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VAT / Sales Tax - Case Laws
Showing 41 to 60 of 545 Records
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2023 (11) TMI 882
Maintainability of petition - barred by limitation under Section 8(5) of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act 1990 or not - HELD THAT:- The Hon’ble Court in M/S. SRI BALAKRISHNA TRANSPORT VERSUS THE COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI. [2003 (9) TMI 827 - MADRAS HIGH COURT] has held that when express provision is not there then the authority is not having power to impose. Infact in other taxing statues like Income Tax Act there are provisions to take action if the assessee has not filed any return. The income tax authorities are empowered to take action, impose interest and to impose penalty, if returns are not filed. Such provisions are not available in the Entry Tax Act. The Act is silent in case if return not filed. The Act is not empowering the authorities to take action for not filing returns. This Court is of the considered opinion that the Balakrishna’s case has more precedential value.
This Court is of the considered opinion that the three years limitation is applicable, even if return is not filed.
This Court is of the considered opinion that the impugned order is liable to be quashed and accordingly quashed - the writ petition is allowed.
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2023 (11) TMI 823
Disciplinary proceedings against formerly Appellate Deputy Commissioner - Entitlement to challenge the charge memo - petitioner submitted that the petitioner is a quasi judicial appellate authority exercising powers conferred under Section 51 of the Tamil Nadu Value Added Tax Act and Rules and hence, the order passed by the petitioner cannot be subjected to Tamil Nadu Government Servants' Conduct Rules 1973 - HELD THAT:- If the order passed by the quasi judicial authority is taken as a foundation for bringing the quasi judicial authority under disciplinary proceedings, no quasi judicial authority can discharge his functions without fear. While exercising the quasi judicial power, the authority concerned should have the independency to decide the issue within his power. Even wrong interpretation of law or wrong appreciation of facts cannot be the reason to issue charge memo against the authority exercising quasi judicial powers and the impugned proceedings can be challenged only by way of preferring an appeal.
The charge memo issued by the first respondent is completely without jurisdiction and authority. Further the respondents have also failed to properly appreciate the impact of Tax Deducted at Source (TDS) and have chosen to come to arrive at a short conclusion that 25% of the admitted tax has not been paid by the appellant. Since the short sighted charge memo issued by the respondents directly infringes upon the right of the petitioner and his authority as a quasi judicial officer. Hence, the impugned proceedings is liable to be set aside.
The proceedings passed by the first respondent is quashed and the respondents are directed to give all consequential and attendant benefits, if any, to the petitioner - Petition allowed.
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2023 (11) TMI 817
Condonation of delay of 15 years i.e. 5,484 days in filing appeal - inordinate delay was explained by the applicant-assessee stating that a letter had been written to the General Manager of the assessee seeking guidelines with reference to the aforesaid assessment order dated 7.8.2003 - it was held by High Court that The fact that the assessee had been writing letters internally is also of no consequence, inasmuch in the context of delay of 15 years procedural delays that sometimes occur in such matters and which are often accepted as due explanation of the delay do not are of few days or few months, not 15 years. The delay is wholly inordinate and excessive.
HELD THAT:- There are no reason to interfere with the impugned order(s). The Special Leave Petitions are hence dismissed.
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2023 (11) TMI 816
Eligibility for input tax credit - exemption of inter-state sales from tax - HELD THAT:- Since the statutory provisions under the KVAT Act restrict the availment of input tax credit to only such situations where tax is payable on outward sales and there is a prohibition against availment of input tax credit in situations where the outward inter-state sale is exempted, the issuance of the exemption notification by the State Government under Section 8(5) of the CST Act must be seen as bringing into operation the prohibition under the 3rd proviso to Section 11(3) in respect of input tax credit and the 3rd proviso to Section 12(1) in the case of special rebate - the question really is not whether the petitioners had an option to avail the exemption envisaged in the notifications or not; rather, the point is that by virtue of the notifications aforementioned, the inter-state sale of rubber had to be seen as exempted for the purposes of the 3rd proviso to Section 11(3) and the 3rd proviso to Section 12(1) of the KVAT Act. The petitioners were therefore not entitled to avail input tax credit of the tax paid on purchases of rubber within the State so long as Annexures-I and II notifications were in force and operational. The amendments to the said notifications in 2019, with retrospective effect, only enable those who had paid CST in terms of Section 8(1) of the CST Act to adjust the said payments towards the demands served on them consequent to the disallowance of the input tax credit/special rebate availed by them.
The impugned order of the Tribunal which grants the petitioners the limited relief aforesaid does not require modification or interdiction - Revisions are therefore disposed by answering the questions of law raised therein against the assessees and in favour of the Revenue.
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2023 (11) TMI 815
Permission to petitioner to issue/generate the 1st respondent to allow the petitioner to generate Form “C” declaration under the Central Sales Tax Act, 1956 - purchase of Extra Neutral Alcohol (ENA) effected from outside the State of Tamil Nadu - HELD THAT:- The product supplier of ENA have been following the Central Sales Tax Act and have paid the tax accordingly. In the present case, the petitioner's supplier also paid the tax under the CST Act and their assessment have been pending for the reason that they have not furnished Form 'C' by the petitioner due to the reason that the respondents have blocked the portal. As contended by the learned Additional Advocate General, the fact remains that no decision has been taken by the GST Council with regard to whether ENA has to be included in the CST regime or excluded. All the States have been consistently following CST and taxes also been paid accordingly.
In view of the fact that in the recent 52nd GST Council Meeting held on 07.10.2023, a decision was taken to keep the ENA used for manufacture of alcoholic liquor for human consumption to keep the same outside the purview of GST, this Court is of the considered view that it would be appropriate to direct the respondents to issue Form 'C' from 01.07.2017 to till date for all the purchases made by the petitioner from outside the State or inside the State and further, this Court also directs the respondent to keep open the web portal for the ENA commodity, so that the petitioner can upload the purchases of ENA alongwith 'C' Form etc. - It is made clear that the State shall issue Form 'C' for the purchases made from the other states until the Law Committee issues suitable amendment in law to exclude ENA for use in manufacture of alcoholic liquors for human consumption from the ambit of GST, as per the decision taken in the 52nd GST Council Meeting held on 07.10.2023.
This writ petition is disposed of.
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2023 (11) TMI 717
Stay of Demand / Waiver of pre-dposit - Validity of assessment order - compliance with the condition of pre-deposit of 25% of the additional demand under Section 62 (5) of the PVAT Act - HELD THAT:- The balance sheet for the financial year 2020-21 placed on record by the petitioner (P-6) is not being disputed by the respondent. It is not in dispute that if the petitioner will be forced to pay 25% pre-deposit, he will not be able to pay the instalments of the loan. He is also paying GST regularly to the department and if he will shut down the business, it will lead to cancellation of GST registration. Thus, the condition of 25% pre deposit is liable to be modified, keeping in view the fact that the petitioner is in hug debt.
In the present case, the petitioner is in debt and is paying instalments of loan regularly and this fact is not being disputed by the respondents. Hence for all intents and purpose, the petitioner in order to run the business should be able to make the payment of loan, as per detail given in balance sheet (P-6) at page No. 51 of the paper book - In order to avoid cancellation of its GST registration, the petitioner is seeking direction to respondent No. 3 to entertain the appeal of the petitioner on merits without insisting upon the condition of pre-deposit under Section 62 (5) of the Act 2005. Petitioner is ready to pre-deposit 10% of the amount, as observed in the order dated 25.6.2018.
Keeping in view the fact that the petitioner is in huge debt and the fact that the petitioner is ready to deposit 10% as pre-deposit instead of 25% of the total demand before the Appellate Authority, this Court by exercising the inherent powers as provided under Article 226 of the Constitution of India and by considering the financial hardship faced by the petitioner, this petition is being disposed of by directing the petitioner (s) to file an appeal and respondent-authorities is directed to entertain the appeal and decide in accordance with law on merits.
Petition disposed off.
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2023 (11) TMI 673
Validity of assessment order - exigibility to tax under the Delhi Tax on Luxuries Act, 1996 - Club and Association service - doctrine of mutuality - HELD THAT:- While we find no ground to doubt the principles of mutuality as were explained in Calcutta Club and which constitutes the foundation for the decision handed down by the Kerala High Court in Madhavaraja Club, we find that the petitioner did not question the validity of the provisions of the Act as it originally stood and which extended the incidence of tax to the provision of residential accommodation in a club.
If it were the contention of the petitioner that the tax on the provision of such residential accommodation could not be levied, it was incumbent upon it to question the validity of the provisions of the Act as they originally stood. However, and in the absence of such a challenge having been mounted and bearing in mind the statutory position which prevailed, we find ourselves unable to hold in favour of the petitioner on this score.
When one reverts to the facts of the case, it is evident that the Act as it stood during the assessment period in question extended its application also to the providing of residential accommodation in a club and in any case did not at the relevant time exclude the provisioning of accommodation to members of a club from the expression “luxury”. In fact, the word “luxury” did not even exist on the statute book prior to its insertion by virtue of the 2012 Amendment Act. In view of the above and bearing in mind the statutory position which prevailed at the time when the assessment orders came to be passed, there are no justification or ground to interfere with the ultimate conclusion arrived at by the first respondent.
The decision of the Commissioner assailed shall not be liable to be treated as a precedent for any assessment period post the promulgation of the 2012 Amendment Act. Any assessments made or proceedings pending would have to be considered bearing in mind the observations rendered - Application disposed off.
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2023 (11) TMI 607
Opening of assessment orders - Section 49(3) of the Chhattisgarh Value Added Tax Act, 2005 - HELD THAT:- It would be worthy to mention here that the provisions of the VAT Act of Orrisa and Chhattisgarh are not pari-materia whereas the provisions of VAT Tax of Madhya Pradesh and Chhattisgarh are analogous. In the present case, subsequent to the assessment order dated 29.12.2015; the petitioner preferred the appeals before the Appellate Deputy Commissioner, and those appeals were allowed vide orders dated 03.08.2017, 08.08.2017 and 09.08.2017, respectively. Surprisingly, the revenue did not contest the Appellate Deputy Commissioner's orders for a significant period and vide orders dated 29.01.2019 and 05.11.2018, show cause notices were issued to the petitioner while exercising the power under Section 43(3) of the Act, 2005.
However, it is worth noting that the orders passed by the Appellate Deputy Commissioner were not challenged before the Tribunal under Section 48(2) of the Act, 2005 and there is no explanation in this regard. Consequently, in the opinion of this Court, the notices issued by respondent No. 2/Commissioner exercising the power under Section 49(3) of the Act, 2005, are legally unsustainable in the eyes of the law.
The impugned notices dated 05.11.2018 and 29.01.2019 issued under Section 49(3) of the Chhattisgarh Value Added Tax Act, 2005 by respondent No. 2-Commissioner, Commercial Tax, Raipur are hereby quashed - Petition allowed.
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2023 (11) TMI 556
Demand to deposit 10% of the balance tax demanded for the years, 2014-15 & 2015-16 - validity of Ext. P6 conditional order - HELD THAT:- It is evident from a bare perusal of first proviso to sub-section (1A) of Section 60 of the KVAT Act that the pre-deposit amount, if any, already remitted under Section 55, (ie; at the time of filing of the first appeal), shall be adjusted towards the amount to be remitted under the sub-section. Since the petitioner had submitted that he had already remitted 20% of the amount demanded during the filing of first appeal, he has to be exempted from paying any further amount. Hence, we are of the considered opinion that the Original Petition (TAX) is to be allowed.
The condition imposed by the third respondent in Ext. P6 to deposit 10% of the balance tax demand for both the years is set aside, if the petitioner had already remitted the amount under section 55 of the KVAT Act - Petition disposed off.
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2023 (11) TMI 554
Validity of order beyond the scope of Show cause notice - Statutory time limit for filing of appeal already expired - No reply filed to the SCN - the issue regarding processing charges liable for TDS under Section 13(1) of the Act, not raised in SCN, but is included in the impugned order - violation of principles of natural justice - HELD THAT:- If a notice was issued with regard to any aspect, the same has to be answered by the Assessee and it is for the Department to raise all the issues or queries by virtue of a show cause notice or by any other form and sought for the reply of the Assessee. However, in the present case, the Department had brought up the aforesaid issue of a sum of Rs. 76,62,986/- towards processing charges which liable for TDS, only in the impugned order and the same was not at all raised in the show cause notices. Thus, the said impugned order is not in accordance with law.
Though the impugned order was passed on 10.05.2022 and the time limit to file the appeal was also expired at the time of filing this petition, this Court feels that the respondents had committed a serious error in its decision making process while dealing with the issue pertaining to a sum of Rs. 76,62,986/- towards the processing charges liable to TDS and impugned order is not sustainable and the same is liable to be set aside. Thus, this Court is inclined to set aside the impugned order dated 10.05.2022 and remit the matter back to the respondent for re-consideration.
Petition disposed off.
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2023 (11) TMI 553
Constitutional validity of levy of entry tax - power of the state legislature - Article 304(a) of the Constitution - non-obstante clause - interpretation - concept of compensatory tax - HELD THAT:- This appeal is dismissed in view of the majority judgment passed in JINDAL STAINLESS LTD. AND ANR. VERSUS STATE OF HARYANA AND ORS. [2016 (11) TMI 545 - SUPREME COURT] by taking note of the fact that notice in this appeal was limited only to the question of levy of entry tax and no other issue is to be considered in the appeal.
Application disposed off.
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2023 (11) TMI 519
Maintainability of appeal - appeal dismissed on the ground that appellant failed to pay the amount of pre-deposit ordered by the Tribunal - Section 73 of the GVAT Act - HELD THAT:- The Tribunal has not given any cogent reason as to how the prima facie case of the appellant is considered while determining the amount of pre-deposit. This Court in case of Kavya Marketing [2022 (4) TMI 1202 - GUJARAT HIGH COURT] has held We have noticed that while deciding the admission of appeals on merits, the first appellate authority summarily dismissed the appeal on the ground of non-payment of pre-deposit, and when such order is challenged in second appeal before the Tribunal, it is incumbent upon the Tribunal to examine the prima facie case and thereafter, to arrive at the decision with regard to insistence of payment of pre-deposit for entertainment of appeal. This Court has time and again in identical cases has held that Tribunal is obliged to consider a prima facie case, which the appellant may be in position to highlight.
The interest of justice would be met if the appellant is directed to pay Rs. 15,00,000/- instead of Rs. 42,00,000/- in respect of all the three years in Six Appeals towards pre-deposits within a period of one month from today i.e. on or before 31.10.2023 - The appellant shall file a bond before the Assessing Officer to the satisfaction of the Assessing Officer with regard to the outstanding dues to be paid by the appellant to the effect that the appellant fails in the appeal filed by the Tribunal subject to further rights and contentions of the appellant in accordance with law, the appellant shall pay the amount of outstanding tax liability.
All these appeals are partly allowed by remanding the matters back to the First Appellate Authority - The impugned orders are quashed and set aside.
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2023 (11) TMI 462
Exemption of tax at 100% on total eligible production sold under CST Act - Application of pro-rata in the circumstances of increase of capacity and increase in investment - HELD THAT:- Respondent is claiming exemption and has been granted exemption earlier as per notification issued under Section 8(5) of the CST Act and as per the 1993 package scheme of incentives. Admittedly, there is no provision for reduction of exemption either under the 1993 package scheme of incentives or under the CST Act. This has not been referred to either by the Assessing Authority or Joint Commissioner of Sales Tax (Appeal) Aurangabad. It is also not in dispute that the notification issued under Section 8(5) of CST Act in the year 1980 is not amended / modified / withdrawn at any point of time. Therefore, the Tribunal was correct in holding that the pro-rata exemption granted was not correct and respondent was entitled to 100% exemption - Section 93 of MVAT Act also will not be applicable to the facts in hand.
There are no infirmity in the order passed by the Tribunal - appeal dismissed.
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2023 (11) TMI 407
Validity of impugned order - barred by limitation under Section 8(5) of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act 1990 - HELD THAT:- The Division Bench in SRI BALAKRISHNA TRANSPORT VERSUS COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI [2009 (2) TMI 787 - MADRAS HIGH COURT] has categorically held that the authorities cannot make an assessment when the assessee had not filed any return. In other taxes like income tax there are provisions to take action if the assessee has not filed any return. The income tax authorities are empowered to take action, to impose penalty, if returns are not filed. Such provisions are not available in the present Act. The Act only states every person liable to pay tax under the Entry Tax Act ought to file a return. If return not filed, then the Act is not empowering the authorities to take action. In such circumstances, the authorities are not having jurisdiction to pass any order if return is not filed. In the present case since the order is passed beyond the period of limitation of three years, the order cannot be sustained.
Whether as per the definition of “Motor Vehicle”, the “Fork Lift” will not come under the definition or not? - HELD THAT:- On perusing the photos and brochures of the said vehicle, this Court is of the considered opinion that the vehicle can be used only in the enclosed premises and it cannot be used on the roads. Therefore, on perusing the brochures and the usage of the vehicle, this Court is of the considered opinion that the vehicle cannot come under the definition of “Motor Vehicles”.
Section 3 clearly states if vehicle is not liable for registration, then the respondent is not empowered to levy tax. In the present case, the vehicle is not liable for registration. Therefore, the respondent is not empowered to levy tax. When there is no jurisdiction to levy tax, then the respondent cannot levy tax. Since under Article 265 of the Constitution of India, any tax can be levied, by the authority of law. If there is no authority, the respondent is not empowered to levy tax. Therefore, the respondent is not empowered to levy tax, since there is no jurisdiction.
This Court is of the considered opinion that the impugned order is liable to be quashed and accordingly quashed - Petition allowed.
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2023 (11) TMI 298
Interpretation of statute - Section 13(1)(f) of the UP VAT Act - Claim of full ITC on inputs - amount of tax paid towards the purchase of raw Rice Bran - scope of the word “goods” as defined under Section 2(m) of the UP VAT Act as outlined in Section 13(1)(f) of the UP VAT Act should be limited to only “taxable goods” or not - applicability of decision of this Court in the case of M.K. Agro Tech [2017 (9) TMI 1308 - SUPREME COURT].
HELD THAT:- A bare perusal of the scheme under Section 13 of the UP VAT Act [and specifically under Section 13(1)(a)] makes it abundantly clear that in cases where the purchased goods (in the present case Rice Bran) are used in the manufacture of taxable goods (in the present case RBO and physically refined RBO) except the non-VAT goods, and where such manufactured goods are sold within the State or in the course of inter-state trade and commerce, the registered dealers (like the assessee herein) are entitled to claim input tax credit of the full amount. The charging section of the UP VAT Act, therefore, entitles the assessee to claim full amount of tax paid on the purchases as ITC - Furthermore, Section 13(3)(b) of the UP VAT Act, introduces the concept of proportionality in the scheme of the enactment and by means of a deeming fiction provides that where during the manufacture of VAT goods, exempt and non-VAT goods (except as by-product or waste product) are produced, the amount of ITC credit may be claimed and may be allowed in proportion to the extent they are used or consumed in manufacture of taxable goods other than the non-VAT goods and exempt goods.
Explanation (iii) to Section 13, therefore, forbids the Assessing Authority as well as the assessee from raising any dispute in regard to the allowability of the ITC in cases where exempted goods are being produced as a by-product or waste product during the process of manufacture.
Whether the High Court was right in placing on the decision of this court in the case of M.K. Agro Tech? - HELD THAT:- In the case of M.K. Agro Tech, the assessee was engaged in the manufacture of sunflower oil (taxable goods), which is extracted from sunflower cake, by employing solvent extraction process. Sunflower oil cake is the input/raw material on which VAT was payable. During the extraction process, a ‘by-product’ in the form of de-oiled sunflower oil is produced. The said by-product was also exempted under the Karnataka VAT Act - This Court while examining Section 17 of the KVAT Act, read with Rule 131 of the KVAT Rules, held that ITC was admissible to the extent of inputs used in the sale of taxable goods.
In the case of M.K. Agro Tech, this Court held that only partial ITC was permitted to the assessee as they were making taxable and exempted sales from the dutiable raw materials procured by them. In Para 28, this Court has elaborated on the scheme under the Karnataka VAT Act, to emphasise that the provision which allows partial rebate is made applicable on the ‘sales’ of taxable goods and goods exempt under Section 5. It refers to ‘sale’ of ‘goods’, taxable as well as exempt, and is not relatable to the ‘manufacture’ of the goods. Further elaboration has been made to hold that upon the ‘sale’ of goods exempted under Section 5 of the Karnataka VAT Act, partial rebate shall only be admissible - The High Court committed an error in passing the impugned judgment relying on the decision of this Court rendered in M.K. Agro Tech.
The impugned common judgment and order passed by the High Court of Allahabad is hereby set aside and the orders passed by the Commercial Tax Tribunal dated 04.05.2016 and 05.07.2017 are hereby restored - appeal allowed.
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2023 (11) TMI 251
Interest on refund - relevant period - interest for the period commencing from the date when two months elapsed [which in turn would commence from the date when the return was filed], and running till the date when the refund was paid, or not - It was held by Delhi High Court that In the instant matter, since the revised return was filed on 10.07.2015, the refund in terms of Section 38(3)(a)(ii) of the 2004 Act accrued in favour of the assessee on 10.09.2015.
HELD THAT:- There are no requirement to interfere with the judgment and order(s) impugned in these petitions. The Special Leave Petitions are dismissed.
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2023 (11) TMI 213
Validity of recovery notice - notice issued seeking recovery without even serving a copy of the assessment order - violation of principles of natural justice - availing of ineligible Input Tax credit - Evasion of tax - HELD THAT:- Almost an identical issue came up before this Court in W.P.Nos.37044 & 37045 of 2016 in the case filed by M/s.Hansa Enterprises, Park Town Chennai, from a same location in Parrys Corner, in Chennai [ [2020 (6) TMI 357 - MADRAS HIGH COURT] . There also, the petitioner therein had similarly alleged that the petitioner's login ID was misused by a third party, who filed returns and had passed on huge Input Tax credit to third party.
The Court after considering the submission of the petitioner therein and the learned Government counsel, directed the Commercial Tax Officer to pass a proper order after thorough investigation with the help of Economic Offence and Cyber Crime Wing of the State as to whether indeed there was a misuse of login ID or whether the petitioner therein was masquerading as an unknown person to make it seem as if the said login ID was misused by an unknown person facilitating availing of ineligible Input Tax credit and to evade tax - In the present case, the petitioner has also filed a complaint before the Cyber Crime in FIR.No.100 dated 06.04.2017 for the alleged misuse of the login ID of the petitioner from 01.01.2014 to 31.08.2015. The status of the investigation pursuant to the above FIR registered based on the complaint of the petitioner is not known.
Considering the above fact and to balance the interest of the parties, Court is inclined to suo motu implead The Inspector of Police, Cyber Crime Cell, Central Crime Branch, Vepery, Chennai – 600 007 is impleaded as the 4th respondent in this Writ Petition to carryout thorough investigation on the complaint filed by the petitioner as to whether the complaint filed by the petitioner was genuine or not or whether the petitioner was facilitating a third party to use his login ID to evade tax and to pass an ineligible Input Tax credit to unknown persons or whether the petitioner was himself masquerading as an unknown person to evade tax.
Writ petition disposed off.
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2023 (11) TMI 212
Classification of goods - rate of tax - Wire Nails - to fall within the meaning of “Fastener” as per entry 79 Part-II of Schedule II of VAT Act or under residuary entry in part IV of Schedule? - tax chargeable in entry 79 Part II of Schedule II is 5% and 14% in residuary entry Part IV of Schedule II?
HELD THAT:- In case of Bharat Forge and Press Industries (P) Ltd. [1990 (1) TMI 70 - SUPREME COURT] the Supreme Court held that only such goods which cannot be brought under the various specific entries in the tariff schedule should be attempted to be brought under the residuary entry. In other words, unless the department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort can be had to the residuary item.
Fasteners means is a device that mechanically joins or affixes two or more objects together. It is a device to attach especially by pinning, tying or nailing. Nuts, bolts, screws and fasteners are included in Entry 79 Part II of Schedule II of VAT Act. The function of Screw and Wire Nails is more or less similar and are normally used to attach two or more items. The respondent has to show as to why wire nails are put in residuary entry and not in Entry 79 Part II of Schedule II of VAT Act. What are the distinguishable features of wire nails to put it in the residuary entry has not been placed. There is nothing cogent on record that the wire nails cannot be put to any other entry than to residuary entry. With due respect the case law cited by the state is not applicable in the facts of the present case.
The impugned order Annexure P/1 and P/6 are set aside holding that wire nails would fall within the meaning of fasteners under entry 79 of PART II of Schedule II of VAT Act - Petition allowed.
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2023 (11) TMI 144
Levy of penalty under Section 51(7)(b) of PVAT Act - deficiency in the documents with regard to correct name and address of consignee, despite the fact that documents were produced voluntarily at the ICC, which rules out any evasion of tax - HELD THAT:- The Tribunal while dismissing the appeal of the appellant observed that all previous transactions running into crores had correctly been entered at Mohali. However, it was held that this fact could not absolve the appellant from producing true and correct invoice pertaining to the current transaction - the findings so given by the Tribunal are liable to be set aside, as it was merely a clerical mistake, that only the name of the consignee was wrongly mentioned while picking the name of the appellant from drop-down menu in the software used by the Noida Head Office of the appellant. Futher, it is not being disputed that the Dehradun Branch in whose favour, the invoice was mistakenly generated, does not deal with the goods, which were being transported, vide invoice No. 157. Penalty can be imposed to evade tax and not for bona fide mistake. The driver in the present case voluntarily reported the goods at ICC Jharmari for generating necessary information and goods were accompanied by all the necessary documents.
The substantial questions of law are answered in favour of the appellant and against the revenue, as penalty cannot be imposed upon the appellant on account of a clerical mistake - The appeal stands allowed.
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2023 (11) TMI 54
Recovery of dues - first charge over the property of the Corporate Debtor - Waterfall mechanism - prevalence of Section 48 of the Gujarat Value Added Tax 2003 over Section 53 of the Insolvency and Bankruptcy Code 2016 - whether the Review Petitioners have been able to make out any case within the ambit of Order XLVII of Supreme Court Rules, read with Order XLVII of CPC, for reviewing the impugned judgment?
HELD THAT:- It is well settled proposition of law that a co-ordinate Bench cannot comment upon the discretion exercised or judgment rendered by another co-ordinate Bench of the same strength. If a Bench does not accept as correct the decision on a question of law of another Bench of equal strength, the only proper course to adopt would be to refer the matter to the larger Bench, for authoritative decision, otherwise the law would be thrown into the state of uncertainty by reason of conflicting decisions.
Apart from the well-settled legal position that a co-ordinate Bench cannot comment upon the judgment rendered by another co-ordinate Bench of equal strength and that subsequent decision or a judgment of a co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review, the submissions made by the learned Counsels for the Review Petitioners that the court in the impugned decision had failed to consider the waterfall mechanism as contained in Section 53 and failed to consider other provisions of IBC, are factually incorrect - As evident from the bare reading of the impugned judgment, the Court had considered not only the Waterfall mechanism under Section 53 of IBC but also the other provisions of the IBC for deciding the priority for the purpose of distributing the proceeds from the sale as liquidation assets.
The well-considered judgment sought to be reviewed does not fall within the scope and ambit of Review. The learned Counsels for the Review Petitioners have failed to make out any mistake or error apparent on the face of record in the impugned judgment, and have failed to bring the case within the parameters laid down by this Court in various decision for reviewing the impugned judgment.
All the Review Petitions are dismissed.
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