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VAT / Sales Tax - Case Laws
Showing 161 to 180 of 545 Records
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2023 (8) TMI 1601
Challenge to effectual orders dated 20.01.2021 passed by the Assistant Commissioner (ST) – respondent No. 1 - denial of reasonable opportunity to present additional documents due to the impact of the COVID-19 pandemic - violation of principles of natural justice - HELD THAT:- Considering the aforesaid decision of the Division Bench of this Court in [2020 (6) TMI 390 - TELANGANA HIGH COURT] and also taking note of the period during which the show cause notice was issued and the impugned order being passed both being at a time where the impact of Covid-19 was still blooming large in the entire country, it is inclined to endorse the same view and hold that it was a fit case where the petitioner could have been granted a reasonable period of time to adduce the additional documents which they intended to furnish and for which they had sought time by their correspondence dated 28.12.2020.
The impugned effectual order dated 20.01.2021 passed by the 1st respondent is not sustainable and deserves to be and is accordingly set aside. The matter stands remitted back to the 1st respondent for fresh orders after giving the petitioner a reasonable opportunity, to adduce the additional documents which were demanded by the Department from the petitioners, in accordance with law, at the earliest.
Conclusion - The importance of adhering to natural justice principles reinforced, especially in extraordinary circumstances like a pandemic, ensuring parties have a fair opportunity to present their case.
Petition allowed by way of remand.
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2023 (8) TMI 1543
Classification of goods - electric motor - falling in capital goods under entry 27 of Schedule-IV or not - HELD THAT:- Considering the fact that the electric motor(s) sold by the respondent-assessee are used only for the purpose of operating the plant and machinery; that the said fact qua the usage of the electric motor(s) is not disputed by the Revenue and that in M/s Gulab Art Handi Craft, Jodhpur, while dealing with the classification of electric motors, the learned Tax Board classified the same to be embracing the term “part and accessory of the plant and machinery”, it can be conclusively said that owing to their usage, the electric motor(s) sold by the respondent-assessee fell well within the ambit of Entry No. 27 of Schedule IV of the Rajasthan Value Added Tax Act, 2003.
As a result, the question of law, is answered in favour of the respondent-assessee and against the petitioner-Revenue.
The present Sales Tax Revision/Reference is dismissed.
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2023 (8) TMI 1452
Maintainability of petition - availability of alternative remedy - liability of retired partner for payment of the assessed amount of KGST - HELD THAT:- The question of whether the petitioner retired from the partnership firm on 17.10.2000 and whether he had intimated the authorities by giving notice in Form 3 is a disputed question of fact that cannot be gone into by this Court. Admittedly, there is an alternate remedy of appeal under the KGST Act under Section 34 of the Act.
The writ Court is not expected to go into the disputed question of fact. Therefore, the petitioner is relegated to the appellate authority. An interim order was granted in this writ petition when the petition was filed, which remains in operation. Therefore, it is provided that if the petitioner files an appeal within a period of 30 days, the appellate authority will decide the appeal on merit without going into the question of delay inasmuch as the writ petition has remained pending before this Court for all these years - For a period of 30 days from today, the interim order dated 08.07.2014 passed by this Court shall remain in operation. The appellate authority is required to decide the appeal expeditiously, preferably within a period of two months from the date of its filing. If the petitioner does not file the appeal within one month from today, the authority concerned will be free to recover the amount assessed along with interest and penalty from the petitioner as per the relevant provisions of law.
The present writ petition stands finally disposed of.
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2023 (8) TMI 1405
Levy of penalty under Section 27(4) of the TNVAT Act, 2006 - rejection of application filed under Section 84 of the TNVAT Act - HELD THAT:- The provision of Section 27(4) as stated during the period in dispute reads differently from the provisions as it stood prior to the period in dispute. The decision of this Court in the case of Simran International [2017 (4) TMI 1072 - MADRAS HIGH COURT] compared the Section 16(2) of the TNGST Act, 1959 with Section 27(4) of TNVAT Act, 2006 cannot be applied. The amended provisions in Section 27(4) of the TNVAT Act, 2006 as it stood prior to 2016 read differently.
There is no scope for discretion vested with an Assessing Officer while imposing penalty under Section 27(4) with effect from 30.01.2016 by virtue of Section 11 of the second amendment Act, 2016. The decision referred to supra under similar circumstances in the context of unamended Section 27(4) of the Act cannot be applied in the context of 27(4) after amendment. Therefore, there is no merits in this writ petition.
The writ petition is dismissed.
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2023 (8) TMI 1364
Disallowing registration of Sale Certificate and the consequential mutation - Attachment of mortgaged properties - priority, preferential right and first charge/lien for realization bank dues from sale of immoveable property of the borrower which stood mortgaged with Bank over and above the crown debt - HELD THAT:- While dealing with the scope of MSMED Act, 2006 vis-à-vis SARFAESI Act, 2002 and the validity of the order of attaching of mortgaged secured assets, in view of recoverable dues, the Hon’ble Apex Court has categorically in Kotak Mahindra Bank Ltd. vs. Girnar Corrugators Private Limited and Others, [2023 (1) TMI 244 - SUPREME COURT] held that non-obstante clause in Section 26E of SARFAESI Act shall prevail over the MSMED Act, in absence of any specific express provision giving priority for payment under the MSMED Act over the dues of the secured creditors or over any taxes or cesses payable to central/state government or local authority.
It is worth mentioning that respondent No.2, Excise & Taxation Department cannot raise a priority claim over and above the Petitioner-Bank, when, as per Section 26E of SARFASEI Act introduced by amendment carried in 2016, the Petitioner-Bank has first charge over the properties being secured creditor in priority over all Other Debts, Revenues, Taxes, Cesses and Other Rates payable to the Central or State Government or Legal Authority and that too when, there is nothing on record to show (even by way of reply or by instructions) that the Respondent No.2 i.e. H.P. Excise and Taxation Department has resorted to assessment of liability; determination of liability and has issued notice of such determination/liability under the statute (i.e. under H.P. Vat Act or other corresponding statutes, if any). In absence of any assessment and the resultant determination of liability, the action of the Respondents in inserting red entry marks in Annexure P-4 and Annexure P-5, in revenue records and the resultant action of Respondent No.3, in refusing to register the Sale Certificate dated 15.01.2021, Annexure P-3, and to carry out the Mutation thereof, in favour of Respondent No. 6-Auction Purchaser, amounts to not only frustrating the statutory provisions of Section 26E of SARFAESI Act, enacted in the year 2016 but also amounts to curtailing or defeating the rights accruing to the Auction Purchaser- Respondent No.6 herein, under the SARFASEI Act.
The impugned order(s) passed by the State Authorities in disallowing registration of Sale Certificate and the consequential mutation etc. being dehors the provisions of SARFAESI Act and the mandate of law are illegal and unsustainable - Petition allowed.
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2023 (8) TMI 1313
Amnesty Scheme - denial of scheme on the ground that the dues have not been completely paid - wilful mis-statement in the return - HELD THAT:- Sec. 30(6) would indicate that where a dealer is liable to pay interest under Sub-section (5) or under Sub-section (7) of Sec. 42 and he makes payment of an amount which is less than the aggregate of the amount of tax, penalty and interest, the amount so paid shall be first applied towards the amount of interest. In case of the petitioners, at the relevant time, there was no purchase tax due nor was it payable.
What was required to be seen was the actual tax due as per the return actually filed by the dealer and not the return which ought to have been filed. Reading the Section as a whole indicates that the concept of interest on such payments is on the payment of tax due as per returns. In the case of the petitioners, the scrutiny of the actual returns filed indicate that the petitioners had claimed erroneous input tax credit of the purchase tax amount shown in the return, and therefore, such purchase tax was not shown as due in the return. In light of this, it was not actually due and payable, and therefore, the provisions of Sec. 30 could not have been pressed into service.
Considering the intention of the amnesty scheme, the interest had to be waived in respect of the tax declared under the scheme, and therefore, the action of the respondents in adjusting the tax paid along with the returns towards the interest is completely contrary to the object, purpose and the terms of the scheme. Even as per the scheme, there is no appeal that would lie against the rejection of a claim thereunder.
The Demand Notice dated 30.10.2021 issued by the respondents is quashed and set aside and the action of modifying the assessment order by adjusting the tax paid by the petitioners against interest liability is set aside and the respondents are directed to consider such tax as paid and adjusted against principal tax liability - Petition allowed.
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2023 (8) TMI 1312
Refund of Input Tax Credit - stock transfer of Gold Bullion - invocation of revision under Section 32(2) of the VAT Act - HELD THAT:- The reasons for seeking to revise the concluded assessment must be expressly stated in the show cause notice. The revisional authority cannot initiate proceedings with a view to start a fishing and roving enquiry and cannot be permitted to begin fresh litigation because of new views he may entertain on facts or new versions as to what should be the inference or proper inference either on facts disclosed or the weight of the circumstances. Merely because the view expressed by the assessing authority is not acceptable to the revisional authority would not render the assessment order to be prejudicial to the interests of revenue.
It is true that a revisional order passed under Section 32(2) of the VAT Act is an appealable one under Section 33(1) of the VAT Act. However, as already noted above, the present writ petition was admitted on 07.09.2021 with an interim order. Having admitted the writ petition, it would not be justified to non suit the petitioner on the ground of availability of alternative remedy at the stage of hearing - the law is well settled that notwithstanding availability of alternative remedy, a petition under Article 226 of the Constitution of India would well be entertainable, provided the aggrieved person makes out a case of violation of the principles of natural justice, when there is a challenge to vires of a statute, when there is violation of fundamental rights or an order is without jurisdiction or in excess of jurisdiction.
There was no material before respondent No. 3 to come to the definite conclusion that petitioner had transferred the purchased gold bullion from Hyderabad to its manufacturing unit at Kolkata and thereafter had exported the manufactured gold jewellery from Kolkata on the basis of purchase orders - Since respondent No. 3 had taken the view that petitioner had not furnished details of the manufacturers with their addresses and the quantity of gold sent for manufacturing as per specific designs of the foreign buyers etc., it would be appropriate to remand the matter back to the file of the revisional authority for a fresh decision in accordance with law with liberty to the petitioner to produce evidence to support its contention.
Petition allowed by way of remand.
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2023 (8) TMI 1289
Exemption from Entry tax - expression 'Manufacturing Dealer' as used in the Notification dated 18.2.2003 (Annexure-2 to the Revision Application) issued under Section 4-B of the Uttar Pradesh Tax on Entry of Goods Act, 2000 - it was held by High Court that It is the Assessee who had made the first sale and shall be deemed to be a manufacturer dealer and liable to claim benefit of the exemption Notification dated 18.02.2003.
HELD THAT:- There are no ground to interfere with the judgment/order impugned in this petition.
SLP dismissed.
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2023 (8) TMI 1229
Validity of notices issued - specific case of the petitioner is that the petitioner is a service provider and has obtained service tax registration from Sales Tax Department under the Finance Act, 1994, as early as in the year 2005 - HELD THAT:- The respondent /Assessing officer in his reply to the petitioner's representation, vide letter bearing Ref.No.1135/2017/A4, dated 15.03.2018, has stated that the copy of the order has not been received by the Commercial Tax Officer, (Enforcement wing) Group III, Coimbatore and the Enforcement Division of Coimbatore also has not received the copy of the order. Although the respondent /jurisdictional Assistant Commissioner, has stated that the order of this Court was not received vide communication dated 15.03.2018, the fact remains that the Enforcement Wing had sent summons to the petitioner on 31.01.2018. Thus, there is no truth in the aforesaid communication.
The impugned orders have been passed, based on the notices dated 02.06.2016, which have already been quashed by this court while passing the aforesaid order dated 07.10.2016 in W.P.No.35694 to 35702 of 2016. Therefore, the impugned orders are liable to be quashed.
The impugned orders are quashed and the case is remitted back to the Commercial Tax Officer (Enforcement wing) Group III, Coimbatore to pass a speaking order on the petitioner's representation - Petition allowed by way of remand.
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2023 (8) TMI 1130
Deletion of amount of tax levied by the assessing authority - rejection of account of books have been confirmed - illegal shifting the burden on the department - HELD THAT:- From perusal of the provision of Section 16 of the UP VAT Act, it is evidently clear that the burden of proof lies upon the dealer/opposite party - Merely showing the purchases through invoices from the registered dealer, will not enough and sufficient to proof that the purchases have been made bona fidely.
The Apex Court in the case of THE STATE OF KARNATAKA VERSUS M/S ECOM GILL COFFEE TRADING PRIVATE LIMITED [2023 (3) TMI 533 - SUPREME COURT], while considering the pari materia of section 70 of the Karnataka Value Added Tax Act, 2003, where the burden was upon the dealer to prove beyond doubt its claim of exemption and deduction of ITC, has held that the primary responsibility of claiming the benefit is upon the dealer to prove and establish the actual physical movement of goods, genuineness of transactions, etc.
In the case in hand, from the verification of the registration numbers of the trucks provided by the dealer, it was found that some of them are of two-wheeler, passenger vehicles, small three-wheeler and some of them could not be found. Therefore, the dealer has miserably failed to prove the actual physical movement of goods which deemed to have been purchased from ex UP dealers.
Once the dealer failed to establish the said purchases and the physical movement of the same, the claim for non-taxability cannot be accepted -
Once the dealer has failed to prove its purchases from registered dealer, the levy of entry tax treating the same to be purchases from outside the local area and levying of entry tax on the HDEP bags is also justified.
Revisions are allowed with a cost of Rs. 5,000/- each, which shall be deposited with the Department within a period of one month from today.
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2023 (8) TMI 1129
Jurisdiction of AP VAT Appellate Tribunal/5th respondent to entertain the stay application pending appeal - recovery of the disputed tax - HELD THAT:- It is true, as rightly submitted by learned counsel for the petitioner, when a substantive power of deciding an appeal is vested with an Appellate Court or Tribunal, the incidental/ancillary power of passing interlocutory orders including stay order shall also be deemed to be vested with the aforesaid Appellate Authority for rendering complete justice as otherwise the appeal will become otiose and the said Appellate Institution will be redundant. This will be against the public interest.
In STATE OF ANDHRA PRADESH VERSUS HINDUSTAN SHIPYARD LIMITED AND OTHERS [1987 (6) TMI 389 - ANDHRA PRADESH HIGH COURT] the division bench of Common High Court of Andhra Pradesh was dealing with the question whether the Tribunal has the power to grant stay in appeals pertaining to the Assessment Years fallen prior to 01.07.1985 because w.e.f the said date, Section 21 of APGST Act, 1956 was amended and sub section 6 and 6(a) were introduced. Section 6(a) created an express embargo of granting stay pending disposal of the appeal filed against the order of first appellate authority or deputy commissioner suo moto or in revision.
Thus, it can be said that the incidental or ancillary power to pass interlocutory orders in the main appeal is inherent or intrinsic in its substantive power of the Appellate Court or Tribunal to decide the appeal pending before it unless such ancillary or incidental power is taken away by an express provision or by necessary implication.
Whether such stay granting power is expressly or impliedly taken away from the AP VAT Appellate Tribunal? - HELD THAT:- While under Section 33(1), a VAT Appellate Tribunal has been conferred jurisdiction to entertain an appeal against the orders specified in that sub-section, including against order passed on appeal under Section 31 as in the present case, Section 31 (6)(b) creates an express embargo on the stay granting power of VAT Appellate Tribunal pending disposal of appeal passed against different orders including the order of the first appellate authority - Therefore, in view of the clear manifestation made by the express provision, the contention of learned GP agreed upon that AP VAT Appellate Tribunal is not vested with the power or jurisdiction to entertain the stay application and pass orders in the present situation.
The petitioner’s prayer to declare the action of respondent No. 1 in issuing the notice and Garnishee notice pending the stay petition before the AP VAT Appellate Tribunal as illegal, cannot be considered on that ground - Petition disposed off.
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2023 (8) TMI 1128
Interest on delayed refund sanction - HELD THAT:- There is no merits in the contention of the Commercial Tax Department that the petitioner is not entitled to the interest during the pendency of the proceeding before this Court in M/S. SWATHY CHEMICALS LTD. [2021 (3) TMI 1187 - MADRAS HIGH COURT]
Merely because the order dated 20.01.1997 of the Appellate Assistant Commissioner was revised by the Joint Commissioner vide order dated 28.05.2003 which was affirmed vide order dated 05.12.2003 pursuant to the show cause notice dated 04.05.1998 would not mean that the petitioner is not entitled to interest during the aforesaid period. Merely because the Department had revised the order of the Appellate Assistant Commissioner dated 20.01.1997 in AP.No.CST 188/95 would not mean the petitioner is not entitled to interest. Once the order of the Joint Commissioner has been restored, the petitioner is entitled to interest as calculated by the petitioner which was also confirmed by the 2nd respondent in its communication dated 30.11.2021.
The respondents are directed to refund the interest amount of Rs. 6,21,919.74/- after adjusting any amount if any paid towards interest during the interregnum, within a period of two weeks from the date of receipt of a copy of this order - petition allowed.
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2023 (8) TMI 1096
Levy of Entry Tax on purchase turnover - purchase of iron & steel from unregistered person - dispute relates to the assessment year 2013-14 - HELD THAT:- It is not in dispute that against the order of the Tribunal partly allowing the second appeal of the respondent, any revision has been has been preferred under the UP VAT Act. It is also not in dispute that while allowing the second appeal in part, the Tribunal has confirmed the levy of tax apart from purchases being made from outside the country as well as purchases made from outside the State of U.P.
It is admitted between the parties that the tax levied by the Assessing Authority has been confirmed, which goes to show that the purchases from unregistered dealer have been confirmed upto the Tribunal. Once the said finding is not assailed by the respondent, the Tribunal was not correct in holding that the respondent has not made purchase of iron & steel from unregistered dealer.
The Tribunal, by the impugned order, has tried to blow hot & cold at the same time. It may further be observed that the Tribunal, while recording the finding under the Entry Tax Act that the purchased have not been made from unregistered dealer by the respondent, has neither made any discussion, nor any material was brought on record to justify the said observation.
The impugned order passed by the Tribunal is set aside to the extent that the levy of entry tax as assessed by the Assessing Authority is confirmed - revision allowed.
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2023 (8) TMI 1095
Legality of Recovery Notices and Garnishee notice sent to the sixth respondent / Indian Oil Corporation Limited - Stay granted not taken note of - violation of principles of natural justice - HELD THAT:- It appears that the respondents have issued the Impugned Recovery Notice without properly taking note of the stay that was granted by the Tribunal in the appeals that are pending before it for the Assessment Year 2007-2008 to 2015-2016.
The petitioner has also paid the tax for these Assessment Years. As far as the rest of the Assessment Years for 2016-2017 & 2017-2018, which is covered partly by the Impugned Recovery Notice as mentioned above, some of the demands have been set aside and the cases have been issued back to the Assessing Officer to pass a fresh order. Therefore, there are no justification in the Impugned Recovery Notice to recover the amounts from the sixth respondent/Garnishee.
The impugned order stands quashed. The respondents are to await for the final order to be passed by the Tribunal for the assessment year 2007 to 2008 to 2015 to 2016, which is likely to be taken up for hearing on 21.07.2023 - Petition allowed.
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2023 (8) TMI 1093
Classification of goods - Khair - falls under the definition of “Timber” as defined under section 2(II) (Explanation 3) of the HP GST Act, 1968 or not - Khair wood, which is a raw material for katha manufacturing companies/ dealers, can be classified as converted timber or not as per notification dated 07-02-1992 - entitlement to claim sale @1% of Khair wood against RM-1, as per Notification No.EXNF( 9)2/99 (ii) dated 23-07-1999 or not.
HELD THAT:- The issue as to whether Khair wood falls within the definition of timber or converted timber, has already been decided by Hon’ble Division Bench of this Court in KARTAR SINGH VERSUS STATE OF HP. AND OTHERS (AND OTHER CASES) [2008 (12) TMI 696 - HIMACHAL PRADESH HIGH COURT] following the judgment of Hon’ble High Court of Punjab & Haryana in PANWAR TIMBERS VERSUS STATE OF PUNJAB [2006 (9) TMI 508 - PUNJAB AND HARYANA HIGH COURT].
When the issue is covered by the above decisions, learned Tribunal has no authority or jurisdiction to make a Reference under Section 33(1) of the HPGST Act, 1968 to this Court in the manner as has been done.
Therefore, the reference is rejected. The matter is to be re-considered by the learned Tribunal in light of the above decisions and an appropriate order be passed in the case of assessee in question.
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2023 (8) TMI 988
Condonation of delay of 390 days in filing the Special Leave Petition - no sufficient reasons for delay - HELD THAT:- It is found that delay of 390 days in filing the Special Leave Petition, now converted into Civil Appeal, has not been explained to the satisfaction of this Court, inasmuch as there is no narration as to what happened between 18.02.2019, the date on which the impugned order was passed till 25.04.2019. Thereafter the only explanation given is that the file had got mixed up with some other files and, therefore, ultimately only on 13.01.2021, the same was noticed and steps were taken to send a letter to the Office of the Advocate General of the State of Kerala and a copy to the Special Govt. Pleader (Taxes) and thereafter, steps were taken to file the appeal on 22.07.2021.
The reason cited for the gross delay of 390 days in filing the Special Leave Petition, now converted into a Civil Appeal, does not pursuade to condone the delay. The explanation offered is not satisfactory and not sufficient in the eye of law to condone the delay - Appeal dismissed on the ground of delay.
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2023 (8) TMI 987
Refund claim - It is the case of the petitioner that bearing in mind the provisions of Section 38(3)(a)(ii) of the DVAT Act, the refund application was liable to be granted within two months from the submission of the revised return and thus latest by 31 May 2015 - HELD THAT:- Once the objections had been duly lodged online, the mere fact that the respondents were unable to trace out the objections filed physically would not detract from the right of the petitioners to claim refund - it is further constrained to observe that the various status reports as well as the averments made in this respect relate to the objections which had been filed for FY 2014-15, those pertaining to FY 2015-2016 and the first quarter of FY 20172018. However, the claim for refund which is made in the instant writ petition, undisputedly, relates to and emanates from the return which was submitted for the quarter ending 31 March 2014. Undisputedly all objections which pertained to FY 2012-13 as well as the period for April 2013 to December 2013 had been duly considered and ultimately disposed of by the respondents themselves in terms of the order of the OHA dated 31 October 2019.
As would be evident from a bare perusal of Rule 34, a claim for refund of tax is liable to be made in Form DVAT-21 only if such a refund is not claimed in the return itself. This clearly emerges from Rule 34(1) which uses the expression “except claimed in the return”. The aforesaid position is again reiterated in sub-rule (2) and which stipulates that only such claim for refunds may be made in Form DVAT-21 which have not been claimed in any previous return. It is thus manifest that once a claim for refund stands embodied in the return itself, there is no additional obligation placed upon the assessee to file Form DVAT-21. This position, in any case, stands concluded against the respondents in light of the judgments rendered by the Court in Corsan Corviam [2023 (4) TMI 4 - DELHI HIGH COURT] and Consortium of Sudhir Power Projects [2023 (2) TMI 290 - DELHI HIGH COURT].
Once a claim for refund stands embodied in the return itself, there is no additional obligation placed upon the assessee to file Form DVAT-21. This position, in any case, stands concluded against the respondents in light of the judgments rendered by the Court in Corsan Corviam and Consortium of Sudhir Power Projects.
There thus existed no justification for the respondents adjusting the sum of Rs. 10,74,67,218/- on 03 December 2018. This since evidently the objections were yet to be disposed of by the OHA on that date - the stand as taken by the respondents cannot be sustained and it is observed that they clearly acted in flagrant violation of the mandate of Section 38 of the DVAT Act.
The impugned order dated 31 May 2022 is hereby quashed. The respondents are consequently directed to refund the amount of Rs. 6,62,74,405/- along with interest from the date it fell due - Petition allowed.
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2023 (8) TMI 986
Levy of luxury tax under the provisions of the Tamil Nadu Tax on Luxuries Act, 1981 - amendment Act No.24/2002 to the Tamil Nadu Tax on Luxuries Act, 1981, imposing 1% on gold, silver, platinum jewellery and other precious stones at every point of purchase - HELD THAT:- The respondent ought to have called upon the petitioner to show cause as to why the amount that was paid by the petitioner covered by the impugned order should be refunded back to the petitioner as the petitioner would have passed on the incidence of tax to its customers - If the petitioner had produced evidence that the incidence of tax was not passed on to the customers, it is not on the part of the duty of the Department/State Government to retain the tax, which was otherwise not due to it.
The impugned order set aside and case remitted back to the respondent to pass a fresh order after calling upon the petitioner to show cause as to how the tax amount, which has been paid by the petitioner pursuant to the impugned order should not be retained by the State Government on account of unjust enrichment.
The respondent shall pass appropriate orders keeping note of Paragraphs 97 and 98 of the decision of the Hon'ble Supreme Court in M/s.Godfrey Phillips India Limited case - petition allowed.
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2023 (8) TMI 935
Rejection of refund application - Assessment order set aside - HELD THAT:- By the order impugned before the High Court, the authority rejected the application for refund. The respondent filed a writ petition challenging such rejection before the High Court of Punjab and Haryana.
The Division Bench of the High Court examined the matter and having considered the order rejecting the refund came to the conclusion that there are no reasons accompanying the decision taken and following the decision in the case of SADHU OVERSEAS VERSUS STATE OF HARYANA AND ANOTHER [2007 (9) TMI 575 - PUNJAB AND HARYANA HIGH COURT] as well as RATTI WOOLLEN MILLS VERSUS STATE OF PUNJAB AND OTHERS [2007 (2) TMI 587 - PUNJAB AND HARYANA HIGH COURT], the High Court allowed the writ petition(s) and directed the refund to be made.
Further, the High Court directed that the interest shall be calculated at a statutory rate of 12 per cent for the first month of delay and at the rate of 18 per cent per annum in respect of delay caused for the subsequent months.
The interest payable confined to 12 per cent per annum for the entire period - application disposed off.
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2023 (8) TMI 934
Maintainability of petition assailing the assessment - availability of alternate remedy of appeal - Validity of assessment orders - Levy and recovery of Local Body Tax (LBT) - bringing the goods, subject matter of assessment within the municipal limits for use, consumption and sale or not - vires of sub-section 152D of the MMC Act - HELD THAT:- The municipal taxation in regard to the levy and recovery of the LBT is part of a well defined statutory scheme, which is a Code by itself. The question would be whether the petitioner has made out any exceptional case so as to be made an exception from deviating the statutory scheme and discipline as may be legitimately required in entertaining the present petition. Considering the case as averred by the petitioner in the petition, it is opined that at this stage of the proceedings, the vires of sub-section 152D of the MMC Act not examined, as challenged by the petitioner - this is because what was questioned by the petitioner are primarily the assessment orders.
It would quite justified in taking such view considering the clear averments as made in the memo of petition in paragraph 5(f) when the petitioner takes a position contrary to the well settled principles of law, i.e. when the petitioner contends that the provision of not allowing filing of a statutory appeal without deposit of the disputed tax is arbitrary, harsh and irrational (when the validity of the said provision of pre-deposit has already been upheld]. Also when the petitioner clearly avers in the petition that it is difficult for the petitioner to pay the entire amount of disputed tax to maintain the appeal, and for such reason this petition is filed.
The Division Bench of this Court in case KHARGHAR CO-OP. HOUSING SOCIETIES FEDERATION LTD. AND ORS. VERSUS MUNICIPAL COMMISSIONER, PANVEL MUNICIPAL CORPORATION AND ORS. [2023 (4) TMI 1241 - BOMBAY HIGH COURT] when in the context of payment of municipal taxes the Division Bench referring to the provisions of Section 406 and considering the several decisions of the Supreme Court in Shivram Poddar Vs. Income Tax Officer, Central Circle II, Calcutta and Anr. [1963 (12) TMI 6 - SUPREME COURT]; Income-Tax Officer Lucknow Vs. M/s S.B. Singar Singh & Sons & Anr. [1976 (8) TMI 5 - SUPREME COURT]; Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & Ors. [1984 (11) TMI 63 - SUPREME COURT]; M/s. Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-cum-Assessing Authority & Ors. [2023 (2) TMI 64 - SUPREME COURT] has held that the petition under Article 226 of the Constitution assailing the assessment and demand order ought not to be entertained and the proper remedy would be to challenge the assessment order by taking recourse to the statutory remedy of an appeal - Such decision is squarely applicable in the facts of the present case, as contention of the petitioner is similar to one considered by the Division Bench in Kharghar Co-op. Housing Societies’ case.
Petitioner has not brought the goods, subject matter of assessment within the municipal limits for use, consumption and sale and has purchased goods locally - HELD THAT:- In so far as the contention of the petitioner on merits are concerned namely that the petitioner has not brought the goods, subject matter of assessment within the municipal limits for use, consumption and sale and has purchased goods locally and therefore such goods are not liable for the levy of the LBT, is a factual contention, which can be effectively examined on the basis of the documents and which can be certainly examined in the proceedings of a statutory appeal.
The petitioner has not made out any case for interference in these petitions so as to pursuade the Court to make an exception to entertain the petitions, notwithstanding the statutory remedy of an appeal available to the petitioner as provided under the provisions of Section 406 of the MMC Act - merely for the reasons that the vires of a statutory provision namely Section 152D of the MMC Act being assailed by the petitioner, would not mean that de hors a strong foundation and a cause of action for assailing such provision being made out, the Court nonetheless would be under an obligation to examine the vires of the said provision and entertain the petitions.
The petitioner is permitted to avail the remedy of an appeal under Section 406 of the MMC Act to assail the impugned assessment orders. Let such appeal be filed within four weeks from today - If such appeals are filed, the same be adjudicated by the appellate authority on its merits without an objection as to limitation as the petitioner was bonafide pursuing the present proceedings. All contentions of the parties on the merits of the proceedings if any instituted before the appellate authority are expressly kept open.
Petition disposed off.
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9911796707
