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VAT and Sales Tax - Case Laws
Showing 41 to 47 of 47 Records
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2020 (9) TMI 113
Power to condone the delay in filing of refund application - Whether the power to condone the delay in filing an application for refund under Section 13 of the Kerala Value Added Tax Act, 2003 is regulated by the prescription under Rule 47 of the Kerala Value Added Tax Rules, 2005 or only to be considered by the Deputy Commissioner under Section 20A of the Act?
HELD THAT:- Section 20A has been brought in by an amendment made to the KVAT Act with effect from 01.04.2008. Section 20A is an enabling provision, where the Deputy Commissioner has been conferred with the power to condone the delay in applications for refund under the Act and the Rules if limitation is provided. This enabling provision would be applicable only in circumstances where no other officer has been specifically conferred with the power to condone the delay in filing an application for refund. Section 13 speaks of refund being permitted 'in such manner and subject to such conditions as has been prescribed'. The prescription as found in Rule 47 specifically empowers the Assessing Officer to condone the delay in filing the statement (application) or other documents referred to in clauses (i) to (iv). When a clear prescription has been made as per the statutory provision, Section 20A has no application and in such circumstances, the Deputy Commissioner cannot usurp the powers of the Assessing Officer who has been conferred with the power to condone delay in filing applications.
Section 20A, in view of the conferment of power to condone delay, by the statutory rules, on the Assessing Officer, is inapplicable to the applications made under Section 13.
Decided in favor of assessee.
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2020 (9) TMI 48
Maintainability of petition - exemption from payment of Sales-tax on sale of Finished Products - Notification-S. O. No.478 & S.O.No. 479 both dt. 22.12.1995 - 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.
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2020 (9) TMI 47
Validity of assessment proceedings - proceedings made on the basis of the Audit Reports/Inspection Proposals proceeded from the Enforcement Wing or from ISIC Authorities - applicability of Circular No.3 dated 18.01.2019 - HELD THAT:- The Commissioner of State Tax, Chennai had issued Circular No.3 dated 18.01.2019, empowering the Assessing Authority to deviate from the proposals, without seeking for approval from the Enforcement Wing/ISIC Authorities - the Circular 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 proceeding in this Writ Petition, which proceeds on the basis of the proposals/reports of the Enforcement Wing/ISIC, is set aside and consequently, the matter is remanded back to the Assessing Officer - Petition allowed by way of remand.
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2020 (9) TMI 46
Issuance of “C” forms - purchase of High Speed Diesel from the suppliers in other States - Central Sales Tax Act, 1956 r/w. The Central Sales Tax (Registration and Turnover) Rules, 1957 - HELD THAT:- The Hon'ble Division Bench in the case of 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] had clearly directed the State and the Revenue Authorities not to restrict the use of “C” Forms for their inter-State purchases of six commodities by the assessees and other registered dealers at concessional rate of tax and they are further directed to permit online downloading of such declaration in “C” Forms to such dealers. The circular letter of the Commissioner dated 31.05.2018 was quashed and the Hon'ble Division Bench also set aside the consequential notices and proceedings initiated against all the assessees throughout the State of Tamil Nadu.
Petition allowed.
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2020 (9) TMI 45
Nature of transaction - Sales or works contract - Remittal of assessment order - Rectification of error - Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- Clearly what has been done is a remittal of the assessment to the file of the Assessing Officer with a direction to redo the assessment in the light of the guidelines set out by the Supreme Court in M/S. KONE ELEVATOR INDIA PVT. LTD. VERSUS STATE OF TAMIL NADU AND OTHERS [2014 (5) TMI 265 - SUPREME COURT], the contract and other documentation inter se the parties and the terms of the contracts that governed the transactions - In compliance thereof, a pre-assessment was issued to the petitioner wherein the Assessing Authority proposed to complete the assessment based on the findings of the minority judgment in M/S. KONE ELEVATOR INDIA PVT. LTD. VERSUS STATE OF TAMIL NADU AND OTHERS [2014 (5) TMI 265 - SUPREME COURT]. Since the Officer referred specifically to paragraph 140 of the judgment, the petitioner objected to the notice, pointing out that what had been referred to in the notice was the minority view and not the majority view. It is relevant to note that no evidence was produced, by way of contracts or other documentation to support the petitioners’ case that the transactions constituted works contract only.
The issue canvassed before me relates to the interpretation of the contract as well as other documents entered into inter se the petitioner and its customers which do not appear to even be part of the record of the assessing officer. It is only upon such examination that one could conclude as to whether the transaction is question would constitute a works contract or a direct sale. The Assessing Authority, in the present case, has come to the conclusion that the transaction is a sale and the sole argument advanced by learned counsel for the petitioner is that, in coming to this conclusion, what has been applied is the minority view in the Kone Elevator (India) Pvt. Ltd and not the majority view.
The only point repeatedly canvassed both before the Authorities as well as before this Court is that the judgment of the Hon’ble Supreme Court (majority view) must be applied to the transaction in issue. This cannot be accepted for the mere asking. It is for the petitioner to establish its case and produce enough factual particulars to support the conclusion that the nature of the transaction is a works contract and not a sale. This exercise has not been undertaken. In the absence of any supporting material (contracts, invoices etc.), the conclusion of the authority was that the transactions in issue cannot simply be compared to, or equated with the transaction of supply of lifts by Kone Elevators.
The petitioner may not agree with the conclusion that the Assessing Authority has arrived at. However, it is not for this Court sitting in writ jurisdiction to review the materials relating to the transactions engaged in by the petitioner and come to its own view and it is thus only appropriate that the petitioner approach the appellate authority by way of appeal.
While expressing no view whatsoever on merits, that is, whether the transactions in issue are liable to be classified as ‘works contract’ or ‘sale’, I am not of the view that this is a fit matter for interference under Article 226 of the Constitution of India and permit the petitioner to file a statutory appeal. An appeal, if filed within a period of four weeks from today, will be entertained by the first Appellate Authority without reference to any limitation, but subject to all other statutory conditions - Petition disposed off.
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2020 (9) TMI 4
Validity of assessment order - principles of natural justice - request for cross-examination of the Customs Broker as well as bank officials denied - High value imports - bank accounts of petitioner or not - rectification order - section 84 of TNVAT Act - HELD THAT:- According to the petitioner, the other banks were also visited by the Deputy Director, who had come to the same conclusion with respect to those banks as well and thereafter, the proceedings were dropped by the Income Tax Department. This assumption is drawn from the fact that nothing transpired after 2015 in this regard - This assumption does not appear to be correct in the light of the report of the Assistant Director of Income Tax Department (Investigation) dated 16.08.2017 issued after the orders of this Court.
Clearly, the proceedings before the Income Tax Department are still at large. The result of the same or any progress in that regard is unknown as the Income tax Department is not a party to the writ petitions and neither has the petitioner placed on record any other document in this regard post August 2017 - No counters have been filed by the respondents, despite sufficient opportunities having been extended to them.
This matter cannot be adjourned but to be proceeded on the basis of the facts available on record. A perusal of the impugned orders indicates that the directions of this Court in the first round of litigation have not been taken into account in proper perspective in finalizing the assessments - This Court had specifically directed that a proper enquiry be made by the Assessing Officer, which would not only include examination of all materials procured from the Customs and the Income Tax Department, but also on an independent application of mind of those materials and a proper and effective opportunity being extended to the petitioner to substantiate his repeated contention that he is unconnected with the import transactions.
The impugned assessments have not been framed in a proper manner - the impugned assessments are set aside and the Assessing Officer directed to redo the same denovo after hearing the petitioner, supplying the documents sought for by him and extending an opportunity of cross examination to him. This exercise shall be completed within a period of eight (8) weeks from date of uploading of this order.
Petition allowed.
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2020 (9) TMI 3
Levy of penalty - non-filing of returns - invocation of Section 10 of the Tamil Nadu Tax on Entry of Goods Into Local Areas Act, 2001 r/w Section 12(3) of Tamil Nadu General Sales Tax Act 1959 - Opportunity of personal hearing not provided - principles of natural justice - HELD THAT:- It is not the case of the department that the petitioner is a regular importer of these goods or that the petitioner had been trading in them. Therefore, non-filing of returns may not really mutter much in a case of this nature. It is true that there was omission on the part of the petitioner in making a declaration at the relevant point of time. But then, the fact remains that immediately after it was pointed out, the petitioner had promptly remitted the entry tax in question. The petitioner had not even challenged the stand of the respondent.
The core argument is that penalty can be levied only if non-payment of tax was willful - It is well settled that levy of penalty involves a penal element. Therefore, the element of mensrea should be recorded to be present. In this case, no such finding can be discerned in the orders impugned in the writ petitions - We are living in pandemic times. But the respondent has shown considerable speed in concluding the entire proceedings. The pre-assessment notice was issued on 12.06.2020. The reply was given on 24.06.2020. The impugned order came to be passed on 29.06.2020. Even personal hearing was not afforded to the petitioner.
Petition allowed - decided in favor of petitioner.
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