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VAT and Sales Tax - Case Laws
Showing 161 to 180 of 27228 Records
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2023 (11) TMI 1160
Validity of notices issued under Section 12 (2) of TNGST Act - SCN issued beyond Period of limitation - limitation prescribed under TNGST Act to assess the income of the petitioner under Best Judgment Assessment - HELD THAT:- It appears that the present notices have been issued under Section 27 under the Best Judgment Assessment for the Assessment Years 2002-03, 2003-04 , 2004 – 05 and 2006-07 on 12.03.2015. The Assessment Years 2002-03, 2003-04, 2004-05 which would fall under TNGST Act, notices were issued under Section 12 (2) of the Act and for the Assessment Year 2006-07, notice was issued under Section 22 (4) of the VAT Act which came into effect on 01.01.2007. Therefore, notices were issued under TNGST Act and VAT Act by referring to Section 12 (2) after a period of nine months and under Section 22 (4) under VAT Act after a period of three months. In all these cases, no proceedings have been initiated within the maximum time limit provided in the Act, for the escaped turnover. Since no time limit has been fixed under the Best Judgement Assessment, the Court has taken into consideration with regard to the reasonable time limit, that is the maximum time limit provided under any other assessment proceedings which can be taken only if there is no time limit prescribed under any other provision.
In the present case, for the escaped turnover, the assessment under TNGST Act, the maximum time limit under Section 16 is five years and under the VAT Act, under Section 27, it is six years. No doubt, in the present case, Show Cause Notices were issued beyond the period of five years and six years against the respective assessment years. As this Court has taken a view that the time limit for passing an order under Section 22 (4) and 27 co-exist and no order under Section 22 (4) can be passed beyond the period of limitation, as prescribed under Section 27 of the Act.
This Court is of the view that the present notices came to be issued beyond the period of limitation, this Court is inclined to quash the impugned Show Cause Notices issued by the respondent - Petition allowed.
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2023 (11) TMI 1159
Violation of principles of natural justice - no notice was issued to the petitioner and no opportunity of personal hearing was afforded before passing impugned orders - Attachment of petitioner’s bank account - HELD THAT:- Had it been the real intention of the respondent-Department to provide an fair opportunity of personal hearing to the petitioner, then, the respondent- Department would obviously, granted sufficient time to the petitioner to hear them in person and waited for the petitioner's reply/objections. Whereas, the respondent-Department proceeded to confirm the proposals contained in the show cause notice, without waiting for reply to be filed by the petitioner.
Even the show cause notice, dated 04.03.2023 was not served upon the petitioner directly by means of post or any other communication, whereas, the same was uploaded in the online Portal. All these would go to show that the opportunities, alleged to have been granted to the petitioner are not the real ones, but were the opportunities provided at nominal level and the same cannot be construed as fair opportunities - as rightly pointed out by the learned counsel for the petitioner, the impugned order is in gross violation of principles of natural justice and liable to be set aside.
The matter is remanded to the first respondent/State Tax Officer for re-consideration - petition allowed by way of remand.
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2023 (11) TMI 1126
Adjustment of GST amount deposited by the petitioner in the financial year 2018- 19, which inadvertently could not be deposited in the financial year 2017-18, but deposited by the petitioner in the month of June 2018 i.e. financial year 2018-19 - circular dated 31.12.2018 as well as provisions of Section 39(9) of the GST Act - it was held by High Court that Both the assessing authority as well as the appellate authority have committed the said misreading of GSTR-9, hence both the impugned orders cannot stand and are set aside.
HELD THAT:- There are no reason to interfere in the matter - SLP dismissed.
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2023 (11) TMI 1125
Valuation - works Contract - Reduction in turnover as per Rule 9 of the Value Added Tax Rules - cement imported from outside the State of U.P. - reduction in expenses from 21% to 10% - HELD THAT:- The general rule of law in taxing statutes is that in case of any doubt the benefit should be given to the assessee. However, in case of exemption and deduction to be given, a stricter approach may be followed, as per catena of judgments of the Supreme Court, to examine whether the assessee is eligible for such benefit - In the present case, there is no factual dispute of goods having been imported from outside the State of U.P. and, therefore, the assessee clearly qualifies for the said benefit.
In light of the same, the question is answered in favour of the assessee and against the Department - the revision application is dismissed.
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2023 (11) TMI 1124
Return of the balance amount kept by the Revision Petitioner on behalf of the customers - sale proceeds for levy of tax for imposing penalty under section 67 of the KVAT Act or not - sufficient material exists for imposing penalty or not - penalty confirmed based on presumptions and surmises or not - non-speaking and cryptic order - failure to grant opportunity to the petitioner for adducing further evidence or not - HELD THAT:- On the facts of the instant case, when it is found that the petitioner dealer had clearly contravened the terms of the Central Government Scheme that proposed benefits to purchasers of coir looms subject to their complying with a particular procedure for securing the said benefits, the contention of the petitioner cannot be accepted that, who was a person entrusted with the task of supplying the looms that the supply of parts of the loom (in lieu of a complete loom) for a lesser consideration should be considered as legal and proper and that his tax liability would therefore be only in respect of the reduced consideration received for the parts of the loom actually sold to the customer. The legal presumption to be drawn in the instant case, in the backdrop of the Central Government Scheme, is that the amounts received by the petitioner from the bank represented the actual consideration for the supply of the coir looms, which the petitioner was obliged to sell to the beneficiaries of the Scheme.
The obvious illegality also cannot be accepted that would arise if, as contended by the petitioner, it is a fact that he had colluded with the customer and supplied only parts of a loom, instead of an actual loom, and refunded a part of the amounts received from the bank to the customer. In the absence of any evidence to suggest that the loom itself was not sold, it is opined that the impugned order of the Commissioner does not require to be interfered with.
This O.T. Revision is disposed off by answering the questions of law raised in favour of the revenue and against the petitioner assessee.
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2023 (11) TMI 1123
Violation of principles of natural justice - petitioner was not given a fare and reasonable opportunity to defend his case - HELD THAT:- All the notices which were issued to the petitioner went unserved. Which apparently establishes the fact that the petitioner had never received any communication for replying to the show cause notice issued or for that matter, the notice of personal hearing is concerned.
Another aspect which needs to be considered is that, according to the petitioner, the establishment stood closed as an impact of COVID-19 pandemic. In addition, it was also seized by the bank authorities on account of the default on the part of the landlord in repayment of loan availed, which further gave rise to the petitioner not being available at the concerned address where notices were issued - Even on 23.06.2023, when the petitioner furnished his reply to the said show cause notice, there was still sufficient time left for the department for concluding the proceedings within a stipulated period of time i.e. till 06.07.2023. Yet the respondents, for the reasons best known, choose not to grant an opportunity of personal hearing to the petitioner and proceeded to decide the matter on merits.
When the petitioner had entered appearance on 23.06.2023, in all fairness of the requirement of law, the respondent No. 2 could have called upon the petitioner to make his representation by way of a personal hearing and thereafter could have proceeded to decide the case on its own merits. In the absence of the same, we are having hesitation in holding that it would be hit by the principles of natural justice and the action on the part of the respondent No. 2 amounts to denial of a fare and reasonable opportunity to the petitioner before an impugned order is passed.
The matter stands remitted to the respondent No. 2, the petitioner herein is directed to enter appearance before the respondent No. 2 on 12.09.2023 - Petition disposed off.
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2023 (11) TMI 1067
Maintainability of appeal - appellant was relegated to pursue his alternative remedy under the statute - Recovery of tax dues of the firm for the assessment year 2002-2003 - appellant retired from the partnership with effect from 17.10.2000 and the fact of his retirement was intimated to the Department - HELD THAT:- It is not in dispute that the retirement deed that showed the appellant as having retired from the partnership firm in the year 2000 was received by the Department well before the assessment year 2002-2003. It is also not in dispute that in the penalty proceedings initiated for the said period, the appellant was not shown as partner of the firm that was proceeded against. Still further, in the assessment proceedings against the firm, the partner who was admitted to the partnership in lieu of the appellant was also shown as a partner of the firm that was proceeded against - the said actions on the part of the Department would by themselves indicate that the Department was in the know of things and in particular of the fact that the appellant had ceased to be a partner of the firm in 2000 itself.
The acceptance by the Department of the retirement deed, and their knowledge with regard to the fact of retirement of the appellant, are sufficient to conclude that the object of Rule 5(8) of the KGST Rules was met in the facts of the instant case. If that be so, then it is apparent that the Department could not have proceeded against the appellant for realisation of the tax dues of the firm for the assessment year 2002- 2003.
Thus, it was unnecessary for the learned singe judge to have relegated the appellant to pursue his alternative remedy under the statute - the assessment orders/revenue recovery notices impugned in the writ petition is set aside - appeal allowed.
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2023 (11) TMI 1024
Rectification application - Levy of penalty - wrong route adopted by the drivers - if the distance has been wrongly reflected, why it cannot be corrected to absolve the appellant of the penalty imposed upon it vide the impugned order? - HELD THAT:- It is not the case of the respondents that the drivers were not carrying the invoices/bills when the vehicles were intercepted by the competent authority. Once the drivers had accepted that there was a mistake in calculating the distance, the very reason for imposing the penalty does not survive. Non reporting of goods before the ICC, Talwandi Sabo cannot be made a ground to impose the aforesaid penalty.
It is held that the appellant- assessee is not liable to pay the penalty, as imposed by the respondent- department. Hence, the present appeal is allowed
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2023 (11) TMI 883
Enhancement of turnover - Best Judgement assessment - rejection of account books - no basis of fixing the turnover - enhancement of turnover under the Central Sales Tax Act merely on the basis of surmises and conjunctures - HELD THAT:- Merely because books of account under local sales have been rejected, the same will not necessary to led the ground for rejecting the books of account under Central Sales Tax Act also in the absence of any cogent material available on record - From perusal of the impugned order, neither any reference nor any material have been brought on record sustaining the enhancement of disclosed turnover under Central Sales Tax Act.
This Court in the case of M/s R.D. Gupta has held that the books of accounts and disclosed turnover under Central Sales Tax Act cannot be rejected merely because books of account under local tax have been rejected and it has been further observed that the enhancement of turnover cannot be justified - The case is in hand none of the authorities below have recorded any finding or disclosed any material which would necessarily led to the conclusion that the assessee had infact made any central sales.
The enhancement of turnover made by the impugned order cannot be sustained in the eyes of law - revision allowed.
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2023 (11) TMI 882
Maintainability of petition - barred by limitation under Section 8(5) of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act 1990 or not - HELD THAT:- The Hon’ble Court in M/S. SRI BALAKRISHNA TRANSPORT VERSUS THE COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI. [2003 (9) TMI 827 - MADRAS HIGH COURT] has held that when express provision is not there then the authority is not having power to impose. Infact in other taxing statues like Income Tax Act there are provisions to take action if the assessee has not filed any return. The income tax authorities are empowered to take action, impose interest and to impose penalty, if returns are not filed. Such provisions are not available in the Entry Tax Act. The Act is silent in case if return not filed. The Act is not empowering the authorities to take action for not filing returns. This Court is of the considered opinion that the Balakrishna’s case has more precedential value.
This Court is of the considered opinion that the three years limitation is applicable, even if return is not filed.
This Court is of the considered opinion that the impugned order is liable to be quashed and accordingly quashed - the writ petition is allowed.
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2023 (11) TMI 823
Disciplinary proceedings against formerly Appellate Deputy Commissioner - Entitlement to challenge the charge memo - petitioner submitted that the petitioner is a quasi judicial appellate authority exercising powers conferred under Section 51 of the Tamil Nadu Value Added Tax Act and Rules and hence, the order passed by the petitioner cannot be subjected to Tamil Nadu Government Servants' Conduct Rules 1973 - HELD THAT:- If the order passed by the quasi judicial authority is taken as a foundation for bringing the quasi judicial authority under disciplinary proceedings, no quasi judicial authority can discharge his functions without fear. While exercising the quasi judicial power, the authority concerned should have the independency to decide the issue within his power. Even wrong interpretation of law or wrong appreciation of facts cannot be the reason to issue charge memo against the authority exercising quasi judicial powers and the impugned proceedings can be challenged only by way of preferring an appeal.
The charge memo issued by the first respondent is completely without jurisdiction and authority. Further the respondents have also failed to properly appreciate the impact of Tax Deducted at Source (TDS) and have chosen to come to arrive at a short conclusion that 25% of the admitted tax has not been paid by the appellant. Since the short sighted charge memo issued by the respondents directly infringes upon the right of the petitioner and his authority as a quasi judicial officer. Hence, the impugned proceedings is liable to be set aside.
The proceedings passed by the first respondent is quashed and the respondents are directed to give all consequential and attendant benefits, if any, to the petitioner - Petition allowed.
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2023 (11) TMI 817
Condonation of delay of 15 years i.e. 5,484 days in filing appeal - inordinate delay was explained by the applicant-assessee stating that a letter had been written to the General Manager of the assessee seeking guidelines with reference to the aforesaid assessment order dated 7.8.2003 - it was held by High Court that The fact that the assessee had been writing letters internally is also of no consequence, inasmuch in the context of delay of 15 years procedural delays that sometimes occur in such matters and which are often accepted as due explanation of the delay do not are of few days or few months, not 15 years. The delay is wholly inordinate and excessive.
HELD THAT:- There are no reason to interfere with the impugned order(s). The Special Leave Petitions are hence dismissed.
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2023 (11) TMI 816
Eligibility for input tax credit - exemption of inter-state sales from tax - HELD THAT:- Since the statutory provisions under the KVAT Act restrict the availment of input tax credit to only such situations where tax is payable on outward sales and there is a prohibition against availment of input tax credit in situations where the outward inter-state sale is exempted, the issuance of the exemption notification by the State Government under Section 8(5) of the CST Act must be seen as bringing into operation the prohibition under the 3rd proviso to Section 11(3) in respect of input tax credit and the 3rd proviso to Section 12(1) in the case of special rebate - the question really is not whether the petitioners had an option to avail the exemption envisaged in the notifications or not; rather, the point is that by virtue of the notifications aforementioned, the inter-state sale of rubber had to be seen as exempted for the purposes of the 3rd proviso to Section 11(3) and the 3rd proviso to Section 12(1) of the KVAT Act. The petitioners were therefore not entitled to avail input tax credit of the tax paid on purchases of rubber within the State so long as Annexures-I and II notifications were in force and operational. The amendments to the said notifications in 2019, with retrospective effect, only enable those who had paid CST in terms of Section 8(1) of the CST Act to adjust the said payments towards the demands served on them consequent to the disallowance of the input tax credit/special rebate availed by them.
The impugned order of the Tribunal which grants the petitioners the limited relief aforesaid does not require modification or interdiction - Revisions are therefore disposed by answering the questions of law raised therein against the assessees and in favour of the Revenue.
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2023 (11) TMI 815
Permission to petitioner to issue/generate the 1st respondent to allow the petitioner to generate Form “C” declaration under the Central Sales Tax Act, 1956 - purchase of Extra Neutral Alcohol (ENA) effected from outside the State of Tamil Nadu - HELD THAT:- The product supplier of ENA have been following the Central Sales Tax Act and have paid the tax accordingly. In the present case, the petitioner's supplier also paid the tax under the CST Act and their assessment have been pending for the reason that they have not furnished Form 'C' by the petitioner due to the reason that the respondents have blocked the portal. As contended by the learned Additional Advocate General, the fact remains that no decision has been taken by the GST Council with regard to whether ENA has to be included in the CST regime or excluded. All the States have been consistently following CST and taxes also been paid accordingly.
In view of the fact that in the recent 52nd GST Council Meeting held on 07.10.2023, a decision was taken to keep the ENA used for manufacture of alcoholic liquor for human consumption to keep the same outside the purview of GST, this Court is of the considered view that it would be appropriate to direct the respondents to issue Form 'C' from 01.07.2017 to till date for all the purchases made by the petitioner from outside the State or inside the State and further, this Court also directs the respondent to keep open the web portal for the ENA commodity, so that the petitioner can upload the purchases of ENA alongwith 'C' Form etc. - It is made clear that the State shall issue Form 'C' for the purchases made from the other states until the Law Committee issues suitable amendment in law to exclude ENA for use in manufacture of alcoholic liquors for human consumption from the ambit of GST, as per the decision taken in the 52nd GST Council Meeting held on 07.10.2023.
This writ petition is disposed of.
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2023 (11) TMI 717
Stay of Demand / Waiver of pre-dposit - Validity of assessment order - compliance with the condition of pre-deposit of 25% of the additional demand under Section 62 (5) of the PVAT Act - HELD THAT:- The balance sheet for the financial year 2020-21 placed on record by the petitioner (P-6) is not being disputed by the respondent. It is not in dispute that if the petitioner will be forced to pay 25% pre-deposit, he will not be able to pay the instalments of the loan. He is also paying GST regularly to the department and if he will shut down the business, it will lead to cancellation of GST registration. Thus, the condition of 25% pre deposit is liable to be modified, keeping in view the fact that the petitioner is in hug debt.
In the present case, the petitioner is in debt and is paying instalments of loan regularly and this fact is not being disputed by the respondents. Hence for all intents and purpose, the petitioner in order to run the business should be able to make the payment of loan, as per detail given in balance sheet (P-6) at page No. 51 of the paper book - In order to avoid cancellation of its GST registration, the petitioner is seeking direction to respondent No. 3 to entertain the appeal of the petitioner on merits without insisting upon the condition of pre-deposit under Section 62 (5) of the Act 2005. Petitioner is ready to pre-deposit 10% of the amount, as observed in the order dated 25.6.2018.
Keeping in view the fact that the petitioner is in huge debt and the fact that the petitioner is ready to deposit 10% as pre-deposit instead of 25% of the total demand before the Appellate Authority, this Court by exercising the inherent powers as provided under Article 226 of the Constitution of India and by considering the financial hardship faced by the petitioner, this petition is being disposed of by directing the petitioner (s) to file an appeal and respondent-authorities is directed to entertain the appeal and decide in accordance with law on merits.
Petition disposed off.
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2023 (11) TMI 673
Validity of assessment order - exigibility to tax under the Delhi Tax on Luxuries Act, 1996 - Club and Association service - doctrine of mutuality - HELD THAT:- While we find no ground to doubt the principles of mutuality as were explained in Calcutta Club and which constitutes the foundation for the decision handed down by the Kerala High Court in Madhavaraja Club, we find that the petitioner did not question the validity of the provisions of the Act as it originally stood and which extended the incidence of tax to the provision of residential accommodation in a club.
If it were the contention of the petitioner that the tax on the provision of such residential accommodation could not be levied, it was incumbent upon it to question the validity of the provisions of the Act as they originally stood. However, and in the absence of such a challenge having been mounted and bearing in mind the statutory position which prevailed, we find ourselves unable to hold in favour of the petitioner on this score.
When one reverts to the facts of the case, it is evident that the Act as it stood during the assessment period in question extended its application also to the providing of residential accommodation in a club and in any case did not at the relevant time exclude the provisioning of accommodation to members of a club from the expression “luxury”. In fact, the word “luxury” did not even exist on the statute book prior to its insertion by virtue of the 2012 Amendment Act. In view of the above and bearing in mind the statutory position which prevailed at the time when the assessment orders came to be passed, there are no justification or ground to interfere with the ultimate conclusion arrived at by the first respondent.
The decision of the Commissioner assailed shall not be liable to be treated as a precedent for any assessment period post the promulgation of the 2012 Amendment Act. Any assessments made or proceedings pending would have to be considered bearing in mind the observations rendered - Application disposed off.
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2023 (11) TMI 607
Opening of assessment orders - Section 49(3) of the Chhattisgarh Value Added Tax Act, 2005 - HELD THAT:- It would be worthy to mention here that the provisions of the VAT Act of Orrisa and Chhattisgarh are not pari-materia whereas the provisions of VAT Tax of Madhya Pradesh and Chhattisgarh are analogous. In the present case, subsequent to the assessment order dated 29.12.2015; the petitioner preferred the appeals before the Appellate Deputy Commissioner, and those appeals were allowed vide orders dated 03.08.2017, 08.08.2017 and 09.08.2017, respectively. Surprisingly, the revenue did not contest the Appellate Deputy Commissioner's orders for a significant period and vide orders dated 29.01.2019 and 05.11.2018, show cause notices were issued to the petitioner while exercising the power under Section 43(3) of the Act, 2005.
However, it is worth noting that the orders passed by the Appellate Deputy Commissioner were not challenged before the Tribunal under Section 48(2) of the Act, 2005 and there is no explanation in this regard. Consequently, in the opinion of this Court, the notices issued by respondent No. 2/Commissioner exercising the power under Section 49(3) of the Act, 2005, are legally unsustainable in the eyes of the law.
The impugned notices dated 05.11.2018 and 29.01.2019 issued under Section 49(3) of the Chhattisgarh Value Added Tax Act, 2005 by respondent No. 2-Commissioner, Commercial Tax, Raipur are hereby quashed - Petition allowed.
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2023 (11) TMI 556
Demand to deposit 10% of the balance tax demanded for the years, 2014-15 & 2015-16 - validity of Ext. P6 conditional order - HELD THAT:- It is evident from a bare perusal of first proviso to sub-section (1A) of Section 60 of the KVAT Act that the pre-deposit amount, if any, already remitted under Section 55, (ie; at the time of filing of the first appeal), shall be adjusted towards the amount to be remitted under the sub-section. Since the petitioner had submitted that he had already remitted 20% of the amount demanded during the filing of first appeal, he has to be exempted from paying any further amount. Hence, we are of the considered opinion that the Original Petition (TAX) is to be allowed.
The condition imposed by the third respondent in Ext. P6 to deposit 10% of the balance tax demand for both the years is set aside, if the petitioner had already remitted the amount under section 55 of the KVAT Act - Petition disposed off.
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2023 (11) TMI 554
Validity of order beyond the scope of Show cause notice - Statutory time limit for filing of appeal already expired - No reply filed to the SCN - the issue regarding processing charges liable for TDS under Section 13(1) of the Act, not raised in SCN, but is included in the impugned order - violation of principles of natural justice - HELD THAT:- If a notice was issued with regard to any aspect, the same has to be answered by the Assessee and it is for the Department to raise all the issues or queries by virtue of a show cause notice or by any other form and sought for the reply of the Assessee. However, in the present case, the Department had brought up the aforesaid issue of a sum of Rs. 76,62,986/- towards processing charges which liable for TDS, only in the impugned order and the same was not at all raised in the show cause notices. Thus, the said impugned order is not in accordance with law.
Though the impugned order was passed on 10.05.2022 and the time limit to file the appeal was also expired at the time of filing this petition, this Court feels that the respondents had committed a serious error in its decision making process while dealing with the issue pertaining to a sum of Rs. 76,62,986/- towards the processing charges liable to TDS and impugned order is not sustainable and the same is liable to be set aside. Thus, this Court is inclined to set aside the impugned order dated 10.05.2022 and remit the matter back to the respondent for re-consideration.
Petition disposed off.
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2023 (11) TMI 553
Constitutional validity of levy of entry tax - power of the state legislature - Article 304(a) of the Constitution - non-obstante clause - interpretation - concept of compensatory tax - HELD THAT:- This appeal is dismissed in view of the majority judgment passed in JINDAL STAINLESS LTD. AND ANR. VERSUS STATE OF HARYANA AND ORS. [2016 (11) TMI 545 - SUPREME COURT] by taking note of the fact that notice in this appeal was limited only to the question of levy of entry tax and no other issue is to be considered in the appeal.
Application disposed off.
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