|
Advanced Search Options
VAT and Sales Tax - Case Laws
Showing 1 to 20 of 47 Records
-
2020 (9) TMI 1300
Maintainability of the present petition - alternative efficacious remedy of an appeal - Recovery of VAT dues - HELD THAT:- The present petition is disposed of with liberty granted to the petitioner to approach the Competent Authority to assail the Assessment orders passed in respect of the Assessment years 2011-2012 to 2014-2015, in accordance with law, within a period of two weeks from today. The respondents shall not take any coercive action against the petitioner in terms of the impugned Writ of demand dated 04.09.2020, for the aforesaid period.
-
2020 (9) TMI 1258
Validity of assessment order - levy of sales tax - local sale or inter-state sale - movement of goods from the State of Maharashtra to Mumbai High - HELD THAT:- On reading of the judgment in THE COMMISSIONER OF SALES TAX VERSUS M/S. PURE HELIUM (INDIA) LTD. [2012 (2) TMI 5 - BOMBAY HIGH COURT], it is evident that this Court has held that movement of goods from the State of Maharashtra to Mumbai High does not constitute a movement from one state to another state; Mumbai High does not form part of any state in the Union of India. Thus the very basis on which revenue sought to assess the sale as an inter-state sale was found absent. This being the position, foundational view taken by Respondent No.2 that movement of goods from the State of Maharashtra to Mumbai High is a sale within the territory of the State of Maharashtra is factually and legally unsound. Article 286 of the Constitution of India, particularly clause 1(a) thereof clearly says that no law of a state shall impose or authorize the imposition of a tax on the supply of goods or of services or both, where such supply takes place outside the state.
Prima facie, impugned order of assessment is without jurisdiction. Therefore, as an interim measure, we direct that no coercive steps shall be taken by the Respondents against the Petitioner on the basis of the order of assessment impugned.
Stand over to 1st October, 2020.
-
2020 (9) TMI 1179
Maintainability of petition under Article 32 of the Constitution - HELD THAT:- The writ petition is accordingly dismissed. However, it shall be open for the petitioners to take appropriate remedy against the order impugned.
-
2020 (9) TMI 1148
Validity of assessment order - order is primarily assailed on the ground that after an order of remand has been passed by the appellate authority, there would be no justification for the Tribunal to require the assessee to deposit even 10% amount - HELD THAT:- The ends of justice would be met if the revisionist is directed to furnish bank guarantee to the extent of 10% of the tax amount within four weeks from today before the authority concerned. In the event such guarantee is deposited the appellate authority shall proceed to decide the appeal finally, expeditiously. With the aforesaid observation, this revision stands disposed of.
-
2020 (9) TMI 1110
Principles of Natural Justice - the order of Tribunal is assailed primarily on the ground that prima facie case of assessee has neither been examined nor there is any consideration of the financial health of the company and, therefore, the order impugned cannot be sustained - Maintainability of revision - requirement of pre-deposit - HELD THAT:- It is settled that the appellate authority for the purposes of consideration of waiver cum stay application is required to examine the prima-facie case, in addition to the financial condition of the assessee. In the facts and circumstances of the present case, this Court finds that there is no examination of prima-facie case of the assessee either by the Tribunal. Since the order of the Tribunal fails to meet the requirement of law, inasmuch as prima-facie case of the revisionist has not been examined or even referred to, as such, the order of the Tribunal under challenge is not liable to be sustained.
This revision is disposed of with the direction upon the appellate authority to conclude the proceedings in pending appeal within a period of three months from the date of presentation of a copy of this order, provided the revisionist furnishes bank guarantee of 10% amount of tax within four weeks, which shall remain subject to the final determination made in appeal.
-
2020 (9) TMI 1109
Benefit of concessional rate of tax - difficulty in obtaining 'C' forms - purchase of High Speed Diesel from suppliers in other States - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate.
The issue involved in the Writ Petition is squarely covered by a decision of this Court in M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT], wherein it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] Ltd can be extended only to those dealers in that are party to the decision. This stand is unacceptable in so far as the decision of this Court as well as other High Courts, one of which has been confirmed by the Supreme Court, are decisions in rem, applicable to all dealers that seek benefit thereunder, of course, in accordance with law.
The State has, after the date of the above order, filed a Writ Appeal in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] challenging the decision in the case of Ramco Cements that has been considered and dismissed by a Division Bench of this Court.
Ms.Dhanamadhri, further agrees that there is complete identity on facts and in law in the matter before me as well as in the matter considered earlier. I thus reiterate the view taken in the above matter.
Petition allowed.
-
2020 (9) TMI 1068
Input Tax Credit - validity of default notices of assessment of tax, interest and penalty - Section 9(2)(g) of the Delhi Value Added Tax Act, 2004 - HELD THAT:- The impugned order dated 25th June, 2020 passed by the OHA is set aside and the matter is remanded back to the OHA. The OHA is directed to decide the matter within twelve weeks. All the rights and contentions of the parties are left open.
Petition disposed off.
-
2020 (9) TMI 986
Benefit of concessional rate of tax - difficulty in obtaining 'C' forms - purchase of High Speed Diesel from suppliers in other States - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate.
The issue involved in the Writ Petition is squarely covered by a decision of this Court in M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT], wherein it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] Ltd can be extended only to those dealers in that are party to the decision. This stand is unacceptable in so far as the decision of this Court as well as other High Courts, one of which has been confirmed by the Supreme Court, are decisions in rem, applicable to all dealers that seek benefit thereunder, of course, in accordance with law.
The State has, after the date of the above order, filed a Writ Appeal in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] challenging the decision in the case of Ramco Cements that has been considered and dismissed by a Division Bench of this Court.
Mrs.G.Dhanamadhri, submits that the State intends to challenge the order in Writ Appeal by way of a Special Leave Petition.
As on date, the order in Writ Appeal is final, and following the rationale thereof, the Writ Petition is allowed.
-
2020 (9) TMI 936
Benefit of concessional rate of tax - difficulty in obtaining 'C' forms - purchase of High Speed Diesel from suppliers in other States - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate.
The issue involved in the Writ Petition is squarely covered by a decision of this Court in M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT], wherein it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] Ltd can be extended only to those dealers in that are party to the decision. This stand is unacceptable in so far as the decision of this Court as well as other High Courts, one of which has been confirmed by the Supreme Court, are decisions in rem, applicable to all dealers that seek benefit thereunder, of course, in accordance with law.
The State has, after the date of the above order, filed a Writ Appeal in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] challenging the decision in the case of Ramco Cements that has been considered and dismissed by a Division Bench of this Court.
Mrs.G.Dhanamadhri, submits that the State intends to challenge the order in Writ Appeal by way of a Special Leave Petition.
As on date, the order in Writ Appeal is final, and following the rationale thereof, the Writ Petition is allowed.
-
2020 (9) TMI 935
Benefit of concessional rate of tax - difficulty in obtaining 'C' forms - purchase of High Speed Diesel from suppliers in other States - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate.
The issue involved in the Writ Petition is squarely covered by a decision of this Court in M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT], wherein it was held that The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] Ltd can be extended only to those dealers in that are party to the decision. This stand is unacceptable in so far as the decision of this Court as well as other High Courts, one of which has been confirmed by the Supreme Court, are decisions in rem, applicable to all dealers that seek benefit thereunder, of course, in accordance with law.
The State has, after the date of the above order, filed a Writ Appeal in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] challenging the decision in the case of Ramco Cements that has been considered and dismissed by a Division Bench of this Court.
Mrs.G.Dhanamadhri, submits that the State intends to challenge the order in Writ Appeal by way of a Special Leave Petition.
As on date, the order in Writ Appeal is final, and following the rationale thereof, the Writ Petition is allowed.
-
2020 (9) TMI 934
Validity of assessment proceedings - time limitation - non- consideration of F-Forms - period April, 2015 to February, 2016 - HELD THAT:- The impugned Assessment Order dt.11.03.2020 passed by the 1st respondent is set aside; the matter is remitted back to the 1st respondent for fresh consideration; the 1st respondent shall consider the F-Forms which have also been filed by the petitioner before him; the petitioner is entitled to make submissions on the aspect of bar of limitation of the assessment proceedings for the period April, 2015 to February, 2016 invoking Sub- Rule (5A) of Rule 14A of the Central Sales Tax (Telangana) Rules, 1957; the 1st respondent shall also provide a personal hearing to the petitioner; and then pass a reasoned order in accordance with law and communicate it to the petitioner.
Petition allowed by way of remand.
-
2020 (9) TMI 933
Principles of Natural Justice - Validity of Assessment Order - order of the Tribunal is assailed on the ground that opportunity of hearing is denied to revisionist - HELD THAT:- Admittedly the order of the Tribunal is ex-parte inasmuch as it is recorded that none has appeared on behalf of the revisionist. This observation is assailed by contending in para 14 to 16 that in fact the Tribunal observed in open Court that matter was complicated and, therefore, the appeal would be adjourned to the some other date. Letter of the counsel date 25.6.2020 has also been annexed as annexure no.5 which contains the communication of lawyer to the revisionist in that regard. The order of the Tribunal otherwise appears to have been passed essentially relying upon the remand report 6.3.2020 which has also been quoted in the order itself - The contention advanced on behalf of the revisionist that the order is vitiated for denial of reasonable opportunity of contest in the matter, therefore, is clearly substantiated.
The matter stands remitted to the Tribunal for affording an opportunity of hearing to the revisionist and for deciding the matter afresh in accordance with law - Appeal allowed by way of remand.
-
2020 (9) TMI 899
Concessional benefit of tax - purchase of High Speed Diesel - difficulty in obtaining C Forms - HELD THAT:- The petitioner is entitled to the inclusion of ‘High Speed Diesel Oil’ as a commodity in the registration certificate.
Let this exercise be carried out within a period of four (4) weeks from date of uploading of this order. The request of the petitioner for issuance of ‘C’ Forms is allowed as a consequence thereof.
Petition allowed.
-
2020 (9) TMI 785
Rectification of mistake - Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - reversal of Input Tax Credit - Despite objections filed by the petitioner, orders of assessment came to be passed by the Assessing Officer on 31.12.2019 - Non-speaking order - principles of natural justice - HELD THAT:- The impugned orders are clearly contrary to law insofar as they are non-speaking and have been issued in violation of principles of natural justice, despite the specific request of the petitioner for personal hearing. Though the provisions of Section 84 of the Act do not specifically mandate an opportunity of personal hearing, except if the rectification is initiated suo motu at the instance of the Assessing Officer, it goes without saying that for fair disposal of a matter, an assessee/dealer should be heard in person in order to appreciate the contentions put forth prior to conclusion of the proceedings, all the more in a case where the dealer has specifically sought an opportunity of personal hearing.
The impugned assessments and orders under Section 84 are set aside and will be redone de novo by the Assessing Officer. The petitioner will be heard by the Officer on Wednesday, the 9th of September, 2020 at 10.30 a.m., either virtually or by way of physical hearing as may be mutually convenient to the parties, to be communicated to the petitioner and orders shall be passed within a period of four (4) weeks from 09.09.2020.
Petition disposed off.
-
2020 (9) TMI 647
Levy of penalty - Failure to pay Entry Tax in time due to bonafide opinion - import of three heavy road laying vehicles - HELD THAT:- The law, as on date, is to the effect that the imported vehicles brought into the State of Tamil Nadu for use or for sale would be subjected to payment of Entry Tax. Previously, the Hon'ble Division Bench of the Kerala High Court in the case of FR. WILLIAM FERNANDEZ VERSUS STATE OF KERALA AND OTHERS [1998 (1) TMI 501 - KERALA HIGH COURT] had held, in the year 1998, that entry of vehicles from abroad, is outside the scope of Entry Tax Act and therefore not liable for payment of Entry Tax.
There are no fault with the petitioner when they had not paid the Entry Tax at the time of import. Furthermore, when the Enforcement Wing of the respondents had insisted for payment of the Entry Tax, the petitioner had immediately paid the Entry Tax of ₹ 22,59,619/- on 26.10.2005 itself. However for such omission, the second respondent herein had now invoked Section 15(1) of the Entry Tax Act and proposed a penalty, at twice the amount of the Tax.
It is no doubt true that the second respondent is empowered to levy such a penalty. However, this is the case where the Entry Tax was not paid by the petitioner on the first instance, in view of the prevailing law at that point of time - In such circumstances, when there are bona-fides on the part of the importer in refraining from paying the tax, the Hon'ble Apex Court in EID. PARRY (I) LTD. & OTHERS VERSUS ASSISTANT COMMISSIONER OF COMMERCIAL TAXES AND ANOTHER [1999 (12) TMI 708 - SUPREME COURT] had held that the levy of penalty was not justified.
This Court is of the affirmed view that the proposed levy of penalty is unjustifiable - Petition allowed - decided in favor of petitioner.
-
2020 (9) TMI 641
Validity of assessment proceedings - allegation is that the impugned proceeding is made on the basis of the Audit Reports/Inspection Proposals proceeded from the Enforement Wing or from ISIC Authorities - HELD THAT:- Circular No.3 dated 18.01.2019 has empowered the Assessing Officers to henceforth independently deal with the assessment without being influenced by the proposals of the higher officials.
In view of the Circular No.3 dated 18.01.2019 issued by the Commissioner of State Tax, Chennai, all the impugned proceedings in these Writ Petitions, which proceeds on the basis of the proposals/reports of the Enforcement Wing/ISIC, are set aside and consequently, the matters are remanded back to the Assessing Officer. The Assessees are granted liberty to file their objections with all supporting documents, within a period of 30 days from the date of receipt of a copy of this order.
Petition allowed by way of remand.
-
2020 (9) TMI 640
Restriction on Input Tax Credit (ITC) - Form W - June to September 2014 - Prior sufferance of Taxes - ITC on reversal on wastage - Ineligible claim of ITC on goods.
Restriction of the amount for prior sufferance of taxes - Assessing Officer was of the view that some of the sellers from whom the petitioner had purchased the goods had not paid tax to the Government - HELD THAT:- This issue has been dealt with in the case of ASSISTANT COMMISSIONER (CT) , PRESENTLY THIRUVERKADU ASSESSMENT CIRCLE, KOLATHUR, CHENNAI VERSUS INFINITI WHOLESALE LTD. [2016 (9) TMI 1431 - MADRAS HIGH COURT] wherein it has held that Input Tax Credit cannot be disallowed on the ground that the seller has not paid tax to the Government, when the purchaser is able to prove that the seller has collected tax and issued invoices to the purchaser. As such, restriction of the amount of Input Tax Credit on this ground, cannot be sustained and requires re-consideration.
ITC on reversal on wastage - HELD THAT:- This Court in the case of M/S. SHRI RANGANATHAR VALVES PRIVATE LIMITED VERSUS THE ASSISTANT COMMISSIONER (CT) [2016 (12) TMI 510 - MADRAS HIGH COURT] it is open to the Assessing Officer to issue a show cause notice to the petitioner calling for his objections with regard to “Input Tax Credit on reversal on wastage” and “Ineligible claim of ITC on goods” are concerned.
The impugned orders are set aside and the issue with regard to restriction of the amount of Input Tax Credit for prior sufferance of taxes is remanded back to the Assessing Officer for fresh consideration - Assessing Officer shall, before taking a final decision, extend due opportunity of personal hearing to the petitioner and endeavour to complete the proceedings, atleast within a period of twelve weeks from the date of receipt of a copy of this order.
Petition allowed by way of remand.
-
2020 (9) TMI 639
Recovery of tax dues (arrears) - Validity of Sale of property in public auction - Improper bidding of the 1/5th share of the petitioner over his ancestral property - Section 50(2)(i) of the Kerala Revenue Recovery Act - HELD THAT:- The attachment of the property and the sale thereof held on 03.10.2008 were in respect of undivided share of the petitioner in the property. The petitioner was not in actual and exclusive possession of the property when the sale was effected and the Government purchased the land. The pleadings would show that the petitioner has been trying to raise funds sufficient for the payment of sales tax arrears. Ext.P2 letter dated 25.03.2017 would show that the petitioner has been making representation to the respondents for reconveyance of the property - At any rate, the petitioner has approached the respondents submitting himself to the Amnesty Scheme. The respondents by themselves permitted the petitioner to participate in the Amnesty Scheme and intimated to the petitioner the amounts to be paid to the Government to settle the issue of sales tax arrears. Such intimation was not pursuant to any orders of this Court. This Court passed an interim order only 18.07.2017 making it clear that payment made by the petitioner in terms of Ext.P4 intimation of the State Tax Officer will be subject to further orders to be passed by this Court.
In this case, though the State bought the land for a consideration of Re.1, what was bought by the State is only the undivided share of the property belonging to the petitioner. The State was not at any point of time had the actual the possession of the land. In the meanwhile, the respondents permitted the petitioner to participate in the Amnesty Scheme and offered to settle the sales tax disputes by the petitioner paying an amount of ₹ 9,58,610/-, as per Ext.P4. In the circumstances, equity demands that the undivided share purchased by the respondents is restituted to the petitioner.
The writ petition is allowed directing the respondents to issue orders immediately and take action to return the property covered by Ext.P1 order, after cancelling the sale and orders of confirmation, if any.
-
2020 (9) TMI 501
Validity of proceedings - petitioner raised a ground that the Assessing Officer, who is a Quasi Judicial Authority, has not independently applied his mind while dealing with the impugned proceedings, but had adopted the reports and proposals of the Enforcement Wing/ISIC Authorities, who are their higher authorities - HELD THAT:- Circular No.3 dated 18.01.2019 has empowered the Assessing Officers to henceforth independently deal with the assessment without being influenced by the proposals of the higher officials.
Pursuant to the inspection conducted by the Enforcement Wing Officers, the petitioner company was assessed to the Best of Judgment for the Assessment Year 1994-95, as against which the petitioner had filed an appeal before the Tamil Nadu Sales Tax Appellate Tribunal and by an order dated 25.07.2011, the Tribunal had remitted back the entire assessment to the Assessing Officer for pre-determination. While doing so, one of the direction to the Assessing Officer was to examine each and every transactions of the Form-F Declaration filed by the Assessee as provided under Section 6 A(2) of the Central Sales Tax Act, 1956. However, in disregard of the Tribunal's order, the Assessing Officer had not gone into each and every transactions of the Form-F Declaration and on this ground also the impugned proceedings are liable to be set aside.
The matter is remanded back to the first respondent herein for fresh consideration - Petition allowed by way of remand.
-
2020 (9) TMI 480
Validity of assessment Order - time limitation - main contention raised on behalf of the revision petitioner is that the impugned assessment order passed by the Superintendent of Taxes(Assessing Officer) Agartala for the period from 2011-12 to 2014-15 was ultra vires the provisions of Section 33 of the TVAT Act, 2004 because such assessment was absolutely time barred - Imposition of penalty on the ground of evasion of tax by way of concealment of taxable turnover was made without affording reasonable opportunity of hearing to the petitioner - imposition of penalty in terms of Section 53(3) of the TVAT Act after affording reasonable opportunity of hearing to the assessee - non submission of the audited accounts of his company in absence of prescribed form in terms of Section 53(1) of TVAT Act.
Whether the impugned assessment order dated 29.09.2016 passed by the Superintendent of Taxes(Assessing Officer) Agartala for the period from 2011-12 to 2014-15 is ultra vires the provisions of Section 33 of the TVAT Act, 2004 being hit by limitation? - HELD THAT:- It is an admitted fact that the impugned order of assessment dated 29.09.2016 passed by the Assessing Officer covers the period of the assessment from 2011-12 to 2014-15 meaning thereby the tax period in question ended on 31st March, 2015 - As provided under sub-section (1) of Section 33 of the TVAT Act, 2004, no assessment under Section 31 and 32 shall be made after expiry of five years from the end of the tax period to which the assessment relates.
Section 33 of the TVAT Act, 2004 lays down the prescription of limitation of 5 years from the end of the tax period to which the assessment relates. The revision petitioner contends that the order of assessment for the years 2011-12 to 2014-15 being ultra vires of Section 33 need to be quashed and set aside and in consequence the order dated 28.02.2017 of the Revisional Authority upholding the assessment order should also be quashed.
Apparently the assessment order dated 29.09.2016 for the tax period from 2011-12 to 2014-15 was made after issuing notice dated 31.08.2016 to the assessee. The tax period of 2011-12 ended on 31st March, 2012 for which the assessment order was made on 29.09.2016 within the period of limitation provided under Section 33 of the TVAT Act and obviously, therefore, the assessment order for the years 2013-14 & 2014-15 also made on 29.09.2016 was well within the period of limitation of five years. As such the contention of the petitioner that the assessment order is hit by limitation is devoid of merit.
Whether the imposition of penalty@15% on the petitioner on the ground of evasion of tax by way of concealment of taxable turnover was made without affording reasonable opportunity of hearing to the petitioner? - HELD THAT:- In the case in hand, admittedly no separate show cause notice in terms of Section 75A was issued to the dealer before imposition of 15% penalty on him - from a plain reading of Section 75A and having regard to the strict letter of the law, it becomes abundantly clear that penalty cannot be imposed for mere failure to pay tax unless there are materials to show that such failure was deliberate with a view to evade payment of tax liability. Evidently there was no intention on the part of the assessee to evade or avoid taxes and therefore, levy of 15% penalty being totally illegal is quashed by us for the entire period of assessment.
Whether the penalty equal to 0.1% of the turnover was imposed on the assessee in terms of Section 53(3) of the TVAT Act after affording reasonable opportunity of hearing to the assessee? - HELD THAT:- Imposition of penalty equal to 0.1% of the turnover for non submission of the audit report in terms of Section 53 of the TVAT Act is mandatory. The assessment order dated 29.09.2016 as well as the order dated 28.02.2017 of the Commissioner of Taxes in Revision Case No 18 to 21 of 2016 go to show that the dealer failed to submit the audit report within time in terms of Section 53 of the TVAT Act. Neither before the assessing officer nor before the Revisional Authority (Commissioner of Taxes) the assessee ever pleaded that he submitted the audit report in terms of Section 53(1) and (2) of the TVAT Act within the time specified in sub-section (2) of Section 53. Rather he pleaded before the Assessing Authority as well as the Revisional Authority (Commissioner of Taxes) that he could not submit the audit report within time.
There is, therefore, no doubt that the assessee did not submit the audit report in terms of Section 53(1) and (2) of the TVAT Act within the time prescribed under the said Section. The findings of the assessing officer as well as the Revisional Authority, as quoted above, are not disputed by the petitioner. Evidently, the assessment order dated 29.09.2016 imposing mandatory penalty equal to 0.1% of the turnover of the company of the assessee was imposed on the assessee in terms of Section 53(3) after hearing the assessee. Therefore, the assessment order with regard to imposition of penalty equal to 0.1% of the turnover of the company of the assessee suffers from no illegality.
Whether the assessee can be saddled with the liability of non submission of the audited accounts of his company in absence of prescribed form in terms of Section 53(1) of TVAT Act? - HELD THAT:- It is no case of the petitioner that he could not submit the audit report within time in terms of Section 53(2) of the TVAT Act due to non availability of such Form.
Assessment Order upheld except the penalty equal to 15% imposed by the assessing officer - petition allowed in part.
|
