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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 61 Records
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2023 (1) TMI 383
Disallowance of branch transfer - Penalty under Section 9(2) of the Central Sales Tax Act, 1956 - HELD THAT:- The facts on record indicate that despite, notice being issued prior to passing of order dated 21.04.1997, the first respondent assessee failed to reply to the same. Therefore, the Additional Appellate Assistant Commissioner vide order dated 27.01.1999, confirmed the revision order of the Assistant Commissioner dated 21.04.1997, vide order dated 27.01.1999, dismissed the appeal. Only in so far as levy of penalty, the matter was remanded back to the Assessing Officer to ascertain whether, penalty was to be levied under Section 12(3)(b) of the TNGST Act or under Section 16(2) of the TNGST Act.
The Tribunal has however reversed the order of the Appellate Tribunal vide impugned order. Reading of the order of the Tribunal indicates that it is a common order passed for three Assessment Years. There is no discussion in so far as alleged branch transfer in Bangalore. The employee of the first respondent assessee was not only a Branch Manager of the first respondent assessee but also partner of M/s.Karthik Engineering to whom the invoices were raised from the Branch in Bangalore - Mere location of the dealer in Karnataka at Door.No.36, J.C.Bose Road, Bangalore and appellants at 16-B, G.N.Lalbagh Road, Bangalore, ipso facto, would not justify a conclusion that there was a stock transfer first and thereafter a sale to the said dealer. Even then, a first sale would have taken place from a depot to the dealer in Karnataka, thereafter, a second sale from the dealer i.e., M/s.Karthik Engineering to its customer.
The order of the Appellate Tribunal allowing the appeal of first respondent assessee is un-sustainable - the case remanded back to the Assessing Officer to determine the penalty is correct and was wrongly interfered by the Appellate Tribunal.
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2023 (1) TMI 382
Levy of penalty under Section 58 (XIX) of VAT Act - existence of mens rea or not - suppression of value of goods - it is alleged that the declaration form produced by the assessee did not bear the seal and the original and duplicate copies of the declaration forms also bore different signatures of the seller - HELD THAT:- The submission of Mr. Maulekhi, learned counsel for the State, that the value of the goods being transported was declared to be only Rs. 05 lakhs, whereas the actual valuation of the goods was to the tune of Rs. 16.38 lakhs, is not borne out from the records. In fact, the order under Section 58(XIX), passed by the Deputy Commissioner itself records that the value of the consignment was declared at Rs. 16,38,324/-. The submission of Mr. Maulekhi founded upon the factual finding recorded by the Deputy Commissioner (Commercial Tax) in the order imposing penalty under Section 58(XIX) to the effect that declaration form produced by the revisionist-assessee did not bear the seal, and that the original and duplicate copies of the declaration form also bears different signatures of the seller, also does not appear to be correct. We may observe that the same finding was also returned by the First Appellate Authority.
There is absolutely nothing to show that there is any discrepancy in the original and the duplicate copy of the Form 16 declaration, placed on record. The said declaration forms bear the same signature of Sri Ram Krishna for Brij Lal and sons, the revisionist. Even the signatures of the seller appear to be the same to the naked eye. Both the copies also bear the seal of Brij Lal and sons, as also the official seal. Counsel for the respondent has also not been able to point out any difference in the two copies of the form.
There are merit in the submission of learned Senior Counsel for the revisionist that since the aspect of the trip sheet not disclosing goods covered by the three bills in question, namely, bill Nos. 863, 864 and 865 was not mentioned in the show cause notice, the same cannot be made basis for imposing penalty - Considering the fact that this was a first such instance, as also the fact that the revisionist had produced the declaration from in Form 16 without any delay along with its reply to the show cause notice, the revisionist had rebutted the statutory presumption raised by Section 65 of the Act.
Petition allowed.
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2023 (1) TMI 341
Input tax credit - eligibility of benefit of input tax credit claimed after six months from the date of invoice - Section 10(3) of the K-VAT Act - tax period April 2010 to March 2011 - HELD THAT:- The amended After 2015 amendment w.e.f 01.04.2015., provision of Section 10(3) of the KVAT Act clearly provides that the input tax availed by a dealer in a tax period shall be relatable to goods purchased during immediately preceding five tax periods of such tax period and shall be accounted for in accordance with the provisions of KVAT Act.
In the connected appeal, M/s Sonal Apparel Pvt Ltd. v. State of Karnataka & Ors [2016 (3) TMI 1286 - KARNATAKA HIGH COURT], the assessees have raised a common ground challenging the Section 10(3) of the KVAT Act, as ultra vires the Constitution of India as well as the object and Scheme of the KVAT Act - Hon’ble Single Judge held that Section 10(3) of the KVAT Act, prior to its amendment vide the Karnataka Value Added Tax (Amendment) Act, 2015, shall be read down to enable the petitioners to calculate the net tax liability by deducting the input tax paid on its purchases from its output tax liability, irrespective of the month in which the selling dealer raises invoices.
It is settled that the input tax credit is an indefeasible right.
The main issue is whether the assesses who have filed the returns belatedly are entitled for input credit or not. A plain reading of provision of Section 10(3) of the KVAT Act, 2003, shows that no time limit or restriction is prescribed for availing the input tax credit. In Dai Ichi Karkaria Ltd. [1999 (8) TMI 920 - SUPREME COURT], the Apex court has held that credit is indefeasible. The Modvat credit is similar to the Input Tax Credit in this case. Therefore, no exception can be taken to the view taken by the Hon’ble Single Judge that the Input Tax Credit cannot be denied on the anvil of the machinery provisions or the provisions relating to the time frame.
The assessees shall be eligible to avail the input tax credit as and when the tax is paid by them, without any limitation of time - Petition allowed.
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2023 (1) TMI 340
Validity of assessment order - not considering the impugned Transaction as Branch Transfer Transaction - exemption from payment of Tax under Section 6A of the CST Act - absence of any means rea of the Appellant or an intent to evade payment of tax - levy of penalty @150%.
HELD THAT:- The attention of this Court is drawn to the analysis of the facts by the Tribunal on 08.07.2022. It is also not in dispute that the methodology adapted for the Maharashtra Branch, where 15 transactions are made, the Tribunal at Maharashtra has accepted lorry receipts and that aspect has been overlooked by the Assessing Officer while analyzing the facts. Likewise, two transactions which had taken place at Rajasthan also has been overlooked by A.O. Noticing the fact that essential dealing on the facts and this glaring facts have been overlooked, let the matter be remitted back to the Tribunal.
Till the Tribunal decide this aspect by applying its mind after availing the opportunity to the parties, there shall be no recovery. As pre-deposit is already made of Rs.1,25,000/-, the Tribunal shall also be entitled to consider the request for the stay of the matter, once the parties are appeared. The Second Appeal before the Tribunal will be restored being Second Appeal No.736 of 2012 with regard to the bank accounts which have been attached pursuant to the recovery initiated shall be lifted by the Authority.
Application disposed off.
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2023 (1) TMI 339
Reopening of assessment - deemed assessment - whether the Respondent Authorities would have the power to reopen the assessment made without there being an assessment order, only accepting the deemed assessment made by the Assessee and treating it to be the assessment order?
HELD THAT:- As regards the factual aspect, whether there has been an assessment order as such passed under Section 22(1) of the VAT Act by the Authorities, it is not disputed by learned State Counsel. However, learned State Counsel only tried to justify their stand inasmuch as, an assessment order is not required and the deemed assessment submitted by the Petitioner under Section 21(1) of the VAT Act is good enough for reopening of assessment invoking Section 22 and the deemed assessment itself has to be considered and treated as an order of assessment.
Given the submissions made by learned Counsels for parties, what is also required to be taken note of is, the fact that this very argument raised by learned State Counsel is one which has been dealt with extensively by the Division Bench while deciding the matter in M/S TATA TELESERVICES LIMITED VERSUS STATE OF CHHATTISGARH, COMMISSIONER, COMMERCIAL TAX, RAIPUR (C.G.) , COMMERCIAL TAX OFFICER, CIRCLE-5, RAIPUR (C.G.) [2018 (3) TMI 1416 - CHHATTISGARH HIGH COURT]. This has further been followed by the Division Bench again in the aforementioned TAXC No.74/2022, reiterating the same stand earlier taken by the Division Bench. It has been emphatically held that unless there is a specific order of assessment under Section 21(1) passed by the Authorities concerned, there cannot be reopening of an assessment made under Section 21(2) of the VAT Act.
Petition alowed.
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2023 (1) TMI 338
Taxable Turnover - works contract - earth work - deduction of 30% as labour charges - violation of provisions of Sub-Section 3, 7 and 9 of Section 3 of the Uttarakhand Value Added Tax Act, 2005 or not - HELD THAT:- A plain reading of sub-section 7, especially Clause (ii) therein of Section 3 which deals with the case involving execution of work contract, taxes shall be levied when the taxable quantum Rs. 5,00,000/- onwards. It is admitted in this case that the contractor was paid of Rs. 1,11,930/- towards the work executed of Rs. 4,61,670/- being not liable to be included in the turnover of the Assessee – revisionist while calculating the taxable quantum. The Assessee – revisionist is not liable to pay any tax on the same, especially in view of the fact that neither the Assessing Authority nor the First Appellate Court nor the Second Appellate Court has held that Assessee – revisionist has income from other sources for the assessment year, therefore, the imposition of tax of Rs. 1,11,930/- is illegal, hence, to be set-aside.
The revision is allowed. The impugned judgments are set-aside, hence, the Assessee – revisionist is not liable to pay any sales/commercial tax for the period in consideration.
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2023 (1) TMI 295
Doctrine of mutuality - club and association service - whether after the 46th Constitutional Amendment made in the Constitution which came into effect from 02.02.1983, the services in form of foods and drinks provided to the members of the club would be included under the term 'sale' and liable to be taxed? - HELD THAT:- Section 2(h) (v) of U.P. Trade Tax Act, 1948 provides that in case of supply of goods by any unincorporated association or body of persons to members shall be considered as 'sale'. Further Section 2(h)(vi) provides that any services in whatsoever manner such as foods and drinks provided for human consumption shall also be encompassed under the term 'sale'. The earlier Constitution Bench decision in THE JOINT COMMERCIAL TAX OFFICER, HARBOUR DIVISION II, MADRAS VERSUS YOUNG MEN´S INDIAN ASSOCIATION, MADRAS AND OTHERS [1970 (2) TMI 87 - SUPREME COURT] had held that where supply of various preparations by clubs to members is involved, it shall not be sale, as there is no transfer of property from one to another. If the club even though a distinct legal entity is only acting as agent for its members in the matter of supply of various pre- parations to them and no sale would be involved as the element of transfer would be completely absent.
The Apex Court further, while answering the question posed by the Division Bench, in STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] has held that the judgment rendered by the earlier Constitution Bench in the matter of Young Men's Indian Association continues to hold the field even after 46th amendment. According to Apex Court Sub-clause (f) of Article 366 (29-A) has no application in member's club.
As the matter is no more res integra and the Apex Court has clarified that Sub-clause (f) of Article 366 (29-A) does not apply to the member's club and it is not disputed that the revisionist is a club incorporated and is serving foods and drinks to its members, it is not covered under the definition of Section 2 (h) of the Act of 1948, as held by the Tribunal - Revision allowed.
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2023 (1) TMI 294
Rectification of mistake - mistake apparent on the face of record - Interpretation of Statute - Section 19(5)(a) read with Section 17 and Section 2(20) as well as Section 30 of the Act - reversal of ITC - G.O.Ms.No.103 dated 01.08.2012 - G.O.Ms.No.155 dated 08.12.2012 - G.O.Ms.No.6 dated 06.02.2013 - HELD THAT:- Section 84 provides for the rectification of an error apparent on record and not one which involves discussion, debate or possible multiple opinions. This is a settled position as per several judgments of the Hon’ble Supreme Court and High Courts - What has to be borne out by process of reasoning taking note of rival contentions and differing points of view is not liable to be addressed under Section 84, the purpose of which is only to correct an apparent and evident mistake.
None of the Notifications in this case touch upon the aspect of Input Tax Credit in the hands of the selling dealers, and had they done so, the officer would perhaps have been right in stating that the grant of ITC even in the place of such express provision for reversal in the Notification, was an error apparent on record. Since the Notification did not mention anything about ITC or reversal, the impugned proceedings would also have to be tested in the context of whether at all Section 84 could be applied in this case, and thus fail.
The impugned orders are quashed and these writ petitions are allowed.
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2023 (1) TMI 293
Maintainability of petitioner - availability of statutory remedy of appeal - Refund of the amount of tax deposited by the petitioner - grant of interest in terms of Section 29(2) of U.P. Trade Tax Act, 1948 - HELD THAT:- Certain amount of tax due from three companies namely, M/s Shristi Agencies (Pvt.) Limited, M/s Rudder Steels (Pvt.) Ltd. and M/s Shivalik Ispat and Fabricators Private Ltd., was sought to be recovered from M/s Usha India Ltd. and M/s Malvika Steel Pvt. Ltd. in which the petitioner along with his brothers Anil Rai were the shareholders and directors. M/s Usha India Ltd. and M/s Malvika Steel Pvt. Ltd. are said to be debtors of the companies, from whom amount of tax is due. The amount was sought to be recovered from them in their individual capacity. The order was challenged by them by filing writ petitions before this Court. They were relegated to avail of their remedy of appeal before the Tribunal, which was to be heard on merits, subject to deposit of ₹ one crore by both the brothers. Undisputedly, the petitioner deposited ₹ one crore. Both the appeals preferred by the petitioner and his brother were allowed by the Tribunal vide order dated June 9, 2016 and demand against them was quashed with liberty to the Department to deal with the recovery from the companies. An application for refund was filed by the petitioner on August 25, 2017, which remained pending. A reminder was sent on July 23, 2020 on which the order dated September 17, 2020 was passed, rejecting the claim for refund on the flimsy ground that the Tribunal while accepting the appeal had not directed for refund of the amount.
We are not required to deal with that order on merits for the reason that learned counsel for the State has fairly submitted that after the order of demand was set aside by the Tribunal, the petitioner will be entitled to refund of the amount deposited as pre-condition for hearing of appeal on merits - Still further, what is required to be noticed is that the order of the Tribunal dated September 17, 2020 was not challenged by the Department immediately when the same was passed. But, when the petitioner filed the present writ petition in this Court, impugning the order rejecting his prayer for refund, Sales/Trade Tax Revision Defective No. 28 of 2021 was filed, after a delay of 1766 days. The same was dismissed on September 2, 2021 as the delay could not be satisfactorily explained.
From the facts of the present case, what is established is that retention of the amount deposited by the petitioner as a precondition for hearing of appeal on merits would be a direct violation of Article 265 of the Constitution of India, as the State has no authority to retain the amount after the demand raised was set aside by the Tribunal and the revision against the same was dismissed by this Court - Let the amount of refund due to the petitioner be now paid within a period of four weeks along with interest due in terms of Section 29(2) of the Act of 1948. The interest shall be calculated from January, 2018 onwards at the rates specified in Section 29(2) of the Act of 1948.
As apparently in the case in hand the delay in grant of refund to the petitioner is patently illegal in view of the order passed by respondent no. 3, the State shall be at liberty to recover the amount of interest to be paid to the petitioner from the officer(s) concerned, as public exchequer should not be burdened on account of illegal action by the officer(s) of the Department - The writ petition is allowed with costs of ₹ 10,000/- to be paid along with the amount of refund.
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2023 (1) TMI 247
Validity of assessment order passed by the Additional Sales Tax Officer, Kendrapara Circle, Kendrapara under Section 42 of the OVAT Act - Assessing Officer (AO) did not calculate any VAT on sale of de-oiled cake because it was exempted from VAT - short levy of purchase tax - instead of quashing the reassessment order, the JCST choose to remit the matter to the AO for a fresh hearing and a decision - HELD THAT:- The factual finding by the JCST was that the reopening of the assessment was done by the AO by simply accepting the objection of the AG (Audit) without forming independent opinion on whether such objection by the AG (Audit) was correct or not. There was no recording by the Addl. STO about being satisfied independently then there was escapement of taxable turnover.
The legal position in this regard has been explained by this Court in INDURE LIMITED VERSUS COMMISSIONER OF SALES TAX, CUTTACK, ORISSA AND OTHERS [2006 (7) TMI 572 - ORISSA HIGH COURT] where it has been held that an objective opinion has to be formed by the STO and that he cannot “totally abdicate or surrender his discretion to the objection of the audit party by mechanically reopening assessment under Section 12(A) as has been done in this case.” It may be noticed here that the above observation was made in the context of Section 12(8) of the OST Act which corresponds to Section 43 of the OVAT Act.
Thus, simply remanding the matter to the STO as has been done by the JCST would serve no purpose since in no way would that alter the factual position namely, that in the record sheet there would be no recording of the objective opinion of the STO about escapement of taxable turnover.
This Court disposes of the revision petition by answering the question framed in the negative i.e. in favour of the Dealer and against the Department.
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2023 (1) TMI 246
Classification of goods - rate of tax - whether tyres and tubes used in tractor-trolley manufactured by the petitioner is liable to be taxed separately @ 12.5% for the tax periods up to 31.03.2011 and @ 13.5% after 01.04.2011 as per Part-III of Schedule B or @ 4% in terms of Entry 119 of Part-II of Schedule B appended to the OVAT Act? - Penalty under Section 42(5) of the OVAT Act - applicability of cases of UNION OF INDIA VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS AND COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VERSUS M/S. LANCO INDUSTRIES LTD. [2009 (5) TMI 15 - SUPREME COURT] which has been relied on by the Hon’ble Supreme Court in the case of CCE, CHANDIGARH VERSUS PEPSI FOODS LTD. [2010 (12) TMI 15 - SUPREME COURT] - HELD THAT:- It is not in dispute that Entry 119 of Part-II specifically carves out exception. The goods “tyres, tubes and flaps” are excluded from the words “Tractors, threshers, harvesters and attachments and parts thereof” used in the said entry. It is stated in M/S. DEEPAK AGRO SOLUTION LTD VERSUS COMMISSIONER OF CUSTOMS, MAHARASHTRA [2008 (5) TMI 8 - SUPREME COURT] that what is not excluded would be held to be included - In COMMISSIONER OF CENTRAL EXCISE VERSUS SHREE BAIDYANATH AYURVED BHAWAN LTD. AND VICE VERSA [2009 (4) TMI 6 - SUPREME COURT] it is laid down that specific entry must prevail over a general entry. This Court in STATE OF ORISSA VERSUS BHARAT STORE [2002 (2) TMI 1299 - ORISSA HIGH COURT] held that it is a settled position of law that a taxing statute is to be strictly construed and the words used are to be given their natural meaning. It is also the settled position that entries in the Schedule are to be interpreted in their popular sense unless they are expressly defined in the enactment.
In RAJ BROTHERS AGENCIES AND OTHERS VERSUS THE STATE OF TAMIL NADU [1976 (2) TMI 174 - MADRAS HIGH COURT] it has been stated that a special entry overrides a general provision. If main article to which the item in question is accessory or component part is taken out of that item, its accessories and component parts could not be said to have been left untouched. Though batteries may be electrical goods and battery plates are accessories or component parts of such batteries, in view of the specific entry, batteries as such were excluded from general entry.
This Court is of the considered opinion that “tyres, tubes and flaps” being excluded from the purview of preceding words, namely “Tractors, Threshers, harvesters, and attachments and parts thereof” as contained in Entry 119 of Part-II of Schedule B appended to the OVAT Act, the subject-goods do not fall within ambit of said entry. No specific entry being available, “tyres, tubes and flaps” are, thus, subject to tax @ 12.5% up to tax period ending on 31.03.2011 and @ 13.5% after 01.04.2011 as per Part-III of Schedule B to the OVAT Act. For the aforesaid reasons, the interpretation as suggested by the learned counsel for the petitioner cannot be acceded to.
Penalty under Section 42(5) of the OVAT Act - applicability of cases of UNION OF INDIA VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS AND COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VERSUS M/S. LANCO INDUSTRIES LTD. [2009 (5) TMI 15 - SUPREME COURT] which has been relied on by the Hon’ble Supreme Court in the case of CCE, CHANDIGARH VERSUS PEPSI FOODS LTD. [2010 (12) TMI 15 - SUPREME COURT] - HELD THAT:- With regard to applicability of ratio of decision in UNION OF INDIA VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS AND COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VERSUS M/S. LANCO INDUSTRIES LTD. [2009 (5) TMI 15 - SUPREME COURT], which has been relied on by the Hon’ble Supreme Court in the case of CCE, CHANDIGARH VERSUS PEPSI FOODS LTD. [2010 (12) TMI 15 - SUPREME COURT], needless to say that since they are rendered in different context and under different statutory setting of words, the reliance placed by the petitioner is misplaced.
The questions of law are answered in favour of the Revenue and against the petitioner-dealer - Petition dismissed.
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2023 (1) TMI 245
Seeking issuance of C-declaration forms - Grievance of the petitioner is that despite payment of taxes on regular basis and there being no arrear tax due, respondents did not issue the ‘C’ declaration forms - HELD THAT:- The explanation given by respondent No.1 is not adequate to deny ‘C’ forms to the petitioner. There is no allegation of short deposit of any taxes by the petitioner or suppression/misstatement of goods while availing concessional rate of tax.
The issue raised in the writ petition is no longer res integra. A Division Bench of this Court in AP GAS POWER CORPORATION LTD. VERSUS ASSISTANT COMMERCIAL TAX OFFICER AND OTHERS [1997 (9) TMI 575 - ANDHRA PRADESH HIGH COURT] has held that at the stage of issuance of ‘C’ declaration form, the notified authority is not required to conduct an enquiry into the nature of the transaction as to whether the petitioner needs the forms for use in the course of inter-state trade or for avoidance of payment of tax which he would be liable to pay. The authorities will, however, be at liberty to make such an enquiry as it is necessary to see whether the ‘C’ forms have been properly issued and if not what is the liability of the parties under the erstwhile Andhra Pradesh General Sales Tax Act, 1957, or the Central Sales Tax Act, 1956, as the case may be.
The aforesaid decision of this Court has been followed by various High Courts. Recently, the High Court of Jharkhand in M/S TATA STEEL LIMITED VERSUS THE STATE OF JHARKHAND, JOINT COMMISSIONER OF COMMERCIAL TAXES (I.T.) , JOINT COMMISSIONER OF COMMERCIAL TAXES (ADMINISTRATION) , DEPUTY COMMISSIONER OF COMMERCIAL TAXES AND ASSISTANT COMMISSIONER OF COMMERCIAL TAXES [2019 (1) TMI 894 - JHARKHAND HIGH COURT] has held that once a dealer satisfies the conditions that he is a registered dealer authorised to purchase goods mentioned in the certificate of registration and charges for obtaining ‘C’ forms have been paid, the authorities are bound to issue him the ‘C’ forms.
Petition disposed off.
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2023 (1) TMI 185
Rejection of central sale made by the assessee - rejection of books of accounts - assessee had not filed the requisite documents before the Tribunal which was not in a position to decide the matter on merits - HELD THAT:- The Tribunal is last fact finding Court and has to adjudicate all the grounds which are taken by the assessee in its appeal. During the pendency of the revisions, this Court had required the revisionist to supply all the documents which were placed before the Tribunal through the supplementary affidavit and the same have been filed by the assessee.
This Court finds that the disputed question of fact cannot be dealt with by this Court while exercising power under Section 58 of the U.P. VAT Act 2008 and it is for the Tribunal to adjudicate the matter on merits - once the Tribunal has recorded the finding that the documents, as required by it, was not placed by the assessee and no finding has been recorded by the Tribunal considering the documents of the assessee. It would not be appropriate for this Court to adjudicate the matter on merits.
The matter is remitted to the Tribunal to reconsider and decide the matter afresh - appeal allowed by way of remand.
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2023 (1) TMI 184
Benefit of concessional rate of duty - automatic data processing machine - to be classified under CTH-8471 or not - HELD THAT:- It is not in dispute that EVM Machines are classified under 8471 and ADPM is described at Sl. No.4 in the Notification. It is also not in dispute that assessee has been clearing the EVMs under tariff item 8471.
The Gujrat High Court in Samsung India [2020 (2) TMI 1247 - GUJARAT HIGH COURT] has held that the VAT authorities are bound by the classification accepted by the Central Excise Authorities.
The Notification FD 116 CSL 2006(9) dated March 31, 2006 makes it clear that the goods specified under respective headings and sub-headings in the Central Excise Tariff Act, 1985 as IT Products. Admittedly, Central Excise has accepted clearance of EV Machines under Tariff Head 8471. Therefore, the principal contention of Revenue that an EVM does not process anything, is untenable because, the KVAT Authority is bound by the classification accepted by the Central Excise Authority.
Petition dismissed.
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2023 (1) TMI 144
Disallowance of exemption under Section 5(2) of the CST - high sea sales - disallowance on the ground that same was not supported by documentary evidence - whether exemption could be denied for want of assessee's endorsement on the Bill of Lading? - HELD THAT:- The exemption was denied on the premise that Bill of lading was not endorsed by the assessee. Further, it is held in para 31 that the settled position of law is, the Bill of Lading is only one of the ways to transfer the title and not the only way. It can be done either by handing over the Bill of Lading itself to the customers before the goods pass the customs barrier of India. However, having examined the documents available in the Intelligence Report, the Tribunal has concluded that the necessary documents were available only to the extent of the turnover of Rs.1,65,32,500/- and the learned Advocate had not filed the documentary evidence in respect of the remaining portion of the turnover.
In RECKITT & COLMAN OF INDIA LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [1996 (10) TMI 100 - SUPREME COURT], the Apex Court has held that it is beyond the competence of the Tribunal to make out a case in favour of the Revenue, which the Revenue had never canvassed and which the appellants had never been required to meet.
The KAT has rightly noted the correct position of law that Bill of lading is not the only way of transfer of title and it can also be done by even handing over the Bill of Lading to the customers. Further, on consideration of the Intelligence Report, KAT has satisfied itself that documents were available in respect of turnover of Rs.1,65,32,500/-. Denial of the exemption in respect of turnover of Rs.16,51,67,363/- being the remaining portion of the turnover was not the subject matter for consideration before the KAT - the order passed by the KAT is perverse and unsustainable in law.
Appeal allowed.
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2023 (1) TMI 102
Validity of reassessment order - reassessment made by the Assessing Authority for the year 2000-01 was beyond the period of 5 years - HELD THAT:- After hearing learned counsel for the parties for quite some time, we are not inclined to interfere with the judgment impugned dated 29.01.2019 but since the petitioner/company has not challenged the reassessment for the years 2001-02 to 2004-05 on merits and right of appeal indeed was available to it, we consider appropriate to observe that if appeal is being preferred by the petitioner/company within 60 days from today before the Appellate Authority against the order of reassessment years 2001-02 to 2004- 05, the same shall be treated to be within a period of limitation and the Appellate Authority may examine the appeal on its own on merits in accordance with law. It is further made clear that all contentions under the law are available for the petitioner/company to be raised before the Appellate Authority.
SLP dismissed.
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2023 (1) TMI 101
Maintainability of SLP - amount of penalty involved is Rs.2,15,770/- only - threshold monetary limit involved in the appeal - HELD THAT:- As the amount of penalty involved is Rs.2,15,770/- only, the Special Leave Petition is not entertained. However, the question of law, if any, is kept open.
SLP dismissed.
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2023 (1) TMI 100
Maintainability of petition seeking leave to appeal - HELD THAT:- There are no reason to entertain this petition under Article 136 of the Constitution of India.
The petition seeking special leave to appeal is, accordingly, dismissed.
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2023 (1) TMI 99
Maintainability of SLP - Condonation of delay of 469 days in the three appeals filed by the petitioners against the order of the State VAT Tribunal - HELD THAT:- These are cases where by the impugned orders the High Court has not deemed it fit to condone the delay of 469 days in the three appeals filed by the petitioners against the order of the State VAT Tribunal. We do not think that the High Court has erred in its approach in the matter of considering the question as to whether the delay should be condoned.
The special leave petitions stand dismissed.
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2023 (1) TMI 4
Validity of assessment order - certain export sales was disallowed on the ground that the petitioner failed in producing the export proofs - HELD THAT:- The decision of KAVYA MARKETING VERSUS STATE OF GUJARAT [2022 (4) TMI 1202 - GUJARAT HIGH COURT] would squarely be applicable in facts of the present case. The Tribunal has committed serious error of law by not taking note of the prima facie case of the petitioner while examining the aspect of pre-deposit. Therefore, in the facts and circumstances of the present case, the order passed of the Tribunal deserves to be quashed and set aside and hereby quashed and set aside.
The Commissioner Appeal-First Appellate Authority are directed to hear the appeal on merits. The First Appellate Authority may consider the payment of pre-deposit, a fresh keeping in mind the financial hardship expressed by the petitioner. It is made clear that we have not gone into the merits of the matter and kept all the issues open including the stay of demand to the file of the First Appellate Authority.
Petition disposed off.
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