|
Advanced Search Options
VAT and Sales Tax - Case Laws
Showing 1 to 20 of 27237 Records
-
2024 (4) TMI 957
Validity of assessment order - Levy of penalty u/s 53(1)(ii) of the AP VAT Act - wilful evasion of tax or not - SCN also do not categorically mention that it was a case of wilful evasion of tax - SCN barred by time limitation - Section 21(4) of AP VAT Act, 2005 - HELD THAT:- As seen from the show cause notice dated 24.06.2021 there is a mention of under declaration of 14.5% purchases during the year 2016-17. It is also mentioned that penalty proceedings would also be issued separately as the dealer was found to have committed offence under the provision of AP VAT Act. In the revised show cause notice also it is mentioned that the petitioner consumed lot of time and avoided production of records in-time. Provisions of Section 21(5) of the Act were made applicable to the facts of the case.
Now coming to the applicability of the extension of period of limitation by the Hon’ble Supreme Court in view of the then prevailing Covid situation. The Hon’ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER] has considered the difficulties that may be faced by the litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings and extended the period of limitation in all such proceedings irrespective of limitation prescribed under the general law or special laws whether condonable or not.
The period of limitation has to be extended to all proceedings including the issuance of show cause notice or passing of assessment orders or filing of appeals before the Appellate Tribunals against the orders which arise out of the show cause notices and the assessment orders - That apart, Section 21(5) of the AP VAT Act would entitle the authorities to conduct the assessment within a period of six years of the date of filing of the return or the first return relating to such offence. It is explicitly mentioned in the show cause notice dated 24.06.2021 that it was the case of under declaration of purchases during the year 2016-17. In our considered opinion this would suffice for proceeding with the assessment within a period of six years from the date of filing of the return or first return relating to such offence. That apart on these grounds the writ petitions deserves to be dismissed. There is an efficacious, alternate and statutory remedy available for the petitioner.
Petition dismissed.
-
2024 (4) TMI 956
Interest on delayed refund - relevant period for calculation of refund - Section 42(1) of the DVAT ACT, 2004 - HELD THAT:- Reference may be had to Article 25 of the Schedule to the Limitation Act, which stipulates that the period of limitation for “money payable for interest upon money due from defendant to the plaintiff” is 3 years and the time from which the period begins is when the interest becomes due.
The petitioner would be entitled to interest for a period of three years immediately preceding the filing of the subject petition till the date payment was made of the petitioner. The rate of interest applicable would be @ 6 % per annum in terms of Notification No. F.3(59)/Fin.(T&E)/2005-06/903 Dated 30th November, 2005 whereby the annual rate notified by Central Government is 6% per annum.
This petition is disposed of directing the respondents to pay interest @6% on Rs. 37,99,453/- refunded on 28.07.2022 for the period of three years immediately preceding the filing of the petition till the date of disbursal of refund to the petitioner.
-
2024 (4) TMI 955
Time limitation for passing assessment order - Classification of goods - Polymer Nylon Chips - classifiable under Entry 83 Schedule-II(B) of the Uttarakhand Value Added Tax Act, as “Plastic Granules” or not - whether re-assessment, under Section 29(4) of the Act could be made on the change of opinion, especially keeping in view that the same records had already been scrutinized by the Assessing Authority?
Time limitation for passing assessment order - HELD THAT:- As per Section 29(7) of the U.P. Commercial Tax Act, reassessment can be made within a period of 8 years after expiry of the Assessment Year. In the present case, as per the Uttarakhand Value Added Tax Act, Section 29(4) deals with the procedure for doing reassessment - In the present case, the Assessment Year is 2011-12, and before the end of six years, the reassessment order can be passed. The reassessment order has been passed on 27.03.2017, which is before the end of six years of the Assessment Year 2011-12, and hence the reassessment order passed under Section 29(4) of the Act was done within limitation, and this aspect has been affirmed by the Tribunal, and the Appeals, qua this ground, has been rightly dismissed.
Whether Nylon Chips manufactured by the appellant are covered by Entry 83 of Schedule-(II)(B) of the Act? - HELD THAT:- The appellant-department have themselves accepted that, with respect to the Plastic Granules, when they are put into procedure by adding fillers and additives, the strength of the plastic becomes better. Further, as per the opinion given by the British Plastics Federation, and Central Institute of Plastics Engineering & Technology (CIPET), Nylon refers to a group of Plastics known as Polyamide, and there is no change in the original material (raw material) in this manufacturing process of Nylon-6. Hence, the use of raw material, i.e. Plastic Granules to produce Nylon Chips will not alter the character of Nylon Chips, being a Plastic, and under the British Plastics Federation, Nylon is considered under the Plastics group - There is no substantial question of law, which requires to be considered in the present Revision. The Nylon Chips have been rightly held to be falling in Entry 83 of Schedule II(B) of the Act by the Tribunal.
There is no merit in the present Revision, and the same is, accordingly, dismissed.
-
2024 (4) TMI 898
Prayer for listing the review petitions in open Court/oral hearing - Taxability - gutka/gutkha/guhtka - appellants argued that state legislatures were not empowered to levy sales tax on those articles, in view of the provision in the Constitution enabling the Union to levy additional duties of excise, and further that in any case, the rate of state tax cannot exceed the limit prescribed by the Central Sales Tax Act, 1956.
HELD THAT:- Prayer for listing the review petitions in open Court/oral hearing is rejected - no case for review of the common judgment dated 4-5-2023 is made out.
The review petitions are, accordingly, dismissed.
-
2024 (4) TMI 857
Interest on delayed refund - relevant time for calculation of interest - HELD THAT:- Reference may be had to Article 25 of the Schedule to the Limitation Act, which stipulates that the period of limitation for “money payable for interest upon money due from defendant to the plaintiff” is 3 years and the time from which the period begins is when the interests become due.
In terms of Section 30 (4) of Delhi Sales Tax Act, 1975, interest becomes due and payable on delayed refund on expiry of 90 days from the date of making the claim under Sub-Section 3. Accordingly, the period of limitation for claiming interests on the delayed payment would be three years from the expiry of 90 days. Since the refund was delayed, for every passing month the interest accrued @1.5% per month. Accordingly, with every passing month with effect from the commencement of the period of limitation, interest for the preceding one month in the block of three years would extinguish and interest for succeeding one month would accrue.
Petitioner would be entitled to interest for a period of three years immediately preceding the filing of the subject petition till the date payment was made of the petitioner. Since the delay is beyond the period of one month as provided under Section 30 (4), the rate of interest applicable would be 1.5% per month - this petition is disposed off.
-
2024 (4) TMI 815
Seeking grant of anticipatory bail - bailable offence or not - failure to make payment of tax - wilful attempt to evade any tax or payment of any tax - Section 74(2) of the MVAT Act - HELD THAT:- Under Section 76 of the MVAT the offences under that Act were bailable. Therefore, question of grant or refusal of anticipatory bail would arise only if Sections 406 and 420 of the I.P.C. are made applicable in the present case.
The F.I.R. and the investigation carried out so far reveals that, there was evasion of tax or non payment of tax to the tune of Rs. 1,47,56,486/-; as mentioned earlier. There is no dispute that this amounts to an offence U/s. 74(2) of the MVAT. The main question is, whether in this background, simultaneously, the applicant can be prosecuted for commission of the offence punishable under sections 420 and 406 of the I.P.C. as well, or as to whether there is a bar in conducting investigation and prosecution for the offences under the I.P.C. in this case.
Thus, the ratio of the Division Bench Judgment in the case of G.S. Oils Ltd.’s [2012 (10) TMI 1274 - BOMBAY HIGH COURT] is squarely applicable to the present facts of the case. The said Judgment in G.S. Oils Ltd.’s case specifically refers to the I.P.C. offences U/s. 406 and 420, as well as, to Section 74(2) of the MVAT. In this view of the matter, it is not necessary to refer to the ratio in Gagan Sharma’s case [2018 (10) TMI 1832 - BOMBAY HIGH COURT] which was in respect of a different statute altogether.
In this particular case, investigation and the prosecution under both the enactments i.e. the MVAT and the I.P.C. can go on simultaneously. The ingredients of section 74(2) of the MVAT, as well as, Sections 420 and 406 of the I.P.C. are clearly made out. Evasion of the tax is of a huge amount. There is no acceptable justification offered by the applicant. His custodial interrogation is necessary to trace all these transactions. Besides this, the offence is quite grave and serious; considering the amount involved. In this view of the matter, no protection U/s. 438 of the Cr.p.c. can be granted to the applicant.
The Application is rejected.
-
2024 (4) TMI 814
Recovery of alleged outstanding dues of unpaid tax amounts - Section 29 of APVAT Act, 2005 - Appeal was dismissed for default due to the petitioner's repeated non-appearance despite being granted several adjournments. - HELD THAT:- Considering the submissions advanced, it is evident from the appellate order dated 19.07.2023 that the appeal is of the year 2015 and inspite of several adjournments, the petitioner was not turning up for hearing and consequently, the appeal was dismissed for default against which application for restoration of appeal filed recently is pending.
To provide opportunity of hearing to the petitioner on the merits of the application, and if allowed by the appellate authority, to provide opportunity of hearing on merits of the appeal, it is considered to be in the interest of justice, by moulding the relief, to direct the respondent No.4 to consider and decide the petitioner’s application for restoration (Ex. P4) within a period of six weeks from the date of a copy of this order is produced before the said authority and if the appeal is restored, to decide the same also expeditiously and till such time, any coercive action, pursuant to the notices for recovery of outstanding dues towards the alleged unpaid tax amounts, deserves to be stayed, subject to the condition that the petitioner deposits 25% of the disputed amount, additionally.
The Writ Petition is disposed of finally.
-
2024 (4) TMI 813
Benefit of Exemption from CST - stock transfer or inter-state sale - Whether the movement of goods in the instant case is only a stock transfer to the branches and liable to be exempted under Section 6A of the CST Act 1956 or the transaction is an interstate sale under Section 3(a) of the CST Act and liable for tax under CST Act 1956? - HELD THAT:- The impugned order shows that the works orders sent by the HO contain the details of individual customer companies and item wise description of the rubber sheets with specific design and quantity which manifests that rubber sheets are being tailor-made to suit the needs of the individual customers. The invoices are also raised on customers. It may be true that the finished goods are dispatched to the different branches. However, that fact is insignificant because in the entire process the branches are acting only as conduits between the manufacturing unit and customers. Where once movement of goods from one state to another state takes place on account of sale or purchase, the transaction assumes the character of inter-state sales in terms of Section 3(a) of CST Act, 1956.
The judgment in SAHNEY STEEL AND PRESS WORKS LTD. AND ANOTHER VERSUS COMMERCIAL TAX OFFICER AND OTHERS [1985 (9) TMI 313 - SUPREME COURT] squarely apply to the case on hand. In the instant case also the movement of goods shall be regarded as inter-state sales rather than mere stock transfer - the argument of the petitioner in this regard, cannot be countenanced. The other contention of the petitioner is concerned, as rightly submitted by learned Government Pleader, the 2nd respondent has exercised his power under Section 9(2) of CST Act, r/w Section 20 (2) of APGST Act but not under Section 6A(3) of CST Act.
There are no merits in the petitioner’s case and accordingly the Writ Petition is dismissed.
-
2024 (4) TMI 812
Entitlement for issuance of C-Forms post the introduction of G.S.T. regime for natural gas - entitlement for the refund of the amount already collected at full rate.
Issuance of C-Forms Post G.S.T. Regime - HELD THAT:- In CARPO POWER LIMITED VERSUS STATE OF HARYANA AND OTHERS [2018 (4) TMI 146 - PUNJAB AND HARYANA HIGH COURT], before the Hon’ble Punjab and Haryana High Court, the issue was the challenge made by a Petitioner for being refused to be issued C-Forms for the natural gas purchased in an inter-state trade for generation of electricity from Gujarat to Haryana. The question before the Court whether after the amendment of the C.S.T. Act, the petitioner is entitled to be issued `C' Forms in respect of the natural gas purchased in inter-state sale or not. The Hon’ble Court came up to a conclusion on a combined reading of Section 2 (52) and 9 (2) of the C.G.S.T. Act, the inter-state sale of natural gas continues to be governed under the C.S.T. Act. Thereafter, it was held that since Section 8 of the CST Act, the Rule 12 of the CST (R&T) Rules and Form-'C' have not undergone any amendment, the Department cannot put any restriction on the usage of 'C' forms only in view of the amendment of definition of "goods" in the CST Act.
In TATA STEEL LIMITED, JAMSHEDPUR AND OTHERS VERSUS STATE OF JHARKHAND AND OTHERS [2019 (9) TMI 524 - JHARKHAND HIGH COURT], a prayer was sought to direct issuance of C-Forms with respect to an inter-state purchase. A Division Bench of the High Court of Jharkhand, made an exhaustive analysis on the aspect of issuance of these statutory forms in light of the increasing litigation for the grant and denial of the same. On a combined reading of the C.S.T Act, 1956 and the C.S.T. (Registration and Turnover) Rules, 1957, it was opined that the C-Forms have to be given to the registered dealer when the goods in respect of which the C-Form is used, are included in the registration certificate; when necessary, application amount is paid and when there is compliance to the rules prescribed. Furthermore, the Court also observed that with every state “power”, there vests a duty and with every “duty”, a “right” flows to the assessee /applicant of the C-Form. Thereafter, it was also noted that there are certain does and do nots for the state while grant or refusal of the same.
Receipt of C-Forms After Assessment - HELD THAT:- A C-Form is essentially issued by the seller of goods to the buyer for the purpose of effecting a reduction on the rate of tax - The role of Respondent No. 3, who is the seller within the State of Andhra Pradesh is that he works as an agent of the Government to collect the tax from the buyer. The buyer who purchases such goods from Andhra Pradesh, uses them as a raw material in manufacturing the final product in the other State is to have a concessional rate of tax of 2% under CST Act on submission of statutory C-Forms. It is not out of place to mention that the statutory C-Forms can be submitted even after completion of the assessment by the seller. The claim cannot be rejected on the score that C-Forms were presented after the assessment. The only obligation on the part of the seller is to prove sufficient case for the late submission of C-Forms.
Refund of the Tax Deposited - HELD THAT:- The Petitioner is entitled to have concessional rate of tax @ 2% on the purchases made from the Respondent No. 3. The reason for non-submission of statutory C-Forms at relevant point of time is due to the confusion created on the advent of GST regime, which came into force from 01.07.2017. The Authorities clarified about the position on reference to the judgment of Punjab & Haryana High Court, which was confirmed by the Hon’ble Apex Court. Thereafter, the Petitioner made their efforts for submission of C-Forms to get refund. Record further shows that the Petitioner submitted C-Forms to Respondent No. 2, which was returned with an endorsement directing them to submit the C-Forms through Respondent No. 3 and then have credit notes from Respondent No. 3, for refund of the amount - Be that as it may, during the pendency of the present petition, Respondent No. 3 has submitted C-Forms which were rejected by the Department stating that they have paid the full tax on the score that they could not get C-Forms. Petitioner having paid the full tax is entitled to the eligible refund.
The Respondent Nos. 2 and 4 are directed to forthwith process the refund claim of the Petitioner for the years 2017-18 and 2018-19 based on statutory C-Forms of the Petitioner and upon scrutinising the genuineness of C-Forms in accordance with law and pass appropriate orders on merits within a period of four weeks of the receipt of a copy of this Order - Petition allowed.
-
2024 (4) TMI 764
Short payment of Interest - denial of interest from 01.04.2017 to 18.12.2020, the period during which the amount of input tax credit was lying in the electronic credit ledger of the petitioner - section 38 of the VAT Act.
HELD THAT:- On perusal of provisions of subsection (2) of section 38 of the Act, it is clear that the registered dealer is entitled to refund from the date immediately following the date of closure of the accounting year to which the said the amount of refund relates till the date of payment of the amount of such refund. In the facts of the case, appellant order would be the relevant date or the end date however, the date from which the interest starts running is the date of immediately following the accounting year which is 01.04.2017 under the facts of the case.
Merely because the petitioner has transferred the amount to the electronic credit ledger coupled with the fact that such amount remained unutilized till it was reversed by the petitioner by filling Form DRC-03, the transfer of amount to the electronic credit ledger was only a memorandum entry on 01.07.2017 which was reversed on 18.12.2020. For all effect and purpose, the amount was never utilized by the petitioner and the Commissioner has also rightly not granted refund of the amount input tax credit which is utilized by the petitioner.
It is pertinent to note that the petitioner made claim of refund for the amount of Rs. 42,35,215/- after considering already utilized amount of Rs. 3,45,133/- and there was shortfall of Rs. 22,500/ and therefore, the Commissioner, while granting refund, has taken into consideration this aspect and granted refund of only Rs. 42,34,894/- to the petitioner. Therefore, respondent-authority is required to calculate the interest on the amount as per the order passed by the appellate-authority from 01.07.2017 till the date of order i.e. 22.05.2023.
The respondent authorities are directed to refund balance amount of Rs. 8,81,322/- within a period of four weeks from the date of receipt of copy of this order - Petition allowed.
-
2024 (4) TMI 720
Seeking to remove the encumbrance of the attachment in the petitioner's property - specific case of the petitioner is that the petitioner is a bona fide purchaser of the property from the fifth respondent and is therefore entitled to immunity under proviso to Section 43 of TNVAT Act, 2006 - HELD THAT:- In the facts and circumstances of the case, it is evident that the petitioner and the fifth respondent are known to each other and are in the same business. The petitioner ought to have obtained the certificate or for prior permission from the Commercial Tax Department before purchasing the property as to whether the property was fully free from any encumbrance. Instead, the petitioner has blindly purchased the property perhaps colluding with the fifth respondent to defraud the revenue. Therefore, the challenge to the impugned communications dated 05.02.2021, 01.09.2020 and 22.02.2022 issued by the third respondent cannot be quashed. The petitioner will have to establish his bona fide before the trial Court by filing a suit establishing that the purchase of the property from the fifth respondent was bona fide.
The writ petition is dismissed.
-
2024 (4) TMI 622
Violation of principles of natural justice - validity of impugned order dated 23.11.2020, confirming the demand for the Assessment Year 2013-14 - HELD THAT:- In view of the materials on record, the impugned order is unsustainable as the impugned order fails to note the decision of this Court in the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT]. In somewhat similar circumstances, this Court in the case of M/S. ANNALAKSHI TRADERS VERSUS THE ASSISTANT COMMISSIONER (ST) , POLLACHI (EAST) ASSESSMENT CIRCLE, POLLACHI. [2022 (1) TMI 806 - MADRAS HIGH COURT] held Admittedly, in this case the respondent has not followed the procedure prescribed therein. Considering the same, I am inclined to interfere by quashing the impugned Assessment Order by remitting back the case to the respondent to pass a speaking order in terms of the above-said circular/guidelines of the Principal Secretary/Commissioner of Commercial Taxes.
That apart, it is not in dispute that the information has been gathered by the respondent from MIS report generated with intranet web domain. The fact that the petitioner has closed down the business and surrendered the VAT registration as early as 31.03.2011 is also not in dispute - The authorities ought to have investigated and produced the dealers for cross-examination by the petitioner, as otherwise, it is quite possible, liability is being fastened on the petitioner based on the information gathered from the intranet domain based on the fictitious and bogus invoices. The duty cannot be fastened on the petitioner if indeed the petitioner had closed down the business as early as 31.03.2011.
The impugned order is set aside and the case is remitted back to the respondent to pass a fresh order on merits and in accordance with law - petition allowed by way of remand.
-
2024 (4) TMI 621
Time limitation for availing Input Tax Credit - Validity of reassessment order and demand notices - Availment of Input Tax Credit by filing belated returns - HELD THAT:- In BEML's case [2023 (1) TMI 341 - KARNATAKA HIGH COURT], the Division Bench held A plain reading of provision of Section 10(3) of the KVAT Act, 2003, shows that no time limit or restriction is prescribed for availing the input tax credit.
Apart from setting aside the impugned orders passed by the Joint Commissioner of Commercial Taxes, the impugned reassessment orders at Annexures-'H1' to 'H3' and consequent demand notices at Annexures- 'J1' to 'J3' also deserves to be set aside.
Petition allowed.
-
2024 (4) TMI 467
Rejection of branch transfer / Stock transfer of Goods - movement of the goods from the manufacturing unit of the respondent at Navi Mumbai in the State of Maharashtra to the branch offices in other States - sale taking place during the course of inter-State trade or commerce or whether it was a case of branch transfer by the respondent to its branches at Ahmedabad, Delhi, Coimbatore, Bangalore, Chennai, Cochin, Hyderabad and Visakhapatnam? - burden of proof - HELD THAT:- What transpires from the decision of the Supreme Court in Hyderabad Engineering [2011 (3) TMI 1427 - SUPREME COURT] is that for a sale to be in the course of inter-State trade or commerce under section 3(a), there must be a sale of goods and such sale should occasion the movement of the goods from one State to another. To find out whether a particular transaction is a inter-State sale or not, it is essential to see whether the movement of the goods from one State to another is a result of a prior contract of sale. Under section 6A, if the dealer claims that the movement of such goods from one State to another was occasioned by reason of transfer of such goods by him to any other place of his business and not by reason of sale, then the burden of proving that the movement of goods was so occasioned shall be on the dealer. The mode of discharge of this burden of proof has also been provided in the form of a declaration in form ‘F’. However, if the department does not take advantage of the presumption under section 3(a), but shows a positive case of sale in the course of trade or commerce to make it liable to tax under section 6, the declaration in form ‘F’ under section 6A would be of no avail.
When the ‘sale’ or ‘agreement to sell’ causes or has the effect of occasioning the movement of goods from one State to another, irrespective of whether the movement of goods is provided for in the contract of sale or not, or whether the order is placed with any branch office or any head office which resulted in the movement of goods, if the effect of such a sale is to have the movement of goods from one State to another, an inter-State sale would ensue and would result in exigibility of tax under section 3(a).
The Supreme Court in Hyderabad Engineering held that when the sale has the effect of occasioning the movement of goods from one State to another irrespective of whether the movement of goods is provided for in the contract of sale or not or whether the order is placed with any branch office or head office which resulted in movement of goods, it would be a case of inter-State sale resulting in exigibility of tax under section 3A of the CST Act.
In Ashok Leyland [2004 (1) TMI 365 - SUPREME COURT], the Supreme Court held that where the purchaser places an order for manufacture of goods as per his specification, a presumption can be raised that agreement to sell had been entered into.
MSTT was, therefore, not justified in restricting the stand of the respondent to just three transactions for which material had been placed by the State as it is not the case of the respondent that in other transactions, the process had changed. What follows from the aforesaid factual position stated by the respondent before CESTAT is that the movement of the goods had occasioned from the factory of the respondent to the branch offices because of the orders placed by the customers at the branch offices of the respondent - thus, it has to be held that the Deputy Commissioner was justified in holding that the transaction in the present case was not a case of branch transfer but of inter-State sale and MSTT committed an error in holding that except for three transactions worth Rs. 53,21,459/-, the remaining transaction would be of branch transfers.
In view of the provisions of section 22B(1) of the CST Act, a direction would, therefore, have to be issued to the Deputy Commissioner to ascertain whether any additional amount is required to be deposited by the respondent and if so to recover the same from the respondent. A further direction is issued to the States to transfer the refundable amount to the State of Maharashtra - appeal allowed.
-
2024 (4) TMI 426
Validity of reassessment proceedings - Extension of period of limitation and the consequential notice dated 29.11.2022 issued by respondent no.3 to reassess the petitioner for assessment year 2012-13 (UP) - HELD THAT:- The Supreme Court in M/s Modi Naturals Ltd. Vs. The Commissioner of Commercial Tax, UP [2023 (11) TMI 298 - SUPREME COURT] has opined that notwithstanding the non-vatable/exempt nature of DORB, its sale value would have to be considered/included for the purpose of carving out exclusion under Section 13(1)(f) of the UP VAT Act. On that reasoning, the judgment of the learned Single Judge has been reversed.
In view of the above law declared by the Supreme Court, the material on the strength of which reassessment proceedings were drawn against the petitioner for A.Y. 2012-13 (UP) does not exist. In face of the law declared by the Supreme Court, it can never be said by the revenue, turn over had escaped assessment at the hands of the petitioner for the said assessment year.
The reassessment proceedings for the reassessment year 2012-13 (UP) are quashed - the writ petition is allowed.
-
2024 (4) TMI 369
Levy of tax - turnover of old machinery and equipment after the closure of business - scope of “Business” as contained in Clause (iv) of Section 2(e) of the U.P. VAT Act, 2008 - liability of payment of interest on the admitted turnover in terms of Sub-section (2) of the Section 33 of the U.P. VAT Act, 2008 - HELD THAT:- Upon a perusal of the orders passed by the Assessing Officer, First Appellate Authority and the Tribunal, one is able to decipher that the Tribunal has categorically come to the finding that the items that were sold after the closure of the business amounting to Rs. 1,33,20,839/- are in the nature of plant and machinery falling under capital goods. In light of the same, the Tribunal came to the finding that these goods would not fall within the definition of Section 2(e)(iv) of the Act - The finding of the Tribunal and the First Appellate Authority that the particular goods were in nature of capital goods and not the goods under Section 2(m) of the Act is not a perverse finding. This Court in its revisional jurisdiction would not enter into the findings of the Tribunal unless the same are factually unbelievable and perverse. The Tribunal being the last fact finding authority, its findings are paramount and should not be interfered with by this Court unless the same are patently illegal and perverse.
It is to be noted that the amended definition of Section 2(e) of the Act only includes the sale of goods acquired during the period in which the business was carried out. This definition pre-supposes that the goods were acquired during the period in which the business was carried out and were subsequently sold after the closure of the business. The definition could very well have been amended to include all kinds of goods including capital goods. The legislature has limited itself to only sale of “goods”, and therefore, the definition of goods as per the Section 2(m) of the Act has to be taken into account and not the goods which fall under the definition of capital goods in Section 2(f).
There is no requirement to interfere with the impugned order passed by the Tribunal. The revision petition is, accordingly, dismissed.
-
2024 (4) TMI 333
Reversal of Input Tax Credit - genuine transactions or not - deregistered firm or not - validity of assessment order.
Transactions not genuine - HELD THAT:- It is recorded that assessee, M/s. Chimco had declared purchase of coffee seeds from M/s.SLN Coffee Pvt. Ltd., and an output tax of Rs. 78,86,156/- has been paid. The assessment has been made by the Additional Commissioner of Commercial Taxes. The document speaks for itself that so far as petitioner was concerned, the tax amount was paid.
M/s. Chimco was deregistered - HELD THAT:- The document (Annexure-M) filed by the assessee shows that deregistration has been approved on 16.07.2011 and the effective date of deregistration mentioned therein is from 01.06.2006. The assessment year is 2009-10. As on that date, the said firm was not deregistered and it is only on 16.07.2011, deregistration has been retrospectively made.
Assessment order - M/s. Chimco does not exist - HELD THAT:- The assessment order and deregistration order clearly show that said private limited company was registered with Commercial Tax Department and the assessment has been made by an officer of the rank of Commercial Tax Officer.
Once movement of goods is accepted and in the assessment order of M/s. Chimco, the Assessing Officer has noted payment of output tax in a sum of Rs. 78,86,156/-, the contentions urged on behalf of the Revenue are untenable and liable to be rejected.
The order passed by the full Bench of the Karnataka Appellate Tribunal, Bengaluru, is set-aside - revision petition is allowed.
-
2024 (4) TMI 322
Review of the order - Recovery of dues - priority of charges - secured creditor have a prior right over the relevant Department of the Government to appropriate the amount realized by the sale of a secured asset - HELD THAT:- Considering the clear findings as recorded by the Court, in which the Court has clearly observed that the situation would be governed by the determination in paragraph 154 therein as there is material to indicate that the action of sale proclamation initiated by the respondents was preceded by notice under Section 178 of the MLR Code, warrant of attachment under Section 267(3), order of attachment in Form 4 and auction proclamation notice in Form 7 under the MRLR Rules.
It is thus clear that the entire procedure as known to law has been followed by the respondent/Sales Tax Department as observed and accepted by the Court. More so having already taken a chance to argue the case in the alternative, based on the provisions of Section 31B of the Recovery of Debts And Bankruptcy Act, 1993, the petitioners cannot be permitted to have a second round of arguments on the same issues under the garb of a review petition.
The principles on the exercise of the review jurisdiction are well settled. The Supreme Court in THE STATE OF WEST BENGAL VERSUS KAMAL SENGUPTA AND ANOTHER [2008 (6) TMI 578 - SUPREME COURT] has clearly held that a review cannot be sought on the ground of discovery of new matter or evidence. Such matter or evidence would be relevant and must be of such a character that if the same has been produced, it might have altered the judgment. It was thus observed that the mere discovery of new or important matter or evidence is not a sufficient ground for review ex debito justitiae. It was further held that parties seeking review also need to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.
There is no mistake or error apparent on the face of the judgment rendered by this Court. In fact, accepting the argument of petitioner involves the exercise of re-scrutiny and reconsideration of the facts and legal position, which stands already considered and concluded in the judgment under review. In the light of the above discussion, it is opined that the review petition is devoid of any merit.
Review petition dismissed.
-
2024 (4) TMI 220
Maintainability of appeal - requirement to pay the mandatory pre-deposit under the GVAT Act and CST Act.
It is the case of the petitioner that the Commissioner Appeals as well as the Tribunal while passing an order of pre-deposit has not considered the prima facie case in favour of the appellant.
HELD THAT:- It appears that the Tribunal has imposed the condition of pre-deposit consisting of the entire demand under the Central Sales Tax. The Tribunal has passed an order requiring the appellant to deposit Rs. 36,00,000/- out of the total remaining demand of Rs. 36,19,825/-. Therefore we are of the opinion that the Tribunal has exceeded its jurisdiction in passing the order of pre-deposit without considering the fact that if the appellant is required to pay almost entire amount of the outstanding dues then the very purpose of pre-deposit would be frustrated.
Therefore, as the appellant is ready and willing to deposit Rs. 5,00,000/- to show the bona fides and to enable the appellant to furnish the statutory forms in the remaining period of pre-deposit, the interest of justice would be served if the amount of pre-deposit is reduced to Rs. 5,23,000/-.
The appellant is therefore to deposit Rs. 5,23,000/- on or before 15.07.2024 towards the mandatory pre-deposit in the appellate proceedings and the present appeal filed by the appellant is accordingly allowed to the aforesaid extent and the matter is remanded back to the First Appellate Authority who will hear the appeals filed by the appellant on deposit of Rs. 5,23,000/- on or before 15.07.2024 - Matter on remand.
-
2024 (4) TMI 219
Requirement to fulfil condition to deposit 15% of the disputed tax demand, to participate in the assessment proceedings - alleged mismatch of purchases between the returns filed by the appellant and the other dealers - HELD THAT:- The learned Judge, after having considered the submission made by the learned counsel for the appellant / assessee, has granted one opportunity to the assessee, however subject to a condition that the assessee has to deposit 15% of the tax demanded, by the order impugned herein. According to the learned counsel for the appellant, when the learned Judge is inclined to remand the matter to the respondent for re-consideration, he ought not to have imposed such condition on the appellant, which is illegal and contrary to law.
The issue involved herein had already been considered by a Division Bench in Havea Handles & Components Pvt. Ltd v. Assistant Commissioner (CT) (FAC), Royapettah II Assessment Circle, Chennai [2014 (7) TMI 1367 - MADRAS HIGH COURT] and it was held that It has to be pointed out, at this stage, that once it has been found that the orders impugned in the writ petitions are unsustainable on account of violation of principles of natural justice, it is wholly unnecessary to impose any condition while remitting the matter for fresh adjudication and in the considered opinion of this court, the direction given to the appellant / writ petitioner to deposit 10% of the tax amount as claimed in the demand notice, as a condition precedent to enquire into the matter, is unsustainable and the said portion of the order is liable to be set aside.
Following the above said judgment, in an identical case in M/S. R.P.S. & CO VERSUS THE ASSISTANT COMMISSIONER (ST) (FAC) BROUGH ROAD CIRCLE, ERODE [2022 (2) TMI 1430 - MADRAS HIGH COURT], this court, in which, one of us (RMDJ) was a member, has set aside the pre-condition imposed on the appellant therein to deposit 30% of the tax amount for consideration of the matter afresh by the assessing authority, observing that the same was certainly unwarranted.
This Court is inclined to set aside the order of the learned Judge insofar as directing the appellant / assessee to deposit 15% of the demanded tax as a condition precedent for re-doing the assessment by the authority and the same is accordingly, set aside. Consequently, the appellant / assessee is directed to file objections to the order passed by the respondent treating the same as show cause notice as directed by the learned Judge, within a period of two weeks from the date of receipt of a copy of this judgment - Appeal allowed.
........
|
