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VAT and Sales Tax - Case Laws
Showing 21 to 39 of 39 Records
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2020 (5) TMI 496
Demand of tax and compounding/composition fee - Section 72 of TNVAT Act - detention of goods alongwith vehicle - It is the case of the petitioner that the exercise of power under section 72 of the Tamil Nadu Value Added Tax Act, 2006 for alleged violation of section 71 of the said Act was arbitrary and illegal and without jurisdiction - HELD THAT:- Mere entry of the goods from another state into Tamil Nadu ipso facto does not attract levy under the provisions of the Tamil Nadu Value Added Tax Act, 2006 unless there was a prior sale within the State of Tamil Nadu and no tax was paid or charged - Therefore 1strespondent as the “prescribed authority” under section 67 of the Tamil Nadu Value Added Tax Act, 2006 was competent to detain goods and vehicle and verify the records and documents which accompanied the goods. For the same reasons, the 1st respondent was also competent to demand tax at the check post, if the first respondent was of the view that the detained goods was liable to tax but no tax was paid or charged.
1st respondent as the “prescribed authority” under section 67 of the Tamil Nadu Value Added Tax Act, 2006 was competent to detain goods and vehicle and verify the records and documents which accompanied the goods. For the same reasons, the 1st respondent was also competent to demand tax at the check post, if the first respondent was of the view that the detained goods was liable to tax but no tax was paid or charged.
The 1st respondent as an officer in charge of the Check Post is also the “prescribed authority” for the purpose of section 72 of the Tamil Nadu Value Added Tax Act, 2006. Therefore, 1strespondent was competent to issue impugned draft compounding notices dated 24.7.2013 for compounding of the of the offences specified in Section 71 of the Act.
There are however several disputed questions of fact on several counts - while upholding the exercise of power by the 1st respondent, the impugned order is set aside in so far as it seeks to demand compounding/composition fee - case remitted back to the 2nd respondent to pass appropriate order on merits in accordance with law.
Appeal allowed by way of remand.
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2020 (5) TMI 495
Refund of excess Input Tax Credit - refund of claim denied on the ground that the petitioner was still in business and was adjusting the amount regularly - Sections 19(17) and 19(18) of the TNVAT Act, 2006 - whether in the light of changed scenario after the implementation of TNGST Act, 2017, the petitioner is entitled to refund? - HELD THAT:- As per the Rules prescribed, excess of Input Tax Credit has to be refunded back to the dealer. There was no provision for carrying forward of such Input Tax Credit for adjustment of tax liability for the subsequent period - merely because the petitioner was a going concern by itself did not mean that the petitioner was not entitled to such refund of the excess of Input Tax Credit which the petitioner accumulated over a period of time.
Merely because the TNVAT Act, 2006 was substituted with Tamil Nadu Goods and Service Tax Act, 2017 with effect from 1.7.2017 by itself did not mean that the petitioner would be entitled to refund merely because the petitioner filed Form Transfer-1 - The petitioner cannot be found fault with. It did not mean that the petitioner was not entitled to refund of the accumulated Input Tax Credit which was lying unutilised after due adjustment.
The impugned order passed by the respondent cannot be sustained and same is liable to be quashed with consequential direction to refund the amount lying unutilised after adjustment at the beginning of each financial year - Petition allowed.
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2020 (5) TMI 494
Levy of purchase tax payable - purchase of turmeric - Section 12 (2) of the Tamil Nadu Value Added Tax, 2006 - contention of the petitioner is that that turmeric purchased by the petitioner from dealers, who were exempted from payment of tax in terms of Section 15 read with Item 18, Part B of the 4th Schedule of the Tamil Nadu Value Added Tax Act, 2006 were also exempted in the hands of the petitioner and therefore the petitioner cannot be saddled with tax liability under Section 12(1) of the Tamil Nadu Value Added Tax Act, 2006.
HELD THAT:- While under Section 7A of the TNGST Act,1959, tax was payable at the rate mentioned in Section 3 or 4 as the case may be of the Act. However, under Section 12(1) of the Tamil Nadu Value Added Tax Act,2006, tax is payable at the rate specified in the Schedules to this Act - Both Section 8 of the TNGST Act, 1959 and Section 15 of the Tamil Nadu Value Added Tax Act, 2006 provide for exemption. They exempted a dealer from payment of tax whose turnover in respect of items mentioned does not exceed ₹ 300 crores in a year.
Merely because they read identically, the interpretation given by the Courts earlier for levy of purchase tax under Section 7A of the TNGST Act, 1959 and exemption cannot be straight away imported for levy of purchase tax under Section 12 of the Tamil Nadu Value Added Tax Act,2006 in view of few differences in the language in Item 16,III Schedule to the TNGST Act, 1959, and Item 18, Part B IV Schedule to the Tamil Nadu Value Added Tax Act, 2006 - Item 16, III Schedule to the TNGST Act, 1959 was to be read along with Section 8 of the TNGST Act, 1959. Similarly, Item 18, Part B IV Schedule to the Tamil Nadu Value Added Tax Act, 2006 has to be read along with and Section 15 of the said Act, 2006. Though they gave to dealers of the goods enumerated therein exemption from payment of tax upto ₹ 300 Crores, yet the consequence under the respective enactments are different as far as levy of purchase tax are concerned.
There are few but very important differences in the Tamil Nadu Value Added Tax Act, 2006 which distinguishes the levy under Section 12 of the Act from levy under Seciton 7A of the TNGST Act,1959. Though the levy under Section 7A of the TNGST Act, 1959 and 12 of the Tamil Nadu Value Added Tax Act, 2006 get attracted under similar circumstances, the rate of tax are different - Under Section 7A of the TNGST Act, 1959 tax is payable at the rate prescribed in Section 3 and 4 of the said Act. Where as, under Section 12 of the Tamil Nadu Value Added Tax Act, 2006 tax is payable at the rate specified in the Schedules to the Act. Therefore, the Petitioner would be liable to pay tax only at the rate specified in the Schedules to the Tamil Nadu Value Added Tax Act, 2006.
There was a paradigms shift from TNGST Act, 1959 when Tamil Nadu Value Added Tax Act, 2006 was enacted. The tax regime was altered to levy tax on value addition at every point of sale with a within the State with a corresponding provision for input tax credit for being set off. It not only rationalised the rate of tax but also rendered tax paid at every point of sale within the State to be set off as input tax credit - thus, under Section 12(1) of the Tamil Nadu Value Added Tax Act, 2006, petitioner who is also a dealer is liable to pay purchase tax at the rate specified in the Schedules.
If the total turnover of the petitioner during the relevant year did not exceed ₹ 300 crores as per Section 12(1) of the Tamil Nadu Value Added Tax Act, 2006 the Tax payable by the petitioner would be at the rates specified in the “Schedules to this Act”which would mean the rate specified in Entry 18, Part B, IV Schedule to the Tamil Nadu Value Added Tax Act, 2006 - If however on the other hand, the turnover of the petitioner had exceeded ₹ 300 crores, the petitioner would be liable to pay tax at the rate prescribed in Item 52, Part B, I Schedule to the Tamil Nadu Value Added Tax Act, 2006 as that would be the rates specified in the “Schedules to this Act”. This is a factual matter which would require a proper determination by the respondent.
Case remitted back to the respondent with the direction to the respondent to pass a speaking order within a period of 3 months from date of receipt of this order in terms of the above observation as far as levy of purchase tax under Section 12 (1) of the Tamil Nadu Value Added Tax Act, 2006 is concerned - petition allowed by way of remand.
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2020 (5) TMI 493
Rejection of Stay application - application for waiving the mandatory 1/3rd deposit - applicant states that the substantial question of law involved in the Revision is that an Appellate Court could not have rejected a Stay Application as cursorily as it had done in the present case - HELD THAT:- This Court is of the view that simply depositing 1/3rd of the mandatory deposit would not mean that the applicant was economically sound. Further the fact that the prima-facie case was not looked into by the Tribunal also can be seen from the order itself. The contention of learned counsel for the applicant in the Revision has force.
The applicant in the Revision has made the deposit which was required to be made. The appeal shall now be disposed of within a period of three months from the date of presentation of a certified copy of this order and till the disposal of the appeal, no coercive action shall be taken against the applicant - Revision allowed.
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2020 (5) TMI 471
Principles of Natural Justice - Validity of assessment order - main grievance of the petitioner before this Court is that before passing the orders of assessment, the petitioner was not served with any notice of proposal - HELD THAT:- Going by the facts and circumstances and considering that one of the issues before the Assessing Officer is mismatch issue and that the same has to be dealt with in accordance with the guidelines/directions issued in JKM Graphics [2017 (3) TMI 536 - MADRAS HIGH COURT], further considering the fact that the petitioner was not heard before passing the orders of assessment and that the orders of assessment themselves were served on the petitioner only recently, this Court is of the view that interest of both parties will be protected if the matter is remitted back to the Assessing Officer to redo the assessment afresh on all issues by giving due opportunity of hearing to the petitioner.
The matter is remitted back to the Assessing Officer to redo the assessment on all issues after giving due opportunity of hearing to the petitione - Petition allowed by way of remand.
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2020 (5) TMI 470
Imposition of compounding/composition fees under Section 72 of the Tamil Nadu Value Added Tax Act, 2006 - allegation is that the goods transport accompanied defective an therefore, there was contravention of 71(5) of the Act - revision petition was dismissed by the 2nd respondent holding that the goods moved and the details in invoice No.0415 did not match - HELD THAT:- Though the petitioner claims that 7 logs were purchased by the petitioner on 06.08.2010 from M/s.New Patel Saw Mills, Shengottah, it is noticed that the petitioner has produced yet another commercial invoice dated 31.08.2010, wherein also, a transaction in respect of 7 logs has been shown for a total value of ₹ 13,50,318/- (₹ 12,00,283/- + ₹ 15,00,035/-). The petitioner has also enclosed the copy of another delivery Form JJ dated 03.09.2010 to show that the balance of 3 logs valuing ₹ 6,30,000/0 approximately were being sent back to the petitioner - It is not clear how invoice dated 31.08.2010 can be relied in support of the purchase of 7 logs on 06.08.2010. The petitioner has also not stated these facts before the 2nd respondent. The petitioner had earlier purchased 7 logs from the said M/s.New Patel Saw Mill, Shengottah on 06.08.2010 and had purportedly delivered the same to Sri Swastik Saw Mill, Erode for cutting and sawing. However, a new invoice dated 31.08.2010 has been filed to substantiate the same transaction. This raises doubt. Two transactions cannot be one and the same.
Since there was several disputed questions of facts, which were not placed before the 2nd respondent by the petitioner, a fair chance may be given to the petitioner to place the same before the 2nd respondent for the latter to pass an appropriate order in accordance with law after hearing the petitioner - Petition disposed off by way of remand.
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2020 (5) TMI 447
Validity of assessment order - petitioner claims to have filed a petition under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 already on 20.03.2020 before the respondent. The learned counsel for the petitioner submitted that the said application filed under Section 84 of the TNVAT Act, 2006 is still pending - HELD THAT:- Since this Court is not inclined to entertain the writ petition by going into the merits of the impugned order, suffice to dispose the writ petition only with the following directions, which, in the considered view of this Court, would protect the interest of both parties.
If any such application under Section 84 of the TNVAT Act, 2006, as claimed by the petitioner, is filed on 20.03.2020 and the same is pending as on today, the same shall be considered by the respondent on its own merits and an order shall be passed on the same in accordance with law, within a period of 8 weeks from the date of receipt of a copy of this order.
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2020 (5) TMI 391
Benefits of Investment subsidy - Chhattisgarh State Infrastructure Cost Fixed Capital Investment Subsidy Rules, 2004 framed and published with retrospective effect from 01.11.2004 - entitlement for a subsidy adjustment / reimbursement of 25% of the infrastructure cost for establishing industry outside industrial area, upto a maximum amount equivalent to the amount of commercial tax / central sales tax paid in the State for 5 years - subsequently issued Annexure-P/9 Notification dated 10.08.2011, virtually curtailing the benefit of concession payable under the Investment Subsidy Scheme, whereby the maximum limit (which was originally fixed as 25% of the investment subject to a maximum of 5 years' sales tax paid) was restricted as '₹ 3 crores'.
HELD THAT:- There is no dispute with regard to the sequence of events. It was based on the specific need felt of the newly formed State that the 'Industrial Policy (2001-2006', later substituted by 2004-2009) was formulated and notified inviting entrepreneurs to set up industries in the State to achieve rapid economic growth offering to make use of the advantages available in the State and the concessions assured. This offer was acted upon by the Petitioners to set up the industries, making huge investments under the firm belief that they were entitled to have the benefit of investment subsidy to an extent of 25% of the infrastructure cost, subject to maximum of the Sales Tax / CST paid in the State during the first 'five' years.
Obviously, there is a cap / ceiling fixed already with regard to the extent of benefit payable as per the Industrial Policy notified at the first instance, as incorporated in the Rules notified subsequently, to the effect that it would be 25% of the infrastructure cost made by the entrepreneurs subject to maximum of the Sales Tax / CST paid in the State for the first 'five' years.
The commodity thus manufactured fixing the 'sale price' (based on the above factors, also reckoning the element of 'investment subsidy' surely to get as offered / assured as per the notified Industrial Policy / Rules) has already been marketed and as such, if the amount payable towards the Investment Subsidy as per the original terms of the Policy / Rules is sought to be denied after expiry of the Policy period, it will simply result in rupturing the financial base of the Petitioners, as the unconscionable financial burden cannot be recovered by them 'by resetting the sale price' of the commodity which they had already sold out - The Petitioners have made out a case that they were having 'Legitimate Expectation' to have had the benefits flowing from the Industrial Policy for year 2004-2009 and incorporated as part of the Rules notified and existed throughout the Policy period. This is more so since, similar terms of benefit were offered in the Industrial Policy originally notified for the period 2001-2006, in respect of which, no plea is raised from the part of the State as to any mistake having occurred therein. Admittedly, the said Policy was prematurely terminated and a new Policy was introduced for the period 2004-2009; when also the need to fix any "additional capping of benefit" was never felt by the Government. As such, the explanation now offered from the part of the Government, that it was only a mistake, which required to be rectified in 'public interest' does not hold any water at all.
The course of action pursued by the Respondent-State in the case of the Petitioners herein, curtailing the benefit of Investment Subsidy, which ought to have been extended to them on the strength of the original Industrial Policy 2004-2009 and declared in the Investment Subsidy Rules, 2005 (as originally notified in the Gazette) is not correct or proper - It is declared that the Petitioners are entitled to have the benefit of Investment Subsidy to an extent of 25% of the infrastructure cost , subject to a ceiling of the Sales Tax / VAT / CST paid in the State for the first ' five ' years . In the said circumstances, all the orders / proceedings passed in the case of the Petitioners, insofar as they stand against said declaration are set aside.
The State might be permitted to set off the subsidy amount to be disbursed to the Petitioners against subsequent / remaining the tax liability to be cleared by the Petitioners, considering the totality of the facts and circumstances involved, the Respondents-State are permitted to set off / adjust the investment subsidy payable to the Petitioners, against the tax liability to be cleared by the Petitioners in respect of any past, present or future transactions - Petition allowed.
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2020 (5) TMI 390
Levy of Entry Tax - entry of goods in to Railway area - the assessment was finalized by the Assessing Authority levying Entry Tax with interest and penalty as per Annexure RA/4 order, which was sought to be challenged by filing an appeal before the Deputy Commissioner (Appeals) - specific contention raised by the Applicant was that the place to which the goods were brought by the Applicant / Assessee, was part of the Railway land which was not a local area as defined under Section 2(d) of the Chhattisgarh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976.
HELD THAT:- Section 6 of the said Act dealing with the principles governing levy of Entry Tax on dealer or person under sub-section (1) (a), that Entry Tax shall not be payable unless the dealer or such person effects entry of goods specified in Schedule II or Schedule III into a 'local area'. Under Section 6 (1) (b), it is stated that where any such goods are consumed, used or sold in a local area by the dealer or such person, it shall be presumed, until the contrary is proved by him, that such goods had entered into that local area for consumption, use or sale there - There is no dispute with regard to the fact that the goods brought by the Applicant herein are scheduled goods (i.e. either Schedule II or III) and the dispute is only with regard to the place to which the goods are brought, contending that the place being a land belonging to the Railways, it is not a 'local area'.
Section 131 of the Orissa Municipal Act, 1950 refers to the power of the Municipality to impose taxes including Octroi Duty on the goods brought within the limits of the Municipal area. The significant thing to be noted, as held by the Apex Court, was that Octroi Duty could fall within the ambit of Section 184 (1) as a tax in aid of the fund or any local authority; which will not apply to the tax of Entry Tax leviable under Section 3(1) of the said Act of 1999 (which tax is imposed and collect by the State Government). It was also observed that the words “any tax” in Section 184 of the Railways Act, 1989 was required to be read in the context of Article 285 of the Constitution of India and to be understood as any tax on property or income as a direct tax.
The Railways/licensor had clearly alerted the Applicant / Assessee that it would be for the Applicant / licensee to satisfy the various charges / fees as mentioned therein in respect of the use of the said plot plus local taxes, such as all Municipal rights and taxes, if any to the Government as and when demanded; besides the liability to satisfy the occupation fees, whenever enhanced by the Railways with retrospective effect.
Application dismissed.
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2020 (5) TMI 364
Best Judgement Assessment - addition towards suppressed turnover - rejection of VAT-100 Form - validity of proceedings initiated by the revisional authority under Section 64(1) of KVAT Act - HELD THAT:- Where the accounts are acceptable as genuine and substantially correct, the assessment could be made on the basis of the accounts maintained. Indisputably, the assessee has compounded the offence by accepting the suppression at the time of inspection and discharged the tax liability of ₹ 75,180/- towards suppressed turnover of ₹ 5,56,982/-. It is obvious that the pattern of maintaining the account books was not in order. On rejecting the accounts and the VAT-100 Form submitted by the assessee, the prescribed authority has made best judgment assessment by adding the turnover equal to the suppressed turnover over and above detection made. It is imperative that no suppression would have come to light in the absence of inspection - There being rationale behind estimation of the turnover, same cannot be held to be untenable. The appellate authority has merely proceeded to set-aside the addition of turnover without examining the applicability of the judgments referred to supra in the right perspective.
At any stretch of imagination, it cannot be held that the 3rd respondent had no jurisdiction to invoke the revisional power under Section 64(1) of the Act. The twin conditions i.e., the appellate order being erroneous and prejudicial to the interest of the revenue being satisfied, the 3rd respondent was justified in setting aside the order of the appellate authority and restoring the order of the prescribed authority - the questions of law are answered against the assessee and in favour of the Revenue.
Appeal dismissed.
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2020 (5) TMI 343
Maintainability of petition - existence of alternative remedy - Requests for adjournment from personal appearance - adjournment sought on the ground that because of the prevalent pandemic situation, namely COVID-19, the petitioner could not file a detailed reply nor appear in person before the 1st respondent - appellant also sought time on the ground that they could not access all the records and to prepare their statement of objections - HELD THAT:- The existence of an alternative remedy is not a bar on this Court. The writ in the opinion of this court is maintainable, as this Court opines that there is a failure of the rules of natural justice which entail a ‘fair’ hearing. A reading of the impugned order shows that it also relates to the period 2014-2015 onwards. Therefore, this Court finds sufficient strength in the statement made that old records had to be accessed in order to prepare a detailed reply. This Court also notices that 1st respondent has also noticed the orders passed by the Hon’ble Supreme Court of India in the ‘taken up’ matters by which limitation was extended for all matters, including limitation prescribed in the Statutes.
The impugned order dated 17.04.2020 and the consequential order 23.04.2020 are both set aside - Immediately after the pandemic situation eases and the restrictions are lifted on the movement of men and material etc., 1st respondent is directed to issue a notice to the petitioner giving him two weeks time to appear along with his reply and all his documents.
1st respondent is therefore, directed to give two weeks notice, after the Central Government relaxes the lock down in India, fix a suitable date for the appearance of the petitioner and for disposal of the matter. It is made clear that if the petitioner seeks time or otherwise tries to delay the matter, 1st respondent is at liberty to proceed strictly in accordance with law - Petition allowed.
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2020 (5) TMI 342
Refund of Input Tax Credit - Invocation of suo-moto revision power under Section 64 of KVAT Act - denial of refund on the ground of non-payment of tax collected from the appellant by the sub-contractors - burden of proof - HELD THAT:- The co-ordinate Bench of this Court in the case of M/S BHAVANI ENTERPRISES, SMT. CHANDRA KANTA AGARWAL, SRI RITESH AGARWAL, SMT. SHRUTI AGARWAL VERSUS THE ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES ZONE III [2018 (6) TMI 974 - KARNATAKA HIGH COURT] while examining the issue of burden of proof has observed that the provision of Section 70 of the Act in its plain terms clearly stipulates that the burden of proving that input tax claim is correct lies upon the dealer claiming such input tax credit.
The factual finding given by the prescribed Authority as well as the Appellate Authority requires to be examined by the Revisional Authority. The Revisional Authority proceeded to set-aside the order of the first Appellate Authority on the ground that the issue is not relating to the question whether the assessee is not a developer of SEZ but the issue relates to the claim of input tax credit made by the assessee on the basis of the invoices issued by the sub-contractors who have not at all deposited the tax to the extent of input tax credit claimed by the assessee - the input tax paid on the purchases from M/s. Dev Structural India Private Limited, Belagavi and M/s. Kanmani Constructions Pvt. Limited, Bengaluru, is refunded after due verification of all the documentary evidence.
Whether allowing of the input tax credit as aforesaid would preclude the prescribed Authority in denying the input tax credit claimed by the assessee requires to be examined by the Addl. Commissioner of Commercial Taxes. It is not the case of the respondents that the sub-contractors are not in existence or invoices issued by such contractors are fake or any fraud has been played by the appellant. In such circumstances, denial of input tax credit relating to the refund of input tax paid, eligible for the appellant under Section 20(2) of the Act requires to be further examined by the Revising Authority with reference to Section 10 of the Act.
Appeal allowed in part and part matter on remand.
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2020 (5) TMI 316
Principles of Natural Justice - Reassessment of tax - CST Act - penalty under the M.P. Commercial Tax Act - periods from 01.04.1993 to 31.03.1994 and from 01.04.1994 to 31.03.1995 - no opportunity during the reopening and reassessment proceedings was afforded to the petitioner and the same were conducted ex parte - HELD THAT:- It appears that grant of an opportunity to cross-examine is a concomitant of the expression “Reasonable Opportunity”. In the instant case, the matter was remanded by the State only for the purpose that opportunity of cross-examination which was not afforded to the petitioner in respect of the documents of the Krishi Upaj Mandi Samiti, Guna (M.P.) should now be afforded.
Since the Appellate Authority has passed the impugned order by assigning reasons which cannot stand the test of reasonableness as authority fails to even address the issue in its right perspective, this Court is of the considered view that the power of judicial review deserves to be exercised u/Art.226 of Constitution in favour of the petitioner.
The respondents are now directed to conduct reassessment proceedings by granting reasonable opportunity to the petitioner of cross-examination in respect of the documents pertaining to the Krishi Upaj Mandi Samiti, Guna (M.P.) - Petition allowed.
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2020 (5) TMI 243
Levy of interest and penalty - turnover on the interstate sales of equipments, machineries and spares not covered by C-Forms - petitioner submitted that the Appellate Tribunal failed to provide reasonable opportunity to the assessee to furnish the declaratory forms - HELD THAT:- It is apparent that the petitioner has not placed on record satisfactory material to establish the circumstance of consignment agent and purchasers withholding the concerned declaratory Forms disabling the petitioner in producing the same within the relevant time prescribed under Rule 12(7) of the Rules. Similarly, the original C-Forms now placed before this Court requires to be examined in the light of the material to be placed by the petitioner to substantiate the reasons for the delay subject to authenticity of the documents.
It is not in dispute that concessional levy of tax which is provided by the legislature is to the benefit of the assessee, if such benefit is denied on technicalities, the purpose and object of extending the concessional rate of tax would be defeated.
Matters remanded to the Appellate Tribunal to reconsider the applications submitted by the petitioner for production of C-Forms as well as original C-Forms now furnished before this Court - appeal allowed by way of remand.
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2020 (5) TMI 206
Release of seized vehicle - allegation that the vehicle was carrying five plastic drums of illicit adulterated liquor - Confiscation under Section 72 of CEA - option to pay the fine in lieu of the confiscation - knowledge with the owner that the owner knew that his vehicle was likely to be used for transporting illicit material - HELD THAT:- The record does not reveal that any point of time, the petitioner was given any opportunity to get his vehicle released in lieu of fine etc. Further the Court finds that the authorities had not arrived at any finding that the owner knew or had reason to believe that the vehicle was likely to be used for transporting illicit material. Further, this Court is also of the view that no useful purpose would be served by seizing the vehicle and keeping it in the Police Station for a very long time.
Reliance can be placed in the case of SUNDERBHAI AMBALAL DESAI VERSUS STATE OF GUJARAT [2002 (10) TMI 773 - SUPREME COURT] where it was held that whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.
The vehicle is directed to be released - petition allowed.
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2020 (5) TMI 168
Levy of turnover tax - foreign liquor - compounding scheme - Section 7 of the KGST Act - legality to adopt assessed tax of the previous year as the basis for fixing the compounded liability - HELD THAT:- The decision in M/s.Hotel Breezeland Ltd [2019 (2) TMI 1086 - KERALA HIGH COURT ] was rendered by the Division Bench after considering a batch of writ appeals and a writ petition where it was held that dealer who opts for payment of tax under Section 7 cannot be said to have been absolved of the liability for all the consequences arising from such an assessment made for the previous three years which is the reference point for determining the tax payable in the relevant year under clause (b) of Section 7.
It was well within the authority of the 1st respondent to have revised the assessment for the years 2008-09, 2009-10 and 2010-11, based on the revision of the assessment and tax component for the year 2007-08, resulting in a cascading effect on the assessment for the following three years. The fact that compounded tax was paid for those three years did not fetter the right to revise the assessment.
Petition dismissed.
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2020 (5) TMI 149
Power of High Court to entertain writ petition - The option to file statutory appeal was foreclosed by time limitation including extended period of limitation - whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India ought to entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against that order stood foreclosed by the law of limitation?
HELD THAT:- The assessment order dated 21.6.2017 was challenged by the respondent by way of statutory appeal before the Appellate Deputy Commissioner only on 24.9.2018. Section 31 of the 2005 Act provides for the statutory remedy against an assessment order. The same, as applicable at the relevant time - Section 31 states that the statutory appeal is required to be filed within 30 days from the date on which the order or proceeding was served on the assessee. If the appeal is filed after expiry of prescribed period, the appellate authority is empowered to condone the delay in filing the appeal, only if it is filed within a further period of not exceeding 30 days and sufficient cause for not preferring the appeal within prescribed time is made out. The appellate authority is not empowered to condone delay beyond the aggregate period of 60 days from the date of order or service of proceeding on the assessee, as the case may be.
In the present case, admittedly, the appeal was filed way beyond the total 60 days’ period specified in terms of Section 31 of the 2005 Act. In that, the respondent had filed the appeal accompanied by an application for condonation of delay setting out reasons - The High Court finally allowed the writ petition vide the impugned judgment and order on the ground that the statutory remedy had become ineffective for the respondent (writ petitioner) due to expiry of 60 days from the date of service of the assessment order. Inasmuch as, the appellate authority had no jurisdiction to condone the delay after expiry of 60 days, despite the reason mentioned by the respondent of an extraordinary situation due to the act of commission and omission of its employee who was in charge of the tax matters, forcing the management to suspend him and initiate disciplinary proceedings against him. Soon after becoming aware about the assessment order, the respondent had filed the appeal, but that was after expiry of 60 days’ period.
Whether the High Court ought to have entertained the writ petition filed by the respondent? - HELD THAT:- As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law.
The principle underlying the dictum in this decision would apply proprio vigore to Section 31 of the 2005 Act including to the powers of the High Court under Article 226 of the Constitution. Notably, in this decision, a submission was canvassed by the assessee that in the peculiar facts of that case (as urged in the present case), the Court may exercise its jurisdiction under Article 142 of the Constitution, so that complete justice can be done - Thus, what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution.
The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such - Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or noncompliance of statutory requirements in any manner. Be that as it may, since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all.
The High Court ought not to have entertained the subject writ petition filed by the respondent herein. The same deserved to be rejected at the threshold - Appeal allowed.
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2020 (5) TMI 128
Constitutional validity of the Kerala Tax on Paper Lotteries Act, 2005 - levy of licence fee on the draw of lotteries - vires of Section 5BA of the KGST Act - main ground of attack against validity of the impugned Act is the lack of legislative competence of the state - principles of res-judicata - refund of tax already paid - HELD THAT:- The sale of lottery tickets does not involve any sale of goods. Inspite the lottery tickets representing a chance or a right to a conditional benefit of winning the prize, it was held that, it is nothing else but an actionable claim and no sale of goods is involved, within the meaning of the sales tax laws - apart from wording of the charging section “tax on paper lotteries”, the taxable event upon which the charge is to be imposed is totally absent. There is no much dispute that the draw is only a measure provided for the purpose of fixing the quantum of tax and it cannot be said that tax is levied on the draw. Hence the draw also cannot be considered as a taxable event.
While evaluating the issue regarding validity of the charging section and with respect to its alleged vagueness, uncertainties or ambiguities, even on accepting the contentions of the respondents that the taxable event is the entire activity of the scheme of lottery, it is necessary for this court to consider whether the impugned Act is extra territorial in operation. Under Article 246 (3) of the Constitution, legislature of any state has power to make laws for such state or any part thereof. There is no power at all to make any law with respect to any event happening in other states. As defined under the Act, the lottery is a scheme intended for distribution of prize by lot or by chance, by which a person purchases the ticket for participating in the chance for winning a prize - In the case at hand, it cannot be disputed that, organising and conduct of the lottery by the 1st respondent / State of Sikkim is what is sought to be taxed. In this context, question arose as to whether the activity in organisation and conduct of the lottery is in any manner done within the territorial limits of the State of Kerala. The only part of the activity which takes place within the State of Kerala is the distribution and marketing of tickets, probably through advertisements, enumerating the prize money as well as the price of the ticket and the date of draw etc. In the above context, even assuming that the expression “tax on paper lotteries” contained in the charging section indicates the whole lot of activity of the conduct of lotteries, whether the taxable event falls within the territorial limits of the State of Kerala, is the question posed. Can a part of the activity of distribution and sale of tickets within the State of Kerala alone can be taxed under the guise of the term “tax on paper lotteries”, contained in the charging Section?
The levy of tax is on the organising state or on the person appointed by that state for selling the lottery tickets within the State of Kerala. A person so appointed cannot be construed as a person responsible for organizing and conducting of the lottery. Further it has to be noted that the measure of tax is the draw, which takes place outside the territory of the state. The rate of tax is to be fixed based on the number and type of draws. The draws are conducted by the organizing state within their territory. But the person appointed for sale of the lottery is insisted upon, by virtue of provisions contained in Section 10, to make payment of the tax in advance, based on the draws proposed to be taking place in the organising state. Section 10 insists upon that the Promoter should pay the full amount of tax in advance based on the particulars of the draws, which are intended to be conducted by the organizing state, during the month commencing from the next succeeding month. Since the definition of the word Promoter includes the state which is organising the lottery, it has became obligatory on the part of the state which organises the lottery to pay the tax, if the person appointed for sale of the ticket fails to pay the tax in advance - it is assured that the levy and collection of tax will be made only with respect to the draws of the schemes for which tickets are marketed within the State of Kerala. The above aspect would again persuade this court to draw an inference that, what is sought to be taxed indirectly is the sale of the lottery tickets within the State of Kerala, which is prohibited by virtue of the law.
Doctrine of ‘constructive res judicata’ - HELD THAT:- In the present writ petition the challenge is against the constitutional vires of a statute on various grounds including the legislative competence of the state. Hence it cannot be said that the doctrine of ‘constructive res judicata’ would apply in the case at hand.
Refund of the tax amount already paid by the appellants / writ petitioners - HELD THAT:- It is evident that the liability has not been passed on to the customer of the lotteries. It is pointed out that, the State of Sikkim cannot be said to be gaining any unwanted or unmerited monetary benefit, if the refund if effected. When the money in question belongs to a State and the dispute is in between two States, the doctrine of ‘unjust enrichment’ cannot be applied.
It is clear that the Distributor has not passed on the liability to the consumers. But, as pointed out by the respondents, the writ petitioners have not furnished any materials to prove that the liability has been ultimately borne by the 1st appellant State. Nor it is proved through any convincing materials that such liability has been paid by the 2nd appellant – Distributor, out of the commission he had received from the State of Sikkim. At any rate, as contended, if the State of Sikkim is the ultimate person who borne the liability, there cannot be contended that the doctrine of unjust enrichment will apply. On the other hand, if it is of Distributor who had borne the liability, proof is required to the effect that the same has not been recouped from the State of Sikkim - Proof regarding quantity of the tax collected is also not available. Therefore we hold that the appellants will be entitled for refund of the tax paid from the State Government, on their producing proper accounts and proof as to who had ultimately borne the burden. Such proof being produced, the State of Kerala is held liable for making refund.
The Kerala Tax on Paper Lotteries Act, 2005 is hereby declared as unconstitutional and invalid. The appellants will be at liberty to make claim for refund of the tax already collected by the State of Kerala from the appellants under the said Act, on producing proper accounts and proof. If any such claim is received it is for the 1st respondent, State of Kerala, to consider the same and to pass appropriate orders making refund of the amount due, based on evaluation of such proof. The refund if any due shall be effected without any delay, on submission of such claim.
Appeal allowed.
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2020 (5) TMI 39
Validity of Garnishee Order - CIRP proceedings are ongoing - failure to deposit taxes by Banks for the period from 2011-12 & 2012-13 - direction to Banks to pay into Government's treasury, on account of tax / penalty due under the JVAT Act - resolution plan approved - According to the petitioner, since no claim was made by the State Government as regards the aforesaid tax liability in the corporate insolvency resolution process - bar on realisation of the amount under Section 31 of the IB Code - scope of 'Operational creditor' and 'Operational Debt' - HELD THAT:- In the present cases, the State Government shall fall within the definition of 'operational creditor', and the taxes payable by the petitioner shall fall within the definition of 'operational debt', as defined in the IB Code - As such, there can be no doubt that the case of the petitioner shall be governed by the provisions of the IB Code.
There are force in the submissions of the learned Additional Advocate General that the tax amount, which had been sought to be realised from the petitioner Company, had already been realised by the petitioner Company from the customers which was to be deposited in the Government Exchequer, but that having not been done by the Company and the amount having been utilized for its business purposes, throughout after the years 2011-12 and onwards, shall certainly amount to criminal misappropriation of the Government money by the Company, and the State Government is entitled to realize the same with the penalty due thereon.
It is also found that the re-assessment orders were passed on 17.08.2018 as contained in Annexure-3 to the writ applications, by which date the resolution plan was already approved by the NCLT on 17.04.2018, but the same was never brought to the knowledge of the Commercial Tax officials by the Company, even though the petitioner Company was given a hearing by the Assessing Authority, i.e., respondent No. 4 Assistant Commissioner of State Tax, Bokaro Circle, Bokaro, before passing the re-assessment orders - also, the notice under Section 13 of the IBC Code was never published in the State of Jharkhand, rather the notice was published only in the Business Standard of Kolkata Edition on 24.07.2017 as contained in Annexure-7 to the supplementary affidavit. There is no denial to the fact that such notice was never published in the State of Jharkhand.
A conjoint reading of Section 13(1)(b) of the IB Code read with Regulation 6 aforesaid, clearly shows that the public announcement had to be made in the newspapers with wide circulation at the location of the registered office and principal office, of the petitioner Company. Admittedly, the registered office of the petitioner Company is at Ranchi, and its principal place of business is in the District of Bokaro, both of which are situated in the State of Jharkhand, but no public announcement of the corporate insolvency resolution process was made in the State of Jharkhand - since the resolution plan is approved by the NCLT, and not interfered with even by the Hon'ble Apex Court as pointed out above, we are not required to look into the legality or otherwise of the resolution process, but the fact remains that due to non publication of the public announcement of the corporate insolvency resolution process in the State of Jharkhand, the authorities of the Commercial Taxes Department had no occasion to have any knowledge about the corporate insolvency resolution process of the Company, and they were deprived of making their claim before the interim resolution professional - Since the State Government was not involved in the resolution process, the resolution plan cannot be said to be binding on the State Government under Section 31 of the IB Code.
We are not inclined to entertain these writ applications, even though there is a resolution plan in favour of the petitioner Company, approved by the Adjudicating Authority, i.e., the NCLT, for the simple reason that it was never brought to the knowledge of the Commercial Tax authorities of the State of Jharkhand that the corporate insolvency resolution process had been initiated against the petitioner Company, and no public announcement of the corporate insolvency resolution process was made in the State of Jharkhand - Admittedly, the State Government was never involved in the corporate insolvency resolution process, and as such, the resolution plan cannot be said to be binding on it.
Petition dismissed.
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