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VAT / Sales Tax - Case Laws
Showing 121 to 140 of 545 Records
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2023 (9) TMI 1187
Recovery of penal interest - Violation of principles of natural justice - impugned order of recovery of interest has been passed without hearing the petitioner - non-renewal of license of Excise vends - HELD THAT:- It is not the respondents case that the licence gets automatically renewed without its cancellation or suspension, therefore, for the period of three financial years from 1995-1998, the petitioner having no licence to run the business of liquor, it was not liable to pay the licence fee for that period. It seems that the petitioner under the hope and expectations that his application for shifting of his business from Link Road to Bus Stand, Jammu shall be considered which was ultimately allowed by the respondents had paid an amount of ₹8.50 lacs as licence fee for that period besides an amount of ₹6.00 lacs deposited earlier in terms of Court’s order. The petitioner, has thus, deposited the amount of ₹14.50 lacs on account of licence fee and on withdrawal of his petition and till then interim order passed by this Court was operating which had conditioned that the petitioner shall pay an amount of ₹6.00 lacs and remaining amount shall be payable after the disposal of the writ petition.
The impugned communication requiring the petitioner to remit penal interest of ₹14.49 lacs in terms of Section 24-A of the J&K Liquor Licence and Sales Rules, 1984 can be ordered to be deposited only on non-payment of the licence fee. Since the licence fee had been deposited by the petitioner in terms of the Court order, the same cannot be said to be a delayed payment so as to incur the penal consequences of paying interest in terms of Section 24-A of the J&K Excise Act. Rule 20 of the J&K Liquor Licence and Sales Rules, 1984 provided that licence unless renewed is determined on 31st March at the end of the financial year.
Petition allowed.
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2023 (9) TMI 1057
Levy of purchase tax - penultimate sale - raw hides and skin purchased without tax were converted as dress hides using materials purchased at concessional rate of tax under Section 3(3) of the TNGST Act - It was held by High Court that the petitioner is therefore not entitled to exemption under Sections 5(3) and 5(4) of the Central Sales Tax Act, 1956 - HELD THAT:- No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India.
SLP dismissed.
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2023 (9) TMI 1056
Title: Supreme Court Order - Settlement reached, petition withdrawn
Summary: The Supreme Court, with Justice Aravind Kumar presiding, allowed the petitioner's counsel to withdraw the petition due to a settlement being reached. The petition was dismissed as withdrawn.
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2023 (9) TMI 1006
Refund of Input Tax Credit - Adjustment of refund with tax demand - Delay in processing the refund beyond - petitioner did not respond to several notices issued under Section 59 (2) of DVAT Act - time limitation - HELD THAT:- A fortiori the impugned adjustment letter dated 18 November, 2022 cannot be sustained in law since the mandate of Section 38 read with Section 39 and 59 of the DVAT Act was not followed. Therefore, the petitioner is entitled to the refund claimed.
Validity of default notices of tax & interest - HELD THAT: All said and done, in so far as issuance of the impugned default notices of tax & interest is concerned, in light of the case of the respondent that revised return dated 31 March 2017 was filed for the 4th quarter 2015-16 and notices under Section 59(2) DVAT Act dated 19 February 2016, 27 May 2016 and 25 May 2018 were not complied with by the petitioner, the only recourse in law is to file a statutory appeal under Section 74 of the DVAT Act and it would be open to the petitioner to raise all objections regarding untenability of the impugned default notices of tax & interest including under Section 34 of the DVAT Act with regard to the limitation prescribed for assessment or re-assessment.
The instant Writ Petition is partly allowed to the effect that the impugned adjustment order dated 18 November 2022 is hereby quashed and the respondent is consequently directed to refund the amount of Rs. 17,10,15, 285/- for the 4th quarter of 2015-16 and also Rs. 5,44,39,148/- for the 1st quarter of 2017-18 along-with interest as per Section 42 of the DVAT Act from the date it fell due till realisation.
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2023 (9) TMI 1005
Validity of assessment order - failure of appellant to deposit the pre-deposit amount - disallowance of input tax credit - HELD THAT:- The appellant shall deposit Rs. 50 lakhs within a period of 15 days from today and Rs. 50 lakhs shall be deposited before 31.10.2023 and Rs. 1 crore before 30.11.2023 with the respondent instead of bank guarantee - The appellant shall also file an undertaking to the aforesaid effect before this court within a period of one week from today - The appellant shall tender a bond to the satisfaction of the Assessing Officer for the remaining amount of pre-deposit as directed by the Tribunal.
The matter should be remanded to the First Appellate Authority as the First Appellate Authority has dismissed the appeals of the appellant without going into the merits. The matter is therefore remanded to the First Appellate Authority.
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2023 (9) TMI 911
Refund of excess Input Tax Credit - purchases from dealers covered by the Deferment Scheme, 2005 notified under section 62 of HP VAT Act - presumptive taxation - it was held by High Court that the appellant is entitled for refund - HELD THAT:- There are no merit in the Special Leave Petition.
SLP dismissed.
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2023 (9) TMI 862
Cancellation of C-Forms issued with retrospective effect or not - requirement of assessment u/s under Section 17 of the HVAT Act - HELD THAT:- The question whether C-Forms issued by the authorities can be cancelled retrospectively is no longer res integra. The same is covered by various decisions including the decisions of this Court in JAIN MANUFACTURING (INDIA) PVT. LTD. VERSUS THE COMMISSIONER VALUE ADDED TAX & ANR. [2016 (6) TMI 304 - DELHI HIGH COURT] where it was held that the order passed by the DT&T cancelling the C Form issued to the Petitioner in the present case with effect from 27th November 2015 is hereby set aside. The Petitioner will continue to treat the said C-Form issued to it as having been validly issued. The DT&T shall, not later than ten days from today, make the necessary corrections on its website to indicate the validation of the above C-Form.
The respondents concurs that the question raised by the petitioner is covered by the aforesaid decision.
The present petition is allowed and the C-Forms issued by the Sales Tax Department to the purchasing dealer (Ghanshyam Industries, TIN No. 07106917681) cannot be cancelled. The concerned authorities shall act accordingly.
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2023 (9) TMI 861
Recovery of arrears of tax for the Assessment Year 2004--2005 and 2005-2006 - assessment completed on 01.02.2012 for the Assessment Year 2004-2005 and on 10.02.2012 for the Assessment Year 2005-2006 and now revised order passed - HELD THAT:- The issue as to whether the amount has been properly re-quantified in the rectification proceedings is a matter, which has to be only determined by the Officers in the hierarchy under the provision of the TNGST Act, 1959. The question of filing the second rectification application under Section 55(4) of the TNGST Act also cannot be countenanced - The revised Assessment Orders passed on 19.03.2012 are appealable orders under the provisions of the TNGST Act, 1959. Considering the above, pursuant to the direction of this Court dated 24.02.2023, the petitioner has paid a sum of Rs 15,37,823/-.
This Court is inclined to dispose this writ petition giving liberty to the petitioner to challenge the revised Assessment Orders dated 19.03.2012 for the respective Assessment Years by filing an appeal, within a period of thirty (30) days from the date of receipt of a copy of this order - Petition disposed off.
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2023 (9) TMI 860
Maintainability of petition - availability of alternative remedy - Section 65 of the Gujarat Value Added Tax Act, 1969 - HELD THAT:- In view of the provisions of Sub-section 2 of Section 65 of the Gujarat Value Added Tax Act, 1969, the petitioners have efficacious alternative remedy to canvass its grievances before the Tribunal. Hence, it is opined that the petitioners, if relegated to the Tribunal for adjudication of its grievances, the ends of justice would be met with.
It is observed that as and when the petitioners approach to the Tribunal by way of an appeal, the issue of pre-deposit of the amount is left open and if any application for waiver of the condition of pre-deposit is made by the petitioners, the Tribunal shall decide the same in accordance with law.
The petition is disposed of.
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2023 (9) TMI 801
Interpretation of statute - Effect of the amendment - Retrospective or prospective - sub-section (1) of Section 25 of KVAT Act as well as the third proviso of the said Section - initially the third proviso was not part of the Section but was later inserted in the year 2010 by the Finance Act 2010 and every year till Finance Act, 2018 the said proviso has been substituted - interpretation to be given to the words “at any time within five years from the last date of the year to which the return relates, proceed to determine” as found in sub-section (1) of Section 25 and the third proviso to the said sub-section as inserted with effect from 01.04.2015, extending time limitation for initiation of proceedings for reassessment of escaped turnover.
Whether, the third proviso to sub-section (1) of Section 25 extends the period of limitation for the initiation of proceedings for reassessment insofar as escaped turnover is concerned? - HELD THAT:- What has to be interpreted is the expression “proceed to determine” as it occurs in sub-Section (1) of Section 25 as well as the third proviso to the said sub-Section as amended in Finance Act, 2017. No doubt, in both the provisions, the expression used is “proceed to determine.” The said expression must be considered in light of the words that occur prior to and subsequent to the said expression. Under sub-Section (1) of Section 25, the intention of the use of the expression “proceed to determine” is in the context of initiation of proceedings at any time within five years (now six years after the 2018 amendment) from the last date of the year to which the return relates. The object and purpose is that there cannot be a belated initiation of proceedings and at the whims and fancies of the Department so as to re-open stale returns, which had already been concluded under the provisions of the said Act. However, the object of the proviso which also uses the words “proceed to determine” must be in the context of completion of the Assessment which had already been initiated in accordance with sub-Section (1) to Section 25 within the time-frame as prescribed therein.
The department is not right in contending that the expression “proceed to determine” in the third proviso gives a lease of life or an extension of the period of limitation by one year at a time for “initiation” of the reassessment proceeding under sub-section (1) of Section 25 of the Act. Such an interpretation would lead to absurdity as a proviso cannot militate against the intention of the main provision in sub-section (1) of Section 25 and thus a proviso cannot extend the limitation period which is fixed under the main provision. The normal function of a proviso is to exempt something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision.
It may be clarified that the expression “proceed to determine” is found in the amendment made to the KVAT Act with effect from 2017 Finance Act, whereas in the earlier amendment, the expression clearly was to “complete the assessment” in the third proviso of sub-section (1) of Section 25 which is also a clear indication of the intention of the Legislature to give a command to the concerned assessing officers seized of the proceedings which had been initiated under sub-section (1) of Section 25 to complete within the time-frame as stipulated in the said proviso. The amendment to the Kerala Finance Act, 2017 is with effect from 01.04.2017 and does not have any retrospective effect.
There are no merit in these appeals. The appeals are hence dismissed.
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2023 (9) TMI 800
Validity of remanding the case on the issue which had already attains finality after the order of the first appellate authority passed in appeal filed against the provisional assessment order - HELD THAT:- On perusal of the aforesaid observation made in provisional assessment order, it transpires that query was put to the revisionist that at the time of survey dated 13.5.2015, calcium octet was not found at his business premises but on production of stock register, entries of 1710 kgs of calcium octet were mentioned however while issuing show cause notice for provisional assessment the commodities has wrongly been mentioned but the assessing authority has not discussed anything about the fact that at the time of survey stock of some specific chemical was not found though the same has been mentioned in the stock register. Further the assessing authority observed that no adverse inference should be drawn against the revisionist. The assessing authority has neither assigned any reason nor any finding has been recorded for not drawing any adverse inference against the revisionist.
The first appellate authority has observed that at the time of survey dated 3.5.2015 stock of calcium octet was not found but same was available in the factory. The said fact is accepted by the Assessing Authority. However, neither anything was brought on record to support the said finding nor any discussion had been made in the provisional assessment order to clarify the justification given by the assessee, as such, the findings recorded by the first appellate authority in this respect is perverse - Further the observation of the 1st appellate authority that the chemical was available in the factory is without any material on record or discussion, therefore has no leg to stand. Once neither any discussion nor any finding has been recorded by any of the authority about shortcomings of chemical found at the time of survey dated 13.5.2015, it will be incorrect on the part of the revisionist to argue and suggest that once on the provisional assessment order the finding has been recorded in favour of the revisionist, which was confirmed by the first appellate authority, the matter ought not to have remanded the matter for redetermination of the said fact.
Thus, no interference is called for by this Court in the impugned order. The revision is dismissed.
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2023 (9) TMI 724
Validity of preassessment notices - impugned notices are barred by limitation in terms of Rule 5 (6) of the Central Sales Tax (Puducherry) Rules 1967 or not - HELD THAT:- This Court is not inclined to entertain the batch of writ petitions at the stage of show cause notice for it is trite law that though there is no absolute bar or embargo against entertaining writ petitions against notices, however, interference should be in rare cases and not as a matter of routine. Though, the restriction is self imposed it has been consistently held that High Court shall exercise restraint in entertaining writ petitions under Article 226 of the Constitution of India at the stage of show cause notice. This Court is of the view that whether the notices are barred by limitation or not can be adjudicated by the authority issuing the notice and it is open to the petitioner to submit its objection to the proposal including the plea of limitation.
Limitation is a mixed question of fact and law which is yet another reason as to why this Court is not inclined to entertain the writ petition at the stage of show cause notice.
The writ petitions are disposed of.
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2023 (9) TMI 709
Legality of impugned recovery notice - proceedings initiated against the Petitioner before the National Company Law Appellate Tribunal (NCLAT) and substantive order dated 15th October 2018 passed by the NCLAT - HELD THAT:- All the materials are required to be considered by the designated officer and the officer to take a decision whether the impugned notice dated 28th June 2021, in the peculiar facts and circumstances of the case and in view of the order passed by NCLAT, needs to be withdrawn. The Petitioner's detailed representations are required to be considered in accordance with law.
The Assistant Commissioner of State Tax are directed to hear the Petitioner on the Petitioner’s representation dated 6th July 2021 (Exhibit-“D”) and the representation dated 28th April 2023 (Exhibit -“H”) and pass a reasoned order, considering as to whether the impugned action under the impugned notice ought to be withdrawn - petition disposed off.
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2023 (9) TMI 708
Classification of services - HIMANI BOROPLUS ANTISEPTIC CREAM - Medicament or not - to be classified as medicines falling within the scope of Entry 46 of Part-II of Schedule B appended to the Orissa Value Added Tax Act, 2004 - HELD THAT:- Reliance placed on judgment of the Supreme Court in Puma Ayurvedic Herbal (P) Ltd. v. Commissioner, Central Excise, Nagpur, [2006 (3) TMI 141 - SUPREME COURT], in which the two tests were accepted.
There can be no fact finding in adjudication of the revision petition. Keeping that in mind we have to understand what are the two tests that have been accepted by the Supreme Court. The first test is common understanding of the product to be a medicament, which is called the common parlance test. A user of the product would use it only for treating a particular ailment and stop its use after the ailment is cured. The second test is regarding ingredients used in the product, whether mentioned in authoritative textbooks on Ayurveda.
The Tribunal did not direct remand, for ascertaining the question of fact regarding ingredients of the product. Instead, without itself ascertaining on the fact, it went on to dismiss the appeal of revenue.
There was no satisfaction rendered by opposite party (assessee) on the second test. It must be said that it was for opposite party to prove the product fell under the entry as the Tribunal erred in saying the burden was on petitioner (Revenue) to prove the negative.
Coming back to the first test, on perusal of both, impugned order as well as the one made by the Commissioner carrying concurrent findings, we have been unable to notice that there was finding also on fact, regarding common parlance test. It must be mentioned here that the advertisement relied upon by petitioner was so done at this stage and not in the earlier proceedings, ascertained by us on query made. Hence, we disregard the advertisement in our adjudication.
Revision disposed off.
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2023 (9) TMI 639
Classification of goods - toffee - to be covered under the Entry No. 137 Schedule II Part A and liable to tax @ 4% as against the claim of the revenue that the said commodity was taxable as an unclassified commodity @ 12.5%? - HELD THAT:- The SLP is dismissed.
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2023 (9) TMI 638
Interpretation of statute - whether in presence of a specific provision, the general provision can have the sway or whether in presence of a specific provision in a tax statute, can a Court embank on interpretation by taking aid from the subsequent statute or not? - HELD THAT:- By enacting the notification dated 08.02.1999 the State has clearly excluded bran from exemption as provided by Section 30-D. In terms of the specific provision, barn is exigible to sale tax @ 4% Where the tax statute is clear, unambiguous and direct, the court is not generally called upon to interpret such statute. Court has to act upon the literal provision only. As such, the observation, based on which the order of the First Appellate Court was reversed by the Tribunal, is un-called for and the interpretation made by the Tribunal is not only unwarranted in the present context but is also inappropriate.
The impugned order is quashed - petition allowed.
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2023 (9) TMI 637
Reopening of assessment - limitation under Section 30 of the Puducherry Value Added Tax Act, 2007 - HELD THAT:- The date of the notice dated 09.08.2018 which was subject matter of challenge before this Court in W.P.No.10998 of 2019 stood decided by an order dated 25.11.2021. The petitioner has not challenged the same in the manner known to law - Assessing Officer was thereafter merely required to pass assessment order based on the notice issued on 09.08.2018. The petitioner was to meet out the allegations in the notice on merits. There was no scope for entertaining any question of limitation merely because notice dated 19.04.2022 was issued.
The first respondent has merely issued a notice on 19.04.2022 which has now given a reason to the writ petitioner to state that the proceedings are time barred. This stand of the petitioner cannot be accepted.
Petition dismissed.
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2023 (9) TMI 636
Compounding assessment under Section 3(4) of the Tamil Nadu Value Added Tax Act, 2006 - opportunity of hearing not provided - violation of principles od natural justice - HELD THAT:- The fact remains that the Assessing Authority passed the assessment order without hearing the appellant. It may be true that the appellant also to be blamed for his failure to submit the documents and appear before the Assessing Authority within fifteen days. The appellant, in his representation, dated 10.07.2021, has requested time for collection of evidence and to submit documents. As per the earlier direction of this Court, the appellant was asked to appear before the Assessing Authority on a particular date.
It is for the Assessing Authority to fix a date for hearing. If the communication is received immediately on the expiry of fifteen days time asked for by the appellant, he would only expect the second respondent to fix a date for hearing, so that he would be in a position to appear before the Assessing Authority and produce the documents to substantiate his case. Only in the said circumstances, the assessment order impugned in the writ petition cannot be sustained merely because it was passed fifteen days after the expiry of the time asked for by the appellant. The appellant cannot be punished for expecting a notice fixing a date for hearing.
This Court finds that the assessment order impugned in the writ petition is in violation of the principles of natural justice and finds merits in the writ petition - petition allowed.
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2023 (9) TMI 635
Unreasonable delay in completion of reassessment - reassessment have been completed after almost 10 years after the deemed order of assessment - whether this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can determine as to what would constitute "reasonable period" for passing orders under Section 27 of the TNVAT Act or should it be left to the assessing authorities to decide the same?
HELD THAT:- It would be useful to refer to the judgment of the Hon'ble Supreme Court in the case of STATE OF PUNJAB VERSUS BHATINDA DISTRICT CO-OP. MILK P. UNION LTD. [2007 (10) TMI 300 - SUPREME COURT], wherein question arose as to what would constitute a "reasonable period" for exercising revisional jurisdiction in the absence of limitation provided under the Act and whether it could be left to the statutory authorities to decide the same. It was held the authorities under the Act being creatures of the statute would not be able to determine the same. Thus, it is for this Court in exercise of its plenary jurisdiction under Article 226 of the Constitution of India, to determine what would constitute reasonable period for passing orders under Section 27 of the TNVAT Act - A reading of the above judgment would show that it is for this Court to decide as to what would constitute “reasonable time” for taking actions or passing order in the absence of statutory prescription of limitation.
It is thus clear that even if the notice was issued within the prescribed period of limitation, inordinate/unreasonable delay in completing the proceedings would vitiate the same. In the present case, there is no explanation as to why it has taken more than six years after the issuance of the first notice on 23.07.2014 to issue the second notice on 23.06.2020 while proceeding to pass the impugned order on 05.02.2021 after almost 10 years from the deemed assessment - This Court in the case of J.M.Baxi [2016 (6) TMI 813 - MADRAS HIGH COURT] found that failure to explain the delay of 5 years after initiation would vitiate the proceeding on the ground of unreasonable delay.
This Court is of the view that the impugned order of reassessment cannot be sustained and is liable to be set aside - Petition allowed.
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2023 (9) TMI 561
Levy of higher rate of tax - inter-state sales to which C-forms were filed - burden to prove transfer of goods was not for sale - HELD THAT:- As per clause (1) of Section 6A, the burden is on the dealer to prove that the movement of the goods was not because of sale, but was for transfer of such goods by him to any other place of business or to his agent or principal outside the State.
The burden so cast on the petitioner to prove that the transactions were effected by it are otherwise, than by way of sale has not been discharged initially at the time of filing of returns. Only when the assessing authority has taken up investigation/enquiry, the petitioner had adduced some documentary evidence.
Perusal of the order passed by the Appellate Tribunal clearly reflects that the Appellate Tribunal had considered both factual and legal aspects, recorded elaborate reasons while allowing the appeal and also referred to and relied upon various judgments for its conclusion. The Appellate Tribunal had also discussed the purport of Section 6A of CST Act as well as Rule 14(3) of under CST Act (A.P.) Rules, 1957 and finally, confirmed the order of rejection of the assessing authority on the claim of concessional rate of tax in respect of C-forms.
The petitioner failed to make out any case warranting interference of this Bench with the order passed by the Sales Tax Appellate Tribunal - the question of law framed by the Court, while admitting the revision, deserves to be decided in the negative.
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