|
Advanced Search Options
VAT and Sales Tax - Case Laws
Showing 21 to 40 of 47 Records
-
2020 (9) TMI 420
Constitutional Validity of Section Section 2(15)(ix) and 2 (33(vi), explanation I of Tamil Nadu Value Added Tax Act 2006 - Club and association service - principles of mutuality - incorporation of clubs after 46th amendment to the Constitution - HELD THAT:- The theory of mutuality will apply to both incorporated and unincorporated clubs. - Following the decision of Supreme Court in the matter of CALCUTTA CLUB LIMITED / M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT], the petition is disposed off.
-
2020 (9) TMI 393
Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- The issue squarely covered in the case of 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] where it was held that he 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 Ramco Cements Ltd can be extended only to those dealers 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 order in Writ Appeal is final, and following the rationale thereof, these Writ Petitions are allowed.
-
2020 (9) TMI 391
Violation of the principles of natural justice - Request for personal hearing rejected - Validity of assessment order - periods 2010-11 to 2015-16 - HELD THAT:- A pre-assessment proposal dated 24.04.2019 was issued by the Officer, wherein no reference was made to communication dated 13.08.2018, though the petitioner has placed on record at page 14 of the document compilation an acknowledgement for filing of the letter requesting personal hearing - In response to the aforesaid notice, the petitioner appears to have filed a letter dated 15.06.2019, for which there is no acknowledgement on record, seeking some more time to submit the required documents. The assessments have however been finalized vide impugned orders of assessment dated 31.07.2019 without reference to either of the requests of the petitioner.
Thus, no effective opportunity has been extended to the petitioner in this matter and in the interests of substantial justice, it would be appropriate for the petitioner to be heard in person in the light of this Courts’ specific direction to that effect vide order dated 11.04.2018 and the petitioners’ request for personal hearing in letter dated 13.08.2018 - impugned orders are set aside - Matter restored before the AO.
-
2020 (9) TMI 347
Maintainability of petition - Validity of assessment order - writ petition after 3 years - Condonation of delay - HELD THAT:- As on date, there is no justification whatsoever to interfere with the order of R1 confirming the assessment and levy of tax. In fact there is no acceptable explanation for the delay of three years in filing this writ petition - The only trigger for filing of this Writ Petition was that the cancellation of penalty had been challenged by the revenue and this can hardly be a ground for interference with the impugned order.
Petition dismissed.
-
2020 (9) TMI 346
Penalty Order - Stay, on condition that the petitioner furnished a simple bond to cover the disputed amount - limited prayer of the petitioner at this stage is for a direction to the respondents to accept the bond offered by him and to direct the Tribunal to dispose the appeal expeditiously - HELD THAT:- It is not in dispute that by Ext.P6 order, the petitioner was granted a stay against recovery proceedings pending disposal of the appeal. The only lapse on the part of the petitioner appears to have been the non-furnishing of the bond within the time stipulated by the Tribunal. It is not in dispute however that Ext.P7 bond was subsequently offered before the respondent authority, but the said authority refused to accept the bond since it was preferred beyond the time stipulated by the Tribunal.
Inasmuch as there is no prejudice caused to the revenue by accepting the bond at this distance of time, the Writ Petition is disposed off with a direction to the respondents to accept Ext.P7 bond offered by the petitioner and to treat the same as in compliance with Ext.P6 order of the Tribunal - on furnishing the bond, the stay granted by the Tribunal shall continue to operate in favour of the petitioner, pending disposal of the appeal.
-
2020 (9) TMI 299
Input Tax Credit - restriction of the amount of Input Tax Credit claimed in Form W for the months of December 2013 to May 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 - HELD THAT:- This issue has been dealt with in the case of Assistant Commissioner (CT), presently 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.
Restriction of Input Tax Credit claim wastages - 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] has held that To ascertain as to whether there are quantum of loss of goods, which were purchased, on which, tax was paid, the Assessing Officer has to conduct an exercise, by which, he has to ascertain as to what would be the loss and uniform or ad hoc percentage cannot be adopted. To do so, it would be necessary for the Assessing Officer to conduct an inspection of the place of business of the petitioner to acquaint himself with the manufacturing process. However, since the respondent has adopted a uniform percentage, the same calls for interference - Thus, 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 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 - Petition disposed off.
-
2020 (9) TMI 298
Recovery of tax alongwith Interest - allegation that the defendant has failed in paying the tax collected from the plaintiff and so also, the defendant has not filed VAT- 100 Returns - cause of action for the plaintiff to file the suit, present or not.
Whether the Trial Court has committed an error in dismissing the suit in coming to the conclusion that there is no cause of action for the plaintiff to sue the defendant? - HELD THAT:- The Trial Court has not committed any error in coming to the conclusion that mere demand made by the Department against the plaintiff cannot raise any cause of action to institute the suit against the defendant. It is also pertinent to note that in Exs.P1 and P3, the Department while passing the order made an observation that the purchase made by the assessee- Company paid the tax, but such of those purchase transactions are bogus and not genuine business transactions. The same goes against the assessee- Company and further observed that the details of input tax availed by the assessee-Company is incorrect and when such an observation has been made and when the assessee-Company has not placed any semblance of material before this Court for having again paid the tax which has not been paid by the defendant, no cause of action arises for the plaintiff to recover the same from the defendant.
This Court has already observed that in terms of Exs.P2 and P4, there was a demand and having paid the tax again in terms of Exs.P2 and P4 insofar as non-payment of the tax by the defendant, if any payment is made, then automatically, the plaintiff would get the cause of action to institute the suit against the defendant and no such material is placed for having paid the amount in terms of demand made as per Exs.P2 and P4. When such being the case, there are no error committed by the Trial Judge in appreciating the material available on record.
The appeal is dismissed.
-
2020 (9) TMI 221
Validity of assessment order - proceedings on the basis of the proposals/reports of the Enforcement Wing/ISIC - defects with regard to mismatch in their returns vis-a-vis the other dealers - independent application of mind on the part of Assessing Officer - HELD THAT:- In the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT], this Court had considered the claim of the dealers in connection with Input Tax Credit reversal on an alleged mismatch between their returns and the returns filed by the sellers - impugned order on this issue set aside.
Independent application of mind on the part of Assessing Officer - HELD THAT:- This Court, in a batch of Writ Petitions in the case of TVL. TARUN CREATION VERSUS THE COMMERCIAL TAX OFFICER, TIRUPUR. [2020 (8) TMI 689 - MADRAS HGIH COURT] had held that the Assessing Officer cannot be solely guided by the proposal given by the Enforcement Wing Officers and that the Assessing Officer has to independently consider the same, without being influenced by such proposals of the higher officials - Some of the decisions in which similar views have been taken are in the cases of MADRAS GRANITES (P) LTD. VERSUS COMMERCIAL TAX OFFICER, ARISIPALAYAM CIRCLE, SALAM AND ANOTHER [2002 (10) TMI 767 - MADRAS HIGH COURT] and NARASUS ROLLER FLOUR MILLS VERSUS THE COMMERCIAL TAX OFFICER [2015 (4) TMI 361 - MADRAS HIGH COURT].
Also, 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 Circular No.3 dated 18.01.2019 issued by the Commissioner of State Tax, Chennai, the impugned proceedings in all these Writ Petitions, which proceeds on the basis of the proposals/reports of the Enforcement Wing/ISIC, are liable to be set aside.
The impugned assessment proceedings, which culminated on the basis of the inspection conducted by the Enforcement Officers, as well as the VAT Audit and the alleged mismatch between the returns of the petitioner with the corresponding dealers, cannot be sustained - the matters are remanded back to the respondent herein for reconsideration - petition allowed by way of remand.
-
2020 (9) TMI 220
Maintainability of petition - availability of alternative remedy of appeal - income from undisclosed sale transactions - HELD THAT:- The respondent after finding the petitioner's explanation to be unsatisfactory had straight away assumed that the said sum represents income from undisclosed sale transactions. I am afraid that this approach is clearly not sustainable in law - In fact when the matter was taken up for hearing, the petitioner's counsel produced a copy of the certificate issued by the Indian Bank as well as the City Union Bank to show that the transactions in question are between the Directors of the Company and the assessee themselves.
The second aspect of the matter pertains to reliance on the stock details report dated 13.02.2020. In this case, personal hearing was held on 31.01.2020. It is quite possible that the petitioner themselves requested the Assessing Authority to conduct an inspection. In fact, on the last occasion when the Assessing Officer was also heard through the Video Conference, she strongly submitted that the report dated 13.02.2020 was obtained based on the inspection that was undertaken at the instance of the petitioner themselves. It may be so -
It is obvious that the Assessing Officer had relied on a report dated 13.02.2020 before passing the impugned order. But the said report was not made available to the petitioner herein.
The matter is remitted to the file of the second respondent and after the petitioner remits the sum of ₹ 5,00,000/- as undertaken before this Court, the second respondent will issue a hearing notice to the petitioner - Petition allowed by way of remand.
-
2020 (9) TMI 219
Maintainability of petition - petition was dismissed on the ground of availability of alternative appellate remedy - requirement of pre-deposit being the pre-condition to entertain the appeal - HELD THAT:- During the hearing, it was pointed out that, before the Division Bench, where the writ appeals were originally heard, at the time of admission on 28.11.2019, the learned counsel for the assessee had offered to deposit 10% of the demand made in the impugned assessment for invocation of the statutory remedy before the appellate authority - The said offer was made voluntarily on the side of the assessee, of course, in the context of conditions imposed under the relevant provisions of the TNVAT Act to deposit 25% of the demand/tax due, as pre-deposit being the pre-condition to entertain the appeal. Only in order to get instructions to that offer made by the assessee side, the counsel appeared on behalf of the revenue seems to have taken time and only at that stage those writ appeals came to be disposed by our Division Bench in the common order dated 05.12.2019.
The impugned assessment order and the impugned demand dated 12.07.2019 made by the assessing authority for the assessment years 2013- 14, 2014-15 and 2015-16 respectively, which are impugned in the respective writ petitions, which are the subject matter in the appeal are hereby set aside - Consequently, the matters are remitted back to the assessing authority for reassessment.
Petition allowed by way of remand.
-
2020 (9) TMI 218
Validity of Bihar Value Added Tax Ordinance, 2005 - vested rights accrued to the Petitioners with retrospective effect [before expiry of the period] for exemption from payment of Sales-tax on sale of Finished Products under the Notification- S 0 No.:96 dt. 04.04.1994 and Notification-S 0 No.: 479 dt.22.12.1995 issued under the Industrial Policy, 1993 & 1995.
HELD THAT:- This issue can be agitated by the petitioner first with the appropriate authority and thereafter before the appropriate forum in accordance with law.
Petition disposed off.
-
2020 (9) TMI 217
Levy of penalty u/s 47(b) of the erstwhile Kerala Value Added Tax Act, 2003 - registration of Charitable Hospitals - Deferment of assessment proceedings under Section 25 of the 2003 Act, before finalisation of the proceedings under Section 47(b) of the Act - HELD THAT:- It is a fit case where the penalty order Ext.P6 to P16 are not sustainable.
In M/s Fortis Healthcare Limited [2015 (2) TMI 1014 - PUNJAB & HARYANA HIGH COURT], the Division Bench of Punjab and Hariyana High Courts after noticing the provisions of Punjab Value Added Tax Act and as well as Power to Impose Sales Tax and VAT clause flowing from entry 54 of list to schedule 7 and Article 366 (29-A) of the Constitution of India did not accept the contention of the state for the applicability of doctrine of severance with regard to the services provided to the indoor patients involving medicines supply of surgical items, stents, implants valves with or without medical procedure or medical treatment. During all the aforementioned procedure supply of oxygen is also a sine qua non. All these services are in a packaged form and have to be consumed and cannot be segregated during the course of the treatment - Thus for all intends and purpose is rightly so held to be not exegible to tax.
The cumulative reading of the reasoning assigned herein above would leave a irresistible conclusion that the penalty orders do not stand touchstone of reasonability or any deviation from the provisions of Section 18C of the Kerala Value Added Tax Act 2003, particularly when as per the proviso the petitioner-the charitable hospital is not required to obtain registration.
Penalty Order quashed - petition allowed.
-
2020 (9) TMI 170
Permission for withdrawal of petition - Grant and continuation with the exemption from payment of Sales-tax - purchase of Raw Materials & on sale of Finished Products to the extent in respect of quantum/amount made in the Industrial Policy - withdrawal of exemption before completion of the period for availing the amount of exemption - petitioner seeks permission to withdraw the present petition as the same has become infructuous.
HELD THAT:- Petition disposed of as withdrawn.
-
2020 (9) TMI 169
Best Judgement Assessment - Reassessment of turnover - denial of input credit already allowed for the VAT collected by Southern Railway for the sale effected by the petitioner - Section 25(1) read with Section 25AA of the KVAT Act, 2003 - HELD THAT:- Ext.P2 is only a show cause notice and it is not necessary for this Court to interfere in the assessment proceedings at this stage. However taking into consideration the difficulties faced by the petitioner, it is necessary that the petitioner should be given time to get necessary documents to produce before the first respondent.
The writ petition is disposed of permitting the petitioner to submit a reply to show cause with supporting documents within a period of three months from today. If the petitioner submits reply to Ext.P2 within the said period of three months, the first respondent shall consider the contentions of the petitioner and decide the matter after giving an opportunity of personal hearing to the petitioner.
-
2020 (9) TMI 119
Seizure order - penalty order - Section 129 (3) of UPGST Act - HELD THAT:- The goods which are eatable items i.e. 'Supari' and the vehicle are seized since 14th December, 2018 and to protect the interest of revenue, this Court deem it appropriate to direct the petitioner to deposit the entire assessed tax i.e. sum of ₹ 1,84,000/- plus penalty to the extent of Rs. 10,00,000/- with the seizing authority/ assessing authority and will furnish the security for the remaining penalty amount other than cash bank guarantee or bank draft to the satisfaction of seizing authority.
List this petition before appropriate Court on 20.10.2020.
-
2020 (9) TMI 118
Power to increase the rate of tax (VAT) on Petrol and Diesel by way of Notification - grievance of the petitioner is that the amendment made under G.O.Ms.No.24 dated 27.05.2020 constitutes an excess of power insofar as the provision invoked, Section 31, only provides for the reduction of the tax rate by notification and not an increase, which is what has been done in the present case.
HELD THAT:- The rates of tax on petrol and diesel have been altered across the board and ostensibly, ‘in public interest’. The notification does not refer to or address a specific class of assesses/transactions and no conditions are imposed upon satisfaction of which the amended rate would apply. A general and omnibus alteration to the rate of tax of this nature would have to be effected only by way of amendment to the Schedule itself under Section 75 and not by issuance of a Notification under Section 31 of the PVAT Act - Though the 2017 amendment to the rate of petrol and diesel from 21.5% and 17.15% to 22.15% and 18.15% respectively was also only by way of Notification under Section 31 and was in force till the present impugned amendment, this does not per se invalidate a subsequent illegitimate and unauthorised levy.
Except for some differences in detail, the amendment of schedules in the VAT enactments extracted above, uniformly require that the notification for amendment once made, be placed before the House within the timeframes stipulated therein for deliberation and ratification. It was thus incumbent upon the respondents to have followed the proper procedure for amendment of schedules set out under Section 75 of the PVAT Act and the invocation of Section 31 in the above circumstances is contrary to law.
Impugned Notification quashed - Petition allowed.
-
2020 (9) TMI 117
Exemption from payment of Sales-tax on sale of Finished Products under the Notification- S0 No.: 479 dt. 22.12.1995 and Notification-S 0 No.: 57 dt.02.03.2000 issued under the Industrial Policy, 1995 - petitioner fairly concedes that with the passage of time, present petition has become infructuous inasmuch as there is change with respect to the position of law - HELD THAT:- This issue can be agitated by the petitioner first with the appropriate authority and thereafter before the appropriate forum in accordance with law.
Petition disposed off.
-
2020 (9) TMI 116
Stay of recovery of dues, pending the appeal - Principles of Natural Justice - ex-parte order - suo motu power of revision - exemption on turnover - stock transfers covered by F-Forms - HELD THAT:- In XEROX INDIA LTD. VERSUS GOVERNMENT OF AP. AND OTHERS [2007 (8) TMI 697 - ANDHRA PRADESH HIGH COURT], it was held that while deciding the application for stay, the authority was exercising quasi-judicial function, and therefore even though he was not expected to pass a judgment like a regular court, it was his bounden duty to record some reasons indicating the application of mind to the factors which are relevant for passing or refusing an order of stay in the matter of levy and collection of taxes and an order which is silent on consideration of the relevant factors is liable to be set aside.
When substantial rights of parties are involved, it is not open to the 1st respondent to (i) mention wrong facts while dealing with stay application filed by the petitioner. (ii) ignore the points urged by the petitioner for seeking stay of collection of tax and (iii) dismiss the say application without giving any valid reasons, why the petitioner is not entitled to grant stay pending appeal before the Telangana State VAT Appellate Tribunal.
Petition allowed.
-
2020 (9) TMI 115
Valuation - allegation that the freight charges and pumping charges have been separately shown in the invoices without including the sale and sale price - Levy of tax and penalty - Rule 8(2) of TNVAT Rules 2006 - HELD THAT:- Hon'ble Division Bench of this Court, in a recent decision M/S. LARSEN & TOUBRO LIMITED VERSUS STATE OF TAMIL NADU REP. BY THE JOINT COMMISSIONER (CT) [2019 (1) TMI 711 - MADRAS HIGH COURT] had held that the cost of freight and delivery or cost of transportation cannot be included in the sale price, where they are separately charged and when the freight charges and pumping charges have been separately shown in the invoices without including the same in the cost of the goods, the tax cannot be levied on the same. This clarification of the Division Bench was made pursuant to the impugned orders passed in the present writ petitions, which has not been brought to the notice of the authorities.
Petition disposed off.
-
2020 (9) TMI 114
Validity of assessment order - time limitation - period of limitation for making assessment expired - HELD THAT:- Lockdown on account of COVID-19 pandemic commenced in Hyderabad from 21-03-2020 and continued upto first week of July, 2020. These factors undoubtedly disabled the petitioner from filing objections to the show cause notice issued by 1st respondent for production of records and books of accounts - Therefore when the representative of the petitioner met the officials of the 1st respondent on 10-06-2020 requesting further time, the same ought to have been taken into account by 1st respondent and adequate time should have granted to the petitioner to file objections and produce records and books of account.
It is unfortunate that even the request of the petitioner through e.mail dt.01-06-2020 to the Office of the Commercial Tax Department requesting them to provide new login credentials in the VAT portal to retrieve the information uploaded by the petitioner such as monthly returns and supporting documents, was not acted upon by the respondents.
There has been a gross violation of principles of natural justice, which has caused serious prejudice to the petitioner - the matter is remitted back to the 1st respondent for fresh consideration - Petition allowed by way of remand.
|
