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VAT and Sales Tax - Case Laws
Showing 61 to 77 of 77 Records
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2020 (3) TMI 193
Principles of natural justice - imposition of penalty - exemption sought on sales to Special Economic Zone (SEZ) - opportunity for personal hearing denied for some issues - HELD THAT:- Pursuant to order dated 28.06.2016, a notice has been sent only in respect of the period 2007-08 and only on the issue of exemption claimed as sales to SEZ. After considering the reply of the petitioner, this issue has been accepted in favour of the petitioner by the respondent. However, in regard to the remaining eight issues that formed the subject matter of the earlier assessments, he merely reiterates his conclusion in the original order of assessment. Learned counsel for the petitioner states that detailed objections had been filed even at the original instance to the eight issues and the original orders of assessment have in fact been set aside by order dated 07.04.2014. Clearly, no opportunity of hearing has been extended to the petitioner in respect of the remaining eight issues as well as penalty, pursuant to order of this Court dated 28.06.2016 - thus, there are no choice but to set aside the impugned order of assessment, simply for want of opportunity.
Let the petitioner appear before the respondent on Monday, the 17th February, 2020 at 10.30 a.m. without expecting any further notice in this regard - The assessments for the period 2007-08, 2008-09, 2010-11, 2011-12 and 2012-13 (all assessments, baring for the period 2007-08, still pending before the Assessing Authority) shall be taken up for hearing and after affording sufficient opportunity to the petitioner - petition allowed by way of remand.
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2020 (3) TMI 145
Classification of goods - galvanized poles - whether the galvanized poles would fall into the category of "transmission line material" and would be liable to be taxed at the rate of 4%, rather than unclassified items? - HELD THAT:- The Galvanized Poles used for light is a specific product which is used only for the purposes of street lightening, while the entry under which tax liability is sought which is at Serial No. 236 pertains to overhead transmission lines material. The over head transmission lines material has further been described in Section 2 (aaa), where transmission line has been defined which includes transmitting electricity from a generating station to another generating station or a sub-station etc. clearly the said definition would not include galvanized poles which is used for lighting.
Undoubtedly the Feeder Pillar is used for transmission of electricity while galvanized poles used for lighting are not used for transmission of electricity.
The findings recorded by the Tribunal are clearly flawed and therefore the order of the Commercial Tax Tribunal dated 01.June.1999 deserves to be set-aside and the galvanized poles used for lighting are liable to be taxed, as unclassified items - revision allowed.
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2020 (3) TMI 144
Input Tax Credit (ITC) - Seeking information within 6 years from the date of completion of assessment - Deemed assessment where no assessment has been done - Pnciples of Natural Justice - Failure to produce the documents called for - TNVAT Act - petitioner submits that the impugned orders therein are liable to be quashed on the ground that the demands confirmed were in variance with the proposals in the respective Show Cause Notices and therefore there is a manifest violation of Principles of Natural Justice.
HELD THAT:- Section 22 of the Tamil Nadu VAT Act, 2006 which was amended with effect from 19.6.2012 vide Tamil Nadu Act 23 of 2012 introduced the concept of deemed assessment. For returns filed in time where no assessment orders were passed, assessment was deemed to have been completed for that year on the 31st October of the succeeding year - Therefore, from 2012 upto the repeal of TNVAT Act, 2006, the assessment was deemed to have been made on 31st day of October of the succeeding year.
Under Section 27(1) of the said TNVAT Act, 2006, an assessing authority may subject to provisions of the sub-Section (3) may at any time within a period of 6 years [5 years prior to 19.6.2012] from the date of assessment determine to the best of his judgment the turnover which escaped assessment and assess the tax payable on such turnover after making such enquiry as may be considered necessary - Under Section 27(2) of the TNVAT Act, 2006, an assessing officer is empowered to re-open the assessment if he finds that input tax credit has been wrongly availed or where any dealer produced false bills, vouchers, declaration certificate or any other document with a view to support his claim of input tax credit or refund. As per the provision, the assessing authority shall at any time within a period of 5 years from the date of assessment order reverse input tax credit availed and determine the tax due after making such an enquiry, as may be considered necessary.
As there was scope for reopening the assessment under Section 27 of the TNVAT Act, 2006, it was incumbent on the part of a registered dealer to retain records until the expiry of period prescribed therein.
As the assessment has been deemed to have been completed only on 13.6.2012, the powers of the assessing authority under Section 27 cannot be curtailed by giving a skewed interpretation of Section 64(2) Of the Tamil Nadu VAT Act, 2006 - If the petitioner wants to justify the input tax credit availed by it during the period in dispute, it has to produce documents called for to substantiate it. Further, under Section 19(5) of the Tamil Nadu VAT Act, 2006, there were certain restrictions for goods cleared as such or which were used in the manufacture of other goods and sold in the course of interstate trade or commerce falling under sub-Section (2) of Section 8 of the Central Sales Tax Act, 1956. Further, there were few intervening amendments to these provisions and this court has clarified the position - This aspect has not been discussed in the impugned order.
There are no grounds to sustain the impugned orders for it has not considered implication of the amendment to Section 19 of the Tamil Nadu VAT Act, 2006 - petitioner is therefore relegated back to the respondent to answer the issues. The petitioner is therefore directed to file its objection and produce documents that are required for scrutiny before the respondent within a period of 60 days from the date of receipt of copy of this order.
Petition allowed by way of remand.
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2020 (3) TMI 143
Failure to pay the disputed tax - TNGST Act, 1959 - CST Act, 1956 - respondent Commercial Tax Officer has held that the petitioner was acting as a Del credere agent for Tvl. Reliance Industries Ltd. and had failed to discharge the tax liability under the respective Acts - HELD THAT:- A Del Credere Agent is someone who usually for extra remuneration undertakes the liability to guarantee the due performance of the contract by the buyer. A Del credere commission charged by him. He assumes responsibility for the solvency and performance of their contract by the vendees and thus indemnifies the Principal against any loss on account of possible default. He gives a security to the seller. The Del credere commission is the premium or price given by the principal to the Del credere agent for the guarantee given by the latter. A Del Credere agent is like any other agent bound to handover the money to the principal, as soon as he receives it or pays in advance and is distinguished from other agents.
The fact that the petitioner acted as a ‘Del Credere’ Agent stands established and therefore, the petitioner was a dealer within the meaning of the respective enactments - Whereas in Explanation (1-B) to Section 2(n) of TNGST Act, 1959, transfer of property involved in the purchase, sale, supply or distribution of goods through a factor, broker, commission agent or arhati, del credere agent or an auctioneer or any other mercantile agent, by whatever name called, whether for cash or for deferred payment or other valuable consideration, shall be deemed to be a purchase or sale, as the case may be, by such factor , broker, commission agent or arhati, del credere agent, auctioneer or any other mercantile agent, by whatever name called, for the purposes of this Act.
From a cumulative reading of the definition of ‘sale’ in Section 2(n) of the TNGST Act, 1959 only in the case of ‘ascertained goods’ within the state of Tamil Nadu at the time of sale will be liable to tax in the hands of a ‘Del credere’ agent. In this case, it is the contention of the petitioner that the goods were transferred by their principal namely Reliance Industries Ltd directly from the State of Gujarat. This would require verification on facts - The question of treating a transaction as ‘sale’ by the petitioner would arise only if the ‘goods’ were available in the State of Tamil Nadu when the petitioner placed purchase orders for and on behalf of the prospective buyers on the supplier in Tamil Nadu. This is a question of fact which would be required to be ascertained under only by the adjudicating authority.
The cases are remitted back to the respondent for proper determination of taxability - petition allowed by way of remand.
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2020 (3) TMI 142
Reduction of Input Tax Credit - purchases of hides and skins resold in the course of inter-State trade and commerce - denial of reimbursement as per section 15(b) of the CST Act - Gujarat VAT Act - HELD THAT:- While section 15(b) of the CST Act provides for reimbursement of the tax levied under the State law in case such goods are sold during the course of inter-State trade or commerce, in the manner and subject to the conditions provided in the State law; since under the GVAT Act, no rules have been prescribed for the manner and conditions subject to which such reimbursement shall be made, the dealers are given input tax credit in lieu of reimbursement. The question that arises for consideration is whether the State Government can reduce the input tax credit which amounts to reduction of the reimbursement to be made to the dealers.
Reliance can be placed in the case of KADWANI FORGE LTD. VERSUS STATE OF GUJARAT [2014 (12) TMI 909 - GUJARAT HIGH COURT] - on reading of the said judgement, it appears that while the submissions made by the learned counsel for the petitioners therein, even regarding declared goods have been considered, they appear to have been considered in the context of the declared goods having been used in the manufacture of other goods which resulted in new and different goods being sold and not in the context of both purchase and sale of declared goods. Moreover, reading the findings recorded by the Division Bench in their entirety, it is evident that there is no discussion in the context of section 15(b) of the CST Act.
While the court in the above decision has recorded the submissions advanced on behalf of the petitioners therein in respect of declared goods also, from the submissions advanced by the learned Advocate General it appears that in the facts of those cases, the petitioners had manufactured and sold, new and different goods and the vital condition for reimbursement under section 15 of the CST Act, viz. the purchased as well as sold goods both should be “declared goods”, was not satisfied; whereas in the facts of the present case, the petitioners are traders who have purchased declared goods and sold such declared goods in the course of inter-State trade and commerce. Moreover, as noted hereinabove, the aspect of section 15(b) of the CST Act has not been gone into in the above decision.
Clause (3) of article 286 of the Constitution of India provides that any State law, insofar as it imposes or authorises the imposition of a tax on sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce shall be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of tax as Parliament may by law Specify. Thus, the imposition of tax on sale or purchase of declared goods is subject to the restrictions and conditions specified by the Parliament by law. The Parliament has enacted the law namely, section 15(b) of the CST Act, which in clear and unambiguous terms provides for reimbursement of the tax levied under the State law when such goods are sold in the course of inter-State trade or commerce.
In the light of the provisions of article 286(3) of the Constitution read with section 15(b) of the CST Act, the State is bound to reimburse the State tax levied on declared goods. The impugned notification, to the extent it curtails the entitlement to input tax credit on sales or purchases of declared goods made during the course of inter-State trade or commerce, therefore falls foul of the above provisions of the Constitution and the CST Act which is the Central Act - Keeping in mind the fact that the impugned notification does not relate only to declared goods, the entire notification cannot be struck down. However, the notification has to be read down to mean that the non-entitlement to input tax credit provided thereunder shall not be applicable to goods which are both purchased and sold as declared goods.
Thus, the impugned notification shall not be applicable to purchases of hides and skins resold in the course of inter-State trade or commerce. The respondents are, therefore, not justified in denying reimbursement of the whole of the State tax paid by the petitioners on the declared goods purchased in the State and sold in the course of inter-State trade and commerce - petition allowed - decided in favor of petitioner.
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2020 (3) TMI 141
Imposition of Advance tax and penalty - detention of vehicle - goods detained were admittedly accompanied by all the required documents as per the provisions of Section 31(2) of the HVAT Act - imposition of penalty just on the basis of statement of the driver, even though the goods are accompanied by genuine documents - the stand taken by the appellant before the Penalising Officer fell flat, firstly for the reason that the appellant never produced the documents with regard to the earlier transaction which were bound to be in possession of the appellant. Secondly the goods were cleared from ICD, Dadri on 9.11.2015 and then sold by the consignor to the consignee on 10.11.2015, there was delay of six days in between the said sale and the date of checking. No explanation was put forth for the said delay. Lastly the stand taken was contradicted by the statement of the driver.
HELD THAT:- The appellant in order to fortify the stand produced before the Appellate Authority and the Tribunal GR No. 2111 dated 9.11.2015 issued by M/s Nice Cargo Movers, New Delhi. From the GR, it rather established that the stand taken was after-thought. GR No. 2111 dated 9.11.2015 was for the earlier transaction whereas the goods were being accompanied by GR No. 19594 dated 10.11.2015 for the subsequent sale. It shows that the GR produced in appeal was got issued afterwards as for the earlier transaction GR of subsequent serial number was issued - There is another aspect of the matter that in case the appellant had sold the goods to the consignor, there was no occasion for the representative of the appellant and of the consignee to appear in the penalty proceedings and to get the goods released. The affected parties would have been the consignor or the consignee and not the appellant.
The case set up by the appellant before the Tribunal is not acceptable. In case it was sale made in transit, there would have been endorsement on the GR. Moreover, the driver in that case would be carrying the documents with regard to movement of goods from ICD, Dadri to Bawal - no interference is called for in the order of the Tribunal. No question of law much less a substantial question of law arises.
Appeal dismissed.
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2020 (3) TMI 140
Grant of refund of tax collected from the petitioner by the seller and deposited with the respondent authorities - CST Act, 1956 - Refusal to issue C-Form - case of petitioners is that just like no statutory provisions are required for applying the principle of unjust enrichment, correspondingly no provision is required for refund to the person who has borne the tax - HELD THAT:- It is an undisputed position that the petitioners have borne the burden of tax as the CST authorities at Rajasthan had refused to issue C forms after the coming into force of the GST regime. On account of non-issuance of C forms, the petitioners were not in a position to submit C form declarations in respect of the diesel purchased by them for their mining activity, as a result whereof, the petitioners could not purchase diesel at concessional rate of tax from the seller - Reliance Industries Limited, which collected tax at the rate of 20 % from the petitioners and deposited the same with the respondent authorities.
The respondent authorities do not dispute that against the C form declarations, the tax collected from the petitioners and deposited by Reliance Industries Limited is required to be refunded. The sole refrain of the respondent authorities is that such refund can be made to the seller – Reliance Industries Limited after its assessment for the period in question is concluded and not to the petitioners who are not registered as dealers in Gujarat.
In the present case, in the absence of ‘C’ forms having been issued by the Rajasthan authorities, the respondent authorities have collected excess tax from the seller-Reliance Industries Limited, who in turn has collected the same from the petitioners - once the Rajasthan authorities issue C forms against the sales made by Reliance Industries Limited to the petitioners and the petitioners produce the requisite documents/forms before the respondent authorities, the respondent authorities are required to process such claim within twelve weeks of the same being made in writing by the petitioners.
Unjust enrichment - HELD THAT:- In case of the petitioners, it is an admitted position that the HSD has been purchased by them from Reliance Industries Limited in the course of inter-State trade for use in mining activities and they are, therefore, the ultimate consumers thereof and hence, the question of passing on the tax burden to anyone would not arise. Consequently, the question of unjust enrichment would also not arise.
The respondents are directed to forthwith process the refund claims of the respective petitioners and grant refund of the tax amount collected from the petitioners and deposited by the seller in accordance with law within a period of twelve weeks of the receipt of a copy of this judgment - Petition allowed - decided in favor of petitioner.
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2020 (3) TMI 78
Withdrawal of charge and attachment on property - recovery of alleged dues of erstwhile owner of the property - HELD THAT:- It is clear that the respondents were directed to withdraw the charge and the attachment on the property, located at Plot No.4/C, Block No.211, Survey No.133/2, Village Karanj, Taluka Mandvi, District Surat, in respect of alleged dues of the erstwhile owner of the property namely Varun Filaments Private Limited under the Gujarat Value Added Tax Act, 2003. However, the grievance voiced by the writ-applicant in the present Writ-Application is that till this date, directions issued by this Court, have not been complied with.
One last opportunity is granted to the respondent No.2 to comply with the directions, issued by this Court - application disposed off.
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2020 (3) TMI 77
Withdrawal of Refund with due interest from the fixed deposit in the bank account of the petitioner - Bihar Value Added Tax Act, 2005 - HELD THAT:- In the instant case, the amount of ₹ 6,15,804/- has been realized from the account of the bank by the respondent-Commercial Taxes Department in exercise of powers conferred under Section 47 of the Act. The said power has been invoked in view of the fact that the petitioner has failed to respond to the notice issued under Section 28(1) of the Act - The withdrawal of the amount in question from the bank was made prior to the order by the appellate authority whereby the matter was remanded back for passing order afresh. The issue of refund of the amount to the tune of ₹ 6,15,804/- withdrawn from the fixed deposit in the bank account of the petitioner with due interest would arise only if it is found that the amount is in excess of the amount due from the petitioner.
The action of the respondent authorities of the Commercial Taxes Department in invoking the jurisdiction under Section 47 of the Act can not be held to be bad - petition disposed of with a direction to the taxing authority i.e. the Commercial Taxes Officer, Jamui Circle, Jamui (respondent no.7) to pass order afresh as directed by the appellate authority within a period of two months from the date of receipt/production of a copy of the order in accordance with law after hearing the parties.
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2020 (3) TMI 13
Imposition of penalty on petitioner firm - transporting the goods without valid road permit - HELD THAT:- The submission of learned counsel for the petitioner that the road permit in the present case had expired due to the unforeseen fire occurrence, that had taken place in the business premises of the selling dealer, is of no help to the petitioner. The impugned Judgement clearly shows that this aspect of the matter had also been considered by the Tribunal, which shows that fire had occurred in the premises of the selling dealer at Shivkashi on 05.09.2012, and after about three months thereafter there was transaction between the petitioner firm and the selling dealer on 03.12.2012, pursuant whereto, the crackers were being transported. As such this case is also squarely a case, in which the crackers were being transported without any valid road permit.
Application dismissed - decided against assessee.
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2020 (3) TMI 11
Deletion of ‘High Speed Diesel’ from the CST registration - the ‘High Speed Diesel’ purchased by them at the concessional rate of tax, for consumption in manufacturing process, were found to be used for the purposes, other than the manufacturing purpose - contention of the learned counsel for the petitioners was that the deletion of ‘High Speed Diesel’ from the CST registration of the petitioners was ordered without any notice to them and without there being any empowering provision in the Act to that effect - HELD THAT:- In the facts of this case as stated above, since the appeals filed by the petitioners against the penalty imposed under Section 10-A of the Act, is still pending before the Appellate Authority, we are of the considered view that it would be appropriate that even the question of deletion of ‘High Speed Diesel’ from the CST registration of the petitioners be considered and decided by the Appellate Authority on merits.
The writ applications are disposed off with the direction that in the appeals of the petitioners, pending against the penalty imposed under Section 10-A of the Act, the Appellate Authority shall also consider and adjudicate the question of deletion of ‘High Speed Diesel’ from the CST registration of the petitioners - application disposed off.
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2020 (3) TMI 10
Disallowance of deductions under section 5(2)(a)(ii) of the Punjab General Sales Tax Act, 1948 - deduction denied on the ground that the goods purchased from the petitioner were not mentioned in the registration certificate of the purchasing dealer - HELD THAT:- From the provisions of Section 5(2)(a), it is evident that deduction is allowed of sales made to the registered dealer, of goods for resale or goods mentioned in registration certificate for use in manufacture of goods for sale. From the Clause 4 of form ST-IV, it is clear that only the goods which can be purchased for use in manufacture are mentioned, there is no list of goods intended to be re-sold - The deduction cannot be disallowed for non-specification of goods in the registration certificate where the dealer is registered for re-sale or is involved in trading also. The position would be different if the dealer is not registered for trading, in that case even non-scoring of purpose of purchase would be of no relevance as in such eventuality, only the goods specified in the certificate of registration can be purchased for use in manufacture.
Application disposed off.
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2020 (3) TMI 9
Entitlement to claim deemed assessment under Section 11-E of the Punjab General Sales Tax Act, 1948 read with Rule 33-B of the Punjab General Sales Tax Rules, 1949 - notification dated 9.7.1999 - case of petitioner is that as the appeal was pending against the assessment order, it is in continuation of the original proceedings and therefore as per the notification, there should be deemed assessment - Correct interpretation of Rule 33-B of the Punjab General Sales Tax Rules, 1949 and the notification dated 9.7.1999.
HELD THAT:- As per Rule 1(2) of the Punjab General Sales Tax (fifth Amendment) Rules, 1949, the same shall apply to cases in which assessment is pending upto year 1994-95 and shall include even the cases in which the assessment proceedings had been initiated. From a plain reading of the Rule, it is evident that it does not cover the cases where the assessment has been finalised. In the case of the petitioner, the assessment order was passed in 1996 whereas the notification was dated 9.7.1999. Merely that the appeal was pending will not make the case of the petitioner eligible under the Rules.
The case of the petitioner does not fall in the phrase 'pending for assessment' as the assessment proceedings only continued till the passing of assessment order in 1996.
Petition dismissed - decided against petitioner.
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2020 (3) TMI 8
Review application - area based exemption - expansion of the unit - application was rejected by the Higher Level Screening Committee (HLSC) on 25.5.2000 holding that the product i.e. desi ghee is covered under negative list of Rule 28B - HELD THAT:- The ground for rejection of exemption claim by HLSC could be sustained if the case was made out that any one of the conditions of proviso to Rule 28B(3)(a) of the Rules were not met. It was in that eventuality that application was to be dealt with under Rule 28B and the negative list would have relevance. Merely because by the time the application was submitted on 30.6.1999, Rule 28B of the Rules was inserted will not automatically bring the application for exemption under Rule 28B. If that is so, the proviso to sub-rule (3)(a) to Rule 28B would be rendered otiose. The proviso has extended the applicability of Rule 28A of the Rules. There cannot be any serious objection with regard to fulfilment of the three conditions as the unit had started commercial production on 15.4.1999 i.e. prior to insertion of Rule 28B of the Rules - Appellate Authority rightly allowed the appeal by considering the exemption application under Rule 28A of the Rules.
The second contention that no land was purchased or taken on lease or rent is against the record. The diversified unit which started commercial production in 1995 was expanded and its capacity was extended from 10 metric tonnes to 14 metric tonnes. The land was already with the unit. It was not the case either before the HLSC that the land was not purchased or before the Appellate Authority, rather the departmental representative before the Appellate Authority conceded that three conditions of proviso to Rule 28B(3)(a) were fulfilled.
Petition dismissed.
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2020 (3) TMI 7
Taxability under CST Act - goods transfer in question supported by “F” Form - HELD THAT:- Reliance placed in the decision in the case of M/S. ADVANCE PAINTS (P) LTD. VERSUS THE COMMERCIAL TAX OFFICER, THE SALES TAX APPELLATE TRIBUNAL (ADDL. BENCH) [2019 (12) TMI 540 - MADRAS HIGH COURT] where it was held that merely on the assumption or presumption of any such kind of pre-existing contract, the Assessing Authority could not have imposed the tax under the provision of Central Sales Tax Act. Since necessary documents and evidence were already furnished before the Assessing Authority himself, furnishing of the same again before the Appellate Authorities was not at all called for. And therefore, on this premise, the Appellate Authority should not have confirmed the finding of the Assessing Authority that the Assessee is liable to pay tax under the Central Sales Tax Act.
There is no error in the order of the learned Tribunal and the finding of fact recorded by the learned Tribunal does to require any interference in this writ petition filed by the Revenue - Petition dismissed.
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2020 (3) TMI 6
Classification of goods - 'hot mix material' transferred in a works contract - Whether the 'hot mix material' transferred in a works contract is to be taxed under the Act at the prescribed rates of its constituents or at general rate under the residuary clause?
HELD THAT:- From the decisions relied, M/S. LARSEN & TOUBRO LIMITED & ANOTHER VERSUS STATE OF KARNATAKA & ANOTHER [2013 (9) TMI 853 - SUPREME COURT], the position emerges that the goods involved in the works contract are taxed as deemed sales. The restrictions under Article 286 of the Constitution of India would apply on the State Legislature while taxing the works contract. The State Legislature has power to prescribe uniform rate of tax on the goods involved in the works contract inspite of the fact that different rates are prescribed under the Act for the constituents involved therein. Further that identity of the goods transferred is lost in the process does not prevent them from being goods. The contention of learned counsel for the State that the goods when being incorporated were transferred in some other form and hence ingredients lose their identity, cannot be accepted, as there is a deemed sale of the ingredients of 'hot mix material' and the loss of identity of goods does not prevent them from being goods for the purpose of deemed sale.
The State of Haryana has not prescribed any uniform rate for material used in the works contract. Cement, bitumen, rori etc. which are to be deemed to be sold cannot be taxed at general rate by resorting to residuary clause, these are to be taxed as per the rates prescribed. The residuary clause will come into play only in case the goods are not covered under any of the Schedule to the Act. Even otherwise it would restrict the full play to be given to the deeming fiction of sale of goods involved in works contract.
There is another angle to view the contention of the State, if the argument is taken to the logical conclusion and it is held that transfer in works contract is not of the ingredients of hot mix material but of the new product, in that eventuality the restrictions of Article 286 of the Constitution of India and Sections 14 and 15 of the Central Sales Tax Act, 1956 would not apply for taxing the deemed sale - Such an eventuality would be against the law laid down by the Apex Court that restrictions of Article 286 of the Constitution of India will apply and that 46th amendment of the Constitution of India has only given a deeming fiction of sale of goods involved in the works contract and has not given separate or equivalent Entry in List II for levy of tax on sale or purchase of goods.
Thus, it is held that the goods transferred in execution of works contract will not be taxed at general rate but as per the rates prescribed of constituents of the 'hot mix material'.
Appeal allowed - decided in favor of appellant.
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2020 (3) TMI 5
Levy of penalty - suppression of turnover - whether in the facts and circumstances of the case the penalty for suppression of turnover can be sustained when the turnover was reflected in the books of account?
HELD THAT:- In the present case, inspite of the fact that the assessment was finalised under Section 15(3) of the Act, the turnover as shown in the returns was assessed. The appellant filed an appeal and the matter was remanded back even thereafter the suppressed turnover was never brought to the notice of the Assessing Officer, rather the returns filed were pressed upon.
Section 38 of the Act envisages imposition of penalty where a return furnished is false or incorrect in any material particular. In the case in hand, the appellant had successfully suppressed the turnover not only in the returns but also in proceedings under Section 15(3) of the Act and the tax charged was illegally retained by the appellant. In such event, even if the transaction was disclosed in the books of account it will be of no benefit. Moreover, Section 38 of the Act is worded in a manner that it applies not only to maintaining false or incorrect account but also to filing incorrect or false returns, which the appellant did in the present case.
The contention of the appellant that mischief was committed by authorised representative-Mr. Ram Tirath has rightly been rejected by the Tribunal by stating that no benefit could have been derived by Mr. Ram Tirath by suppressing the sales in question and filing false returns. The saving of tax, if any, was to the appellant.
The sustaining of penalty by the Tribunal warrants no interference - Appeal dismissed.
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