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VAT / Sales Tax - Case Laws
Showing 481 to 500 of 545 Records
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2023 (1) TMI 1439
Classification of goods - whether Tax Board was justified in holding that “Potato Chips” are classified as “processed vegetable” under entry 107 of Schedule IV and liable to tax @ 4% instead of 12.5% in residual entry, as mentioned in Schedule V of Rajasthan VAT Act, 2003? - HELD THAT:- Coordinate Bench of this Court in STR No. 199/2009 decided on 31.03.2017 [2017 (3) TMI 1695 - RAJASTHAN HIGH COURT], has decided in favour of the assessee and against the Revenue and it was held 'Potato Chips would fall in the category of entry 107 to be charged with tax @ 4%, and once rate of 4% has been held to be well reasoned and justified, which was claimed by the petitioner, then question of levy of interest does not arise, so also once the claim of the assessee is well reasoned and justified, question of imposition of penalty under Section 61 automatically goes. Even otherwise, it is a case of classification of entries and no case can be made out of evasion of tax.'
All revision petitions are dismissed.
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2023 (1) TMI 1396
Recovery of dues - mortgagor bank has priority to recover the dues against any charges of the State Government or Central Government, or not - Seeking quashment of the charge or mortgage on the property in question by the Central Sales Tax Department in the Revenue Department - seeking direction against the Revenue Authority to register and release the sale deed - petitioner is the absolute owner of the property in question with legal and valid title as once purchased under the public e-auction, or not - HELD THAT:- In the instant case, it is an undisputed fact that respondent No.5 - Bank is a secured creditor. Therefore, the Bank has valid first charge over the property in question by way of mortgage and has first right to sell the same in view of priority under Section 26E of the Act and recovered its dues from it. The petitioner is a bona fide purchaser, purchased the property in question from the e-auction held by the bank and paid full and total sale consideration to the bank and the bank has issued sale certificate in favour of the petitioner.
Considering the law laid down by this Court in KALUPUR COMMERCIAL CO-OPERATIVE BANK LTD. VERSUS STATE OF GUJARAT [2019 (9) TMI 1018 - GUJARAT HIGH COURT] and also keeping in mind the provisions of Section 26E of the SARFAESI Act, the debts due to financial institution / Bank - a secured creditor shall be paid in priority over other debts/taxes payable to the State Government. The petitioner has no concern with the dues of the State Authorities which is of the erstwhile owner. The petitioner has paid full and final sale consideration to respondent No.5 - Bank and if the State Authorities have dispute qua their dues, they can avail appropriate legal remedy before appropriate forum against the appropriate person/s. Any of the respondent has no right to disturb the right, title and interest of the petitioner qua the property in question. Under these circumstances, the petitioner cannot be left in lurch. The petitioner therefore is required to be protected.
Moreover, now it is well settled legal position that the mortgagor bank has priority to recover the dues against any charges of the State Government or Central Government, irrespective of the fact otherwise.
Petition allowed.
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2023 (1) TMI 1385
Levy of penalty under Section 15-A (1) (a) of U.P. Trade Tax Act - assessment order has been passed and no tax has been assessed payable by the assessee-revisionist while passing the assessment order - revisionist was liable to realize the tax from its purchasers when its purchasers have exempted from payment of that tax or not.
HELD THAT:- From perusal of record it transpires that once the assessment order was passed on 18.03.2006 and there was no levy of Entry Tax upon the assessee, the penalty proceedings could not have been initiated by the authorities hence the order passed by the Tribunal on 08.04.2010 is not justified. However, this fact was not brought to the notice of the Tribunal either by the Revenue or by the assessee.
In view of the said fact, the order dated 08.04.2010 passed by the Tribunal is unsustainable in the eyes of law and the same is hereby set aside. The matter is remitted back to the Tribunal for reconsideration of the matter after considering assessment order dated 18.03.2006 and pass fresh order within a period of one month of the from the date of production of a certified copy of this order.
Revision allowed in part.
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2023 (1) TMI 1381
Penalty passed under section 72 (6) of the JVAT Act - penalty above Rs. 5,000 can be levied if no tax is payable on the goods being transported - notice given by the respondent is in conformity with Rule 59 of the JVAT Rules 2006 or not - adequate opportunity of hearing was given or not - opportunity to be given to produce the documents.
Whether in terms of Section 72 (6) of the JVAT Act, any penalty above Rs. 5,000 can be levied if no tax is payable on the goods being transported? - HELD THAT:- This court holds that in terms of section 72 (6) of the JVAT Act no penalty above Rs. 5000 can be levied if no tax is payable on the goods being transported, inasmuch as, this section categorically provides that the penalty is to be levied on three times of the tax payable and if no tax is payable the maximum penalty is Rs. 5000/-. The contention of the Revenue counsel that there can be a scenario that 3 times of tax will be less than Rs. 5000/-; and in such circumstances, the legislature has used the words “penalty equal to the amount of three times of the tax, leviable on such goods, or rupees five thousand whichever is greater, is not acceptable.
Reference in this regard may also be given to the case of Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd. [2003 (11) TMI 591 - SUPREME COURT] wherein the Hon’ble Apex Court has held that if there is any ambiguity with regard to interpretation of the statute the view which is favorable to the assessee shall be taken into consideration
So far as other questions/issues raised by the counsel of the petitioner with regard to giving adequate opportunity of the petitioner-company and also inadequate notice issued under JVAT Act, 2002, it is deemed proper not to give any finding on that for the sole reason that the petitioner after passing of the assessment order has availed alternative remedy of appeal and revision and had enough opportunity to canvass his case, as such no prejudice has caused to him.
The petitioner is liable to pay penalty of Rs. 5000/- in each case - Hence the petitioner is directed to pay the same within a period of one week from the date of receipt of the order. The Tax authority shall accept the same.
Petition allowed.
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2023 (1) TMI 1369
Recovery of dues - priority of dues - whether the dues of secured financial institution will have priority over State tax dues or not? - HELD THAT:- In the instant case, it is an undisputed fact that respondent No.1 – Bank of Baroda is a secured creditor. Therefore, the Bank has valid first charge over the properties in question by way of mortgage and has first right to sell the same in view of priority under Section 26E of the Act and recovered its dues from it. The petitioners are the bona fide purchasers, purchased the properties in question from the public e-auction held by the bank and paid full and total sale consideration to the bank and the bank has issued sale certificate in favour of the petitioners and also handed over the peaceful and vacant possession to the petitioners. Indisputably, the charge created by respondent No.3 – State Authority is later point of time. Therefore, the debts due to Bank of Baroda – a secured creditor shall be paid in priority over other debts/taxes payable to the State Government. The petitioners have no concern with the dues of the State Authorities.
Moreover, now it is well settled legal position that the mortgagor bank has priority to recover the dues against any charges of the State Government or Central Government, more particularly the mortgage is created prior to the registration of such charge by the Authority.
It is held that the SARFAESI Act is meant for enforcement of security interest which is created in favour of the secured creditor – financial institution, and provides specific mechanism / provision for the financial assets and security interest. Any other provision(s) would not defeat the provision of Section 26E of the SARFAESI Act and also the object and purpose of the SARFAESI Act.
This Court holds that the petitioners are the bona fide purchasers and are the absolute owners of the properties in question with legal and valid title. Consequently, the sale deed registered by the Authority concerned is legal and valid document - the present petition is partly allowed.
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2023 (1) TMI 1336
Condonation of delay of 445 days in filing appeal - sufficient cause for condonation of delay present or not? - It was held by High Court that In the present case after appreciating the matter it cannot be said that there was sufficient cause for condonation of delay.
HELD THAT:- In the peculiar facts and circumstances of this case, interference is not called for. However, the question of law decided by the High Court is kept open.
The Special Leave Petition is dismissed.
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2023 (1) TMI 1277
Maintainability of petition - petition disposed off on the ground that Appellant ought to have filed an Appeal before the Appellate authority and liberty was also given to him to file such Appeal before the Appellate authority within a period of thirty days - HELD THAT:- There are merit in the submission of the learned Senior Counsel appearing for the Appellant inasmuch as the impugned order of assessment has been made by the assessing officer without even applying his mind to the submission of the appellant, in particular to the order of the Tribunal holding that mere sales of goods on the same day by itself would not be conclusive in determining the character/ nature of the transfer from one state to another as Stock transfer (or) sale. The above order of the Tribunal ought to have been dealt with by the assessing officer. Failure to do so would vitiate the order. We make it very clear that we have not examined the decision but only decision making process which we find suffers from the infirmity of non application of mind to relevant aspects/factors raised by the assessee/appellant.
The order of the learned Single Judge dated 06.10.2017 is set aside and the matter is remanded back to the authority concerned.
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2023 (1) TMI 1181
Interest on the refund amount - respondents contends that the amount deposited by the petitioner as a pre-condition for maintaining the appeal, is required to be considered as tax, as it was against the pending liability - inaction for an inordinately long period - Section 30(4) of the Delhi Sales Tax Act, 1975 - HELD THAT:- In the instant case the petitioner had pursued the respondents for processing its claim for tax and interest. Despite the same, the respondents had failed to take any action - Undisputedly, in compliance with the directions passed by this Court, the respondents were required to process the petitioner’s application for refund along with interest in accordance with law. No contention has been advanced before this Court as to why the petitioner is not entitled to interest on the said amount. In the circumstances, we do not consider it apposite to relegate the petitioner to the alternate remedy, in this case.
Guilty of inaction for an inordinately long period - HELD THAT:- Once the petitioner had filed the application for seeking refund of the amount along with interest, it was incumbent upon the respondents to either allow or reject the same as per law. The inaction, if any, is largely on the part of the respondents. First of all, the respondents ought to have refunded the amount as it was deposited to avail of the remedy of appeal without awaiting filing of any form - Admittedly, the petitioner had once again filed a written representation on 14.10.2020, however, this representation was also not disposed of within a reasonable period and the petitioner was constrained to approach this Court.
The respondents are directed to pay interest on the sum of ₹10,00,000/- at the rates as specified under Section 30(4) of the Act, computed from the ninetieth day after the date of application dated 18.05.2012 till the date of payment - Petition allowed.
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2023 (1) TMI 1180
Refund of excess amount of CST paid - claim of sales at concessional rate of 2% has been rejected by the respondent no.3 on the ground that the tax had been borne by the petitioner and not by the Petronet - HELD THAT:- The legal issue is well settled not only by the decision of CARPO POWER LIMITED VERSUS STATE OF HARYANA AND OTHERS [2018 (4) TMI 146 - PUNJAB AND HARYANA HIGH COURT], but also by the decision of this Court in the case of J.K. CEMENT LTD. VERSUS STATE OF GUJARAT [2020 (3) TMI 140 - GUJARAT HIGH COURT], where this Court had categorically permitted the petitioner the refund of excess amount of the tax paid to the seller. It was a case where the petitioner had purchased from the Reliance Industries Limited the HSD in the course of inter-state trade for use of mining activities. The petitioners as the ultimate consumers had sought before the Court the amount of excess tax by producing the C-form, which had been issued by the Rajasthan authority. The excess tax had been collected by the seller – Reliance Industries Limited, the CST Authority at Rajasthan. Since they issued the C-form declaration in respect of the transaction in question and the seller had already been collected the tax from the petitioner, the refund was directed not to be given by the Reliance Industries on the ground that it was not entitled to such refund as the claim would be hit by the principles of unjust, enrichment. In that case, the petitioner had furnished the statement showing the details of the purchases, tax charged and submission of ‘C’ forms against the purchases as well as copy of sample invoices, etc. and the Court therefore, held that the petitioner duly complied with the direction issued by the Rajasthan High Court, the respondent authority was bound to process the refund claims under Section-11(B) of the Central Excise Act. The respondents accordingly were directed to process the refund claims of the respective petitioners and grant refund of the tax amount collected from the petitioners and deposited by the seller in accordance with law within stipulated time period.
The respondents shall process the refund claim of the petitioner and grant the refund of tax amount collected from the petitioner and deposited by the seller in accordance with law, within period of four weeks from the date of receipt of a copy of this order - Petition allowed.
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2023 (1) TMI 1179
Levy of purchase tax - penultimate sale - raw hides and skin purchased without tax were converted as dress hides using materials purchased at concessional rate of tax under Section 3(3) of the TNGST Act - whether the exemption under Section 5(3) of the Centrals Sales Tax Act, 1956 r/w. Article 286 of the Constitution of India would inure to an exporter like the petitioner who purchased goods from a dealer without payment of sales tax, part of which was utilized for export?
HELD THAT:- To facilitate a selling dealer to avail exemption, the exporter has to obtain Form-H prescribed under Rule 12(10) of the Central Sales Tax Act (Registration and Turnover) Rules, 1957 and furnish it to the dealer who effected such penultimate sale to the exporter. Only such penultimate sale prior to the export is exempt from sales tax under the respective enactment when read in conjunction with Article 286 of the Constitution of India - It is on the strength of Form H given by an exporter, the local dealer effecting a local sale or an inter-State sale can treat the sale as an exempted sale under Section 5(4) of the Central Sales Tax Act, 1956. This is the statutory mechanism prescribed for exempting a dealer effecting penultimate sale of goods to an exporter prior to export. As far as payment of purchase tax under Section 7A is concerned, there is no mechanism provided under the Act.
If the ratio of the Hon’ble Supreme Court in STATE OF KARNATAKA VERSUS AZAD COACH BUILDERS PVT. LTD. AND ANOTHER [2010 (9) TMI 879 - SUPREME COURT] is to be applied to the facts of the present case, the petitioner would be entitled to claim exemption provided the petitioner is able to establish an inextricable link between the purchase of raw hides and the export of goods viz., raw hides with the export order. There are no records to establish the same in the present case. Further, the petitioner also had local sales of dressed hides and skin.
Though, on a cursory reading of the decision of the Hon’ble Supreme Court, it may appear that there was an apparent contradiction between the law declared by it in Paragraph 19 and its conclusion in Paragraph 31. However, it must be borne in mind that what was sold by the assessee M/s.Azad Coach Builders (P) Limited to the exporter Tata Engineering Locomotive Co. Limited was bus body manufactured by it which was mounted on the chassis supplied by the exporter Tata Engineering Locomotive Co. Limited for export. Thus, sale of bus body was prior to the export and was a penultimate sale. It is in this background the Court held that “same goods theory” was not applicable to the facts of the case.
In the present case, the petitioner purchased the raw hides and converted it into dress hides and skins. Thus, there was a change in the character of the goods in the hands of the petitioner before the goods were exported by the petitioner. What was purchased by the petitioner was different and what was exported by the petitioner was different - the petitioner is therefore not entitled to exemption under Sections 5(3) and 5(4) of the Central Sales Tax Act, 1956 in the light of the observations of the Hon’ble Supreme Court in Paragraph No.19 in Azad Coach Builders (P) Ltd.
There are no merits in the present case - petition dismissed.
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2023 (1) TMI 1178
Issues Involved:
1. Refund of excess Central Sales Tax paid by the petitioner before respondent No. 3.
Analysis:
The petitioner, a limited company and a public sector undertaking, entered into a "Gas Sale and Purchase Agreement" with M/s. Petronet LNG Ltd. to purchase "Regasified Liquefied Natural Gas." Before the introduction of the Goods and Service Tax regime, the petitioner procured goods at a concessional rate of 2% against the production of C-forms as per the Central Sales Tax Act and the Gujarat Value Added Tax Act. With the GST regime, certain commodities continued to be governed by State Value Added Tax laws. Due to non-issuance of C-forms, Petronet charged tax at the full rate of 15% on inter-State sales to the petitioner, which the petitioner claims is contrary to Section 8 of the CST Act and previous court decisions.
The petitioner sought a refund of the excess amount of CST paid before respondent No. 3. The prayers included requesting the court to issue a Writ of Mandamus for sanctioning the refund claim, directing the respondents to adjudicate the refund application, and providing ad-interim relief. The petitioner's advocate referred to previous court decisions, such as J.K.Cement Ltd. vs. State of Gujarat, and argued that the non-availment of the refund is contrary to established law.
The court noted the arguments presented by the petitioner's advocate and scheduled a notice for final disposal returnable on a specific date. The learned Assistant Government Pleader waived service of notice on behalf of respondent No. 1, while direct service to Respondent Nos. 2 and 3 was permitted, including service through e-mode on the official e-mail ID.
In conclusion, the judgment revolves around the petitioner's claim for a refund of excess Central Sales Tax paid due to non-issuance of C-forms, citing provisions of the CST Act and previous court decisions as the basis for their argument. The court has scheduled further proceedings to address the petitioner's refund application comprehensively.
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2023 (1) TMI 1134
Levy of Sales tax liability - Transportation charges/freight charges - freight charges forms part of the “sale price” as per Section 2(xlviii) of the JVAT Act or not - the claim of the revenue is that separate invoices for transportation cost would not be a ground to deduct from the total GTO and that there is no illegality in the order of the tax authorities - HELD THAT:- It appears that in the present facts of the case the Petitioner performs a dual role, one as the seller of the goods and other as carrier of the goods, having collected freight charges separately from the buyer. Clause (3) of the purchase order (Annexure-4 series) specifically indicates that the freight will be payable at actual; meaning thereby, the price of the goods is not inclusive of the transportation cost/freight.
The freight charges were recovered by the petitioner in the capacity as carrier of the goods and did not form part of the sales turnover of the petitioner. Even as per purchase order if the goods are delivered to SMD Jamshedpur, the same needs to be delivered free of delivery charges. Thus, the real intention can also be gathered by the Act of the seller and buyer.
After going through the orders passed by the tax authorities it appears that the tax authorities as well as the learned tribunal misdirected themselves in reading only Explanation-II to Section 2(xlviii) of the JVAT Act and ignored Explanation-III which categorically indicates that the sale price shall not include the cost for transport of goods from the seller to the buyer provided such cost is separately charged to the buyer. Thus the orders of tax authorities as well as the learned tribunal suffer from illegality and incorrect application of the provision of the JVAT Act to the facts of the present case.
The matter is remitted back to the Deputy Commissioner of Commercial Taxes, Singhbhum Circle, Jamshedpur to pass a fresh order on the claim of the petitioner to the extent it relates to freight charges realized by the petitioner from its purchasers and shown and charged separately in the invoices after considering the materials and after hearing the petitioner - Application allowed.
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2023 (1) TMI 1133
Seeking waiver of tax on the steel purchased which according to the petitioner was not converted into grills - It is the case of the petitioner that there was no conversion of steel purchased, because, the steel was used as such and since the steel was purchased from a registered dealer within the State, it could not be subjected to tax once again - scope for interference / judicial review of an order of Tribunal - HELD THAT:- The petitioner was engaged in civil contract work. Thus, the petitioner would have been liable to tax under Section 3-B of the Tamil Nadu General Sales Tax Act, 1959 as a works contractor.
The facts on record indicate that the petitioner had declared the total of Rs.62,63,932/- and taxable turnover of Rs.35,00,132/- in his return. However, the taxable turnover was re-determined as Rs.39,93,764/- by the Assessing Officer. The Assessing Officer namely, the third respondent has treated the Steel purchased by the petitioner as sale of Steel Grills liable to tax under Section 3-B of the TNGST Act, 1959 - As per Section 3-B(2)(b) of the Tamil Nadu General Sales Tax Act, 1959, the taxable turnover of a dealer for the transfer of property involved in the execution of works contract shall be arrived after deducting the value of goods used in the execution of works contract which were purchased from a registered dealer and were liable to pay tax at the rate specified in the First Schedule or the Second Schedule of the Act.
The Tribunal has not committed any error while reversing the decision of the second respondent Appellate Assistant Commissioner as the petitioner did not produce any documents to substantiate that the steel that was purchased from a registered dealer within the State of Tamil Nadu was not used in the execution of works contract.
Further, the scope for interference / judicial review of an order of Tribunal is very limited. Unless the order suffers from violation of principle of natural justice or is found to be ex-facie perverse or arbitrary, the Writ Petition ought not to have been entertained. The impugned order passed by the Tribunal does not suffer from any infirmity and cannot be set aside.
Petition dismissed.
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2023 (1) TMI 1102
Principles of Natural Justice (Audi Alteram Partem) - rectification of mistake - whether in all cases where rectification of the Assessment Order is sought for under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 is there a need for the Assessing Officer to provide an opportunity of hearing to the Dealer? - HELD THAT:- In the case of AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION VERSUS THE DESIGNATED AUTHORITY & ORS. [2011 (1) TMI 7 - SUPREME COURT], the 1st proviso to Section 84(1) of the Act, which makes it clear that only in cases, where the rectification which has an effect of enhancing the assessment or penalty, there is a statutory requirement for granting reasonable opportunity of hearing to the Dealer and not when the assessment has been confirmed. The application of the Principle of Audi Alteram Partem is a general principle, which will not apply to the cases, where there is no enhancement of assessment or penalty in an order passed under Section 84 of the Act is passed.
In the case on hand, the assessment or penalty has not been enhanced by the 1st respondent but the 1st respondent has only confirmed the earlier Assessment Order passed against the petitioner in the year 2016. Therefore, there is no necessity for the 1st respondent to afford an opportunity of hearing to the petitioner.
This Court does not find any infirmity in the impugned order - petition dismissed.
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2023 (1) TMI 1101
Disallowance of Input Tax Credit - failure to produce the relevant documents along with tax invoices despite notices - Section 100A(2) of the Delhi Value Added Tax Act, 2004 - HELD THAT:- According to the learned counsel for the appellant, provisions of Section 100A(2) of the Delhi Value Added Tax Act, 2004 do not support the stand of the respondent. He submits that although the electronic communications may not be required to be personally signed, in terms of Section 100A(2), the said communications must necessarily be authenticated by the digital signature of the concerned authority - The learned Tribunal did not decide the controversy, but remanded the matter to the learned OHA. This was, essentially, for the reason that one of the contentions advanced on behalf of the appellant was that the learned OHA had not put the issue of limitation to the appellant and therefore, the appellant did not have the opportunity to respond to the same.
There are no infirmity with the decision of the Tribunal in remanding the matter to the learned OHA. It would be apposite for the learned OHA, in the first instance, to decide the contentious issues, including the issue whether the notices were required to be digitally signed as contended by the petitioner - appeal dismissed.
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2023 (1) TMI 1100
Maintainability of petition - appeal provided against the reassessment order or not - Validity of re-assessment order - challenge on the ground of the same being invalid due to non-availment of an opportunity and the final hearing not being given despite the acknowledgment of the lock down due to the COVID-19 virus - whether the circumstances existed at the relevant point of time had actually made any breach of principle of natural justice?
HELD THAT:- Noticing the fact that the officer concerned had the statutory time limit to meet with as the same was expiring on 31.03.2020, although later on the period of limitation had also been extended by the Apex Court in its various orders, but, the officer can be given the benefit that at the time when he actually passed this order on 25.03.2020, he may not be aware of such developments. In fact, no one was aware of the seriousness of the entire issue. And, yet, the fact remains that the officer concerned, having taken a note of the fact that the request has been made by the petitioner to the Rajasthan Authority for issuance of Form-’F’, he has chosen not to accommodate the petitioner nor was he given an opportunity to tender the Form-F nor any opportunity of hearing was accorded. Therefore, this petition under Article 226 of the Constitution of India can be entertained bearing in mind the fact that this is a clear violation of principle of natural justice.
Availability of alternative remedy in the form of appeal this stage would not have served the purpose for this being a violation of the principle of natural justice. It was an unprecedented situation where people had suffered, no one was sure as what is going to be the future. In such circumstances, when peoples were struggling to save the human lives, the request for the petitioner to get the Form-F from the concerned authority was a mere impossibility, the opportunity shall need to be availed.
The reassessment order dated 25.03.2020 and the final notice of assessment are quashed and set aside with all consequential reliefs. The matter shall be taken up from the stage where it was left. The officer concerned shall avail an opportunity of hearing of the petitioner. The petitioner is permitted to file Form-’F’ or any other documents within a period of one week before the officer concerned, who will continue to hear the reassessment proceedings - this petition is allowed.
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2023 (1) TMI 1041
Condonation of delay of 163 days in filing revision - It is submitted that state entities are on separate footing from an individual and ample leeway is required to be granted to state entities since it involves betting at various stages - HELD THAT:- The delay in filing revision has been considered by this Court in COMMISSIONER COMMERCIAL TAX U.P. LKO. VERSUS M/S R.C. AND SONS RAKABGANJ LUCKNOW [2022 (9) TMI 533 - ALLAHABAD HIGH COURT], 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.
From a perusal of the affidavit filed in support of application, it is apparent that no explanation whatsoever has been given from 31st August, 2010 till 21st June, 2010. Limitation period for filing revision against order dated 18th August, 2010 was 90 days and therefore revisionist has miserably failed afford any explanation for delay of two years in filing the revision. 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.
The revision itself is dismissed.
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2023 (1) TMI 1040
Maintainability of petition - availability of alternative remedy - common argument of the petitioners is that Section 19(2)(ii) of the TNVAT Act permits the availment of ITC on goods purchased as ‘inputs’ in the manufacture or processing of goods in the State - HELD THAT:- All the impugned orders comprise orders of assessment, that are amenable to statutory appeal, and in one case an appellate order as well and hence, a preliminary submission has been raised assailing the very maintainability of these Writ Petitions - the question raised in these Writ Petitions revolves around an interpretation of the statutory provisions, specifically touching upon the eligibility or otherwise to ITC. The facts are undisputed. The authorities have, including the appellate authority, adopted the categoric view that the petitioners are not entitled to ITC in a situation where they have merely manufactured/purchased and consumed, an exempt product, though admittedly, such exempt product is not sold as an independent commodity, barring in one case.
The authorities, as revealed by the submissions of the Revenue and the stand taken in the impugned orders, have revealed their propensity to adopt a view that bypasses the spirit of the statutory provisions and scheme of the Act. The writ petitions are thus held to be maintainable.
Reversal of ITC on furnace oil used as fuel - HELD THAT:- Section 19(2) permits grant of ITC on any goods purchased and used as input in the manufacturing or processing of goods in the State or used as capital goods in the manufacture of taxable goods. Section 19(5)(a) denies ITC on the turnover from sale of exempt products. The entitlement to ITC must thus be seen in the context of, and decided, bearing note, not just of the letter of the law but the purpose for which the benefit was intended in the first place.
Whether ITC on fuel purchased as an input for use in power generation came to be considered by several Courts.
In the case of Saurashtra Calcine Bauxite [1992 (9) TMI 314 - GUJARAT HIGH COURT] the statutory provision considered was Section 5A of the Gujarat Sales Tax Act, 1969. The Court considered the import of its earlier judgments in the cases of J.K.Cotton Spinning & Weaving Mills Co. Ltd. V. The Sales Tax Officer, Kanpur and another [1964 (10) TMI 2 - SUPREME COURT] and Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam V. Thomas Stephen & Co. Ltd. [1988 (3) TMI 59 - SUPREME COURT] - The question that arose in these two cases was whether the furnace oil used must be regarded as a mere fuel and not as processing material. On an overall consideration of the matter, the Court held in favour of the assessee concluding that the authorities were not justified in taking a view that furnace oil is used only as fuel and not as a processing material within the ambit of Rule 42A of the Gujarat Sales Tax Rules. There is no dispute in the present cases, either by way of pleading or argument that the fuels used do not constitute industrial input.
In the present case, there is no dispute whatsoever that input fuel/electricity generated, has only been used to aid the process of manufacture. Except to a small extent in the case of SKML, neither the input fuel nor electricity generated, have been sold as an independent commodity. In that exceptional case, the commodity has suffered the rigour of taxation per regular application of the Act.
The Court rejected the case of the revenue holding that the assessee was eligible to the exemption in terms of clause (a) of Section 5A, in light of the admitted position that the shells purchased had been ‘consumed in the manufacture of other goods’.
Petition allowed.
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2023 (1) TMI 987
Exemption from GST - sale of goods by the Canteen Stores Department to different Canteen Store Department situate outside the State of U.P. - Conditional nature of exemption or not - Eligibility for exemption Notification No.7037, dated 31.01.1985.
HELD THAT:- From the reading of Notification dated 31.01.1985, benefit has been extended not only to the Canteen Stores Department/ Military Canteens, but also to U.P. Govt. Employees’ Welfare Corporation. The State Government found that there were certain contradictions to its earlier notifications which were issued in the years 1977 and 1981 in regard to Khadi Evam Gramodyog and Canteen Stores Department/ Military Canteens.
The Circular dated 23rd July, 1987 has to be read in harmony with the Notification dated 31.01.1985, as the Notification of 1985 also provided exemptions of tax subject to certain conditions. Due to contradictions existing between the earlier notifications of the Government, Circular dated 23.07.1987 was issued on the direction of the State Government re-conciling the said fact. Though, the Circular of 23rd July, 1987 does not take note of the Notification dated 31.01.1985, but it mentions of the Notification dated 03.02.1981 which disallowed the exemptions under Section 8(2A) of CST.
The Apex Court in Paper Products Ltd. [[1999 (8) TMI 70 - SUPREME COURT]] and M/s Indra Industries [[2000 (1) TMI 44 - SUPREME COURT]] has already clarified that circulars by Taxing Authorities are not binding on the Assessee, but the department could not take plea that they are not binding upon the department.
The judgment and order passed by the Tribunal needs no interference of this Court and all the revisions stand dismissed.
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2023 (1) TMI 986
Reversal of Input tax Credit - on purchase of R.E.P. license which is goods, tax has been paid by the applicant - When a dealer after purchasing any import license from open market and after paying tax at the rate of 4% as per the notification and having used the license for import of chemical and thereafter selling the goods so imported by him in furtherance of his business is entitled for the benefit of I.T.C. or not?
HELD THAT:- Section 13 of the Act of 2008 is charging section which deals for grant of Input Tax Credit to a dealer liable to pay tax subject to conditions given in Column (2), in respect of all taxable goods, where such taxable goods are purchased on or after date of commencement of the Act, are allowed credit of the amount, as Input Tax Credit, to the extent provided in Column (3) of the table - if goods purchased are used in manufacture of any goods and where such manufactured goods are sold in the course of export of goods outside the territory of India or any taxable goods manufactured are sold either inside the State or in the course of inter- State trade or commerce, a dealer is entitled to full amount of I.T.C.
In the instant case, the claim of assessee-dealer was solely rejected on the ground that he had not dealt with the sale and purchase of license which he had purchased from open market and was thus not entitled to claim I.T.C. The authorities as well as the Tribunal recorded a finding that no manufacturing activity was carried out by the assessee after importing the goods from outside the country using the import license.
In VIKAS SALES CORPORATION AND ANOTHER VERSUS COMMISSIONER OF COMMERCIAL TAXES AND ANOTHER (AND OTHER APPEALS AND WRIT PETITIONS) [1996 (5) TMI 363 - SUPREME COURT], the Apex Court had already held that grant of license by Licensing Authority to the registered exporter is not a sale. The sale is when the registered exporter or purchaser sells it to another person for consideration - In the instant case, the assessee-dealer had purchased import license from another person after paying the taxes as was applicable and the licence, which was in a intangible form was converted into a tangible form by the assessee importing chemical from outside the country.
The findings recorded by the Tribunal to the extent that I.T.C. can only be availed in case the assessee-dealer selling the licence itself and not importing the goods using the said import license and reselling the same in the market is not correct - revision allowed.
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9911796707
