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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 605 Records
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2022 (12) TMI 596 - JHARKHAND HIGH COURT
Exemption from central sales tax (CST) - transit sale - Petitioner had effected sales by transfer of documents of title of the goods during their movement from one State to another - Section 6(2) of the CST Act. - Assessee also contended that under normal business transactions, bills are not raised immediately after the delivery of goods and as the normal business practice, bills are also generally raised after time gap of one to six months.
HELD THAT:- The learned tribunal has completely failed to appreciate the ratio of the Judgment of the Hon’ble Apex Court rendered in the case of A& G Projects [2008 (12) TMI 392 - SUPREME COURT] and merely on the basis of an observation as contained in para-13 of the said judgment proceeded to reject the claim of ‘Transit Sale’ of the petitioner.
If the aforesaid transaction of ‘Transit Sale’ is deemed to have been rejected, then the transaction would fall under the purview of Section 3(a) of the C.S.T. Act and since, admittedly, the entire tax in respect of the aforesaid sale falling under Section 3 (a) of the C.S.T. Act has been discharged by the petitioner to the respective State Governments, no further tax liability can be imposed by the State of Jharkhand upon the petitioner.
At the cost of repetition, there is misinterpretation and misreading of the judgment delivered by the Hon’ble Apex Court in the case of A & G Projects (Supra). The learned tribunal has committed an error by wrongly appreciating that there was pre-determined or pre decided contract of sale between the petitioner and the dealer of the goods at the point of time prior to the sale of goods between the manufacturer of the goods from other inter-state and the dealer of the goods.
Even otherwise, the law is now well settled that the tribunal was not supposed to decide an issue which was not the case of the revenue.
Decided in favor of assessee.
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2022 (12) TMI 595 - CHHATTISGARH HIGH COURT
Deemed sale - leasing of wagon - Levy of Value Added Tax (VAT) on the lease charges paid by the Railways Department to the Petitioner Company - interstate sale or local sale - Own Your Wagon Scheme - HELD THAT:- The High Court of Orrisa in “M/s Srei International Finance Ltd. Vs. State of Orissa & Ors.” [2008 (3) TMI 638 - ORISSA HIGH COURT[ in somewhat identical set of facts has held that since the sale or purchase was in the course inter-state trade and commerce, the State of Orissa has no jurisdiction to levy tax on the lease rent received. The taxable event is the transfer of right to use goods and not the right to use goods or the use of goods. Therefore, the right to use goods or the use of goods is not the relevant factor to justify the levy of tax.
The Orders of the assessment so made by the Assessing Authority and the rejection of the Revision by the Revisional Authority both being in contravention to the provisions of law and also contrary to the Judgments of the Hon'ble Supreme Court, the same thus would not be sustainable and therefore both the Orders deserve to be set-aside/quashed.
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2022 (12) TMI 594 - JHARKHAND HIGH COURT
Stay of demand - Reassessment proceedings were initiated upon audit objection - lack of proper notice in the statutory Form XIV as prescribed in terms of Rule 20 of Bihar Sales Tax Rules, 1983. - Learned counsel for the State prays for and is allowed four weeks’ time to file counter affidavit. Two weeks’ time thereafter is allowed to the petitioner to file reply, if so advised.
HELD THAT:- In the meantime, subject to deposit of 20% of the tax of Rs. 6,64,65,700/- in the State Exchequer through challan within a period of 15 days from today, no coercive steps be taken against the petitioner.
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2022 (12) TMI 560 - ORISSA HIGH COURT
Claim of exemption of penultimate sale in course of export - production of ‘H’ Forms and export documents including Bill of Lading in respect of claim under Section 5(3) and 5(4) of the CST Act - Validity of order of remand for levy of penalty - there was no appeal or cross objection by the State - HELD THAT:- mere non-production of agreement entered into between the Indian Exporter and the Foreign Buyer would not invalidate the claim of the petitioner-penultimate seller for exemption under Section 5(3) of the CST Act. Furthermore, the authorities have not complained that the petitioner has not complied with the terms of sub-section (4) of Section 5. The disallowance of claim of the petitioner under Section 5(3) of the CST Act has been made by the Assessing Authority and confirmed by the Appellate Authority and the Odisha Sales Tax Tribunal was on account of non-production of copy of agreement between the Indian Exporter and the Foreign Buyer. - Decided in favor of assessee.
Levy of penalty - HELD THAT:- In the First Appellate stage, the petitioner had been granted relief with respect to penalty for non-submission of statutory forms. There was neither cross-appeal nor cross-objection by the Revenue. It deserves to be noted, therefore, that in the appeal of the petitioner-dealer, the Odisha Sales Tax Tribunal was not legally correct to grant relief to the opponent-State of Odisha by remanding the matter to the Assessing Authority to take action as deemed proper “as per requirement of statute” qua matter of imposition of penalty. - Decided in favor of Assessee.
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2022 (12) TMI 521 - MADRAS HIGH COURT
Illegal gratification from the traders under the jurisdiction - it is submitted that the punishment of dismissal from service imposed under the impugned G.O. is disproportionate to the nature of charge levelled against the petitioner - HELD THAT:- The charge against the petitioner is that he along with his colleagues had collected Diwali Mamool from the traders and the petitioner's share was Rs.6,000/- from the said collection and therefore, he has failed to maintain absolute integrity and devotion to duty.
Admittedly, similarly placed employees were given lesser punishment namely two years increment cut with cumulative effect. On the face of the charge framed against the petitioner also, this Court is of the considered view that punishment of dismissal from service imposed on the petitioner is disproportionate to the nature of charge. The petitioner having admitted his guilt by filing a memo before this Court, after giving due consideration to the nature of charge, this Court is of the considered view that the petitioner shall also get the benefit of reduction of punishment instead of dismissal from service as was given to his colleagues who were also involved in the incident of collecting bribe as Diwali mamool from the traders.
The writ petition is disposed off.
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2022 (12) TMI 463 - ORISSA HIGH COURT
Levy of penalty under Section 42(5) of the OVAT Act - contention of the Petitioner is that upon adjustment of the ineligible ITC from the surplus ITC available, no tax would be due is to no avail since the treatment by the 1st Appellate Authority of the surplus ineligible ITC as tax due by the Petitioner has affirmed by the Tribunal and no question in that regard has been framed by this Court.
HELD THAT:- The decisions in STATE OF GUJARAT VERSUS JAY STEEL AND TUBES TRADERS [2015 (2) TMI 372 - GUJARAT HIGH COURT] andSTATE OF GUJARAT VERSUS NISHI COMMUNICATION [2015 (2) TMI 927 - GUJARAT HIGH COURT] are clearly distinguishable in view of the wording of Section 42(5) of the OVAT Act when compared to Section 34(7) of Gujarat Value Added Tax Act which beings the expression “if the Commissioner is satisfied that the dealer in order to evade or avoid payment of tax”. In other words, under Section 34 (7) of the GVAT Act an element of discretion is available to the Assessing Authority while imposing penalty, Section 42(5) of the OVAT Act does not.
This Court answers the question framed in the affirmative i.e. in favour of the Department and against the Petitioner-Assessee. The revision petitions are accordingly dismissed, but in the circumstances, with no other as to costs.
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2022 (12) TMI 462 - MADRAS HIGH COURT
Eligibility for filing application under settlement of dispute scheme - Recovery of sales tax arrears - attachment of property - settlement of dispute - whether respondent was a “dealer” within the meaning of Section 2(1)(a) r/w Section 2(1)(e) of the Settlement Act, 2010 and therefore eligible to file a declaration under the Settlement Act, 2010 or whether the respondent stepped into the shoes of the tax defaulter namely Tvl.Srinivasa Chemicals Pvt. Ltd., while purchasing the assets of the defaulter in an auction?
HELD THAT:- Prior to Settlement Act, 2010, a Scheme under the Tamil Nadu Sales Tax (Settlement of Arrears) Act, 2006 was there. There was a specific bar for filing an application for settling the dues on a person who had availed deferral and had defaulted. However, under the Settlement Act, 2010, such a restriction is not there. Therefore, under the provisions of the Settlement Act, 2010, the defaulter namely Tvl.Srinivasa Chemicals Pvt. Ltd. would have been entitled to file an application to settle the case - To be eligible for the benefit of the Settlement Act, 2010, the person should have been a "dealer" within the meaning of Section 2(1)(a) r/w Section 2(1)(e) of the said Act.
The respondent herein (i.e.petitioner in W.P.Nos.2784, 2775, 2780, 2781, 2788, 2785 & 2787 of 2020) was not a "dealer". The respondent has also not stepped into the shoes of the defaulting dealer viz. Tvl.Srinivasa Chemicals Pvt. Ltd., to avail the benefit of the Settlement Act, 2010 - The respondent has also not produced any documents to substantiate that the respondent was a "dealer" for the purpose of Section 2(1)(a) r/w Section 2(1)(e) of the Act - The respondent herein was merely an auction purchaser who purchased the stressed asset of defaulter Tvl. Srinivasa Chemicals Pvt. Ltd. in "as is where is condition" for a bid amount of Rs.70,00,000/- in the auction held on 01.12.2009 by the TIIC.
Considering the fact that concession was given by entertaining the applications filed by the respondent under the aforesaid Act and considering the fact that the order of the Designated Authority was not challenged by the Commercial Tax Department in the manner known to law, we do not wish to deny the partial benefit conferred on the respondent vide impugned order dated 29.04.2021 under the Settlement Act, 2010 - the direction in the impugned order of the Court directing a refund of Rs.14,41,755/- out of Rs.27,46,304/- paid by the respondent deserves to be interfered. The order of the learned Single Judge directing appropriation of the amounts only to those years for which assessment orders were available cannot be countenanced.
The writ petition filed by the respondent is dismissed and it is directed that the respondent should pay the differential sum of Rs.41,48,920/- (68,95,224 - 27,46,304) to the Commercial Tax Department within a period of 8 weeks from the date of receipt of a copy of this order.
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2022 (12) TMI 461 - DELHI HIGH COURT
Grant of refund - refund at the statutory rate from the date when SOHA had allowed the objections, i.e., 17.07.2018 - HELD THAT:- The interest should be granted to the petitioner on the refunded amount from the date when SOHA passed the order i.e., 17.07.2018, which is also the prayer made by Mr Bhatia on behalf of the petitioner.
The reason being that although the rectification order was passed on 07.09.2021 with regard to the typographical error which had crept in the order of the SOHA dated 08.07.2017 concerning the value of the C-Forms, the conclusion remained undisturbed, i.e., the demand continued to be shown as “nil” - there is no dispute that the petitioner had presented, at the relevant point in time, i.e., before the order was passed by the SOHA on 08.07.2017, C-Forms worth Rs. Rs.3,42,20,991/-, as recorded in the order dated 07.09.2021.
Interest in this case, is accorded to the assessee based on the principle that it represents the value concerning money that the assessee could not make use of. The money which was due to the petitioner remained with the respondent/revenue, and therefore, the petitioner was entitled to be compensated. The compensation mechanism is provided in the DVAT Act. Besides this, if we were to accept the stand taken by Mr. Vashisht, it would amount to allowing the respondent/revenue to take advantage of the wrong committed by it. It was for the respondent/revenue to have the error corrected.
The interest at the statutory rate, i.e., 6% per annum will be paid to the petitioner for the period commencing from 17.07.2017 till the date of payment of the principal amount, which, we are told is 10.09.2021 - petition disposed off.
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2022 (12) TMI 460 - ORISSA HIGH COURT
Levy of VAT - sale of textile - Orissa Value Added Tax Act, 2004 (OVAT Act) - basis for the impugned assessment order is that by virtue of an amendment to the schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (ADE Act), Additional Excise Duty (AED) on textiles was ‘exempted’ - HELD THAT:- It was perhaps not brought to the notice of the assessing authority that by a separate clarification dated 3rd May 2006 issued by the Department of Revenue, Ministry of Finance, Government of India, it was clarified that the AED would continue to be leviable on goods described in column (3) of the First Schedule to the ADE Act although the rate had become ‘0%’.
Since the very basis of the impugned assessment order stands removed by virtue of the clarification issued by the Central Government on 3rd May, 2006, the impugned assessment order is unsustainable in law and is hereby set aside.
Petition allowed.
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2022 (12) TMI 307 - MADRAS HIGH COURT
Validity of assessment order - inclusion of the turnover of liquor sold in the petitioner's hotel while computing taxable turnover for the purpose of Section 3-D of the Tamil Nadu General Sales Tax Act, 1959 - typographical mistake or not - Whether the expression “total turnover” for the purpose of Section 3-D of the TNGST Act, 1959 would include the turnover of alcoholic liquor sold in the hotel of the petitioner along with other food items?
HELD THAT:- A reading of Section 3-D of the TNGST Act, 1959 as it stood during the period in dispute makes it clear that it is an exception to Section 3(1) of the TNGST Act, 1959. As per Sub-Section (1) to Section 3-D of the TNGST Act, 1959, every dealer whose whose total turnover is not less than Rs.25,00,000/- for the year on the sale of food and drinks in Hotels, Restaurants, Sweet Stalls and any other eating houses other than those falling under item 20 of Part-C of the I Schedule, was required to pay tax at the rate specified in Part-A of the IX Schedule.
The petitioner is liable to pay tax only on “foods and drinks” in terms of Entry in Sl.No.20 of Part-C of the Fist Schedule to the TNGST Act, 1959 at 8%. Entry in Sl.No.20 of Part-C of the Fist Schedule to the TNGST Act, 1959 does not include goods specified elsewhere in the other Schedules as is evident from a reading of Entry in Sl.No.20 in Part- C of the Fist Schedule to the TNGST Act, 1959 as the expression used is “other than those falling elsewhere under the Schedule”. Therefore, if alcoholic liquor is liable to tax in any other Schedules, then the turnover of alcoholic liquor cannot be included in the turnover of “food and drinks” at 8% in terms of Entry in Sl.No.20 of Part-C of the First Schedule to the TNGST Act, 1959.
The facts on record do not reveal that the petitioner has paid tax on alcoholic liquors sold in its return at 30% for the period between 17.07.1996 and 26.03.1998, at 40% for the period between 27.03.1998 and 11.11.1999 and at 50% for the period between 12.11.1999 and 31.11.2001 as specified in the Sixth Schedule to the TNGST Act, 1959 - Prima facie the petitioner appears to have evaded tax on sale of alcoholic liquor sold which were manufactured in the State at the rate specified in the Sixth Schedule. As both the Appellate Assistant Commissioner and second respondent Appellate Tribunal have failed to look into the same, we are of the view that the petitioner is liable to pay tax.
We however accept the contention of the petitioner that the petitioner is not required to include the turnover relating to the sale of alcoholic liquor sold in its restaurant into the turnover of foods and drinks as sale of alcoholic liquor are separately liable to tax as specified in the Part I & J and Part J & K of the First Schedule and Sixth Schedule to the TNGST Act, 1959. At the same time, the petitioner is required to pay tax on the sale of alcoholic liquor sold in its restaurant in terms of the Sixth Schedule to the TNGST Act, 1959.
The case remitted back to the original authority namely, Commercial Tax Officer / the first respondent, for re-determination of the tax liability of the petitioner on sale of alcoholic liquor at the rate specified in the Sixth Schedule to the TNGST Act for the alcoholic liquor purchased within the State of Tamil Nadu, within a period of six months from the date of receipt of a copy of this order - petition allowed by way of remand.
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2022 (12) TMI 306 - MADRAS HIGH COURT
Maintainability of petition - alternative remedy of appeal - Validity of assessment order - exemption of sales returns - HELD THAT:- The petitioner would request that the petitioner be permitted to file an appeal before the statutory authority with all materials in support of its claim of exemption for sales return. Learned Government Advocate does not object to this submission which is also supported by an endorsement made by learned counsel for the petitioner on behalf of petitioner - the request is acceeded to. Appeal, if filed within a period of four (4) weeks from today, shall be admitted without reference to limitation but ensuring compliance with all other statutory conditions, including pre-deposit.
Addition made on account of miscellaneous income - resale of software licence - rewards - freight charges and packing & forwarding charges - HELD THAT:- The assessing authority has not even bothered to advert to the explanation that has been set out and has rejected the same in a single line.
Since the Court finds the explanation put forth by the petitioner tenable in law, the addition on this score is set aside - Petition disposed off.
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2022 (12) TMI 267 - ANDHRA PRADESH HIGH COURT
Jurisdiction and Validity/legality of re-assessment order - time limitation - sale of hair - genuineness of “H” Forms - denial of exemption on the ground that Forms were not issued by their Officers - It is claimed that the verification of Forms also ought to have been completed before the expiry of four years from the date of the assessment year - validity of revision of the order, five years after passing of the original order - violation of principles of natural justice - HELD THAT:- It is no doubt true that Government of India, Ministry of Finance has issued Circular dated 20.7.2021 extending the time limit for filing appeals by the Revenue, before quasi-judicial authorities or Courts in terms of the Supreme Court’s order. In S. Kasi’s case [2020 (6) TMI 727 - SUPREME COURT], the Hon’ble Supreme Court was dealing with an issue namely, as to whether limitation for filing charge sheet can be extended, thereby denying benefit under Section 167(2) Cr.P.C. Dealing with the same, the Apex Court, having regard to the factual situation and taking into consideration the liberty of an individual, did not agree with the argument of the respondents that statutory period for filing charge sheet under Section 167 Cr.P.C. also stands extended during the pandemic.
As held by the Hon’ble Apex Court in S. Kasi’s case, the limitation for filing petitions/ applications/ suits/ appeals/ all other proceedings was extended only to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/Tribunals. The order was passed to protect the litigants/lawyers whose petitions/applications etc., would become time barred if they are not being able to physically come to file such proceedings. The order was to the benefit of the litigants, who have to take recourse of law, as per the applicable statute. The law of limitation bars the remedy but not the right.
The Division Bench of this Court in V-Guard Industries Limited [2022 (1) TMI 1012 - ANDHRA PRADESH HIGH COURT] extended the period of limitation even in respect of orders to be passed by statutory authorities also. Further, as the State is also a litigant, and if orders could not be passed within the time prescribed due to the prevailing pandemic, coupled with the difficulties faced by the authorities in passing orders due to pandemic, they would be barred by limitation - the Division Bench of this Court extended the period of limitation even in respect of orders to be passed by statutory authorities also. Further, as the State is also a litigant, and if orders could not be passed within the time prescribed due to the prevailing pandemic, coupled with the difficulties faced by the authorities in passing orders due to pandemic, they would be barred by limitation.
Apart from that, when the assesses are permitted to file their returns beyond the period prescribed due to pandemic, in view of the judgment of the Hon’ble Supreme Court and circulars issued, we feel that the authorities also should be given time to pass orders during the pandemic.
While negativating the argument advanced by the petitioner with regard to limitation and having regard to the finding given in this Judgment, the Re-assessment Order, dated 24.02.2022, passed by Respondent No.1 is set aside and the matter is remitted back to the assessing authority to pass orders afresh after hearing the petitioner, in accordance with law, as early as possible - petition disposed off.
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2022 (12) TMI 266 - BOMBAY HIGH COURT
Maintainability of petition - alternate remedy of appeal available to the Petitioner - Validity of assessment order - HELD THAT:- Hon’ble Supreme Court in the recent decision in the case of THE STATE OF MAHARASHTRA AND OTHERS VERSUS GREATSHIP (INDIA) LIMITED [2022 (9) TMI 896 - SUPREME COURT] while deciding a challenge to the order of the Division Bench of this Court, where the Division Bench had entertained a writ petition inspite of availability of alternate remedy, no cogent reason the respondent therein had sought to support the decision of the Division Bench entertaining the Writ Petition against the Order of Assessment by relying on various decisions including that of the Hon’ble Supreme Court in WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI & ORS. [1998 (10) TMI 510 - SUPREME COURT]. The Hon’ble Supreme Court observed that the assessee straightway preferred writ petition under Article 226 of the Constitution of India when it was not in dispute that the statutes provided for the right of appeal against the assessment order passed by the Assessing Officer and against the order passed by the first appellate authority, an appeal/revision would lie before the Tribunal - The Hon’ble Supreme Court held that the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India challenging the assessment order in view of the availability of statutory remedy under the Act and there was no exceptional reason. The appeal filed by the State Government was thus allowed on the ground that the High Court should not have entertained a writ petition inspite of alternate remedy.
Considering the dicta laid down by the Hon’ble Supreme Court and the fact that the Petitioner has alternate remedy of Appeal, we dispose of the Writ Petition - petition disposed off.
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2022 (12) TMI 265 - DELHI HIGH COURT
Input Tax Credit - Works Contract - claim for the credit only for the tax period to which such purchases pertain based on the date indicated on the tax invoices - HELD THAT:- The fact that by mutual inter se arrangement the appellant was required to reimburse the tax component to the selling dealer at a point in time much which was later than when the tax invoices were raised, would not enable the appellant to take credit of the input tax paid on such purchases.
The Tribunal has reached the right conclusion, although there is only reference to Section 9(3) of the 2004 Act. Rule 4(c) of the 2005 Rules, provides clarity as to how the expression arising in the tax period is required to be understood, for claiming credit of the input tax.
The question of law, as framed, is decided in favour of the respondents/revenue and against the appellant/assessee - Appeal disposed off.
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2022 (12) TMI 264 - CHHATTISGARH HIGH COURT
Maintainability of assessment / re-assessment order - existence of alternative remedy of appeal under Section 48 of the VAT Act - HELD THAT:- The question is what is the meaning to be ascribed to the date of order of assessment and assessment or re-assessment of a dealer has been made as appearing in Section 22 of the VAT Act. We are in accord with the view taken by the learned Single Judge. The provisions make it abundantly clear that an assessment or re-assessment of a dealer had to be made by way of an order before exercise of powers under Section 22 of the VAT Act can be made, that too, within the period of five calendar years from the date of order of assessment. It is only in the event of passing an order, period of five calendar years, which is the limitation period, can be reckoned from the date of order of assessment.
Invocation of Section 22 is permissible only when assessment of a dealer (a) has been under assessed or has escaped assessment or (b) has been assessed at a lower rate or (c) any wrong deduction has been made while making the assessment or (d) a rebate of input tax has incorrectly been allowed while making the assessment or (e) is rendered erroneous and prejudicial to the interest of revenue consequent to or in the light of any judgment or order of any Court or Tribunal, which has become final. The aforesaid conditions precedent cannot be countenanced in absence of an order of assessment in writing and in that view of the matter, in respect of deemed assessment, recourse cannot be taken under Section 22 of the VAT Act.
Rule 20 under Chapter VI of VAT Rules, 2006 relates to Returns. Rule 20(2)(d), on which reliance is placed by Mr. Sharma was inserted by notification dated 02.06.2011. Subsequently, by notification dated 21.10.2011, the words in two copies after the words form 17-A in Rule 20(2)(d) were inserted. Rule 20(2)(d) provides that after submission of electronic return, form 17-A in two copies be submitted along with copy of the challan of the tax deposited within thirty days in the relevant circle and acknowledgment has to be obtained. Rule 20(2)(e) provides that if the acknowledgment prescribed under clause (d) is not obtained, then it will be deemed that no return has been filed. Argument of Mr. Sharma that the date of acknowledgment of submission of electronic return is the date of the order of deemed assessment, and therefore, it is incorrect to say that there is no date of order of assessment, is misconceived.
Appeal dismissed.
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2022 (12) TMI 234 - PUNJAB AND HARYANA HIGH COURT
Cheating the government and evading tax - bringing furnace oil made from tyres from Haryana and using secret/abandoned passages for the purposes of entry into Punjab in order to evade tax - HELD THAT:- A perusal of the judgments in Pritpal Singh Versus State of Punjab & another [2012 (3) TMI 576 - PUNJAB AND HARYANA HIGH COURT] and Rakesh Kumar Versus State of Punjab & another [2013 (4) TMI 993 - PUNJAB AND HARYANA HIGH COURT] would show that there is no provision for registration of an FIR in such like matters of alleged evasion of tax. The provisions of the Act only provide for mandatory penalty. It is well-settled proposition of law that if a special provision has been made qua a particular subject (in the present case Value Added Tax), the said subject is excluded from the general provisions (in the present case Indian Penal Code). Since the provisions of the VAT Act do not provide for the registration of the FIR and the said Act is a Code in itself, the provisions of the IPC also cannot be invoked. Therefore, quite apparently an FIR could not have been registered against a person who was said to have evaded tax.
The FIR No.123 dated 05.12.2013 registered under Sections 420/120-B IPC and Section 4 of Punjab Tax on Entry of Goods into Local Areas Act, 2000 at Police Station City-II Mansa, the report under Section 173(2) Cr.P.C. and all subsequent proceedings arising therefrom are hereby quashed - Petition allowed.
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2022 (12) TMI 129 - SUPREME COURT
Concessional rate of tax - oxygen gas used as raw material - would be taxed at the rate of 2% of the sales tax, which otherwise is chargeable @ 3% on the sale thereof - Whether the oxygen gas supplied by respondent No.1 to respondent No.2 is used as raw material in the manufacturing process of steel, so as to entitle respondent No.1 to pay concessional rate of tax on the same under Section 13(1)(b) of the Bihar Finance Act, 1981?
HELD THAT:- As per the settled position of law, the High Court in exercise of powers under Article 226 of the Constitution of India is not sitting as an appellate court against the findings recorded on appreciation of facts and the evidence on record. The High Court ought to have appreciated that there was a detailed inspection report by a six members committee who after detailed enquiry and inspection and considering the process of manufacture of steel specifically came to the conclusion that the work of oxygen is only of a ‘refining agent’ and its main function is to reduce the carbon content as per the requirement. The said findings accepted by the assessing officer and confirmed up to the Joint Commissioner – Revisional Authority were not required to be interfered with by the High Court in exercise of powers under Article 226 of the Constitution. The High Court lacks the expertise on deciding the disputed questions and more particularly the technical aspect which could have been left to the Committee consisting of experts.
In the case of DEPUTY COMMISSIONER OF SALES TAX (LAW) BOARD OF REVENUE (TAXES) ERNAKULAM VERSUS THOMAS STEPHEN & CO. LTD. [1988 (3) TMI 59 - SUPREME COURT], the cashew shells had been used as fuel in the kiln. It was found that cashew shells did not get transformed into the end product. The same was not used as raw material in the manufacture of the goods and it was found that these have been used only as an aid in the manufacture of the goods by the assessee.
Applying the law laid down by this Court in the case of DEPUTY COMMISSIONER OF SALES TAX (LAW) BOARD OF REVENUE (TAXES) ERNAKULAM VERSUS THOMAS STEPHEN & CO. LTD. [1988 (3) TMI 59 - SUPREME COURT] to the facts of the case on hand and the findings by the committee consisting of six expert members recorded in the detailed inspection report and when it has been found that the oxygen gas is used as a ‘refining agent’ and its main function is to reduce the carbon content as per the requirement, the oxygen gas cannot be said to be a “raw material” used in the manufacture of the end product – steel - the respondents are not entitled to the concessional rate of tax @ 2% treating the same as “raw material” in the manufacture of the end product and are liable to pay tax @ 3% on the sale thereof. The High Court has seriously erred in holding contrary and by interfering with the concurrent findings recorded by all the three authorities below. The impugned judgment and order passed by the High Court is unsustainable.
The impugned judgment and order passed by the High Court is hereby quashed and set aside and the assessment order passed by the assessing officer, confirmed up to the revisional authority – Joint Commissioner is hereby restored - Appeal allowed.
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2022 (12) TMI 128 - ALLAHABAD HIGH COURT
Whether the "Regular Departmental Enquiry", which admittedly was instituted against the claimant-respondent under Rule 7 of the Rules of 1999 was conducted as per the law enunciated? - misbehavior with the superior officer - punishment of "Stoppage of One Increment for One Year and Censure" - HELD THAT:- We took note of the enquiry report dated 19.06.2018 (at page 106 of paper book) and we find from the same that to prove the charges and documents in support thereof the statements of witnesses indicated in charge-sheet were not recorded by the Enquiry Officer after fixing date, time and place for the said purpose. In other words, the witnesses mentioned in the charge-sheet were not examined during the enquiry. Accordingly, no opportunity was given to the claimant-respondent to cross-examine the witnesses. Further, in the writ petition, it has not been pleaded that for recording oral evidence, the date, time and place was fixed under intimation to the charged official - the "Regular Enquiry" under Rule 7 of the Rules of 1999 was not conducted as per the settled view on this aspect and being so, the "Regular Enquiry" in our view is vitiated.
Whether the impugned orders dated 17.09.2018 and 11.01.2019 before the Tribunal were speaking or not? - HELD THAT:- It is in view of the fact that the impugned order(s), are based on enquiry report and we have already observed that enquiry report is vitiated and keeping in view the same as well as the maxim "Sublato Fundamento Cadit Opus" (a foundation being removed, the superstructure falls), we are of the view that the impugned orders, referred above, cannot be upheld.
Whether in not remanding the matter before the Disciplinary Authority to hold the enquiry afresh from the stage it was found vitiated, the Tribunal has committed an error? - HELD THAT:- If an Authority/Court sets aside the order of punishment on technical ground then the matter may be remanded to the Disciplinary Authority and employee should not be reinstated, however, whether or not the Disciplinary Authority should be given an opportunity to complete the enquiry afresh depends upon the gravity of delinquency involved. Thus, for coming to the conclusion the Authority/Court concerned must take into consideration all the relevant aspects and facts of the case including the charges and magnitude of misconduct alleged and examine the same.
The Regular Departmental Enquiry under Rule 7 of the Rules of 1999 against the claimant-respondent was initiated vide order dated 05.12.2017 regarding an incident alleged to have taken place on 10.10.2017.
The writ petition is dismissed.
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2022 (12) TMI 127 - ALLAHABAD HIGH COURT
Principles of natural justice - contention of the petitioner is that very foundation for charging entertainment tax on the 'costume' as alleged against the petitioner is wholly illegal, inasmuch as, in terms of the mandate of Section 2(l)(iii) of the 1979 Act - whether the orders impugned which are without any opportunity of hearing, satisfies the tax under Section 12 of the 1979 Act? - HELD THAT:- The payment for admission, includes any payment made for loan or use of any 'instrument' or 'contrivance' which enables a person to get a normal or a better view or hearing or enjoyment of the entertainment which without the aid of such instrument or contrivance such person would not get. Thus to include any amount under Section 2(l)(iii), it is essential that there should be a use of 'instrument' or 'contrivance' which enables the person to use the benefits and without which such entertainment or enjoyment is not possible - there is no material to state that such costume enhances the enjoyment of the persons to enjoy the entertainment of water park and further there is no material on the record to state that without such costume being provided, the person entering into the water park would not in a position to enjoy the entertainment.
In the present case, the costume used in the water park would neither fall within the definition of words 'instrument' or 'contrivance', thus I am inclined to accept the submission of the Counsel for the petitioner that the renting on 'costumes' cannot be included in the term 'payment for admission' as defined under Section 2(l), thus on that score alone, the assessment order is beyond the authority of law and is violative of Article 265 of the Constitution of India.
It is well settled that the tax can be levied only when specially provided for and not by intendment. If the legislation was of the view that the renting of the costume should be included for the purpose of determination of the taxes, it could have specifically provided for under the Act which has not been done, thus, I have no hesitation in holding that demand of levy of tax as well as the penalty is without authority of law.
Petition allowed.
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2022 (12) TMI 53 - MADHYA PARDESH HIGH COURT
Principles of natural justice - order passed without confronting the appellant with the adverse material collected behind its back and without affording opportunity to rebut the same - rejection of C form declaration in question merely on account of their non verification at a non-statutory website like TINXYXS in absence of any suitable statutory provision to that effect under the Act - collusion between the appellant and the purchasing dealer issuing the declaration in question - levy of penalty under section 21(2) of the M.P VAT Act, 2002 - collusion between the appellant and the purchasing dealers issuing the declaration in question - HELD THAT:- The appellant cannot escape from its liability to pay tax merely by submitting that he received the certificate and produced before the department and he has no concerned about its genuineness. Since 2015, the appellant has not taken any action against the dealer, who gave the certificate to the appellant. Similar issue came up for consideration before this Court in case M/S. ADANI EXPORTS LIMITED, INDORE VERSUS COMMISSIONER OF COMMERCIAL TAX, INDORE & ANOTHER [2018 (9) TMI 1112 - MADRAS HIGH COURT] and after considering the aforesaid judgment cited by Shri Choudhary, Division Bench of this Court has held that Form- C submitted by the purchaser have been found forged, which clearly shows that the purchasers are not registered dealer, therefore, the assessee is liable to pay tax and penalty as imposed by the Competent Authority and affirmed by the Appellate Board. It has also been held that The breach of civil obligation will immediately attract penalty irrespective of whether the contravention is with a guilty intention.
The High Court of Chhatisgarh in case of M/S AVINASH TRADERS VERSUS STATE OF CHHATTISGARH THROUGH ITS SECRETARY, COMMISSIONER, COMMERCIAL TAX DEPARTMENT, ADDITIONAL COMMISSIONER, COMMERCIAL TAX AND DIVISIONAL DEPUTY COMMISSIONER, COMMERCIAL TAX [2018 (12) TMI 1010 - CHATTISGARH HIGH COURT] has also taken the similar view that if a fake or a fraudulent Form-C is produced by an Assessee and if it is found to be so, it will be as good as non production of Form-C and no advantage thereof can be taken therefrom by trying to shift the onus on anybody else.
Appeal dismissed.
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