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VAT / Sales Tax - Case Laws
Showing 281 to 300 of 545 Records
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2023 (5) TMI 1330
Jurisdiction - Assessment Order is barred by limitation or not - power of the High Court to exercise jurisdiction under Article 226 of the Constitution of India in a case where the appeal is filed beyond the condonable period of limitation asper the statute - HELD THAT:- It is profitable and relevant to refer the judgment of the Hon’ble Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and others v. M/s. Glaxo Smith Kline Consumer Health Care Limited [2020 (5) TMI 149 - SUPREME COURT]. The question before the Hon’ble Supreme Court emanated from the judgment and order passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in [2018 (11) TMI 1780 - TELANGANA HIGH COURT] is whether the High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, can entertain a challenge to the assessment order on the ground that the statutory remedy of appeal against that order stood foreclosed by the law of limitation.
In the light of the observations made by the Hon’ble Apex Court in M/s. Glaxo case, the question was answered in negative taking a view that the High Court cannot exercise its jurisdiction under Article 226 of the Constitution of India to attend the cause where the statutory appeal filed beyond the condonable period of limitation as a matter of course.
The powers of High Court under Article 226 of the Constitution of India though wide, should be exercised with self-imposed restraint, and as such the Court cannot issue any writ which is inconsistent with the legislative intent regarding the prescribed period of limitation under Section 31 of the VAT Act, 2005, thereby making the legislative scheme and intention behind the proviso futile. The party who approaches the court under writ jurisdiction, has to substantiate the plea of “inability” to file appeal within the prescribed time.
Furnishing ‘C’ forms after passing assessment order - HELD THAT:- In the instant case, the First Appellate Authority and Second Appellate Authority did not make any attempt to refer and consider whether the service of pre-assessment notice, notice for personal hearing and service of assessment order before the Assessing Authority were made in accordance with the statute and if not, the resultant violation of principles of natural justice. They have not considered the case of the petitioner in right perspective as to the service of notice as per Rule 64 of the AP VAT Rules. Under these circumstances, there is no option for the petitioner except to seek indulgence of this Court under Article 226 of the Constitution, on the ground of gross violation of principles of natural justice - in the peculiarity of the present case, since the pre-assessment notice was not served as per the procedure, we deem it fit that an opportunity shall be given to the assessee to place the material supporting direct export sales under Section 5 (1) of the C.S.T Act for claiming exemption.
The matter is remitted to the Assessing Authority for fresh consideration within a period of three months from the date of receipt of a copy of this order. Consequently, the garnishee notice issued by the 2nd respondent to the 5th respondent is set aside subject to the petitioner maintaining Rs. 38,03,561/- i.e., the balance of the disputed tax in the bank account, till disposal of the Assessment Order.
Petition is allowed by way of remand.
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2023 (5) TMI 1316
Seeking to quash the revisional order - Seeking restraint on opposite parties from collecting the penalty as involved in the revisional order - HELD THAT:- The Additional Commissioner of Sales Tax (Appeal) has made a suo motu revision against the order passed by the Sales Tax Officer, Sambalpur II Circle, Sambalpur, but on perusal of the provisions of law, it appears that he has no authority to do so. This question had come up before this Court for consideration in the case of M/s. Maharana Supply and Co. [2022 (12) TMI 1138 - ORISSA HIGH COURT], wherein at paragraph-14, this Court observed Admittedly, in the present case, it is the STO who has passed the assessment order under section 42 of the OVAT Act which was sought to be revised by the Addl. CST. Therefore, even in terms of the notification dated 5th June, 2018 the Addl. CST lacked the jurisdiction to revise the order of the STO.
The order passed by the Additional Commissioner of Sales Tax (Appeal) dated 22-6-2017 under Annexure-3 cannot be sustained in the eye of law and the same is liable to be quashed and is hereby quashed - petition disposed off.
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2023 (5) TMI 1293
Violation of Section 75 (4) of the respective GST enactments - petitioner's request for filing their reply to DRC-01 dated 03.01.2023 has not been considered - HELD THAT:- The case is remitted back to the respondents to pass a speaking order within a period of 45 days from the date of receipt of a copy of this order - The petitioner shall positively file their reply to the respective DRC-01 dated 03.01.2023 within a period of 15 days from the date of receipt of a copy of this order.
Writ Petitions stand disposed of.
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2023 (5) TMI 1250
Classification of goods - toffee - to be covered under Entry No. 137 Schedule II Part A of the U.P. Value Added Tax Act, 2008 or not - it was held by High Court that One commodity has to be charged to tax at one rate. The revenue having chosen to tax the same or similar commodity at the lesser rate in case of other dealers whether manufacturer or trader, it cannot be permitted to take a different view as that may introduce uncertainty and arbitrariness in tax regime, which is never permissible.
HELD THAT:- There are no reason to interfere with the impugned order - SLP dismissed.
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2023 (5) TMI 1189
Production of C-Forms - Seeking return of amount recovered consequent to such communication in excess of 30% of the demand along with interest - whether this Court must dispose of the petition with only orders on the petitioner’s grievance as against the communications dated 27.10.2020 in order to enable effective and complete adjudication?
HELD THAT:- If the law does not prohibit multiple assessments under circumstances and such circumstances could include the subsequent production of statutory C-forms, the petitioner should not be exposed to the travails of multiple proceedings. This Court must also consider the fact that the department has realised the entire demand as way back as in the month of November 2020.
If the petitioner is permitted to produce the Statutory C-Forms and the fourth respondent is 1 Sri Hema Kumar K, learned Additional Government Advocate also submits that the amount is realised only after the lapse of the appeal period as against the order dated 18.11.2020. directed to reconsider assessment the petitioner’s grievance not just against the realisation of the demand but also framing of assessment, there would complete adjudication. As such, the petitions must be disposed of quashing the orders dated 18.09.2020 by the fourth respondent with liberty to both the parties and authorities to place a certified copy of this order before the fifth respondent for disposal of the appeals in Nos. 357087702 and 327087703 consequent to this order.
The petitions are disposed of quashing the fourth respondent’s orders dated 18.09.2020 and consequentially, the assessment proceedings are restored to the fourth respondent for reframing with due opportunity to the petitioner to file Statutory C-Forms.
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2023 (5) TMI 1147
Review of Order after gap of 13 years - delay can be condoned or not - right for cross-examination to the third party in reassessment proceedings - Seeking Refund alongwith Interest - HELD THAT:- In the facts of the present case, initial assessment order was passed wayback on 09.01.2001 (Annexure P-1). Thereafter, reassessment order was passed on 12.06.2002 (Annexure P-2) and a demand for Rs. 18,20,000/- was raised. Thereafter, appeal filed by the assessee before the Joint Excise and Taxation Commissioner (A), Hisar was dismissed vide order dated 19.12.2002 (Annexure P-3). However, the demand was reduced to Rs. 17,06,322/-. The said order was challenged by the petitioner whereby the Tribunal disposed of the appeal on 03.10.2012 (Annexure P-4) by observing that the assessee had a right for cross-examination to the third party in reassessment proceedings. However, the Tribunal did not remand back the matter to the Assessing Authority for reassessment vide order dated 03.10.2012 (Annexure P-4). For all intents and purposes, orders from 09.01.2001 (Annexure P-1) till the order dated 19.12.2002 (Annexure P-3) passed by Joint Excise and Taxation Commissioner (A), Hissar have attained finality. Even if the Department has filed application for modification of the order of the Tribunal dated 03.10.2012 (Annexure P-4) as reflected in the affidavit filed by the Excise and Taxation Commissioner dated 18.03.2020, the time taken from 03.10.2012 till 09.01.2020 (date of filing application) i.e. 8 years cannot be condoned as per Section 35 of the Act, 2003.
There is a period of one year provided as per the Act, 2003 for seeking review of any order passed by the Tribunal. Hence, the time for getting the reassessment order reviewed has already elapsed and the reassessment order has already attained finality. The order of the Tribunal dated 03.10.2012 (Annexure P-4) cannot be reviewed after a gap of 8 years and as on today almost 13 years have gone by and even at this stage, application filed by the respondents for reviewing order dated 03.10.2012 (Annexure P-4) is still pending for adjudication - Moreover, Section 18 of HVAT Act is not attracted in the present case for deciding the remanded case in two years as the present case was not remanded back to the Assessing Authority. As per Section 35 of the Act, 2013, even review application is not maintainable and has to be dismissed on the ground of delay.
The writ petition is allowed and direction is given to the respondents to refund an amount of Rs. 17,06,322/- pursuant to order dated 19.12.2002 (Annexure P-3) alongwith statutory interest as per law.
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2023 (5) TMI 1146
Cancellation of Exemption/Entitlement Certificate for discontinuance of business by the unit during the currency of Exemption Period - activities did not totally stopped in Delhi as there were still many suppliers - Rule 28A of HGST Rules, 1975 - HELD THAT:- It is not in dispute that the appellant was granted benefit of exemption from sales to the tune of Rs. 68,24,200/-for nine years, but, he availed the benefit of only Rs. 6,22,830/-, as the industry unit was closed down and he could not run the unit for next five years, as per the policy.
Whether the circumstances were beyond the control of the appellant-Company?
HELD THAT:- After going through order dated 09.11.2017, it appears that the authorities had accepted this fact that identical units in the area closed down due to the fact that the consumers of their product started their own units and thus, their market was lost. Further the earlier yarn units also started their own woven fabrics units and are in bad shape. The appellant was allowed exemption to compete in the market but he chose to close the business, after availing the benefit of exemption. Most of the suppliers of the appellant were in Delhi and it cannot be presumed that such activities totally stopped in Delhi. The demand of the product is much more. The reasons given by the appellant were held to be not beyond its control so as to be covered under the proviso to Rule 28A (11) of the HGST Rules, 1975.
In Priti fan’s case, the appellant-unit suffered due to the floods directly as well as indirectly due to over all loss of economic activity in the vast flood affected region in and around Rohtak. The appeal was allowed and it was held that the adverse effects of the floods cannot be underestimated which appeared to have delivered the final crushing blow to the viability of the Unit. It was opined that the Unit, tiny as it was since its inception, deserve the benefit of first proviso to Rule 28A (11B).
In the facts of the present case, it is not in dispute that the appellant had availed the benefit of 6,22,830/- during the relevant period, he was granted the benefit of exemption from sales to the tune of Rs. 68, 24,000/- for a period of nine years. This fact in itself shows that there was loss in business, which were beyond the control of the appellant. The case of the appellant cannot be discarded on the ground that the company should increase the business and invest more money in production. It is not a case where the assessee had availed the benefit of exemption beyond Rs .68,24,000/-, which was granted to it.
The writ petition is allowed.
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2023 (5) TMI 1074
Delayed Service of SCN - whether the impugned order dated 03.02.2020 (Annexure P-4), which was served upon the petitioner on 29.12.2021 i.e. after 22 months, would render the revisional order without jurisdiction?
HELD THAT:- This aspect has already been considered by Hon’ble the Supreme Court in STATE OF ANDHRA PRADESH VERSUS KHETMAL PAREKH & M. RAMAKISHTAIAH AND CO. [1994 (2) TMI 260 - SUPREME COURT]. In that case, the Andhra Pradesh High Court had allowed the revision filed by the assessee on the ground that the Deputy Commissioner had passed the said order on 06.01.1973, but it was served on the assessee only on 21.11.1973. The High Court had accepted the submission of the assessee that the order, which was served beyond the period of limitation, could not have been passed before expiry of limitation on 06.01.1973. The order could have been communicated within a reasonable period. The High Court further held that the respondent-assessee was not bound by that order. The Hon’ble Supreme Court dismissed the appeal filed by the State of Andhra Pradesh and held that in the absence of any explanation whatsoever, the Court must presume that the order was not made on the date it purported to have been made.
Reference can also be made to a decision given by Hon’ble the Supreme Court in AJANTHA INDUSTRIES AND OTHERS VERSUS CENTRAL BOARD OF DIRECT TAXES AND OTHERS [1975 (12) TMI 1 - SUPREME COURT], wherein it has been held that non-communication of order is a serious infirmity.
The ratio of the above said judgments is directly applicable to the facts of the present case - In the present case, the assessment order was passed on 03.02.2014 (Annexure P-1) and notice for re-assessment was issued on 13.09.2019 (Annexure P-2). Even though, the final order was passed on 03.02.2020 (Annexure P-4), it was received by the petitioner on 29.12.2021 i.e. after 22 months of passing thereof. In the written statement filed on behalf of the respondents, no explanation has been given, as to why this delay took place and who was responsible for such a long delay in communicating the impugned order to the assessee.
Petition allowed.
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2023 (5) TMI 970
Classification of goods sold - photo identity cards - to be classified under Entry 71 of Schedule III to the Karnataka Value Added Tax Act, 2003 or under the residuary category under Section 4(1)(b)(iii) of the Karnataka Value Added Tax Act, 2003? - only the specific goods mentioned under Entry 71 of Schedule III to the Karnataka Value Added Tax Act, 2003 merit classification under the said Entry as 'printed material' as well as 'stationery articles' or not?
HELD THAT:- The first part of Entry 71 of the Schedule III to the KVAT Act specifies printed materials other than books meant for reading. The Tariff item No. 49.01 of the CET Act includes other products of the printing industry - For the purpose of Chapter 49 of the CET Act, ‘printed’ also means ‘reproduced’ by means of a duplicating machine, produced under the control of a computer, embossed, photographed, photocopies, thermocopied or typewritten. It is relevant to note that, photo identity cards are also produced by using a computer, holograms are embossed, and photographs affixed. Therefore, a photo identity card falls within the definition of ‘other products of printing industry’ under Tariff item No. 49.01 of the CET Act.
The Parliament has excluded only certain items and Photo identity card is not one such excluded item.
It is settled that if an item is cleared under a particular tariff, by the Central Excise Authority, the same is not disputable by the VAT Authorities - reference can be made to decision in the case of SAMSUNG INDIA ELECTRONICS PVT LTD VERSUS STATE OF GUJARAT [2020 (2) TMI 1247 - GUJARAT HIGH COURT].
The principal contention urged by the Revenue that photo identity cards do not fall under the Entry 71 of Schedule III to the KVAT Act, is untenable because, the KVAT Authority is bound by the classification accepted by the Central Excise Authority - the photo identity cards fall under Entry 71 of Schedule III to the KVAT Act under the category of printed materials other than books meant for reading, and accordingly, taxable at 5%.
The revision petition is allowed.
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2023 (5) TMI 969
Validity of SCN demanding VAT - charges collected for supplying and installation of goods in respect of internet and cable services - respondent was registered during the periods in question - taxability of charges collected by the Respondent for supplying and installation of goods in respect of internet and cable services provide by the Respondent to its customers - HELD THAT:- The electromagnetic waves are not goods and waves are merely carriers of information and are not consumed by the customers in any form. Therefore, in the transaction between the cable service provider and the customer there is no sale of any tangible goods. Hence, the transaction is not taxable.
The KAT has rightly held that the notices sent by AO has merely made a bald allegation that the assessee had supplied goods without referring to the particular goods or the sale transaction. Thus, the notice proposing the demand by itself was vague and contained no legal basis for proposing the demand. It has further held that the companies may receive installation charges from the customers for providing cable internet services. From such a contract it needs to be ascertained whether there is an implied transfer of cable to the customer or whether other service provider may also use the same cable for internet signal supply in which case, a deemed transfer of property can be ascertained. It is settled that strict interpretation of the words used in taxing statutes is warranted. No tax can be levied by implication, unless the subject falls within the four corners of statutory provision of the levy.
There are no error in the findings recorded by the KAT - petition dismissed.
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2023 (5) TMI 930
Classification of goods - Gas Metering Skids - classifiable under Chapter Tariff Heading No. 90328990 or classified as ‘machinery’ under Entry No. 58A in Schedule II of the Gujarat Value Added Tax Act, 2002 where the rate of tax is 4 paise in the rupee - Gas Meter Skid” are not used in the manufacture of the final product but only for transportation of Gas, or not - whether the ‘Gas Metering Skid” was not an accessory and/or component of the machine used in the manufacture of goods and therefore appropriately classifiable under Entry 58A of the Schedule II of the GVAT Act?
HELD THAT:- As far as the Special Civil Applications are concerned, the orders challenged therein are the orders passed by the Deputy Commissioner respondent No.4 herein. The Deputy Commissioner, it was submitted, ex-parte relied on the order passed by the Tribunal which is subject matter of challenge in the above captioned appeals and that they are passed even without hearing the petitioners to dismiss the case of the petitioners - Since the aforesaid appeals are admitted and in ultimate analysis the issue involved in the petition is identical, there shall be notice in all the petitions, returnable on 7.6.2023.
Since, it was stated that in the two appeals as well as in the Special Civil Applications, the appellants-petitioners have paid the amount towards tax payable, which is also reflected from the impugned orders, by way of ad-interim relief, it is directed that there shall be no coercive steps against the appellants/petitioners in respect of the further recovery of tax. The petitioners, however, shall be obliged to pay the tax with interest, if so adjudged and ordered by the court at the final conclusion of the matter.
Application disposed off.
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2023 (5) TMI 898
Benefit of Concessional rate of tax denied - rejection of claim of the appellant for production of Form-C declaration - appellant’s case is that the assessment was an ex parte assessment and Form-C declaration could not be produced - HELD THAT:- The decision of the authorities below in refusing to accept Form-C declaration is contrary to the settled legal principles. One of the earliest decisions on the said point is a Full Bench judgment of the High Court of Madras in the case of State of Tamil Nadu vs. Arulmurugan reported in [1982 (11) TMI 143 - MADRAS HIGH COURT], where it was held that The fact that he subsequently produced the C forms cannot in any way justify the assessee's contention that necessary opportunity had not been granted to the assessee for the production of the C forms. There is no error of law in the conclusion arrived at by the Tribunal.
The above decision was taken note of by the Hon’ble Supreme Court in the case of STATE OF ANDHRA PRADESH VERSUS HYDERABAD ASBESTOS CEMENT PRODUCTION LTD. [1994 (4) TMI 302 - SUPREME COURT] wherein it was held that the appellate authority has sufficient power to receive Form C declaration even at the appellate stage. Thus, the stand taken by the authorities namely, the assessing officer, the appellate authority, revisional authority and the reviewing authority are contrary to law.
The writ petition is allowed, the order passed by the authorities are set aside and the matter is remanded back to the assessing officer.
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2023 (5) TMI 889
Liability to pay Entertainment Tax - sharing of Revenue - proprietor has the ultimate control in the transmission of programs, which he receives from a satellite and through the Local Cable Operators (LCO), broadcasts to the subscribers - constitutional issue raised by the petitioner with reference to the 101st Amendment of the Constitution of India - power to levy and collect the tax as per the enactment, after the 101st amendment - HELD THAT:- A similar provision defining Proprietor was available in the Delhi enactment. The Division Bench which considered the matter in Siti Cable Networks Limited [2017 (3) TMI 627 - DELHI HIGH COURT] also proceeded on the basis that the definition of the word “Proprietor” covers both the MSO and the LCO. It was held that the expression ‘in the manner prescribed’ in Section 7, the charging section, which requires the tax ‘to be collected by the proprietor and paid to the Government in the manner prescribed’, and the definition of the word ‘prescribed’ in Section 2(n); makes inevitable a reference to Rule 26, which also refers to the proprietor of a cable television network. It was thus held that where an MSO provides cable service directly to the subscribers, it would fall under the definition of the proprietor and if it is given through an LCO; then LCO would fall under such definition.
The LCO as per clause 9.6 is interdicted from, (i) transmitting or retransmitting, interpolating any signals, not transmitted by the MSO, (ii) inserting any commercial or advertisement or information on any signal transmitted by the MSO, (iii) interfering in any way with the signals of the MSO or using any equipment for decoding, receiving, recording or using a counterfeit set-top box, (iv) altering or tampering the Hardware and (v) using any Hardware not supplied by the MSO. There shall also be no connection provided by the LCO to any entity for retransmission of the TV signals (Clause 9.7) and the LCO is also prohibited from recording and retransmitting and from blocking, adding or substituting the TV signals transmitted by the MSO - It was on similar provisions that the Hon’ble Supreme Court in paragraph 36 of Purvi Communication (P) Ltd. [2005 (3) TMI 438 - SUPREME COURT] found the respondent therein, an MSO, to have a direct and proximate nexus with the entertainments provided by them through the cable TV network and found them to be liable as the taxable person, liable to pay tax on the gross receipts obtained from the viewers; the subscribers.
The Act of 1948 in the State of Bihar, by which the State, through its Commercial Tax Officers collect entertainment tax inter alia from the proprietors of cable television networks cannot survive the 101st Amendment, since the field of taxation available to the State under the amended Entry 62 of List II is confined to those levied and collected by the local self-government institutions. The tax for the period prior to the amendment, though levied on the taxable event occurring, cannot also be collected since there is no transition provision available under the 101st Amendment making such collection of entertainment tax permissible for one year or by way of a repeal; by an enactment, consistent with the amendment, with a saving clause for continuance of the levy and collection under the old Act as it was never repealed.
The impugned orders are hence set aside, only on the ground of the authorities under the Act of 1948 having been denuded of the power to levy and collect the tax as per the enactment, after the 101st amendment. The State also is denuded of the power to make an enactment in the nature of the Bihar Entertainment Tax Act, 1948 after the 101st Amendment. The repeal and the saving clause provided under the BGST Act does not inure to the benefit of the State since the enactment and the levy made by it cannot be sustained after the 101st amendment - Petition allowed.
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2023 (5) TMI 888
Condonation of delay in filing the application for refund - Refund of Excess Tax - time limitation - application rejected as the same is not made within 180 days.
HELD THAT:- There is no dispute that vide assessment order dated 06.07.2016 and amount of Rs. 75,59,265/- (Rupees Seventy Five Lakh Fifty Nine Thousand Two Hundred Sixty Five Only) has been held to be payable as refund to the petitioner. There is also no dispute that the statute prescribes the procedure which is to be followed by the department in addressing the refunds.
The provisions of the statute read with the Rules thus give power to the authorities to consider such application beyond limitation on such grounds and reasons mentioned as may be applicable. However, in the impugned order dated 29.08.2019 passed by the Superintendent of Taxes, Guwahati, Unit-A, there is no reference to any such grounds or reasons which are stated to have been furnished by the petitioner. It is not the submission of the respondent Department that no such grounds as contended by the petitioner, had been furnished before the Superintendent of Taxes for consideration of the application which was filed beyond limitation, explaining the circumstances under which the delay had occurred.
In the opinion of this Court, where the first authority namely the Superintendent of Taxes, Guwahati, Unit-A in his order did not refer to any of the grounds submitted in explaining the delay that had occurred by the petitioner, perhaps there was no occasion for the revisional authority to consider the grounds and render a finding as to whether the same is sufficient or insufficient. Such power under the Act and the Rules is not bestowed upon the revisional authority. Rather it is the assessing authority who is conferred with the powers to grant or reject refund applications beyond the period prescribed upon such consideration of the grounds and reasons mentioned.
In the facts and circumstances of the case, it is seen that there is no denial by the respondent department that grounds and reasons were furnished before the assessing authority. Rather From the impugned order dated 25.02.2021 passed by the Revisional authority, it is seen that certain explanations were furnished by the petitioner explaining the delay that had occurred. As such, it is evident that the assessing authority who was required to consider the explanations furnished explaining the delay that had occurred in filing any application for refund did not consider such grounds as the same is not discernable from the impugned order dated 29.08.2019 passed by the respondent No. 4.
The apex Court in N Balakrishnan Vs M. Krishnamurthy, [1998 (9) TMI 602 - SUPREME COURT] had considered the words “sufficient cause”. The Apex court held that the primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules or limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury.
Condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is not matter, acceptability of the explanation is the only criterion - A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. The words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice.
This Court is of the view that as per the statute it is the assessing authority namely the Superintendent of Taxes, Guwahati, Unit-A, respondent No. 4, who is at the first instance required to consider the grounds furnished by the assessee and render its finding as to whether the same are sufficient explanations for the delay that had occurred. The said authority must also keep in mind that the refund which the petitioner has sought for has already been determined by an adjudicatory process by way of assessment order dated 06.07.2016 passed by the Superintendent of Taxes.
Matter is remanded back to the respondent No. 4 to re-decide the issue within a period of four week from the date of receipt of certified copy of this order - Petition allowed by way of remand.
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2023 (5) TMI 887
Levy of tax - Direct Export Sales - Sales in the Course of Export - exempted under Section 5(1) and Section 5(3) respectively of the CST Act, 1956 - levy of tax on the only ground that the ‘H’ forms and other related evidences were filed after passing of the Assessment Order as being contrary to the proviso to Rule 12(7) r/w Rule 12(10) of the CST (R&T) Rules, 1957.
Whether there are merits to consider the Writ Petition or not? - HELD THAT:- Admittedly the petitioner has not furnished Forms ‘H’ and other connected evidence showing that he made Export Sales and Sales in the Course of Export before the assessment order was passed by the 2nd respondent. His submission is that due to the prevalence of Covid- 19 pandemic situations wherein a general ban was imposed by the Central and State Governments restricting the movements of the public, he could not submit the Forms before the 2nd respondent - In this context a perusal of the copy of original Assessment order filed along with the material papers shows, the impugned order was passed by 2nd respondent on 3.11.2020, It is an admitted fact that since March, 2020, the Covid-19 pandemic was in force and thereby the Central and State Governments restricted the movements of the general public. Learned Government Pleader has not disputed this fact and hence we can take Judicial notice of the same.
There are substance in the submission of learned counsel for petitioner that due to the prevalence of the Covid- 19 pandemic, he could not file Forms ‘H’ and other relevant material to establish that in deed he made exports sales.
In Raj Trading Company Vs. State of Punjab [22013 (9) TMI 980 - PUNJAB AND HARYANA HIGH COURT] in similar circumstances, the High Court of Punjab also having observed that the petitioner therein was in possession of ‘H’ Form by the date of original assessment order and appellate order showing prima facie that the goods were exported out of the country, directed the appellate authority for adjudication of the matter afresh with respect to the forms ‘H’ and ‘C’ relied upon by the appellant.
The Revised Assessment Order dated 09.03.2023 passed by the 1st respondent is set aside to the extent of the said authority refusing to accept the Forms ‘H’ and other relevant material produced under section 5(1) and 5 (3) of CGST Act with a direction to consider those materials produced by the petitioner and afford an opportunity of hearing to the petitioner to establish the genuinety of those documents and after affording an opportunity of hearing to both parties, pass an appropriate order on merits afresh expeditiously.
Petition allowed.
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2023 (5) TMI 856
Jurisdiction of DRT to waive off the pre-deposit while deciding the appeal - Section 19 of the DRT Act, as amended by Section 35 of Act No.44 of 2016 - relevant period, post amendment - HELD THAT:- This very question has been considered by this Court in A.K. SINHA, JATINDER MOHAN MITTAL VERSUS CANARA BANK, DEBTS RECOVERY APPELLANT TRIBUNAL AND OTHERS [2019 (7) TMI 1974 - PUNJAB AND HARYANA HIGH COURT], whereby this Court had held that if, any amendment is made during the pendency of the appeal, the unamended provisions cannot be applied.
In the present case as well, the appeal filed by the petitioner before the Appellate Authority could only be entertained, if it had deposited 25% of the additional demand as per amended provisions of Section 62 (5) of the Act. The application for waiver of pre-deposit was pending when the amendment came into force. The Appellate Authority was bound by the amendment as the application was to be decided in accordance with law.
Hence, the conditions of pre-deposits, in any case, are procedural and the petitioner cannot claim that its right to appeal has to be considered as per the un-amended provisions of the Act - the judgment passed by Hon’ble the Supreme Court in M/s Technimont Pvt. Ltd.’s case [2019 (9) TMI 788 - SUPREME COURT] is very clear that right of appeal is a right granted by the statute and whatever conditions are imposed, the assessee is bound by those.
In the present case, the amendment came into force w.e.f. 28.07.2015. At that time, application seeking waiver of the pre-deposit was pending. In this backdrop, the jurisdiction of the Appellate Authority to completely waive off the conditions of pre-deposit, as per un-amended provisions of Section 62 (5) of the Act, was not existing. Therefore, no ground is made out to interfere in the impugned order as no illegality, much less perversity, has been found therein.
Petition dismissed.
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2023 (5) TMI 855
Classification of goods - Entitlement for exemption of payment of VAT in excess of 5% thereupon - Pizza - sandwich - falls within the notification dated 09.03.2010 or not - whether ‘pizza’ and ‘sandwich’ fall within the ambit of “cooked food” to claim benefit of exemption notification dated 09.03.2010? - HELD THAT:- It appears that the Tax Board has not even determined ‘pizza’ to be ‘food’ in the common parlance, even though it is cooked and served in restaurants or hotels. The Tax Board has restricted the definition of food to those meals that are consumed at regular hours/intervals for satisfaction of hunger and for sustenance, like vegetables, chapatti/roti, rice, etc. - In the opinion of this Court, both the authorities below have relied on extraneous, unsound, specious, and ill-founded factors and have therefore reached a perverse conclusion.
The burden to prove that a specific product falls within a particular tariff is always on the revenue, more so when the revenue is trying to classify products in the residual entry as against the specific entry. In the instant case, the revenue has utterly failed to adduce any evidence, technical or otherwise, to substantiate its claim that ‘pizza’ and ‘sandwich’ are not ‘cooked food’. The revenue has not brought on record any expert opinion, any scientific study or survey to prove that ‘pizza’ and ‘sandwich’ are in-fact not ‘cooked food’ - Merely by stating that cooked food is necessarily prepared on gas burner, with aid of oil/ghee and spices, using exclusively fresh ingredients and then served with traditional cutlery, the Additional Commissioner arrived at the conclusion ‘pizza’ or ‘sandwich’ are not ‘cooked food’. If the revenue wanted to rely on these factors, it was the duty of the revenue to prove/establish that these factors are themselves true and that these factors are essential for determination of what construes as ‘cooked food’. Since the same was not done by the revenue, the Assistant Commissioner has wrongly relied upon the factors and wrongly accepted them on their face value.
A bare perusal of the Notification No. S.O. 263 dated 09.03.2015 would reveal that the State Government had itself considered items like ‘pizza’ and ‘sandwich’ to be ‘cooked food’. As rightly submitted by learned counsels for the petitioner-assessee, it is a settled position of law that subsequent legislation can be looked at in order to see what is the proper interpretation to be put upon the earlier legislation when the earlier legislation is found to be obscure or ambiguous. Since the State Government has included ‘pizza’ and ‘sandwich’ in the broad category of ‘cooked food’ in subsequent notifications dated 14.07.2014 and 09.03.2015, therefore the sale of ‘pizza’ and ‘sandwich’ would qualify as sale of ‘cooked food’ under the notification dated 09.03.2010 as well.
This Court holds that the question(s) of law framed above are answered in the favour of the petitioner-assessee and against the respondent-revenue. As a result, pizza and sandwiches are held to be cooked foods - Revision allowed.
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2023 (5) TMI 854
Liability to pay interest on additional tax - relevant date for commencement of interest liability - Additional demand of tax and interest under Section 14(6) of the Haryana Value Added Tax Act, 2003 - Income received by the dealer from M/s. Asia Motor Works against the repair of accidental trucks - warranty claim received in the shape of credit notes from the company i.e. M/s. Asia Motor Works in respect of the goods replaced during warranty claim and reduced from purchases - HELD THAT:- The judgment referred to by learned counsel for the respondents in UNITED RICELAND LIMITED AND ANOTHER VERSUS STATE OF HARYANA AND OTHERS [1995 (8) TMI 296 - PUNJAB HIGH COURT], and Chaudhary Tractor Company, Tohana, District Sirsa vs. State of Haryana [2006 (5) TMI 455 - PUNJAB AND HARYANA HIGH COURT] would not be applicable as these cases deal with the provision of demand of interest under Section 25(3) of the Haryana General Sales Tax Act, 1973. Even the judgment of the Hon'ble Supreme Court in Ghasi Lal's case [1965 (1) TMI 41 - SUPREME COURT] cannot be applied in the present case as the present case deals with the provisions of Haryana VAT Act, 2003.
The relevant provision of 14(6) of Haryana VAT Act makes it abundantly clear that simple interest at one per cent per month is to be charged if the payment is made within ninety days from the last date specified for the payment of tax and two per cent per month for the whole of the period he makes the payment beyond ninety days. If the tax is not paid as per the Act, the assessee is liable to pay tax along with the interest as per provisions of Section 14(6) of the HVAT Act.
The judgment referred to by learned counsel for the appellant in M/s. Faridabad Fabricators (P) Ltd., Faridabad vs. State of Haryana, is directly applicable to the facts of the present case. The assessee was required to pay the tax payable in accordance with the provisions of Section 14 of the HVAT Act and the Rules framed thereunder. Non-payment of tax according to the provision of the Act will certainly amount to failure to make payment of tax which renders the assessee liable to pay interest also as provided in Section 14(6). The liability to pay interest would be from the date the tax was supposed to be deposited by the assessee.
The order passed by Haryana Tax Tribunal (respondent No. 2) is modified that the interest on the additional demand is leviable from the date of filing of the return - Appeal allowed.
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2023 (5) TMI 801
Seeking condonation of delay in filing revision - whether any plausible reason has been indicated by the revisionist in filing the instant revisions? - HELD THAT:- The delay in filing revision has been considered by this Court in Sales/Trade Tax Revision Defective No.6 of 2020 Commissioner Commercial Tax U.P. Lko. Vs. M/s. R.C. & Sons., Rakabganj, Lucknow [2022 (9) TMI 533 - ALLAHABAD HIGH COURT], with other connected defective revisions, decided on 7.9.2022, where the delay of 163 days was sought to be explained on the basis of the casual and lethargic attitude of the officials which prevails in the Department, on the part of the Officers concerned.
The time limitation for filing of Revision against order impugned is 90 days from the date of communication of the order. Despite receiving impugned judgment and order on 25.07.2011, there is no explanation as to why the revision itself, was preferred even two years & four months thereafter in December, 2013. All these facts indicate the casual and cavalier attitude on the part of the department in filing of the revision belatedly, rather, as observed by the Apex Court in the case of Central Tibetan Schools [2021 (2) TMI 1214 - SUPREME COURT] other than the lethargy and incompetence of the revisionist, there is nothing which has been brought on record to explain the delay.
Keeping in view the aforesaid discussion including the judgments of the Apex Court in the cases of Living Media India Ltd [2012 (4) TMI 341 - SUPREME COURT], Central Tibetan Schools [2021 (2) TMI 1214 - SUPREME COURT] & Volex Interconnect [2021 (10) TMI 897 - SUPREME COURT], all judgments being of a latter date to the judgments cited by learned counsel for the revisionist including the judgment of Central Tibetan Schools being a three judges judgment, the Court does not find any plausible or cogent reason for condoning the delay.
The application for condonation of delay and consequently the revision itself is dismissed.
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2023 (5) TMI 753
Levy of additional tax - valuation - works contract - deduction of depreciation on machinery and tools - claiming of excess deductions on account of expenses and profit elements or not - HELD THAT:- It is crystal clear that notwithstanding the fact that there was no specific provision in the Act, 2003 qua deduction of depreciation in plant and machinery while computing taxable turnover on works contract at the relevant time still, keeping in view the principles as laid down in Gannon Dunkerley & Co.’s case [1992 (11) TMI 254 - SUPREME COURT] which had been interpreted by different High Courts in the above cited authorities, the said provision is to be interpreted to mean that the deduction for a claim in the nature of depreciation on account of use of plant and machinery was in contemplation of the discussion before Apex Court in Gannon Dunkerley & Co.’s case. We also consider it relevant to mention here that the principles of law as laid down in Gannon Dunkerley & Co.’s case were not discussed in Thampi & Company’s case [2009 (6) TMI 960 - KERALA HIGH COURT]. Therefore, the Tribunal while allowing the appeal filed by the respondent-assessee and allowing deduction on account of depreciation of plant and machineries made by the respondent-assessee by observing that the said deduction would cover charges for obtaining on hire or otherwise machineries of the assessee cannot be held to be at any fault and therefore the order passed by the Tribunal deserves to be upheld. Since this question of law had been raised in all the five instant appeals, therefore, the same stands answered in favour of the respondents-assesses of these appeals and against the appellant.
Appeal dismissed.
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