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VAT and Sales Tax - High Court - Case Laws

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• 2022 (5) TMI 1197
  
  Claim of interest Refund of VAT - delay in furnishing the declaration i.e. C-Forms to be factored in while calculating interest - Section 38(3)(a)(ii) of the DVAT Act. - HELD THAT:- The respondent/revenue has carried the matter in appeal to the Supreme Court. The Supreme Court, via order dated 01.02.2017, passed in VIZIEN ORGANICS, M/S MUNSHI RAM RAM PARKASH, MANGLA ENTERPRISES, DHANJAL ENGG. WORKS, M/S GOEL OIL COMPANY, M/S ARUN ELECTRONICS, POWER INDUSTRIES PROPRIETO SH. TARUN BANSAL, M/S. LUDHIANA AUTO SUPPLY CO., VERSUS COMMISSIONER, TRADE & TAXES & ANR. [2017 (1) TMI 1168 - DELHI HIGH COURT] has stayed the operation of the aforementioned judgment rendered by the coordinate bench. The present writ petition is disposed off, with the caveat that the petitioner’s claim concerning the remaining interest would be processed and shall be paid, in case the respondent/revenue was to fail in the aforementioned SLP.

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• 2022 (5) TMI 1196
  
  Exemption from Sales Tax - Whether the carpets dealt with by the Petitioner on which 1st point sales tax has been paid to the selling dealer, are exempted from sales tax at the last point of sale? - HELD THAT:- The taxing provision in the OST Act is Section 5 (1) which prescribes the rate of tax. The point of levy of tax on different goods are in accordance with Section 8 of the OST Act. Therefore, the reference to entry 23 of the rate of tax for determining amenability to tax is not relevant. The schedule of taxable goods under List- ‘C’ not only covers the goods notified as 1st point tax paid items but all other residual items unless the goods were notified as tax free - There is merit in the contention of the Petitioner that pile carpets are also known as carpets. In common parlance, pile carpets are also understood as carp....... + More

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• 2022 (5) TMI 1195
  
  Exemption from Sale Tax - sale of finished products manufactured by the industrial unit under the diversification scheme - order of enhancement of assessment passed by the Ld. Tribunal without compliance of the provisions of Rule-50 (3) of the Orissa Sales Tax Rules is lawful and valid or not - error of jurisdiction or is error in law while deciding issues which are not before him in the appeal filed by the Petitioner in absence of cross objection filed by the State - HELD THAT:- According to the Tribunal, the production and sale under the diversification scheme could not be construed to be increased commercial production over and above the installed capacity of the Unit and that the Petitioner had violated the stipulation laid down in the Finance Department Notification vide entry No.26-FF and 30-FFF (ii) of the Tax Free Schedule of the ....... + More

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• 2022 (5) TMI 1194
  
  Benefit of sales tax exemption - excess production and sale of cement of a quantity of 1670 MT - HELD THAT:- The industrial unit was to avail tax exemption in terms of I.P.R.1989. The installed capacity of the unit is that which stands certified under Annexure-2 and 3 and it cannot be changed or modified unless there is expansion/modernization/diversification. In other words, the installed capacity can be altered subject to the justification by amending the registration certificate. In the instant case, the claim of the Petitioner’s case is not based on any such expansion etc. Of course, no bar lies for excess production which may be accomplished with more than one shift but the exemption which the Petitioner is entitled would stand restricted to 15000 MT and cannot cover the excess production. Admittedly, no expansion has been unde....... + More

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• 2022 (5) TMI 1193
  
  Jurisdiction - whether D.I.C. has authority in law to issue the eligibility certificate for expansion and or modernization with retrospective effect - HELD THAT:- The period in question is the same i.e. 1994- 95 but the gross turnover (GTO) is noted in the said order of suo moto revision order dated 6th December, 2006 is different. In the order dated 30th May, 2002 of the STO, Dhenkanal Circle the GTO was noted as Rs.11,25,000/- which had escaped turnover and the Petitioner's exemption was disallowed insofar As it pertained to the excess production. On the other hand, the order dated 6th December, 2006 of the CTO appears to deal with supplies made to the Railways - it is plain that the Assessee claimed exemption on the strength of an earlier DIC certificate which did not authorise production beyond 2,70,187 cft. There is no power in t....... + More

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• 2022 (5) TMI 1192
  
  Violation of principles of natural justice - non-affording of reasonable and adequate opportunity to represent before the Commissioner - HELD THAT:- This Court is satisfied that the Petitioner has been diligently pursuing its matter (apparent from documents act Annexure-8 series. It was given short notice for appearing before the Commissioner of Sales Tax in connection with hearing and the nonappearance was on account of non-availability of his lawyer in the station, which fact remained uncontroverted at the time of hearing of present petition. The Petitioner is directed to appear before the Commissioner of Sales Tax on 31st May, 2022 along with the certified copy of this order. The Commissioner of Sales Tax may hear the matter on the said date or adjourn the matter to any other date for hearing - Petition disposed off.

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• 2022 (5) TMI 1191
  
  Levy of Sales Tax - sale of Gudakhu - Gudakhu being tobacco covered under Additional Duties of excise (Goods of Special importance) Act (ADE Act) is exempted from sales tax under Entry 38 of the exempted list or not - Orissa Sales Tax Act, 1947 (OST Act) - HELD THAT:- Entry-38 of the Exempted List A of the OST Act clearly includes Tobacco as described in column 3 of the first schedule to the ADE Act. If one turns to the ADE Act in the first schedule under Chapter Heading 2404.99 the Entry is “Tobacco used for smoking through hookah or chillum commonly known as hookah tobacco or Gudakhu’. It is therefore, plain that for the purpose of ADE Act Gudakhu is also recognized as a tobacco product - It may be noted here that even in subsequent amendments to the OST Act, there is an express recognition of Gudakhu being a tobacco product....... + More

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• 2022 (5) TMI 1190
  
  Levy of Sales Tax - hire charges collected by the Assessee for letting out on lease its aircraft would amount to sales and the amenable to the sales tax under the Orissa Sales Tax Act, 1947 or not - HELD THAT:- Whether in the present case the transaction in question is a sale, it is seen that in the present case there is no actual transfer of the possession of the aircraft in question to the user of the aircraft. The aircraft is at all times in control of the Pilot who is an employee of the Assessee. Even the maintenance of the aircraft is undertaken by the Assessee as are the statutory compliances in terms of the permit granted to the Assessee. Therefore, there is no real transfer of the right to use the aircraft in the manner as envisaged in 20TH CENTURY FINANCE CORPN. LTD. AND ANOTHER VERSUS STATE OF MAHARSHTRA [2000 (5) TMI 980 - SUPR....... + More

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• 2022 (5) TMI 1189
  
  Requirement of pre-deposit - Whether the revisional authority-Commissioner of Sales Tax is legally justified in sustaining the orders rejecting appeals summarily by the appellate authority-Joint Commissioner of Sales Tax for want of deposit of 10% of the amount of tax in dispute under the OVAT Act and 20% of the amount of tax under the OET Act? - HELD THAT:- In JINDAL STAINLESS LTD. VERSUS STATE OF ORISSA AND OTHERS [2014 (9) TMI 372 - ORISSA HIGH COURT] this Court delved into the question as to whether the condition precedent for pre-deposit of 20% [reduced to 10% vide OVAT (Amendment) Act, 2017] of tax or interest or both in dispute in addition to payment of admitted tax for entertaining an appeal as provided under Section 77(4) of the OVAT Act read with proviso to Rule 87 of the OVAT Rules is unreasonable, oppressive, violative and ult....... + More

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• 2022 (5) TMI 1188
  
  Validity of assessment order - failure to file return - Revenue issued notice twice, despite that, no reply had been given by the petitioner - HELD THAT:- Every month return has to be filed, knowing well with that position, the petitioner dealer has not come forward to file the return and pay the tax. Therefore, notice was issued twice, despite that, no reply has been given and thereafter, assessment order has been passed, the tax component as well as the interest and penalty having been quantified was imposed against the petitioner, which the petitioner had paid only in January 2020 except the penalty. Penalty - HELD THAT:- Section 73 of the Act since has been invoked for imposing penalty that is a wrong invocation and if at all the petitioner case is to be considered and it should be considered only under Section 61 of the Act and in th....... + More

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• 2022 (5) TMI 1187
  
  Restoration of application which was dismissed for default - HELD THAT:- The present application is allowed. The order dated 13th September 2019 is recalled and STREV No.41 of 2002 is restored to its original file.

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• 2022 (5) TMI 1113
  
  Concessional rate of tax - issuance of C form, which are required for procurement of Extra Neutral Alcohol (ENA) and Malt Spirit utilized for manufacturing of Indian Made Foreign Liquor (IMFL) used for human consumption - HELD THAT:- The ENA and the Malt Spirit in its original form are not the alcoholic liquor fit for human consumption and would therefore, not come within the amended definition of clause(d) of Section 2 of the CST Act and the respondent authorities have, therefore, rightly refused to issue the “C” Form, as claimed by the petitioner herein. Based upon the principles laid down by the Constitutional Bench of the Supreme Court in the matter of SYNTHETICS & CHEMICALS LTD., ETC. VERSUS STATE OF UP. [1989 (10) TMI 214 - SUPREME COURT], the ENA and Malt Spirit are not the alcoholic liquor, which is fit for human c....... + More

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• 2022 (5) TMI 1112
  
  Seeking permission for reassessment - power to grant permission for reassessment - Whether section 56(1) of the Act permits the Assessing Officer to refer the case to the Commissioner or Joint Commissioner for assessment/re-assessment? - HELD THAT:- Section 31 of the Act provides rectification of the order on an application of any interested person; whereas, section 29 of the Act empowers on the reason recorded by the assessing authority or the Commissioner on its own after being satisfied that it is just and expedient to do so to grant permission of the closed assessment for reassessment, where the turnover of a dealer for any assessment year or part thereof has escaped assessment to tax or has been under-assessed or has been assessed, but taxed at a lower rate than what at which it is assessable under the Act or any deduction or exempti....... + More

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• 2022 (5) TMI 981
  
  Denial of concessional rate of tax - D-Forms not accepted - ‘D’ Forms disallowed on the ground that the said dealer is a Government concern and not a Government and, as such, ‘D’ Forms, issued by it cannot be accepted and by further on the ground that a Govt. concern being a registered dealer could not issue ‘D’ Forms - HELD THAT:- The provision as laid down under Section 8 (1) (a) is applicable in case of inter-state sale made to Government whether registered or not being registered and in case of Government not being a registered dealer, the selling dealer has to furnish certificate in Form D as referred to in Rule 12 (1) of the CST (Registration & Turnover) Rules, 1959. A selling dealer is not required to furnish any certificate or declaration if the sale is made to Government being a registered ....... + More

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• 2022 (5) TMI 980
  
  Principles of natural justice - principal grievance of the petitioner is that the objections filed in the matter to the notice of default assessment of tax, interest and penalty issued under Section 32 of the Delhi Value Added Tax Act, 2004 - HELD THAT:- There is complete sloth and procrastination on the part of the respondents/revenue - the spirit of the law has, certainly, not been adhered to. Given the fact that the physical interaction often, for various reasons, is not possible with the Commissioner, the respondents/revenue are directed to create a portal/online mechanism for intimation of notices issued under subsection (8) of Section 74 of the Act, read with Rule 56 of the 2005 Rules. The writ petition is, accordingly, disposed of with a direction to the respondents/revenue to dispose of the objections filed by the petitioner, within 15 days of receipt of a copy of the judgment passed today.

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• 2022 (5) TMI 970
  
  Preferential payments of state claim over workmen and other creditors - Seeking priority and preference over other creditors and to release the amount said to be due in favour of the applicant-department - preferential treatment or priority to be accorded to the State claim/crown’s debt vis-a-vis the claim of workmen and other secured creditors - HELD THAT:- The issue of priority of secured creditor’s debt over that of the State Government, commonly known as crown’s debt, has been examined by different High Courts and the Hon’ble Supreme Court. This Court deems it proper to narrate the facts and law, with respect to different High Courts, as how the priority issue has been dealt with by them. The Gujarat High Court in the case of BANK OF INDIA VERSUS STATE OF GUJARAT & 3 OTHER (S) [2020 (1) TMI 1197 - GUJARAT H....... + More

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• 2022 (5) TMI 864
  
  Concessional Rate of Tax - Seeking appropriate direction, commanding the Respondent Authorities to issue “C” Form to the petitioner - seeking to consider the application filed by the petitioner for issuance of “C” Form - Manufacture of foreign liquor-9 - HELD THAT:- Supreme Court in the matter of SYNTHETICS & CHEMICALS LTD., ETC. VERSUS STATE OF UP. [1989 (10) TMI 214 - SUPREME COURT], wherein it has been held that the Rectified Spirit and the ENA are not the alcoholic liquor for human consumption - thus, the ENA and the Malt Spirit in its original form are not the alcoholic liquor fit for human consumption and would therefore, not come within the amended definition of clause(d) of Section 2 of the CST Act and in view thereof, the petitioner would not be entitled to get the “C” Form, as claimed by t....... + More

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• 2022 (5) TMI 707
  
  Classification of goods - rate of Trade Tax under the U. P. Trade Tax Act - Nitrogen component in the Chemical Fertilizer DAP (Di Ammonium Phosphate) - relevant date for enhancement of rates of DAP with effect from 29/01/1999 - Whether the revision in the rate of Nitrogen content in DAP would be applicable from the date of enhancement of the rate of DAP by the Government of India with effect from 29 January, 1999 or from 26 February, 2000 when the same was notified by the State Government? HELD THAT:- There is no dispute with regard to facts in issue inasmuch as vide notification dated 27th May, 1998 the value of Nitrogen component in DAP was fixed at ₹1381.30. Subsequently the value1381.30. Subsequently the value of DAP was enhanced by the Union of India on 29/1/1999. The notification of the Commissioner, Trade Tax dated 26/02/2000....... + More

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• 2022 (5) TMI 706
  
  Validity of assessment order - production of sufficient documents or not - HELD THAT:- After the remand order passed by this Court, two times opportunity was given to the petitioner and twice notices were given and both times the responses have been given by the petitioner dealer - First time, the documents sought for by the Revenue had been given. When further time was sought for especially to substantiate the movement of goods from seller to buyer, those transport documents were sought for and the same were not filed by the petitioner by stating the reason that, both buyer and seller are located in the same campus ie., sister concern and hence there was no separate movement or transportation and no separate charges had been incurred by the seller dealer or by the petitioner in transporting the goods - Only based on this stand taken by t....... + More

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• 2022 (5) TMI 705
  
  Refund claim - case of petitioner is that refund has not been effected except for one assessment year and that large amounts are still remaining due from the respondents - entitlement of interest on for delay in payment of interest under Section 44 of the KGST Act - HELD THAT:- If any refund is due to the petitioner, the same is liable to be processed and refunded without further delay. To enable such consideration of the quantum of refund due to the petitioner including the interest due, the 1st respondent is directed to take a decision upon Ext.P7, Ext.P7(a), Ext.P7(b) and Ext.P7(c), as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Considering the long delay, that has ensued from the filing of Ext.P7 till date, petitioner will be at liberty to file a fresh representation also seeking refund of the amounts due, pointing out the details along with a copy of this writ petition - Petition disposed off.

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