|
Advanced Search Options
VAT and Sales Tax - Case Laws
Showing 61 to 80 of 605 Records
-
2022 (12) TMI 46 - JHARKHAND HIGH COURT
Deduction VAT / TDS from the bills by the Recipient of work contract service - Sub-contractor of Main contractor - Non issue to TDS certificate since the amount was adjusted as per the terms of contract - Direction upon the respondent company to issue Certificate of Tax Recovery at Source in Form-JVAT 400 in favour of the petitioner - HELD THAT:- The entire portion of contract was sub-contracted by HSCL in favour of the petitioner and in turn it raised bill to Bokaro Steel Plant. The Supplies and activities covered by both bills were the same and there was only one accretion resulting in one deemed sale. The said deemed sale, Bokaro Steel Plant while paying HSCL’s bills deducted TDS on account of VAT payable at the applicable rate and TDS deducted was deposited with the State Government authorities by Bokaro Steel Plant. The Relevant clause 8 of the Special Conditions of Contract wherein it is mentioned that the applicable VAT etc. payable by HSCL shall be reimbursed by the agency’s bill. This was merely a mode and manner of fixing price between HSCL and the sub-contractor-petitioner. The TDS was deducted by Bokaro Steel Plant and paid by Bokaro Steel Plant.
Thus, it is crystal clear that the entire portion of contract was sub-contracted by the Respondent Company to the petitioner on back-to-back basis and the sub-contractor raised bills to HSCL and HSCL in turn raised bills to Bokaro Steel Plant and Bokaro Steel Plant while paying HSCL’s bills deducted TDS on account of VAT payable at the applicable rate and TDS deducted was deposited with the State Government authorities by Bokaro Steel Plant. Nothing has been produced by the petitioner which would reveal deduction on account of VAT for the works contract of M/s Hindustan Steel Works Construction Limited, for which the respondent-M/s Hindustan Steel Works Construction Limited is under a duty to issue certificate in Form-JVAT 400.
Application dismissed.
-
2022 (12) TMI 45 - MADHYA PARDESH HIGH COURT
Input tax credit - cancellation of license of three dealers - Registration / license of supplier dealers have been cancelled - HELD THAT:- There was a dispute about the cancellation of the license of only 3 dealers, but all the transactions made by the petitioner with 17 dealers have been cancelled. No inquiry has been conducted as to whether those dealers had paid tax or not for which the petitioner claimed the input tax rebate.
It is also important to note that so far as the purchase made from M/s. Abhishek Sales Industries is concerned, his license was cancelled on 27.8.2008 whereas the petitioner purchased the item on 18.5.2008 and 17.5.2008 i.e. much before purchases. So far as purchases from M/s. Bhawani Trading Co. is concerned, his licence was cancelled on 29.2.2008 and the petitioner purchased the coriander on 30.6.2008. No inquiry has been conducted as to whether the petitioner had any knowledge about the cancellation of their license at the time of purchase. All the sales were made within the Mandi premises. The license of M/s. Abhishek Sales Industries and M/s. Santosh & Brothers were cancelled after the purchase was made by the petitioner. Due to the cancellation of the license of these 3 dealers, the respondents disbelieved all the 17 transactions and disallowed the benefit of input tax rebate to the petitioner. Therefore, the manner in which the impugned order dated 23.6.2011 has been passed, no stamp of approval can be given in these wit petitions.
The orders dated 23.6.2011 and 29.11.2012 are liable to be quashed and the matter is liable to be remanded back to the Assessing Authority to pass a fresh order after conducting a detailed inquiry - Petition allowed by way of remand.
-
2022 (12) TMI 3 - ORISSA HIGH COURT
Price escalation clause - Remand of the case for re-examining the issue concerning labour and service charges and amount allegedly received as hire charges by the Assessee for the year 1996-97 - deductions towards labour and service charges can be limited to 34% in the 1st year of the project work which is to be completed within a period of five years or not - whether petitioner in execution of works contract has received any amount towards hire charges?
HELD THAT:- As rightly pointed out by learned counsel appearing for the Petitioner, the above percentages were indicative of the escalation that was permissible on these items in terms of the agreement and did not reflect on the actual expenditure incurred on the ground of labour and services. On the other hand, the books of account produced by the Petitioner-Assessee were accepted as such both by the STO as well as the ACST. They examined the books of account thoroughly and found that the amounts were properly accounted for. In fact, the STO also noted that the Assessee had produced “Labour payment register, vouchers, Cash book, muster rolls and copies of the trial balance (audited) for the year 1996-97.” With both the STO and the ACST having accepted the books of account produced by the Assessee without any reservation, there was no occasion for the Tribunal to have limited the labour and service charges to 34%.
Hire charges purportedly received by the Assessee - HELD THAT:- The fact remains that no material whatsoever was produced by the Department to substantiate even prima facie that the Assessee had received that amount. In fact, the Tribunal notes that the Assessee disputed having ever received such an amount. There was accordingly no occasion again for the Tribunal to have remanded this issue to the STO for determination - decided in favour of the Petitioner-Assessee and against the Department.
Revision petition allowed.
-
2022 (12) TMI 2 - MADRAS HIGH COURT
Validity of assessment order - turnover from sale of wind mill - period 2014-15 - opportunity of hearing was granted but was unavailed by the petitioner - principles of natural justice - HELD THAT:- The opportunity granted under notice dated 30.07.2019, which is admittedly, the only notice issued to the petitioner prior to finalizing of assessment, does not conform to proper procedure - The respondent calls upon the petitioner to file a written objection to the proposal, which has been done by the petitioner. The notice also states that, if any personal hearing is required , the petitioner may avail the same at 11.00 a.m at any date before the filing of objection.
A personal hearing must be afforded specifying the date and time of hearing. That apart, such hearing must be pursuant to the receipt of objections in order that both parties may be fully aware of their respective stands. It is only in such circumstances that a personal hearing can be said to be effective.
The impugned order to the extent, to which it has not been assailed in appeal, is set aside, subject to the condition that the petitioner appear before the authority on 24.11.2022. If the petitioner does not avail this opportunity, it is made clear that the benefit of this order will be unavailable to it and the impugned order will stand revived.
Petition disposed off.
-
2022 (11) TMI 1435 - CALCUTTA HIGH COURT
Alleged changes in management in the petitioner Company from 1.4.2017 to 31.3.2022 without notice to the Collector of Excise - whether appointments, resignation, expiry of term and death of directors would amount to “change in management” under the West Bengal Excise (Change in Management) Rules, 2009? - HELD THAT:- In the facts of the present case, changes in the Board of Directors as a result of appointment, death or retirement cannot imply rendering of any service by the Excise authorities since the changes happened in the usual course of business. Thus, the justification of demanding an amount of Rs. 1.45 crores for such routine events in the usual course of business is contrary to the law laid down by the courts.
Even if the petitioners are brought within the purview of the amended Rule 3 under the later Notification of 11th February, 2020, the petitioners would be protected by Rule 3(i)(d) where ‘Change in Management’ in the case of a public limited company has been defined as any change in directorship other than appointment/cessation of independent directors within the meaning of The Companies Act, 2013 or any change of shareholding amongst shareholders beyond 10% of the existing shareholding pattern - There is admittedly no change in the shareholding pattern of the first petitioner in the period stated in the impugned letter of 24.6.2022.
The petitioners agreeing to pay the composition fee in lieu of having their license suspended cannot be seen as waiver of the petitioners’ rights under the prevailing laws.
There is no justification for the Excise Authorities in demanding the amount of Rs. 1.45 crores from the petitioners on the ground of changes in management - It is clear that the demand of fees for appointment, resignation, retirement and death of the directors of the petitioner no. 1 has no nexus with the perceived changes in the management and control of the petitioner no. 1. The respondents are seeking to interpret the 2009 Rules in a manner which is contrary to the settled law on the subject. The respondents cannot unjustly enrich themselves in a manner extraneous to the Rules and the law pronounced by the Courts.
Petition allowed.
-
2022 (11) TMI 1360 - RAJASTHAN HIGH COURT
Classification of goods - Deep Freezers - to be classified under Entry 9 in Schedule VI, and be taxed at the rate of 15%, or under the residuary entry and taxed at 14%, as was done by the assessee? - primary contention of the learned counsel for the revenue-petitioner is that as per common parlance test, as per Google search and as per his opinion, Deep Freezer will be included in the broad category of ‘Air Conditioners and Refrigerators’ and be taxed at the applicable rate of 15%.
HELD THAT:- The entry wherein the Revenue wants to charge the goods in question is ‘Air Conditioner and Refrigerator’, wherein applicable rate of tax is 15%. The respondent-assesse has self classified the said goods in Schedule V of RVAT Act, under the residuary head, wherein the applicable rate of tax is 14%. The Appellate Authority and the Tax Board after considering two important aspects; firstly that Deep Freezers and Refrigerators are two different products – having different construction style, different cooling temperature range, different power supply, different inner liner, different outer cabinet material and having different utilities – held that the two goods are different in nature and utility. Secondly, they relied upon the Notifications dated 24.03.2005, 08.03.2006 and 09.03.2011, wherein Deep Freezer was spelled out separately than Air Conditioner and Refrigerator, as was also submitted by the learned counsel for the respondent-assesse. The Appellate Authority and the Tax Board, after considering the said factors, held that the goods in question would not be included in the entry of ‘Air Conditioner and Refrigerator’.
On account of the reason that Deep Freezer are distinct product not covered under ‘Air Conditioner and Refrigerator’ and that the notification dated 09.03.2011 specifically excluded Deep Freezer, this Court is not inclined to interfere with the order impugned - In the case in hand, the Revenue has not discharged their onus properly to show that Deep Freezer would be covered in the specific entry, rather they have merely relied upon opinion of the assessing officer, and have therefore not discharged the onus.
The argument qua HSN was never raised before Appellate Authority or the Tax Board, nor was it the foundation of the show cause notice or the order in original. Even if the HSN system adopted, Deep Freezers cannot be considered in the specific entry of ‘Air Conditioner and Refrigerator’ on account of the specific exclusion of Deep Freezer in the notification dated 09.03.2011.
All these sales tax revisions are dismissed. Questions of law are answered in favour of the respondent-assessee.
-
2022 (11) TMI 1274 - CALCUTTA HIGH COURT
Refund of the excess Central Sales Tax collected by IOCL and remitted to the State of West Bengal - production of Form “C” declarations - disallowance of claim for concessional rate of tax - whether the writ petitioner has locus standi to claim refund of the excess tax collected directly from the state of West Bengal and whether can be stated to be a person aggrieved over that portion of the assessment order of IOCL (2017-18), rejecting the Form C declarations filed by the writ petitioner on the grounds that IOCL have not filed revised return, not amended the invoices and not issued credit notes? - applicability of doctrine of unjust enrichment - if refund is ordered should it carry interest? - whether the State of West Bengal can claim for adjustment of the excess tax collected are to be dealt with?
HELD THAT:- The reasons for refusing to grant concessional rate of tax is on the ground that the IOCL has not revised their returns, they have not amended the invoices and not issued credit notes to the writ petitioner. Therefore, it is to be seen that whether there is a necessity for IOCL to file a revised return so as to enable the assessing officer to take note of the Form “C” declaration and levy concessional rate of tax. A combined and conjoint reading of Section 8(4) of the CST Act and the proviso to Rule 12(7) of the CST rules shows that the necessity to file revised return does not arise.
In Radio and Electricals Limited [1966 (4) TMI 59 - SUPREME COURT], the Hon’ble Supreme Court held that though the tax under the Act is levied primarily from the seller; the burden is ultimately passed on to the consumer of goods because it enters into price paid by them. The Parliament with a view to reduce the burden on the consumer arising out of the multiple taxation as provided in respect of sales of declared goods which have special importance in interstate trade or commerce and other classes of goods which was purchased at an intermediate stage in the stream of trade or commerce prescribed low rates of tax when transactions take place in the course of interstate trade or commerce. It was further held that the seller can have in these transactions no control over the purchaser and he has to rely upon the representation made to him, and he must satisfy himself that the purchaser is a registered dealer and the goods purchased are specified in the certificate and his duty extends no further.
When Form “C” declarations are filed beyond the time prescribed the prescribed authority is empowered to accept such forms on being satisfied that the dealer was prevented by “sufficient cause” for not filing the forms within the time prescribed - In the instant case, the appellants/state have not raised any such contention that the dealer has not shown “sufficient cause” for having not been able to produce the form “C” declaration along with their returns or within the time prescribed. Thus, it goes without saying that the appellants are aware of the legal position as time limit prescribed for filing the form “C’ declaration was directory as the statute empowered the prescribed authority to accept the declarations even after the expiry of the time prescribed. The underlying principle behind this interpretation is Article 265 of the Constitution of India.
Whether the decisions which was referred to by the learned Advocate General more particularly the decision in George Oakes [1961 (4) TMI 78 - SUPREME COURT] and Central Wines could be applied to the facts and circumstances of the case on hand? - HELD THAT:- George Oakes (Private) Limited where dealers in motor cars, spare parts and accessories, for the years 1951-1952 and 1952-1953, they submitted their return and claimed exemption from tax with regard to the certain amount realized on transactions of sales which the appellant therein contended as interstate sales and hence exempt from tax under Article 286 of the Constitution as it stood at the relevant time. The assessing officer not only rejected the claim for exemption but added to the turn over certain amounts which the appellant had collected by way of tax - In Paragraph 12 of the decision, the Hon’ble Supreme Court while rejecting the argument with regard to the validity of the statute observed that either the Principle Act or the impugned Act (Madras Act 17 of 1954) proceeds on any immutable distinction between sale price and tax as contended by the appellant. It was further pointed out that the Principle Act does not contain any separate definition of sale price and after referring to the definition of sale and turn over, it was held that there is nothing in those provisions which would indicate that when the dealer collects any amount by way of tax that cannot be part of the sale price and so far as the purchasing dealer is concerned, he pays for the goods what is sellers demand namely price even though it may include tax and therefore there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turn over. Further the Hon’ble Supreme Court pointed out that when the seller passes on the tax and the buyer agrees to pay sales tax in addition to the price, the tax is really part of the entire consideration and the distinction between the two amounts tax and price loses all significance. Firstly, the decision cannot be applied to the facts of the case on hand as in the said decision, the Hon’ble Supreme Court was considering the constitutional validity of statute which did not contain a definition for “sale price”. Secondly, in paragraph 14, the observation made by the Hon’ble Supreme Court that distinction between the two amounts, tax and price loses significance is from the point of view of legislative competence. Therefore, the decision in George Oakes cannot be made applicable to the case on hand.
The writ petitioner is entitled to the concession rate of tax as they have fulfilled the conditions in Section 8 of the Central Sales Tax Act, 1956 and the Form “C” declarations having been verified and found to be in order by the concerned authority of the State of West Bengal - Refund cannot be denied to the writ petitioners by the State of West Bengal disregarding the fact that excess tax was paid under compelling circumstances namely non-issuance of form “C” declarations - the writ petitioner can claim refund directly from the appellants/State of West Bengal having borne the burden of tax which have been collected from the writ petitioner and deposited by IOCL with the Exchequer of the State of West Bengal - The State of West Bengal/ appellants are unjustified in refusing to refund the excess tax as it had been allowing concessional rate to the writ petitioners before and after the disputed period.
The circular issued by the Union of India dated 01.11.2018 is binding on the appellants/State of West Bengal as they being the agent of the Central Government for levy and collection of Central Sales Tax and non-refunding of the excess tax collected is contrary to the instruction dated 01.11.2018.
The order and directions issued by the learned Single Bench stands affirmed and the appellants/State of West Bengal is directed to effect the refund of the excess tax collected directly to the writ petitioner within 45 days from the date of receipt of the server copy of this order together with interest at the statutory rate as stipulated under the WBST Act, from 01.07.2020 that is the day after the date on which the assessment order in the case of IOCL was passed that is 30.06.2020 till the date on which refund is effected. If there is any discrepancy in the date, it is clarified that interest shall be payable from the next day after the date of the assessment order till the date of payment.
-
2022 (11) TMI 1273 - TELANGANA HIGH COURT
Recovery of arrears of tax from the ex-directors - Attachment of property belonging to the petitioner - legality of the notice - violation of principles of natural justice - HELD THAT:- A reading of Section 16B of Revenue Recovery Act, 1864 indicates that the liability of the Directors of a private company would arise only when the a private company is wound-up and any tax assessed on the company under the Act for any period before or in the course of or after its liquidation cannot be recovered. Thus, every person who was a Director of the private company at any time during the period for which the tax is due shall be jointly and severally liable for payment of said tax.
Further the provisions of Section 16B of the Act does not provide for recovery from the Director automatically in the event of failure to recover from the private limited company. On the other hand the provision specifies that if the Director proves that the non-recovery cannot be attributed to any gross neglect, misfeasance or breach of duty on his part in relation to the affairs of the company, no recovery can be made from the said Director.
Since the 2nd respondent-Company is not wound-up, no recourse can be made to recover the dues from the Director, who either continues to be on Board or ceases to be Director of the Company, inasmuch as the respondents-authorities can take steps to recover such arrears from the 2nd respondent-Company - Since the petitioner in the present case is an Ex-Director of the 2nd respondent-Company, which admittedly is not wound-up, the impugned notice of attachment for recovery of arrears of tax cannot be sustained.
The impugned notice of attachment for recovery of arrears of tax is set aside - Petition allowed.
-
2022 (11) TMI 1272 - KERALA HIGH COURT
Re-assessment - Time limitation for notices issued - period of limitation enhanced from 5 years to 6 years - Prospective or retrospective amendment - whether the notices issued are within the period of limitation stipulated by the amended provision and also before a right accrued in favour of the dealer? - HELD THAT:- When the provision is amended enhancing the period of limitation from 5 years to 6 years, the issuance of notice is well within the jurisdiction, and no exception could be taken. The argument of the respondents is accepted by this Court then, the amendment made through Finance Act 11/2017 is made more prospective than what is intended by the Legislature and the judgments of this Court. The subtle attempt made to sustain the judgments under appeal does not find favour with us for the above reasons. Hence, the judgments under appeal are set aside. The dealers/respondents herein are given liberty to file appeal before the Appellate Authority by enclosing a copy of the judgment within four weeks from today. The delay occasioned during the pendency of the appeal and the writ petition is excused.
Appeals are allowed.
-
2022 (11) TMI 1271 - TELANGANA HIGH COURT
Recovery of arrears of tax due from a private limited companyfrom the Directors of the company - Section 27 of the Andhra Pradesh Revenue Recovery Act, 1864 - HELD THAT:- This Court had categorically held that tax due from a private limited company under the APGST Act can be recovered from the Directors of the company, only in terms of Section 16-B of the Act, i.e. when the company is in liquidation and not other wise. The stand of the respondent that since the 3rd respondent has been amalgamated with the 4th respondent, the same is to be deemed to be under winding up, does not appeal this Court for acceptance for the reasons that the amalgamation is undertaken, under Section 397 of the Companies Act, 1956, whereunder there would be transfer of assets and liabilities of the company being taken over by the other company with which it is being amalgamated and thus, it cannot be considered as deemed to be wound up. The procedure for winding up of a company is prescribed under Part II of Chapter XX of the Companies Act, and operates in a different field and cannot be considered same as in the case of amalgamation.
In the light of the settled position of law as enunciated by this Court in MADDI SWARNA VERSUS COMMERCIAL TAX OFFICER, CHILAKALURIPET AND ANOTHER [2001 (6) TMI 795 - ANDHRA PRADESH HIGH COURT], this Court is of the view that the action of the 1st respondent in issuing the impugned notice of attachment in Form 5 dt.22.08.2007 under section 27 of the Act of 1864, cannot be countenanced.
Petition allowed.
-
2022 (11) TMI 1270 - KERALA HIGH COURT
Eligibility for compounded rate of tax - works contractor or not - Assessment Year 2012-13 - HELD THAT:- The findings recorded in paragraph nos.10 and 15 are not consistent, and also contradictory. The labour charges whether are part of labour charges employed for bus body building or received independently by the dealer has, for the purposes stated above, not been spelt out. Since these details are necessary for appreciating the findings recorded in this behalf, we are pursuaded to accept the alternative submission made by Mr Abdul Azees that the matter be remitted to the Tribunal for consideration and disposal afresh, only to the extent whether labour charges are entitled to be excluded from the turnover of dealer or not. The findings of the Tribunal to the extent recorded in paragraph 15 are set aside.
Matter remitted to Tribunal for consideration and disposal afresh - revision allowed.
-
2022 (11) TMI 1224 - MADRAS HIGH COURT
Works Contract services - work order for supply of Drip Irrigation materials and installation of the system for the buyers - entitlement to deduction under Section 3-B(2)(b) of TNGST Act - discharge of burden to prove - HELD THAT:- During the material period in dispute, when there was no specific Entry in the Schedule, the goods have to be classified in terms of residuary item namely under Entry 63 of Part D of First Schedule and under Entry 67 of Part D of First Schedule for the period from which existed upto 16.07.96 and from 17.7.96 onwards respectively and the petitioner would have been liable to tax.
When Drip Irrigation System is installed, the pipes i.e, HDPE and PVC pipes used do not lose their characteristic. They are merely cut and fixed for pumping water through the irrigation system. They do not lose their characteristic. Therefore, the petitioner was indeed entitled for deduction in terms of sub-section 2(b) of Section 3-B of the Act - the petitioner has discharged the burden of proof that is required.
Sprinklers and Drip Irrigation Equipment was specifically introduced in Entry 69-A of Part B of First Schedule with effect from 05.03.1997 for the first time. The finding of fact rendered by the Tribunal, need not be interfered while exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. We however, differ with conclusion arrived by the Tribunal. Pipe remains a pipe when it is integrated for use along with pumps and nozzle in a Drip Irrigation System. Therefore, the petitioner was entitled to the benefit of deduction under Section 3-B (2)(b) of the Tamil Nadu General Sales Tax Act, 1959 on the pipes used in the execution of work contract.
Petition allowed.
-
2022 (11) TMI 1223 - MADRAS HIGH COURT
Validity of assessment order - gross non-application of mind - stock variation - reasons to reject the submission/explanation offered and documents submitted by the Petitioner, not given - violation of principles of natural justice - HELD THAT:- This Court finds that the order of the 2nd Respondent is liable to be set aside inasmuch as the entire assessment order was made on gross non-application of minds to the Petitioner’s objection and despite the Petitioner making a specific reference to the judgment of the Hon'ble Supreme Court in the case of GIRDHARI LAL NANNELAL VERSUS SALES TAX COMMISSIONER, MP [1976 (3) TMI 51 - SUPREME COURT], the 2nd Respondent has passed the assessment order, without even a reference to it. Insofar, as stock variation, the Petitioner's objections, revised returns and documents are rejected by merely stating that it is an after thought and fabricated without furnishing/supplying any reason in support thereof.
The impugned order is set aside and the Respondents are directed to re-do the assessment keeping in mind the principles laid down in the case of Girdhari Lal Nannelal and also affording an opportunity to the Petitioner and after taking into account the Petitioner's submission and dealing with the same - Petition disposed off.
-
2022 (11) TMI 1142 - ALLAHABAD HIGH COURT
Classification of goods - rate of tax - Thermoplastic Road Marking Material - petitioner could not know the proceedings and was not informed about the date of hearing - opportunity of hearing was not provided - violation of principles of natural justice - HELD THAT:- This Court is of considered view that though the registry of Commercial Tax Tribunal had issued notice but the same was not served on the revisionists and they remained unrepresented before the Tribunal. It is further noticed that their non-appearance was not intentional or deliberate and, hence, it will be in fitness of things that the revisionist is permitted to place his arguments / contentions before the Tribunal and the Tribunal may also take into consideration such arguments before coming to conclusion with regard to issues engaging the Tribunal in the present case.
The matter is remitted back to Commercial Tax Tribunal for a fresh determination and such determination be done expeditiously - Revision allowed.
-
2022 (11) TMI 1141 - UTTARAKHAND HIGH COURT
Claim of reduced the levy of Central Sales Tax @ 1% for the financial year 2010-11 onwards) after the Capital Investment of Plant and Machinery, having exceeded R. 25 Crores in it’s Unit-1, as on 18.03.2010 - Applicability of Notification No. 6222 on 25.07.2001 - HELD THAT:- As per the scheme envisaged by the Government Order, the total capital investment in Plant and Machinery by assessee has to be determined by a Committee constituted by the State Government in that behalf. Admittedly, in this case there is no decision of the Committee and the Assessing Officer has himself assessed the capital investment. The learned counsel appearing of the revisionist has taken us to the order passed by the Assessing Officer and the Tribunals. A careful reading of all the orders reveal that the total capital investment has never been assessed by any Committee as envisaged under Condition No.1 of the Notification referred to above. Thus, it is clear that the law governing the field provided for the assessment of the capital investment by a Committee whereas the same has never been done in this case.
It is trite that if the law provides that a particular procedure has to be followed while deciding an issue or a lis before the authorities then the procedure should be followed according to the law established and not otherwise - it is clear that in this case while imposing the Tax at the rate of 2% the Assessing Officer has not considered the assessment determined by any Committee, further he has relied on his own assessment. In that view of the matter, the order passed by the Assessing Authority, confirmed by the Appellate Authority and the Commercial Tax Appellate Tribunal is not sustainable. In that view of the matter, the Central Tax Revision is allowed.
-
2022 (11) TMI 999 - SC ORDER
Classification of goods - emulsified bitumen - whether ‘emulsified bitumen’, which is stated to be a liquid form obtained from the process of heating the ‘bitumen’ at certain temperature, is different and distinct from ‘bitumen’? - taxable at the rate of 12.5 per cent as an unclassified item or not.
HELD THAT:- Learned counsel for the parties are ad idem that, an identical question stands answered in favour of the Appellant-Assessee by a Co-ordinate Bench of this Court in Commissioner of Commercial Tax, Uttar Pradesh Versus AR Thermostat Private Limited [2016 (9) TMI 410 - SUPREME COURT] where it was held that the use or end use test is also satisfied - bitumen and bitumen emulsion are one and the same commodity - taxable at 4%.
The Appellant-Assessee is held liable to a levy 4 per cent tax in terms of the Entry 16, Schedule 2, Part II of the Madhya Pradesh VAT Act for the purpose of levy of VAT for the relevant period.
Appeal disposed off.
-
2022 (11) TMI 998 - ORISSA HIGH COURT
Availability of alternative remedy - Review of own order in the guise of reassessment - change of opinion - exemption of penultimate sale in course of export under Section 5(3) of the CST Act - appreciation of Certificate of Export in Form H required to be furnished under Rule 12(10) of the Central Sales Tax (Registration and Turnover) Rules, 1957
HELD THAT:- It is ex facie manifest that the Sales Tax Officer has not formed any “opinion” as required in Rule 12(4). Rather the context is indicative of fact that the Assessing Authority sought to review the Order dated 29.07.2011 passed under Rule 12(3) in the garb of exercise of power under Rule 12(4) of the CST(O) Rules - Neither any reason is assigned prior to issue of said notice contemplating initiation of proceeding under Rule 12(4) of the CST(O) Rules nor the record of proceeding indicated independent application of mind.
As is manifest from bare reading of provision as it existed in Rule 12(4) of the CST(O) Rules, 1957, at the relevant point of time that the Assessing Authority is empowered to serve notice in Form IVA on the dealer to proceed with the reassessment, if “on the basis of any information in his possession” he is “of the opinion” that the whole or any part of the turnover of the dealer in respect of any period(s) has escaped assessment, or has been under-assessed, or has been assessed at a rate lower than the rate at which it is assessable or that the dealer has been allowed wrongly any deduction from his turnover or exemption under the Act or has been wrongly allowed set off of input tax credit in excess of the amount admissible under clause (c) of sub-rule (3) of Rule 7 - In the instant case, scrutiny of Order Sheet at Annexure-7 shows that vide Order dated 24.08.2013 the Assessing Authority merely directed for issue of notice in Form IVA without forming any “opinion” much less ascribing “reason”. This is indicative of non-application of mind and mechanical application of mind.
In absence of power of review conferred by or under the statute, in the garb of reassessment, the concluded assessment could not be reopened by the Assessing Authority. As the material available on record does not show independent application of mind of the Assessing Authority having regard to the material in his possession, if any, merely based on objection of Auditor General, Odisha issue of notice in Form IVA in exercise of power under Rule 12(4) of the CST(O) Rules for reopening Audit Assessment concluded under Rule 12(3) on examination of books of account, etc. is impermissible in law and such an action is without jurisdiction.
Availability of alternative remedy - HELD THAT:- Conspectus of enunciation of law on the subject as discussed in the preceding paragraphs applied to the fact-situation of the instant case vis-à-vis Order dated 24.08.2013 as maintained in the Order Sheet vide Annexure-7 drives this Court to safely conclude that the initiation of proceeding for reassessment was not in consonance with the statutory requirement - there is no quarrel over the proposition that availability of alternative remedy under the statute is not absolute bar for exercise of power under Article 226 of the Constitution of India, moreso when the facts are not disputed and in identical fact-situation this Court earlier accepted the writ petition.
The Hon’ble Supreme Court of India in the case of DR. SMT. KUNTESH GUPTA VERSUS MANAGEMENT OF HINDU KANYA MAHAVIDYALAYA, SITAPUR (UP) &ORS. [1987 (9) TMI 302 - SUPREME COURT] held that “review” by quasi judicial authority in absence of statutory prescription being without jurisdiction, exercise of power under Article 226 of the Constitution of India is permissible - This Court has already found that the Assessing Authority has reviewed order of assessment dated 29.11.2011 (Annexure-4) passed under Rule 12(3) of the CST(O) Rules and passed order of reassessment dated 28.01.2014 under Rule 12(4) ibid. reconsidering same transaction.
The Assessment Order dated 28.01.2014 passed under Rule 12(4) of the Central Sales Tax (Odisha) Rules, 1957, by the Sales Tax Officer, Barbil Circle, Barbil pertaining to tax periods from 01.07.2007 to 31.03.2010 is set aside - Petition allowed.
-
2022 (11) TMI 997 - MADHYA PRADESH HIGH COURT
Levy of Entry Tax - material consumed during trial production undertaken by petitioner between 05.08.2010 to 01.11.2010 - alleged date of commencement of commercial production - HELD THAT:- A bare reading of the expression “Business” reveals that tax is leviable inter alia on the event of manufacturer whether or not such event is carried on with motive to make gain or profit and whether or not any gain or profit accrues from such manufacturer - Words and expression employed in Sec.2(d) of VAT Act are clear that tax is leviable on the activity of manufacturer notwithstanding such activity entailing profit or not. Thus, it is obvious that in the present case, the authorities have factually found that manufacturer had started business on 05.08.2010. Whether appellant chooses to call this process as a trial manufacturer will not make any difference. Importantly, the authorities have also factually found that not only manufacturing but sale of cement had also started from 05.08.2010 which is luminous by reading of the order of Appellate Board especially para 5(4).
The so called trial production of cement and clinker from 05.08.2010 till 01.11.2010 when the appellant claims to have started commercial production has been claimed to be not coming within the definition of “Business” as defined in Sec.2(d) of VAT Act - this Court has no manner of doubt that factual findings rendered by the Appellate Board are in accordance with law and none of the proposed substantial questions of law are made out herein.
Petition dismissed.
-
2022 (11) TMI 996 - MADRAS HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Levy of Entry tax with penalty - motor vehicle as defined under Section 2(28) of the Motor Vehicles Act, 1988 or not - HELD THAT:- We do not think it will be proper for us now to relegate the appellant to the alternative remedy available under the Act. No doubt, the Writ Court had dismissed the writ petition directing the appellant/petitioner to avail the alternative remedy, but this writ appeal has been entertained by this Court and it has been pending for nearly 15 years. Hence, we do not think we will be justified in relegating the appellant/petitioner to the alternative remedy under the Act.
The Division Bench in SRI BALAKRISHNA TRANSPORT VERSUS COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI [2009 (2) TMI 787 - MADRAS HIGH COURT] had held that there is no provision in the Entry Tax Act, for assessing a person who fails to furnish a return under Section 7 of the Act. The appellant has admittedly not filed a return as required under Section 7 of the Act, on the ground that the mobile crane is not a motor vehicle as defined under Section 2(28) of the Motor Vehicles Act, 1988. The vehicle was imported in the year 2001 and the notice impugned was issued in the year 2005.
The order of the learned Single Judge dismissing the writ petition directing the appellant to take recourse to the alternative remedy available under the enactment, is set aside - Appeal allowed.
-
2022 (11) TMI 995 - MADRAS HIGH COURT
Adjustment of interest under Section 42 (3) of TNVAT Act, 2006 - It is submitted that the adjustment of the amount towards interest itself is unwarranted as the Department was having a sum of Rs.24,19,835/- of the petitioner - HELD THAT:- In this case, the petitioner had admittedly not filed a return for the month of June 2017 and later sent representations to the respondents to adjust the tax against the tax due. The order came to be passed on 27.06.2018 by the 3rd respondent as the Original Authority. Though a copy of the order has not been served on the petitioner, the fact remains that the petitioner has also not contested the same and is amenable for the tax liability arrived at therein. Since the petitioner's amount was already with the respondent Department, the imposition of interest under Section 42(3) of the Act at 2% per annum appears to be unreasonable and unwarranted.
This writ petition is allowed with a direction to the 3rd respondent to refund a sum of Rs.6,26,404/- together with interest at 2% from the date of 1st July 2017.
........
|
