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VAT and Sales Tax - Case Laws
Showing 81 to 94 of 94 Records
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2017 (3) TMI 156
Interpretation of statute - Sections 50(2) and 9(8) - Input Tax credit - denial on the ground that the transactions were reflected in retail invoices and not tax invoices and, therefore, did not qualify for credit - Held that: - the strict interpretation of Section 50(2) in the facts of this case was unwarranted - Section 9(2) is the only provision which spells negative conditions or disqualifications for a dealer as it were in claiming credit. To read the provisions of the enactment as strictly as the VATO did in the present case where all the substantial and essential details existed in the document and choosing not to overlook the description (in other words, preferring form over substance) justify the ultimate conclusion of the VAT Tribunal.
It is significant that a retail invoice has per se not been defined and is conditional upon the prescription by the rule or other notifications under Section 50(5) - appeal dismissed - decided against appellant.
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2017 (3) TMI 155
Reassessment proceedings for assessment year 2009-10 - Rule 9(3) of the Rules - extended period of limitation - works contract on turn key basis - separate components for supply and labour work under the contracts - wrongful allowance on account of labour charges - whether reassessment permissible? - Held that: - It is settled law that the jurisdiction to initiate reassessment proceedings arises only after the assessing authority records his reason to believe that any turnover has escaped assessment Thus, not only is the belief of escapement essential but more importantly, it is necessary for the Assessing Authority to record his reason/s as to existence of the belief of such escapement - the belief of escapement has not been shown to exist on record. Mere statement that the deduction towards labour charges is allowable under Rule 9 (3) of the Rules, even if accepted to be absolute does not automatically, give rise to the necessary belief of escapement of any part of the turnover for which reassessment proceedings may be initiated.
To claim jurisdiction to reassess the petitioner, the burden was solely on the assessing authority to categorically bring on record such information or material as may establish presence of the pre-condition for application of Rule 9 (3) of the Rules. In the context of reassessment proceedings initiated by the Assessing Authority, it was mandatory to record such a fact by way of a reason (based on some material or evidence) that one of the three statutory pre-condition for application of Rule 9 (3) existed - In absence of any material it was not open to the authorities to assume existence of such facts for the purpose of acquiring jurisdiction and to later, in the course of reassessment proceedings to conduct an inquiry as to its existence or otherwise.
The petitioner's Assessing Authority had not fulfilled the requirement of recording a reason to believe to apply Rule 9 (3) of the Rules. The assessing authority is clearly wrong in treating it to be a mandatory rule of normal application and not a rule of exception. In absence of any fact or reason recorded to establish existence, of either three mandatory pre-conditions for applicability of Rule 9 (3) of the Rules, the Assessing Authority could never assume jurisdiction to compute the deduction on account of labour and service charges and profit thereon in accordance with Rule 9 (3). This is a clearly impermissible course and the action of the Assessing Authority is without jurisdiction. Moreover, even if Rule 9 (3) were to be applied, even then, at this stage, there is complete absence of any belief and reason or application of mind as to the amount, which in the opinion of the assessing authority has escaped assessment. Thus, the reassessment proceedings initiated at present appear to be an exercise merely to conduct an inquiry, by way of review of the original assessment order, which is clearly impermissible on account of lack of jurisdiction.
Petition allowed - decided in favor of petitioner.
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2017 (3) TMI 154
Infringement of rights of citizens - marks quota for backward classes - Annual fees for licences for the persons belonging to Scheduled Caste/Scheduled Tribe - Clause 7-D in Rule 3 of the Karnataka Excise (Sale of Indian and Foreign Liquors) Rules, 1968 and the amendment made in Rule 8 - Held that: - when there is violation of Article 19(1)(g) of the Constitution, the State has to justify by acceptable evidence inevitable consequences or sufficient material that the restriction as sought to be imposed is in the public interest and contains quality of reasonableness - the onus of proving that the restrictions are in the public interest or reasonable has to be amply discharged once class classification made is infringing the quality of the rights by a particular legislation.
The Division Bench of this Court found that by addition of 10% marks to the Rural candidates, the urban backward classes, Scheduled Castes and Scheduled Tribes are deprived to get the appointment though they get similar marks and therefore it amounts to further classification or mini-classification and was held to be impermissible and violative of Article 14 of the Constitution.
The original petitioners namely Federation through its Secretary cannot be said to be a third party to the impugned legislation when they are in the business of selling of liquor in the State of Karnataka. Further more when the constitutional validity of a subordinate legislation is challenged which infringes the rights of the citizen of trade in the sale of liquor, it is not possible for us to accept the contention that the petitioner cannot be said to have any locus standi to prefer the main writ petition and hence said contention fails.
Appeal dismissed - decided against appellant.
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2017 (3) TMI 153
Maintainability of appeal - whether the appeal deserves to be decided on merits, when the alternative remedy is available? - Held that: - when the appeal is not to be entertained on the ground of availability of alternative statutory remedy, this Court would refrain from making any observation on merits, for the simple reason that any observations made by this Court on merits would prejudice the rights of the parties before the Appellate Authority having appellate power - If the observations are made and the appellant herein is to be relegated to the statutory remedy of preferring the appeal, it would be illusory remedy, since when the matter is already considered by this Court and Appellate Authority which is lower forum is in normal circumstance bound by the observations made on merits by this Court - appeal disposed off.
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2017 (3) TMI 152
Detention of goods - Aircompressor transported from Pondicherry to Tiruchengode - detention on the ground that consignees TIN. No. not mentioned in the invoice. Further the consignor Tvl. ATLAS COPCO (India) Pondicherry has not raised any sale invoice - Held that: - perusal of the tax invoice would show that the requisite Central Sales Tax has been paid - the transaction in issue is an Inter-State sale transaction and hence, is not amenable to local tax - goods ordered to be released on furnishing of Bank guarantee - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 116
Denial of exemptions - denial on the ground that C and F Forms, bill of lading were not legible - Held that: - those aspects could be examined by the respondent/assessing officer, if, a petition is moved, in that behalf u/s 84 of the TNVAT Act, 2006 - impugned order is set aside, with liberty to the respondent/assessing officer to redo the assessment - petition allowed by way of remand.
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2017 (3) TMI 115
Input tax credit - reversal on the ground that there was mismatch in information which was available on the departmental website, as against that, which was reflected in the monthly returns filed by the petitioner - whether mere mismatch in information could form the basis of reversal of ITC? - Held that: - mere mismatch in information could not have formed the basis of reversal of ITC - reliance placed in the case of Murugan Garments Versus The Assistant Commissioner (CT) (FAC) [2017 (3) TMI 47 - MADRAS HIGH COURT] - respondent is directed to re-work the assessment - petition allowed by way of remand.
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2017 (3) TMI 54
Valuation - whether the Tribunal was justified in holding that transportation expenses borne by the revisionist for procuring the lubricant oil from IOC formed a part of its purchase price u/s 2(y) of the Act? - Section 2(y) of the Act - Held that: - the total amount of consideration for the purchase of goods would include the price strictly so called and also other amounts which are payable by the purchaser or which represents the expenses required for completing the sale, as the seller would ordinarily include all of them in the price at which he would sell his goods - Tribunal was justified in treating the expenses incurred towards transportation as constituting purchase price payable, and thus forming part of turnover of purchase.
Whether the Tribunal has misconstrued Section 2(ad) read with Explanation VI of the Act, and thereby illegally added incentive amount received by IOC to the sale price? - Held that: - sale price includes the amount payable to dealer as consideration for the sale of any goods less any sum allowed as cash discount, but inclusive of any sum charged for anything done by the dealer in respect of goods at that time or before the delivery of such goods, other than cost of outward freight or delivery, in the case where such cost is separately charged. The amount of incentive is not an amount payable to a dealer as consideration for the sale of any goods. This amount is received by the dealer from IOC, and therefore, it cannot be treated to be a part of sale price - Tribunal was not justified in adding the incentive of ₹ 64,85,695/- received from IOC towards the sale price/turnover of sale.
Whether the Tribunal was justified in rejecting books of account of the applicant, without any adverse material available on record to justify it? - Held that: - the physical stock available with the dealer on the date of survey tallied with books of account, the same was not liable to be discarded. However, the entry in the books of account appropriating the amount of freight towards expenses and not including it in the purchase price is found to be wrong, and on that basis, the liability of tax imposed would be justified - tribunal was justified in rejecting books of accounts.
Revision disposed off - decided partly in favor of assessee.
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2017 (3) TMI 53
Classification of goods - bearings - whether goods are covered by Entry C-II-146 of the Bombay Sales Tax Act, 1959 and not by Entry C-II102(2) as auto parts and C-II- 135 as tractor parts read with Entry A-35 of the Notification issued under Section 41 of the Bombay Sales Tax Act, 1959?
Held that: - As far as the bearings are concerned, there is special Entry which deals with bearings of all types including Ball or Roller bearings. This Entry is Schedule Entry C-II-146. There being a specific / special Entry for bearings (Entry C-II-146), it is not correct to hold that the bearings sold by the applicant would fall either under Entry C-II-102(2) [as a components, parts of a motor vehicle] or under Entry C-II-135 read with the Notification Entry A-35 [as a components and/or parts of tractors specifically designed for agricultural use] - When there is a specific Entry in the schedule to a Taxing Statute, the same would override a general Entry.
The Schedule Entry C-II-135 categorically states “but excluding machinery and components, parts and accessories thereof specified in any other entry in this Schedule”. This would clearly go to show that the Schedule Entry C-II-135 read with Notification Entry A-35, as far as bearings are concerned would be the general Entry and C-II-146 would be the specific Entry - the authorities below have correctly classified the bearings sold by the applicant under Schedule Entry C-II-146.
Notification Entry A-35 talks about sale or purchases by a registered dealer of tractors specifically designed for agricultural use and components, parts and accessories thereof covered by Entry C-II-135. From a plain reading of the said Notification Entry, it is clear that it applies to sales or purchases only by a registered dealer of tractors specifically designed for agricultural use and the components, parts and accessories thereof.
The bearings sold by the applicant would fall under Schedule Entry C-II-146 - application disposed off - decided against applicant-assessee.
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2017 (3) TMI 52
Reversal of Input Tax Credit - denial on the ground that the registration certificate of the dealers were cancelled with retrospective effect - Held that: - on the date of purchase, the two dealers i.e., Jayram Dheva People Solutions and Sri Ganesh Enterprises had valid registration certificate - the decision in the case of The Assistant Commissioner (CT) Versus M/s. Bhairav Trading Company [2016 (9) TMI 1114 - MADRAS HIGH COURT] relied upon, where it was held that whatever be the effect of retrospective cancellation upon the selling dealer, it can have no effect upon any person, who has acted upon the strength of a registration certificate, when such certificate was alive - liberty is given to the respondent to redo the assessment - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 51
Classification of goods - Whether the Tribunal is right in law in holding that the Arecanut peeling/de- husking machine is classifiable under Agricultural implements not operated manually or not driven by animals falling under Entry No.1 of III Schedule to the KVAT Act? - Held that: - in view the composition of the product and its exclusive use for agricultural purpose, it can be said as an ‘Agricultural Implement’. The peeling/de-husking of arecanut berries is an aspect which is directly attributable to the agricultural activity after the crop of berries are harvested, before taken to the market - the view taken by the Tribunal cannot be said to be erroneous - petition dismissed - decided in favor of assessee.
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2017 (3) TMI 47
Reversal on Input tax credit - denial on the ground that the information available on the Department's website did not match with the information supplied by the petitioner - Held that: - reversal of ITC, on the basis of a mere mismatch in information, could not have taken place - similar issue has been decided in the case of INFINITI WHOLESALE LIMITED VS. ASSISTANT COMMISSIONER (CT), KOYAMBEDU ASSESSMENT CIRCLE, KOYAMBEDU, CHENNAI [2015 (1) TMI 590 - MADRAS HIGH COURT] - petition allowed - decided in favor of petitioner.
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2017 (3) TMI 4
Natural justice - Whether the learned tribunal was right in law in rejecting the claim of consignment sales outside the State without considering the supporting proofs and evidences produced by the appellants? - Held that: - As per section 6A of the CST Act, the burden is upon the dealer to prove by producing evidence / prescribed particulars in the prescribed Form obtained from the appropriate authority (F Form), if the dealer claims that he is not liable to pay tax under CST Act.
The dealer did produce F-Forms containing prescribed particulars. However, on inquiry it was found by the Sales Tax Officer that F-Forms produced by the dealer were fake and forged one. Therefore, the dealer could not prove and/or substantiate that on the transactions in question the dealer is not liable to pay CST and/or could not prove that the transactions were not inter-State sale - it cannot be said that the authorities below have committed any error which calls for interference of this Court in excise of the appellate jurisdiction - appeal dismissed - decided against appellant.
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2017 (3) TMI 3
Condonation of delay - period of limitation - entitlement of interest on the amount of refund - Section 38 of the Gujarat Value Added Tax, 2003 (GVAT) - Held that: - As averred in the application, the proposal to file the Appeal was sent to the Finance Department on 09/08/2016. The period between 29/04/2016 to 09/08/2016 has not been explained at all. Even the period between 17/09/2016 to 30/01/2017 at the end of the Government Pleaders Office has not been sufficiently and properly explained. Under the circumstances, there is no proper and sufficient explanation explaining the huge delay of 218 days - present application deserves to be dismissed
Even otherwise, according to section 54(1) (aa) and also Section 38, the dealer is entitled to interest on the refund arising out of and/or pursuant to the order passed by the learned tribunal and/or on passing order of assessment (final assessment order) - it cannot be said that the learned tribunal has committed any error in holding that the dealer is entitled to interest - the delay has not been properly and sufficiently explained, even on merits also the Appeal deserves to be dismissed as the Appeal lacks merits - Decided against the revenue.
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