviso would apply only vis-a-vis the purpose specified in clause (v) and not qua other purposes set out in clause (i) to (iv) and (vi) of Section 19(2) of the 2006 Act - The fact that, the proviso, on account of erroneous interpretation by the Revenue, was causing difficulties for the manufacturers, is exemplified by the Statement of Objects and Reasons which was set forth, at the time of introduction of Act 5 of 2015.
Petition allowed - decided in favor of petitioner.
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2017 (3) TMI 278
Natural justice - none of the documents filed by the petitioner have been taken into account - while the demand notice dated 14.11.2016, bears the signature of the respondent, the Assessment Order has not been signed by the said Officer - Held that: - It appears that the respondent/Assessing Officer has passed the impugned Assessment Order dated 14.11.2016, in haste, and consequently, not even appended his signature on the Order - The respondent/Assessing Officer, after affording an opportunity to the authorised representative of the petitioner, will pass a fresh order - appeal allowed by way of remand.
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2017 (3) TMI 213
Constitutional validity of Section 6A of the Act - when the petitioners did not press the challenge to the Constitutional validity of Section 6A of the Act, whether the petitioners may be permitted to again raise the question of validity of Section 6A of the Act in the subsequent proceedings? - Held that: - it cannot be said that Section 6(A)(1) of the Act can be said to be ultra vires to Article 269(3) of the Constitution of India and / or Section 6A(1) of the Act treats the transaction which is not “sale” shall be treated as “sale”(deemed sale).
Section 6 is a charging Section and Section 6 A is a procedural Section and therefore, by Section 6A(1) of the CST Act, it cannot be said that by the said provision, the transaction which otherwise is not a sale is treated as sale (deemed sale), it cannot be said that Section 6A (1) of the CST Act is unconstitutional and / or ultra vires to Article 269(3) of the Constitution of India and / or Entry no. 92 A of List I of the Schedule 7 of the Constitution.
Section 6A is a procedural provision, the submission that amendment in Section 6A of the CST Act creates an irrebutable presumption of “sale” in absence of declaration in Form F and therefore, unconstitutional has no substance.
Petition dismissed - decided against petitioner.
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2017 (3) TMI 212
Release of seized goods - invoices mentioned Tin numbers, which were found to be non-existent - the consignor and consignee were all fictitious persons - Held that: - goods were being transported with a valid Transit Declaration Form (TDF), and at the time when goods were seized, it was en-route, as disclosed in TDF, and period for the vehicle to exit had not expired.
The interest of the parties would have to be protected, particularly as proceedings u/s 48 are likely to be initiated in the matter. It is found that goods were being transported pursuant to a TDF, and at the time when goods were seized, they were found to be en-route disclosed in the TDF, and time to exit State had not expired - the direction issued by the Tribunal to release the goods upon deposit of 10% amount of the estimated value in cash or bank guarantee cannot be said to be bad in law.
Revision disposed off.
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2017 (3) TMI 211
Set-off u/r 44 of the Gujarat Sales Tax Rules, 1970 - proof of payment - whether while claiming the set off u/r 44 of the Rules, 1970, Form No.40 signed by the dealer, produced by the purchaser can be said to be conclusive proof of payment of tax by the dealer?
Held that: - considering the proviso to Rule 44 of the Rules, 1970, if the assessee proves to the satisfaction of the Commissioner that the relevant tax leviable under the Act has been paid or has become payable on an earlier transaction on the same goods and produces a certificate in Form 40 issued by the dealer from whom such goods were purchased by the assessee, stating inter alia that the sale of the same goods has been or will be included in his turnover of sales and the amount of tax payable, if any, by him under the Act, on such turnover has been or as the case may be, will be paid within the time laid down in rule 31, the assessee/purchaser shall be entitled to set off of such tax paid by the original dealer - the onus is upon such assessee who claims set off, to prove to the satisfaction of the Commissioner that the tax of which the set off is claimed has been paid by the original dealer from whom he has purchased the goods.
As with respect to other two transactions the learned Tribunal has remanded the matter to the first Appellate Authority which according to the appellant are similar to that of other three transactions for which the learned Tribunal has rejected the appeal and the order with respect to other two transactions has attained the finality, we deem it fit to remand the matter to the adjudicating Authority to consider the set off claimed by the assessee in light of the observations made hereinabove i.e. the assessee has to prove to the satisfaction of the adjudicating Authority / Commissioner that the tax has been paid by the original dealer and that the assessee is also required to produce certificate in Form 40 issued by the dealer. As observed hereinabove when the aforesaid twin conditions are satisfied, then and then only the assessee shall be entitled to the set off, otherwise not.
Appeal allowed in part and part matter on remand.
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2017 (3) TMI 210
Waiver of pre-deposit - Inter State sale or not? - nature of the transaction between the petitioners - works contract - contract for supply design, manufacturing, erection and commissioning of electrical systems - Held that: - The salient features flowing out as conditions in the contract and the entire conspectus of law on the issues as notice earlier, leave us with no option but to hold that the movement of goods by way of imports or by way of inter-state trade in this case was in pursuance of the conditions and/or as an incident of the contract between the assessee and DMRC - The goods were of specific quality and description for being used in the works contract awarded on turnkey basis to the assessee and there was no possibility of such goods being diverted by the assessee for any other purpose - pre-deposit set aside - the DVAT Tribunal shall proceed to hear the appeals on merits - appeal allowed by way of remand.
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2017 (3) TMI 209
Waiver of pre-deposit - the default assessment was not preceded either by a notice or hearing and that it appears, apparently, the order was passed on “system generated” pre-determined order and the result of a programme - Held that: - Bhumika Enterprises’s case [2015 (9) TMI 535 - DELHI HIGH COURT] too substantiates that system generated orders cannot stand the test of law - Prima facie the default assessment in this case too appears to follow the same course, of course the appeal is not before the Court–nor can in the present instance, the Court comment either favourably or adversely against the default assessment order - Tribunal is directed to hear the assessee’s appeal, pending before it without insisting upon the pre-deposit - appeal allowed - decided in favor of appellant.
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