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VAT / Sales Tax - Case Laws
Showing 181 to 200 of 27754 Records
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2024 (12) TMI 1548
Challenge to penalty imposed - seeking a declaration that the Marketing Discipline Guidelines, 2018 (MDG) on the basis of which penalty was imposed, is not having any force of law and as beyond the purview of the agreements entered into with the respondent Corporation.
Is the respondent Corporation entitled to impose monetary penalty with reference to the provisions of MDG? - HELD THAT:- By a judgment INDIAN OIL CORPORATION LIMITED AND OTHERS VERSUS ALL INDIA PETROLEUM DEALERS ASSOCIATION REGISTERED AND OTHERS; ALL HARYANA PETROLEUM DEALERS ASSOCIATION REGISTERED AND OTHERS; BIHAR PETROLEUM DEALERS ASSOCIATION AND ANOTHER [2022 (1) TMI 1484 - DELHI HIGH COURT], a Division Bench of the Delhi High Court has found that such monetary penalty can be imposed under the MDG, and hence the judgment of the learned Single Judge was set aside. In the light of the afore, the respondent Corporation is entitled to impose monetary penalty with reference to the provisions of the MDG, on the petitioners herein.
Is the time limit prescribed under Clause 4.2(viii), mandatory in nature? - HELD THAT:- A detailed procedure is prescribed under the MDG, for initiation of appropriate actions against the distributers. The initiating authority has to prima facie satisfy himself as to the requirement for taking steps under the relevant chapter of the MDG - the provisions of Clause 4.2 cannot be taken to be mandatory in nature, since for arriving at a decision to proceed in accordance with Clause 4.2(viii), the procedure prescribed thereunder has to be complied with. Therefore, the stipulation of the period of 30 days for initiation of the notice can only be reckoned as “directory” in nature. Furthermore, it is noticed that the Delhi High Court, in the judgment referred to earlier, had found that the MDG has legal backing, especially when the intention behind the introduction of the MDG was laudable. Therefore, the provisions of Clause 4.2(viii) can only be directory in nature.
Are the impugned orders in tune with the provisions of Clause 4.2(x) of MDG? - HELD THAT:- The allegations raised in the show cause notices are essentially with reference to the violation of the TDT norms under Chapter IV. When the MDG provides the dealer an opportunity to show cause against proposed action, it is imperative on the part of the officer concerned to consider the contentions raised/explanations offered and then arrive at a considered decision. As already found, by virtue of the judgment by the Division Bench of the Delhi High Court, the respondent Corporation is having every power and authority to act under the provisions of MDG. When that be so, it goes without saying that the directives in the MDG that a speaking order is required to be issued is also an essential pre-requisite for imposing a monetary penalty.
In the case at hand, it is seen that Ext.P2 series [W.P(C) No.9331 of 2020) are the orders imposing the monetary penalty. A perusal of these orders would show that apart from the name of the distributor, the quarter concerned, the figures with respect to the alleged violation/commission/penalty, all other portions are one and the same. In other words, Ext.P2 series are stereotyped orders wherein, there are no reasons given for imposing the penalty.
The impugned orders, to the extent of not following the mandate under Clause 4.2(x), need to be set aside.
Is the imposition of penalty under Clause 4.2, with reference to average commission, illegal? - HELD THAT:- Clause 4.2 (Ext.P8 of W.P(C) No.30986 of 2023) only requires the imposition of a fine of 20% with respect to 20% of AMDC and that only visualizes the right of the petroleum company to levy a fine of 20% of the commission received for the “poor” rating in a quarter. Merely because the commission paid is for the performed part (not attracting penalty) and non-performance (poor performance attracting penalty), it cannot be said that there is any irrationality. Apart from the above, the vires of the MDG have already been upheld by the Division Bench of the Delhi High Court IOCL, and therefore, the afore contention raised cannot be accepted.
Is there any ambiguity with reference to the rating prescribed under Clause 4.1 of MDG? - HELD THAT:- It may be noticed that the rating of “excellent” is provided in a situation where “more than 85%” delivery is effected within two days. The 1-star “poor” rating is provided in cases where the delivery in excess of 8 days period is “over 15%” of total deliveries. Clause 4.1(iii) provides “1 Star = 15% delivery in > 8 days ‘poor’”. Therefore, no case can fall under both “excellent” and “poor” category. In such circumstances, the afore contention raised is also to be rejected.
Conclusion - i) It is declared that the respondent Corporation is entitled to proceed in accordance with the provisions of the MDG. ii) The time limit prescribed under Clause 4.2(viii) is only directory in nature. iii) The impugned orders are not in tune with the provisions of the MDG, since they are non-speaking orders. iv) The imposition of penalty under Clause 4.2 with reference to average commission cannot be said to be illegal. v) There is no ambiguity with reference to the rating prescribed under Clause 4.1 of the MDG.
The impugned orders are set aside - Petition disposed off.
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2024 (12) TMI 1447
Refusal of doctrine of mutuality on the ground that majority of the members of the different categories other than the permanent members were persons with no voting right or any right to participate in the affairs of the management of the club - HELD THAT:- The order of the Tribunal confirming the assessment made and the law on the point, as prima facie occurs, it is opined that the following questions of law arise: -
(i) Whether the Tribunal was correct in having declined the application of ‘doctrine of mutuality’ on the transactions entered into by the appellant?
(ii) Whether the appreciation of facts by the Tribunal was correct and was it not perverse since the findings were on mere surmises and conjectures?
(iii) Whether the Tribunal was correct in having determined a proportion of members to decline application of the ‘doctrine of mutuality’ with respect to certain transactions, on the finding that certain category of members did not have any control over the affairs of the club and thus could not be included within the ambit of ‘doctrine of mutuality’?
The Tribunal is directed to state the case and make a reference to this Court on the above noted questions of law arising from the order of the Tribunal under Section 48 (3) of the Bihar Finance Act.
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2024 (12) TMI 1295
Challenge to order of penalty passed under the APVAT Act, 2005 - without issuing a SCN the order of penalty came to be passed - violation of principles of natural justice - HELD THAT:- It is failed to understand the basis for the revenue to challenge such orders before this Court. It has been fairly conceded before us that the order of penalty was passed without issuing any show cause notice.
What is more disturbing is that instead of accepting the order passed by the High Court and issuing a show cause notice so as to give an opportunity to the assessee to show cause as regards the penalty, the revenue has wasted six years in this litigation which is now coming to end with the dismissal of this petition.
Petition dismissed.
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2024 (12) TMI 1294
Challenge to order of re-assessment passed by Respondent No. 1 u/s 39 (1) of the Karnataka Value Added Tax Act, 2003 on the ground of being barred by time limitation - case of appellant is that Section 40 of the Act of 2003 provided for a period of limitation for passing an order of assessment or re-assessment - whether the learned Single Judge is justified to hold that the limitation for the purpose of re-assessment would start running from the date of passing of the order by the Commissioner under Section 64 (2) of the Act of 2003?
HELD THAT:- There is no dispute that, we are concerned with the tax period between April 2007 to September 2007, and the Assessing Authority has passed an order of re-assessment on 16.01.2010. The Appellate Authority exercising jurisdiction under Section 62 of the Act, had allowed the first appeal filed by the appellant vide order dated 31.05.2010. Pursuant thereto, even the Revisional Authority had by initiating the suo-moto revision, has dropped the proceedings on 13.06.2012. It is only on 17.07.2014 the Commissioner of Commercial Taxes had initiated the proceedings under Section 64 (2) of the Act and set aside the order of the Appellate Authority and the Revisional Authority, and remanded the matter to the Assessing Officer for re-verifying the taxable contract receipts for the period of April and May of 2007 and to do the re-assessment.
It follows that the period taken for disposal by different authorities like Appellate Authority/Revisional Authority/Commissioner of Commercial Taxes in the manner depicted by the appellant, which we have reproduced above, need to be excluded. In other words, as stated above, if 07 years of limitation for assessment or re-assessment need to be computed, the same shall expire on 31.05.2014, but, if 391 days are added to the same, then the period will come to an end just five days before 30.06.2015. So in other words, the re-assessment cannot be carried out after 26.06.2015.
In the present case, the re-assessment was done only on 30.05.2018, much after 26.06.2015. Hence, in that sense, the bar under proviso to Section 40 of the Act of 2003 shall come into play.
The appellant is also justified in relying upon the judgment of the Hon’ble Supreme Court in the case of Jaipuria Brothers Limited [1964 (10) TMI 57 - SUPREME COURT]. In the said case the facts were, on March 20, 1952, the Sales Tax Officer, Kanpur, issued a notice under Section 21 of the Uttar Pradesh Sales Tax Act 1948, calling upon the appellant/Company to file a return of its turnover for the Assessment Year 1948-49 on the ground that the turnover had escaped assessment. On March 31, 1952, the Sales Tax Officer has made a best judgment assessment and determined the taxable turnover of the appellant/Company at Rs. 50/- for the year 1948-49 and determined the appropriate tax liability.
In the judgment reported, as the Assessing Authority, Amritsar and another [1969 (5) TMI 49 - PUNJAB AND HARYANA HIGH COURT] the Full Bench of Punjab and Haryana High Court was considering the reference made to it on the question whether the jurisdiction of the Commissioner under Section 21(1) of the Punjab General Sales Tax Act, 1948 is subject to period of limitation prescribed under Section 11(A) of the Act. In the said case also, the Commissioner while disposing of the revision under Section 21 of the Act had set aside the Order of Assessment and ordered the Assessing Authority to make a fresh assessment in accordance with law. The court held the proceedings are governed by the period of limitation prescribed in subsections (4), (5) and (6) of Section 11 or Section 11(A) of the Punjab General Sales Tax Act, 1948 - The Court held that, the view is well-founded based on the judgment of the Hon’ble Supreme Court in Jaipuria Brothers Limited. It was also held that once the Commissioner while exercising revisional powers decided to direct the Assessing Authority to make a reassessment in accordance with law, the proceedings for re-assessment were fresh proceedings which were governed by the period of limitation prescribed under Section 11(A) of the Act and accordingly, the appeal was dismissed.
Conclusion - The reassessment done by the Assessing Officer leading to impugned orders dated 30.05.2018 is without jurisdiction, being beyond the statutory limitation period, and accordingly the impugned order of the learned Single Judge is set aside, and consequently, the orders of the Assessing Authority and the demand made thereof, are also set aside.
Appeal allowed.
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2024 (12) TMI 1293
Entitlement to recall or set aside an assessment order issued under the Kerala Value Added Tax Act, 2003 based on a subsequent order issued due to a mistake - benefit of an Amnesty Scheme - HELD THAT:- The petitioner is not entitled to any relief in the present writ petition. It is not disputed before that Ext. P2 order, which is issued under Section 25 (1) of the KVAT Act on 15.12.2018, has not been set aside or modified in any proceedings. If that be the case, the provisions of Section 25 (1) of the KVAT Act does not permit the Assessing Authority to pass a fresh order for the same assessment year. If such course of action is permitted, it would result in contradictory orders being passed without the original order being set aside or modified in a manner known to law. In such circumstances, there are no hesitation to hold that the second assessment order (Ext. P3) dated 29.03.2021 is non-est in law and cannot be sustained. Therefore, in that view of the matter, it is not necessary to consider the question as to whether the prayer to recall the earlier assessment order dated 15.12.2018 was maintainable under Section 66 of the KVAT Act.
The petitioner is not entitled to any reliefs as sought for in the writ petition. The writ petition will stand dismissed.
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2024 (12) TMI 1234
Sale u/s 2 (g) (iv) CST Act or not - transfer of right to use - hiring of helicopters - transfer of effective control and possession and right to use the helicopters to its customer - Deemed Sale or not - HELD THAT:- On a consideration of the contractual stipulations, it becomes apparent that while the appellant was obliged to place a helicopter or an equivalent model at the service of the A & N Administration, the right to operate and maintain remained with the appellant. The helicopter was to be maintained, flown and operated by the appellant. The appellant was required to ensure that the requirements of the A & N Administration were duly met. However, at no point of time was the helicopter placed in the hands of the latter to be operated as it thought fit. The pilot and crew who actually worked the helicopter were to be provided by the appellant.
It becomes evident that there was no transfer of dominion or control of the helicopter to the A & N Administration. This was essentially an agreement in terms of which the A & N Administration acquired an exclusive medium of transportation as opposed to an absolute right over an aircraft, helicopter or means of conveyance which could be said to be under its dedicated and undivided control.
There is an occasion to notice a decision of recent vintage rendered by the Supreme Court in Commissioner of Service Tax vs. Adani Gas Ltd. [2020 (8) TMI 789 - SUPREME COURT]. As the Supreme Court succinctly explained in Adani Gas, the key elements which are liable to be found to exist in order to qualify what is spoken of in Article 366 (29A) (d), are a transfer of a right of possession as well as effective control being conferred upon the transferee. It is these precepts on the basis of which the contractual stipulations may now be examined.
There was no contractual relationship that existed between those operators and staff on the one hand and the A & N Administration on the other. Additionally, the obligation to keep the equipment insured was also one which stood placed upon the appellant. There was also no transfer of permits and licenses which were necessarily required in order to undertake the operations contemplated under the agreement. Those permits and licenses undisputedly remained in the hands of the appellant.
The Supreme Court in Aggarwal Bros. [1998 (9) TMI 532 - SUPREME COURT] had on facts found that there was a complete transfer of shuttering for consideration and the same being exclusively placed in the hands of the hirer to be used and utilized as it thought fit.
Article 366 (29A) (d) is not concerned with delivery of goods for use but envisages the levy of a tax on the transfer of a right to use goods. It proceeded further to explain that clause (d) of Article 366(29A) cannot be placed in the same category as that of bailment where goods are left in the possession of the bailee solely for the purposes of use on a hire basis.
The conclusions rendered by the Tribunal cannot be suatained - appeal allowed.
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2024 (12) TMI 1233
Levy of central sales tax on movement of goods from the manufacturing unit of the appellant situated in the State of Rajasthan to its depots in the State of Bihar and the State of Jharkhand - inter-state supply of goods or inter-state stock transfers? - HELD THAT:- A perusal of the facts of these four appeals and the facts of the fourteen appeals decided by the Tribunal on 21.10.2024 [2024 (10) TMI 1124 - CESTAT NEW DELHI] clearly show that they are similar. The Liquor Sourcing Policy framed by the State of Bihar and the Liquor Policy framed by the State of Jharkhand which came up for consideration in the decided appeals has also come up for consideration in these four appeals. The Master Agreement entered into between the appellant and the Corporation at Patna and the Master Agreement entered into between the appellant and the Corporation in Jharkhand are identical.
Demand set aside - Appeal allowed.
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2024 (12) TMI 1188
Challenge to attachment of bank and Demat accounts and the demand notice for recovery under the Maharashtra Land Revenue Code (MLRC) - opportunity of hearing was not provided - violation of principles of natural justice - HELD THAT:- It does appear that the impugned attachment orders and notices have been issued without disposal of the show-cause notices. The attachment orders do not refer to any final adjudication orders. These notices threaten the petitioners with serious civil consequences. Therefore, before taking such drastic action, the principles of natural justice and fair play had to be complied with. The impugned attachment notices and other notices warrant interference on this short ground.
In these cases, the respondents had themselves given the show cause notices to the petitioners. Accordingly, it was incumbent upon the respondents to dispose of the show cause notices in accordance with law before the impugned notices could have been taken.
Petition allowed.
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2024 (12) TMI 1187
Rate of tax - inter-state sales of safety equipment without the ‘C’ form - requirement to pay tax at the rate of 4% as per the entry 34 schedule (4) - HELD THAT:- On perusal of the record, it shows that the petitioner had paid tax in accordance with the schedule of the Act from the beginning and has never claimed any exemption through ‘C’ forms. Therefore, the question of submitting the ‘C’ forms for the goods in dispute does not arise. The authorities below and also the Appellate Tribunal, did not consider the petitioner’s case in its the proper prospective.
On perusal of the orders passed by the authorities and as well as the Tribunal, it is succinctly clear that without going into the aspect of rate of tax as against the goods dealt by the assessee of the authorities including the Tribunal must directed with the issue on hand and passed orders under challenge mulcting the assessee to pay tax at the rate of 14.5%, since he did not produce the ‘C’ forms. The furnishing of ‘C’ forms would arise only when the assessee is claiming exemption - But in the instant case he has paid tax as per the schedule appended to the Act for the goods viz., hand gloves.
In that view of the matter, the orders of the Tribunal and also the order of the Appellate Deputy Commissioner and Assessing Authority are set aside, and the matter is remanded to the Assessing Authority to take-up the assessment afresh and pass appropriate orders, after giving opportunity of being heard to the petitioner and the same has to be completed within a period of four weeks from the receipt of copy of this order - the Tax Revision is allowed.
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2024 (12) TMI 1130
Taxability - supply of PSC sleepers would amount to execution of a works contract or not - HELD THAT:- In K. Raheja Development Corporation vs. State of Karnataka [2005 (5) TMI 7 - SUPREME COURT], the Hon’ble Supreme Court was considering the taxability of a development agreement between land owners who had offered the land for construction of a multi-storied apartments and Commercial Complexes and the developer who took up construction, under this agreement. The Hon’ble Supreme Court after considering the definition of ‘works contract’, contained in the Karnataka Sales Tax Act, which is in pari materia with the definition contained in APGST Act, had held that an agreement for construction of apartments, for a valuable consideration or in installments would amount to a works contract.
In the present case, the petitioner is in regular manufacture of these sleepers which are supplied not only to Indian Railways but also to other dealers. Though the fact that the PSC Sleepers are made according to the specifications of Indian Railways, may be a significant factor which has to be taken into account, the fact remains that these sleepers are manufactured in the regular course of manufacture by the petitioner. In such circumstances, it may not be appropriate to conclude that the contract in question was a works contract and not a contract of sale.
In view of the non-exclusive nature of supply and in view of the facts mentioned above, this Writ Petition is allowed setting aside the Assessment Order dated 28.05.2009, passed by the Assessing Authority.
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2024 (12) TMI 1017
Time limitation - dismissal of application filed by the writ petitioner for condonation of delay of 655 days in filing appeal before the Tribunal - HELD THAT:- Considering the fact that the assessment is high-pitched assessment and the assessment was ex-parte since the petitioner did not appear and also taking note of the fact that though the final assessment order was passed on 27th February, 2018, till date, the same has remained a paper order and the Government has not been able to recover any tax, one more opportunity can be granted to the writ petitioner to pursue their appeal before the Senior Joint Commissioner, Commercial Taxes, Bally Circle provided the petitioner complies with the pre-deposit condition by paying 15% of the disputed tax.
The writ petition is allowed and the orders impugned are set aside including the order passed by the Senior Joint Commissioner, Bally Charge dated 6th July, 2018 subject to the condition that the petitioner pays 15% of the disputed tax, as required under Section 84 (1) of the Act within 30 days from the date of receipt of the server copy of this judgment and order.
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2024 (12) TMI 939
Realization of arrears of tax payable under the KGST Act - Validity of property transfer under the Income Tax Act, 1961, and the Kerala General Sales Tax Act, 1963 - void transfers or not - Impact of Section 281 of the Income Tax Act on property transfers - HELD THAT:- By virtue of the non-obstante clause, excludes the operation of “any other law in force” and creates a first charge on the property of the dealer. Therefore, with respect to the year 1995 onwards, there was a first charge with reference to the tax payable under the KGST Act. It is to be noticed that there is no corresponding provision creating the first charge under the I.T. Act. At the maximum, the provisions of Section 281 of the I.T. Act referred to above provide that certain transfers during the pendency of proceedings be void. Here, no such transfer has taken place, and instead, a charge is created on the properties of the deceased, with respect to the arrears/tax payable under the KGST Act. It is for the realization of such tax payable that the properties of the deceased are proceeded against after attaching them. Such properties are placed for public auction, and the properties are purchased by various individuals who, in turn, later sold those properties in favour of the petitioners herein.
The Income Tax Department may not be justified in contending that they can proceed against the properties in possession of the petitioners herein for realizing the arrears payable by the deceased Madhavan Pillai.
The judgment of the Apex Court in Connectwell Industries Private Limited [ 2020 (3) TMI 362 - SUPREME COURT] relied on by the learned counsel for the petitioners, wherein the Apex Court considering the claim made by the Income Tax Department over a property which was sold for recovery of arrears payable to the Bank by the Debt Recovery Tribunal held 'The High Court held that Rule 16(2) is applicable to this case on the ground that the actual sale took place after the order of attachment was passed by Respondent 4. The High Court failed to take into account the fact that the sale of the property was pursuant to the order passed by DRT with regard to the property over which a charge was already created prior to the issuance of notice on 11-2-2003. As the charge over the property was created much prior to the issuance of notice under Rule 2 of Schedule II to the Act by Respondent 4, we find force in the submissions made on behalf of the appellant.'
Thus, the Apex Court has noticed that there is no preference given to the tax payable under the I.T. Act, and hence, the charge created over the property earlier to the service of notice under the Second Schedule of the I.T. Act would dis-entitle the Income Tax Department from proceeding against the property in question.
Merely on account of the provisions under Section 281 of the Act, the ownership transfer to the petitioners herein cannot be declared as void by the Income Tax Officer or the Department. For that, they may have to institute a suit as was done in the case of mortgage effected in favour of the Kerala State Financial Corporation. Here, that is not done as against the petitioners and on the basis of the findings rendered earlier, the maintainability of such suits itself is doubtful.
The petitioners are entitled to succeed - these writ petitions are allowed by setting aside the impugned notices/proceedings and also declaring that the properties in possession of the petitioners cannot be proceeded against for realization of the arrears payable under the I.T. Act by the deceased Madhavan Pillai, proprietor of M/s. Mohandas Cashew Factory, Arakkal, Kollam District.
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2024 (12) TMI 938
Levy of penalty under Section 10(d) of the CST Act - Entitlement of reduced rates of tax on sales in the course of inter state trade is available by virtue of Section 8(1) read with Section 8(3)(b) of the CST Act - existence of mens rea or not - whether the imposition of penalty, is an act which is automatic upon there being a default of the conditions, enabling the levy of penalty as specified under Section 10 or whether it is incumbent upon the Department to establish a case for imposition of levy and the assessee can escape the levy of penalty by discharging the responsibilities/conditions, specified in Section 10 (d)? - HELD THAT:- It is clearly well settled that the provisions of penalty as prescribed in the various statutes have to be interpreted in the light of the language used in the said statutes. It is clearly well settled that where the penalty prescribed under a fiscal statute, is dependent on happening of particular act without anything else to be established, no necessity is to be established and the penalty is a natural consequence of the happening of that event, however, in the physical institute, if a penalty is prescribed dependent on factor as specified in the said statutes, the penalty can be imposed only on the happening of the said event and after observing the conditions as prescribed.
In the present case, the interpretation of Section 10(d) has come up for consideration before the Supreme Court in the judgment in COMMISSIONER OF SALES TAX, UP. VERSUS SANJIV FABRICS AND HARI OIL & GENERAL MILLS [2010 (9) TMI 461 - SUPREME COURT], and the Supreme Court has after considering the statutory provisions has held that it is essential that the mens rea be established. Even otherwise on the plain reading of Section 10(d) the phrase “reasonable cause” has been duly discharged by the revisionist by producing the certificate of an Engineer, thus necessary ingredient for levy of penalty have neither been alleged established or proved in the present case, as such, for the reasons recorded above, the order of penalty cannot be justified and is quashed. The questions are answered in favour of the revisionist.
Revision disposed off.
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2024 (12) TMI 937
Challenge to orders of the Tamil Nadu Sales Tax Appellate Tribunal, Chennai - second sale exemption on purchase of gingelly seeds - registered dealer or not - HELD THAT:- As per Section 10 of the TNGST Act, the burden of proof for proving any transaction that the dealer is not liable to tax shall lie on the dealer. As such, the burden was always on the dealer to prove the point of first sale.
In the instant case, the assessee had not discharged the burden of proof under Section 10 of the TNGST Act by proving the first sale. Further the finding of fact has been arrived at consistently by the authorities that the bills purchased from M/s.Sri Valli Traders cannot be accepted as they are not registered dealer, the bills produced also had been found to be manipulated and there had not been any actual movement of goods.
There are no error or illegality in the finding of fact arrived at by the Tribunal and accordingly, the Writ Petition is dismissed.
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2024 (12) TMI 936
Deletion of reversal of input tax credit - failure to take into account the relevant facts - taking into account the factors that are wholly irrelevant in deciding whether reversal is warranted in terms of Section 2(11) of the TNVAT Act 2006 - process engaged by the dealer comes within the purview of Section 2(11) of the TNVAT Act, 2006 or not - HELD THAT:- There are no reason to interfere with the impugned order passed by the Sales Tax Appellate Tribunal as it is a well considered order. There is no dispute that the respondent is engaged in bleaching of fabric and therefore is liable to pay tax under the provisions of the TNVAT Act, 2006. Consequently, input tax credit on the capital goods used for such process cannot be denied.
This Tax Case Revision is dismissed - the substantial questions of law raised in this revision are answered in favour of the assessee and against the Revenue.
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2024 (12) TMI 834
Nature of transfer of goods - Inter-state Sales or Branch Transfers - whether the interstate transfer of goods by the appellant from its factory in Coimbatore to its depot in Palakkad in Kerala during from 01.04.1996 to 28.08.1996 were inter-state sales or branch transfers? - HELD THAT:- The Sales Tax Appellate Tribunal recorded in the impugned order a finding that sales had occasioned the inter-state movement of goods and for that reason, central sales tax was payable. In view of the correspondence between the appellant and Argus recorded above which corresponded to the invoices, the finding in the impugned order agreed that sales occasioned the inter-state movement of goods under the disputed Forms F during the period 01.04.1996 to 28.08.1996. In respect of the transfers made during the rest of the AY, the order of assessment has already been set aside in the impugned order.
The impugned order is correct and proper and needs to be upheld.
The alternative prayer of the appellant is that if the demand of CST is upheld, an order may be issued under section 22 (1B) of the CST Act directing the State of Kerala to transfer the refundable amount which the appellant had paid as sales tax on the disputed transactions to the State of Tamil Nadu - In this case, while the amount of Central Sales Tax payable to the state of Tamil Nadu is Rs. 1,44,069/- (for Assessment Year 1996-1997) on the goods transferred from Tamil Nadu to Kerala, details of the sales tax claimed to have been paid in Kerala are not available. Therefore, it is not possible to pass an order under section 22(1B).
The impugned order is upheld - appeal dismissed.
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2024 (12) TMI 463
Imposition of luxury tax - Liability of the petitioner to tax for the medical bed facility under the Kerala Tax on Luxuries Act, 1976 - imposition of penalty under Section 17A of the Act - justification for completion of assessment by estimating the receipts for the purpose of assessment.
Is the petitioner liable to tax with reference to the medical bed facility provided by it, under the statute? - HELD THAT:- Ultimately, what is to be looked into is as to whether the facility provided is a necessary requirement of an average member of the society. There cannot be any dispute that even without the aid of the medical bed provided by the petitioner, an expecting mother can give birth.
This Court also notices the judgment of a Division Bench of this court in RAJAH HEALTHY ACRES (P) LTD. VERSUS STATE OF KERALA, THE SECRETARY (TAXES) , GOVERNMENT OF KERALA, THE COMMISSIONER, COMMERCIAL TAXES, INSPECTING ASSISTANT COMMISSIONER (INVESTIGATION BRANCH) , INTELLIGENCE OFFICER (IB) [2017 (1) TMI 581 - KERALA HIGH COURT] wherein the challenge against the provisions of the Act providing for levy of tax on receipts in hospitals was considered. The Division Bench of this Court held 'the word 'luxury' has been defined in the Act itself and, therefore, that definition would prevail and it is competent on the part of the legislature to give it a wide meaning so as to take in all such experience which ministers comfort or pleasure. This is completely and wholly within the competence of the Legislature to enact upon under Entry 62 of the VII Schedule of the Constitution, the matter being intrinsically and irreparably related to 'luxuries' as obtaining in the said Entry.'
Thus, ultimately what is taxed under the statute is the experience of luxury as regards the accommodation/ amenities in the hospital. There cannot be any challenge against an assessment with reference to the afore activity - the petitioner is liable to tax on the charges collected as against the medical beds provided by it.
If the answer to the above question is in the affirmative, is the imposition of penalty under Section 17A of the Act justified? - HELD THAT:- On a perusal of the impugned orders of penalty, it is seen that the petitioner was proceeding on the bona fide belief with reference to its non-liability as against the receipts for the use of the medical beds. The fact that what is being imposed is a penalty shows that unless and until mens rea is established, no penalty can be levied. There cannot be any contumacious conduct on account of the non-inclusion of the afore amounts in the return - the imposition of penalty, which is the subject matter of challenge in W.P.(C) No. 36848 of 2017 can only be declared as illegal.
Is the completion of assessment by estimating the receipts for the purpose of assessment, justified? - HELD THAT:- The amount of the alleged suppression as regards the receipts for the medical beds, already quantified in the penalty orders, was the basis for the finalisation of the assessment. Further additions on account of the afore receipts while finalising the assessments cannot be sustained since the actual receipts, which were not included in the returns, have already been quantified. When that be so, the further additions towards omissions and suppressions in Ext. P8 to P10 orders cannot be sustained.
The petitions are disposed off.
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2024 (12) TMI 462
Reversal of input tax credit pursuant to cancellation of selling / purchasing registration - HELD THAT:- The law on this aspect has been settled by the Division Bench of this Court, rendered in the case of Sahyadri Industries Ltd. vs. State of Tamil Nadu [2023 (4) TMI 912 - MADRAS HIGH COURT] where it was held that 'it was incumbent on the part of a registered dealer like petitioner-appellants availing input tax credit to prove that indeed a transaction of “sale” had taken place. They should not only preserve but also produce collateral evidence in the form of transport documents, such lorry receipts or consignment note, etc. When called upon failing which it cannot be said they have discharged the burden of proof required to be discharged under Section 17(2) of the T.N. Vat Act, 2006.'
The ratio of the said decision will apply to the facts of this case. Under thes circumstances, the impugned order is set aside and the matter remitted back to the Assessing Officer in light of the decision of this Court rendered in the case of Sahyadri Industries Ltd. - The respondent herein is entitled to produce all documents and is also entitled to file a detailed submission to the notices that were issued prior to the order dated 22.07.2015.
Appeal disposed off.
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2024 (12) TMI 401
Rejection of applications moved by the petitioner for one time settlement of outstanding dues under the Haryana One Time Settlement of Outstanding Dues Act, 2017 and Haryana One Time Settlement Scheme for Recovery of Outstanding Dues, 2023 - whether merely because the High Court had while declining interim relief, made observations that all the proceedings taken by the respondents and deposits made by the petitioner, would be subject to final order of this Court, can it be said that the entire amount was a disputed tax? - HELD THAT:- The petitioner’s claim that the amount, which it has deposited in the category of disputed tax, may be considered for considering the OTS application is wholly misconceived and cannot be sustained. The mere stating of this Court that all the payments which the petitioner has to make would be subject to final outcome ‘is merely a reiterating the theory of lis pendens’. Since the petitioner was not granted any interim relief, the amount has to be treated to be admitted tax to be paid by the petitioner in full.
It is also noticed that if ultimately the petitioner’s writ petition is dismissed, it would be the amount which has been already assessed that the petitioner would have to deposit and in One Time Settlement also the same would, therefore, be considered. However, if the writ petition is allowed, the petitioner can always claim refund.
The decision of the authorities, in rejecting the application on the basis of the amount being less than what was required to be paid, cannot be said to be unjustified or illegal. The petitioner would be well advised to deposit the remaining amount, if it so wants to further pursue the OTS application treating it as an ‘admitted tax’.
All the writ petitions are dismissed.
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2024 (12) TMI 342
Challenge to assessment order - taxation on digital photography - works contract with photography is a service contract or not - HELD THAT:- On perusal of the impugned order of assessment, this Court finds that no reply was even submitted by the petitioner pursuant to the order passed by the Appellate authority, nor has any appeal been filed against the order of the Appellate Authority before the Tribunal, insofar as it found that the petitioner is liable to tax in respect of photography. Since the question of liability to tax on photography is decided in the affirmative, the question that remains is the quantum of tax, which would depend on the value of materials involved in the execution of works contract. The same is essentially a question of fact, which is appropriate for the Appellate Authority to decide.
Liberty is granted to the petitioner to file an appeal before the Appellate Authority, if so advised, on the limited ground, of determining the extent of the value of the materials involved in the execution of works contract, within a period of three (3) weeks from the date of receipt of a copy of this order.
The Writ Petition stands disposed of.
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