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VAT / Sales Tax - Case Laws
Showing 21 to 40 of 27756 Records
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2025 (6) TMI 3
Levy of penalty - penalty imposed on the ground that the driver of the vehicle did not have a waybill when the vehicle was detained - HELD THAT:- Admittedly, the vehicle was detained in the check post between Jharkhand and the State of West Bengal and the vehicle has not come into the State of West Bengal. Apart from that on a request made by the driver of the vehicle, the detaining authority had granted time to produce the way-bill till up to 10:52 a.m. on 19th September, 2013. It is also not in dispute that within the time permitted, the way-bill was generated on 20th September, 2013 at 08:19 a.m., which is about 45 hours from the time of detention - Thus, the petitioner cannot be stated to have violated the law, but has produced the valid way-bill, much before the vehicle had crossed the check post between the two States.
More or less, an identical case was decided by the High Court of Karnataka in the case of Prakash Roadlines (P) Ltd. Vs. Commissioner of Commercial Taxes in Karnataka [1991 (1) TMI 394 - KARNATAKA HIGH COURT], wherein the Court held that 'The exercise of the power and levy of penalty as a matter of course will be an arbitrary exercise of power and the very exercise of the power may be repugnant to the provisions of article 301. The right guaranteed under article 301 and its content will have to be applied even to the exercise of an executive power traceable to the law made by the competent Legislature.'
Another decision of the Division Bench of this Court in the case of HDFC Bank Limited Vs. Sales Tax Officer, Duburdih Checkpost & Ors. would also support the case of the writ petitioner, wherein it was held that “Interception of consignment of goods at the check-post cannot mean that it has been taken “across or beyond” the check post into the State of West Bengal for the purpose of application of the said provisions of the said Act”.
Thus, the order passed by the authority imposing penalty is liable to be set aside. Consequently, the writ petition is allowed and the order passed by the learned Tribunal is set aside as also the order passed by the authorities levying penalty.
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2025 (5) TMI 1989
Seeking issuance of an appropriate writ directing the Respondent to issue Form ‘F’ to the Petitioner in respect of the goods transferred under interstate trade and commerce under Section 6A of the Central Sales Tax Act, 1956 - HELD THAT:- Following the decision of the Co-ordinate Bench of this Court in GSP Power System Pvt. Ltd. [2020 (10) TMI 215 - DELHI HIGH COURT], in the facts of the present case, the Petitioner is permitted to rectify its DVAT returns for the period of 01st January, 2013 to 31st March, 2013, all four quarters of Assessment Year 2013-14 and for the period April 2014 to June 2014 in order to enable the issuance of the requisite ‘F’ Forms to the Petitioner.
These directions shall however remain suspended till the appeal in Ingram Micro India Pvt. Ltd. as also the M/s Commissioner, VAT Delhi & Ors. v. M/s Indian Oil Corporation Ltd. are pending before the Supreme Court and are decided. This direction shall abide by the decision of the Supreme Court in the said case.
Petition disposed off.
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2025 (5) TMI 1903
Disallowance of benefit of Section 15 (c) of Central Sales Tax Act, 1956 - reliance placed upon the decision of M/s Aryavarth Chawal Udyog and others Vs. State of UP and others [2008 (5) TMI 621 - ALLAHABAD HIGH COURT] - HELD THAT:- The assessing authority while passing the assessment order has rejected the claim of amount paid as tax on the purchase of paddy out of which rice was produced and sold as interstate.
This Court in the case of M/s Aryaverth Chawal Udyog and others, has held that the benefit of tax paid on purchase of rice cannot be claimed as per Section 15 (c) of Central Sales Tax Act.
In view of the aforesaid facts and circumstances of the case as well as the law laid down by the Division Bench of this Court as referred herein above, no interference is called for in the impugned order - revision dismissed.
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2025 (5) TMI 1902
Rejection of application filed by the Petitioner for issuance of Form ‘F’ in respect of the goods transferred under inter-state trade and commerce - HELD THAT:- Following the decision of the Co-ordinate Bench of this Court in GSP Power System Pvt. Ltd. [2020 (10) TMI 215 - DELHI HIGH COURT], in the facts of the present case, the Petitioner is permitted to rectify its DVAT returns for the third quarter of 2018-19 by filing a revised return for the said period to enable issuance of the statutory ‘F’ Forms.
These directions shall however remain suspended till the appeal in Ingram Micro India Pvt. Ltd. as also the M/s Commissioner, VAT Delhi & Ors. v. M/s Indian Oil Corporation Ltd. are pending before the Supreme Court and are decided. This direction shall abide by the decision of the Supreme Court in the said case.
Petition disposed off.
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2025 (5) TMI 1818
Benefit of the Notification dated 10-8-2017 - it was held by High Court that 'We do not find any error not to speak of any error of law in the impugned order passed by the High Court.' - HELD THAT:- There are no merit in the review petition and the same is, accordingly, dismissed.
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2025 (5) TMI 1817
Liability of petitioner for payment of tax on the supply of foodstuff and other items to the students within its premises even though it has been held that petitioner is predominately existing for education - bifurcation of turnover into exempted and non-exempted goods even though it has been categorically found that the petitioner is not a dealer in view of the law laid down by various courts - justification in remanding the case back even though the entire proceedings were void ab-initio - liability to pay the tax on supply of goods to the students in the course of academic activities even though the same is not in the course of business - entitlement to Input Tax Credit for the tax paid on the purchase of goods which have been allegedly sold and held to be taxable by the tribunal.
HELD THAT:- A perusal of the Assessment Order would go to show that the same has been passed by the Assessing Authority without even caring or bothering to issue mandatory notice in the prescribed format VAT 29 as required under Rules 67 and 78 of the Act.
It needs to be noticed that in the present case, there is no material to establish that the ancillary activities of providing canteen facilities to the children is being conducted by the petitioner(s) with an independent intention to conduct business with such activities. Therefore, in the present case, the ancillary activities of providing canteen facilities to the inmates of the University would not amount to business as defined by the Act. Once that be so, obviously, the petitioner was not liable to pay any tax on the said activities. After all, before imposing any tax, the authorities, at the first place, are required to see whether the Act is applicable or not and in such like cases there cannot be a deemed sale so as to attract the levy of tax. The burden to prove such intention rests upon the Department. It is otherwise more than settled that in the absence of profit making, the activity is not trade, commerce or business within the meaning of Section 2 (15) of the Income Tax Act, 1961.
When the main dominant activity of the University is to impart education, it cannot be termed as business activity. In coming to such conclusion, we are duly supported by the Judgment of the Hon’ble Supreme Court in Commissioner of Sales Tax vs. Sai Publication Fund [2002 (3) TMI 45 - SUPREME COURT], wherein the Hon’ble Supreme Court categorically held that where the main activity is not business, then any incidental or ancillary transactions would normally amount business out if an independent intention to carry on the business in the incidental or ancillary transaction is established. It was further held that the burden to prove such intention rests on the department. In the facts of the case it was held that the main and dominant activity of the assessee trust was to spread the message of ‘Sai Baba’, bringing out Publication and sales thereof by the assessee trust to its devotees at costs price did not amount to business and did not make the assessee trust a dealer.
The petitioner(s)-University has reported in the Income and Expenditure Account, Schedule and Sub-Schedule have been listed and the instant demand has been made without establishing that how these incomes would be liable to VAT - What is still worse is that even the goods for which VAT is being demanded have not been spelt out in the impugned demand extracted. Be that as it may, the petitioner(s)-University has already given the details of the income, which are listed for tax and also provided the reasons why such income cannot be subjected to tax.
Learned counsel for the petitioner(s)-University is fully justified in contending that once the canteen is not main activity of the University, then any incidental or ancillary transaction held, would normally amount to business only if an independent intention to carry on the business in the incidental and ancillary transaction is established.
Conclusion - i) The learned Tribunal erred in holding that the petitioner is liable to payment of taxes on supply of food stuff and other items to the students within its premises even though it has been held that petitioner is predominately existing for education. ii) The learned Tribunal erred in artificially bifurcating the turnover into exempted and non13 exempted goods even though it has been categorically found that the petitioner is not a dealer in view of the law laid down by various courts. iii) There was no occasion for the learned Tribunal to have remanded the case back particularly, when the entire proceedings were void ab initio and all the orders ought to have been set aside. iv) The learned Tribunal not at all justified in holding that the petitioner would be liable to pay the tax on supply of goods to the students in the course of academic activities even though the same is not in the course of business.
Petition allowed.
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2025 (5) TMI 1816
Recovery of dues - priority of charges - Bank as a secured creditor under the Recovery of Debts and Bankruptcy Act, 1993 (RDB Act), has priority over the secured assets for recovery of its dues or not - first charge over the property of the unofficial respondent Nos. 3 to 6 - HELD THAT:- The issue that was being considered by the Apex Court in the case of Central Bank of India(supra) was whether the provisions of Section 38-C of the Bombay Sales Tax Act, 1959 and Section 26-B of the Kerala General Sales Tax Act, 1963 and similar other provisions contained in other state legislations by which first charge had been created on the dealer or such other person liable to pay sales tax was inconsistent with the provisions contained in the RDB Act, 1993, for recovery of debt and whether by virtue of the non obstante clause contained in Section 34 (1) of DRT Act and Section 35 of the Securitisation Act, the two Central legislations would have primacy over State legislations.
In the case arising from Kerala, a suit had been preferred by the Central Bank of India before a civil Court for recovery of approximately Rupees Twelve Lakhs advanced to Kerala Refineries (P) Ltd. The borrower, who had executed a mortgage in regard to the immovable properties for securing repayment, but had failed to discharge its liability. This suit was later on transferred to the Debt Recovery Tribunal, which decreed the same. The recovery certificate was issued in favour of the bank, whereafter the Recovery Officer issued a Notice for sale of the movable and immovable properties of the borrower.
The bank challenged the Notice of the Tahsildar by way of petition under Article 226, which was dismissed by the learned single Judge which order was upheld also by a Division Bench. The Apex Court in Central Bank of India vs. State of Kerala and others [2009 (2) TMI 451 - SUPREME COURT] dealing with the issue, in particular reference to Section 34 of the DRT Act and Section 26-B of the Kerala General Sales Tax Act, 1963, held that there was no provision in either DRT Act or SARFAESI Act created a first charge in favour of the banks, financial institutions or secured creditors for the properties of the borrower.
There is a specific provision providing for priority in favour of the secured creditors, to realize the secured debts, due and payable to them, over all other debts and Government dues, there are no hesitation to hold that the right of the petitioner Bank to recover its dues by sale of the secured asset would have priority over the arrears which were sought to be recovered by the respondent State under the provisions of the A.P. Value Added Tax Act, 2005.
Petition allowed.
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2025 (5) TMI 1815
Challenge to Assessment Order dated 31.12.2013 for A.Y. 2003-04 passed u/s 9 (4) of UP Tax on Entry of Goods Into Local Areas Act, 2007, framed by the Deputy Commissioner, Sector 18, Commercial Tax, Ghaziabad - time barred or not - HELD THAT:- It is not in dispute that revisionist approaches this Court for challenging the validity of Entry Tax Act and the interim order was granted in favour of the revisionist/ petitioner therein. The said writ petition was dismissed vide order dated 28.3.2012 to which the respondent authority has applied for certified copy of the order on 31.5.2012 and delivery of the same was taken on 26.7.2012 though the same was ready on 12.6.2012. Thereafter, after a long gap, the same was sent vide letter dated 13.2.2013 by the office of Commercial Tax, High Court Works to the Deputy Commissioner, Commercial Tax, Sector 18, Ghaziabad. Once the letter was received at Ghaziabad, the order ought to have been passed accordingly, within six months from its receipt.
The record shows that originally the assessing authority of the revisionist was Deputy Commissioner, Assessment, Commercial Tax, Sector 1, Hapur but the order of the assessment has been passed by the Deputy Commissioner, Commercial Tax, Sector 18, Ghaziabad. The respondent authority at no stage has brought on record any material to show as to how the case of the revisionist has been transferred from Deputy Commissioner, Assessment Commercial Tax, Sector 1, Hapur to Deputy Commissioner, Commercial Tax, Sector 18, Ghaziabad.
The record further shows that a report was called for by the Tribunal and the same was submitted by letter dated 15.2.2023, copy of which has been annexed as Annexure no. 9 to this revision but how the jurisdiction of the assessing authority of the revisionist was transferred and under which order, the same has neither been brought on record nor a word has been whispered in that respect. In the absence of any such material available on record, the change of assessing authority, who has passed the present assessment order, is not justified.
Conclusion - The assessment order dated 31.12.2013 was time-barred as it was passed beyond the six-month limitation period from the date of receipt of the certified copy of the dismissal order of the writ petition, in violation of Section 21(6) of the UP Tax on Entry of Goods Into Local Areas Act, 2007.
The matter requires reconsideration by the assessing authority and for that purpose, the impugned order passed by the Commercial Tax Tribunal is hereby set aside - Revision allowed.
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2025 (5) TMI 1814
Seeking issuance of an appropriate writ directing the Respondent to issue Form ‘F’ to the Petitioner in respect of the goods transferred under inter-state trade and commerce - HELD THAT:- Following the said decision of the Co-ordinate Bench of this Court in GSP Power System Pvt. Ltd. [2020 (10) TMI 215 - DELHI HIGH COURT], in the facts of the present case, the Petitioner is permitted to rectify its DVAT returns for the third quarter of 2013-14 by filing a revised return for the said period to enable issuance of the statutory ‘F’ Forms to the Petitioner.
These directions shall however remain suspended till the appeal in Ingram Micro India Pvt. Ltd. as also the M/s Commissioner, VAT Delhi & Ors. v. M/s Indian Oil Corporation Ltd. are pending before the Supreme Court and are decided. This direction shall abide by the decision of the Supreme Court in the said case.
Following the said decision of the Co-ordinate Bench of this Court in GSP Power System Pvt. Ltd. in the facts of the present case, the Petitioner is permitted to rectify its DVAT returns for the third quarter of 2013-14 by filing a revised return for the said period to enable issuance of the statutory ‘F’ Forms to the Petitioner.
Petition disposed off.
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2025 (5) TMI 1813
Jurisdiction to exercise power under Section 10 B of the Act with regard to the legality and propriety of the order passed on the basis of a subsequent judgment - benefit of tax paid on the paddy on the interstate sale - HELD THAT:- In the present case, proceeding under Section 10 B of the Act has only been initiated on the ground of subsequent judgement passed in the case of M/s Aryaverth Chawal Udyog and others [2008 (5) TMI 621 - ALLAHABAD HIGH COURT] which is not permissible under the Act and law laid down by this Court.
Section 10 B of the Act confers the jurisdiction to examine the legality and propriety of the order passed by the assessing authority. The legality and propriety of the order has to be decided with regard to the material that was available on record as it existed on the date of passing of the assessment order and not afterwards or some new material of law. The case in hand, admittedly, judgement was pronounced by this Court after passing of the original assessment order, therefore, the proceedings cannot be justified in the eyes of law.
Thus, the proceedings under Section 10 B restricts the jurisdiction of the authority to scrutinize the records already in existence with the assessment authority on the date of passing of the assessment order and not on the material found subsequently or order being passed subsequent thereto.
Hence, the impugned orders passed by the Commercial Tax Tribunal in all the aforesaid revisions cannot be sustained in the eyes of law and same are hereby set aside.
Accordingly, all the revisions are allowed.
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2025 (5) TMI 1812
Jurisdiction or power to entertain an appeal without the statutory pre-deposit being made by the appellant - HELD THAT:- The Hon’ble Apex Court in the case of Tecnimont [2019 (9) TMI 788 - SUPREME COURT] without any doubt, has laid down the proposition that the appellate authority shall not be within its jurisdiction to give a concession dehors the statutory prescription of deposit as a condition precedent for entertaining an appeal.
However, the Hon’ble Apex Court in its earlier decisions in State of AP Vs P Laxmi Devi [2008 (2) TMI 850 - SUPREME COURT] and Har Devi Asnani Vs State of Rajasthan [2011 (9) TMI 957 - SUPREME COURT], held that in genuine cases of hardship, the recourse would still be open to the person concerned to approach the superior Court, therefore, it would be completely different thing to say that the appellate authority itself can grant such a relief for the reason that such exercise would make provision itself unworkable and render the statutory intendment nugatory.
In the considered opinion of this Court, the principle of equity as emphasized in the judgments of the Hon’ble Apex Court and the Division Bench, shall also be applicable in the given facts of the present case. This Court though cannot find fault with the appellate authority in non-entertaining the appeal due to non-compliance of Section 79 (5), however, as the petitioner firm is ready to pre-deposit the required amount and in exercise of power under Article 226 of the Constitution of India, this Court is inclined to grant the benefit of hearing to the petitioner in the given fact of the case.
The present writ petition stands allowed by setting aside and quashing the impugned order dated 31.01.2025, subject to the statutory deposit.
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2025 (5) TMI 1524
Liability on issuing false certificates, etc. - Issuance of Form III B without mentioning the rate of tax - Tribunal's failure to give due weightage to binding circulars - Short payment of tax without pinpointing specific instances of false or wrong declaration of Form III B - intention for obtaining form either for purchase on concessional rate or at higher rate - HELD THAT:- On bare reading of the section 3 B, it shows that on issuing of false or wrong certificates to another person by reasons of which tax leviable under the Act on the transaction of purchase or sale made with or by such other person ceases to be leviable or becomes leviable at a concessional rate, shall be liable to pay on such transaction an amount which would have been payable as tax on such transaction, had such certificate or declaration not been issued.
In other words, if the registered dealer in a particular transaction issued a certificate on the intent on which no tax is levied or concessional tax was levied then for the balance amount, if found to be paid, can be realized on such certificate or declaration. The word ‘such certificate or declaration’ clearly shows that every certificate or declaration has to be looked into independently and for each default, if any, separate order has to be passed. For the complete assessment year, no common order can be passed. The legislature in its wisdom has not used the word ‘certificates or declarations’ for such transaction to which only one order can be passed.
Further the record shows that the circular dated 15.4.1986 and 24.4.1987 have not given due weightage though it was binding upon the authorities.
Thus, the matter requires reconsideration by the assessing authority and for that purpose, the impugned orders passed by the Commercial Tax Tribunal in all the aforesaid revisions are hereby set aside.
The matter is remanded to the assessing authority, who shall decide the case, de novo, in accordance with law.
Accordingly, all the revisions are allowed. The questions of law are answered accordingly.
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2025 (5) TMI 1523
Condonation of the delay in filing appeal before the first appellate authority - negligence of a counsel - cause of delay shown to be due to the fault of the Advocate - Legality of rejecting the appeal without fault of the revisionist and delay caused by Advocate's mistake - HELD THAT:- Once a local Advocate admits his fault of negligence, the assessee should not suffer due to the negligence of a counsel. Since the matter has not been decided on merits, it would be in the interest of justice that the same be decided on its own merit.
Thus, the impugned order passed by the First Appellate Authority as well as the impugned order passed by the Second Appellate Authority, i.e., the Commercial Tax Tribunal, in all the revisions cannot be sustained in the eyes of law. The same are hereby set aside.
Accordingly, all the revisions are allowed, subject to payment of cost of Rs. 5,000/- on each revision by the revisionist, which shall be deposited before the Assessing Authority concerned within a period of two weeks from today.
The First Appellate Authority is directed to decide the issue on its own merits.
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2025 (5) TMI 1522
Sale turnover - Input tax credit in exempted sales - Applicability of exemption provisions under Section 7(c) and the restrictions under Section 13(7) of the Act - HELD THAT:- The Court is of the opinion that the issue in hand is squarely covered by the judgment of Neha Enterprises [2025 (4) TMI 564 - SUPREME COURT]
In the result, the impugned order cannot be sustained in the eyes of law and the same is hereby quashed.
The revision is allowed.
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2025 (5) TMI 1363
Condonation of inordinate delay of 405 days - Levy of penalty u/s 86 of the Delhi Value Added Tax Act, 2004 - invocation of the Proviso placed in Section 34(1) - HELD THAT:- No case is made out to condone the delay of 405 days in filing the Special Leave Petition. The Special Leave Petition is accordingly dismissed on the ground of delay.
However, the question of law, if any, is kept open.
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2025 (5) TMI 1362
Seeking final opportunity to make the statutory deposit - Non-compliance with the pre-deposit condition - original order of assessment was vitiated by a violation of the principles of natural justice or lack of jurisdiction on the part of the assessing authority - HELD THAT:- In order to give a final opportunity to the appellant herein, he is permitted to make the statutory deposit on or before 10.03.2025 before the concerned Statutory Appellate Authority or Assessing Authority, as the case may be. If such deposit is made in accordance with law, the concerned Statutory Appellate Authority shall entertain and consider his appeal in accordance with law and as expeditiously as possible.
It is needless to observe that if the appellant does not make the requisite deposit on or before 10.03.2025, the statutory appeal would not be entertained or considered on merits.
This appeal is disposed of in the aforesaid terms.
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2025 (5) TMI 1361
Issuance of Form III B without mentioning the rate of tax - no column prescribed for mentioning the rate of tax to be leviable - Failure to adhere Binding nature of circulars issued by the Commissioners on the authorities - variance of rate of tax - Liability on issuing false certificates - demand created under Section 3B of the UP Trade Tax Act - duly registered dealer and is entitled for purchase of goods as prescribed under Section 4 B of the Act - HELD THAT:- On bare reading of the section 3 B, it shows that on issuing of false or wrong certificates to another person by reasons of which tax leviable under the Act on the transaction of purchase or sale made with or by such other person ceases to be leviable or becomes leviable at a concessional rate, shall be liable to pay on such transaction an amount which would have been payable as tax on such transaction, had such certificate or declaration not been issued.
In other words, if the registered dealer in a particular transaction issued a certificate on the intent on which no tax is levied or concessional tax was levied then for the balance amount, if found to be paid, can be realized on such certificate or declaration. The word ‘such certificate or declaration’ clearly shows that every certificate or declaration has to be looked into independently and for each default, if any, separate order has to be passed. For the complete assessment year, no common order can be passed. The legislature in its wisdom has not used the word ‘certificates or declarations’ for such transaction to which only one order can be passed.
Further the record shows that the circular dated 15.4.1986 and 24.4.1987 have not given due weightage though it was binding upon the authorities.
Thus, the matter requires reconsideration by the assessing authority and for that purpose, the impugned order passed by the Commercial Tax Tribunal is hereby set aside.
The matter is remanded to the assessing authority, who shall decide the case, de novo, in accordance with law.
The revisionist is directed to submit a certified copy of this order within ten days from today before the assessing authority and on receipt of the same, notice will be issued to the revisionist within a week thereafter.
Accordingly, the revision is allowed. The questions of law are answered accordingly.
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2025 (5) TMI 1360
Entitlement to claim input tax credit on the purchase of capital goods as per Section 19(2)(iv) of the TNVAT Act, 2006 - job work of manufacture for others - failed to consider the clause(e) in sub rule (4) of Rule 10 of the TNVAT Rules, 2007 - HELD THAT:- As per the job work agreement entered by the appellant with DCL, they only manufactured the refractory products by using the material supplied by DCL. The said components are further used in the manufacturing of final product of DCL. Thereafter, DCL would produce the final products by using the said components. Therefore, job work entrusted with the appellant by DCL can not be treated as manufactuing of capital goods in order to claim themselves as a dealer. They were only doing a job work by using the materials supplied by DCL. In the said circumstances, both the authorities correctly rejected the appellant's claim that they are not entitled to claim the benefit of the input tax credit. It is well settled principle as per Section 17 of the TNVAT Act, the burden of proving claim of input tax credit would always lie on the dealer.
In view of the above discussion, the appellant has not discharged the same.
The further plea of the respondent is that manufacturing of some of the additional material by the appellant would not make any difference in the above said reasoning. The Hon'ble Supreme Court in the case of Prestige Engineering (India) Ltd., and Others Vs. Collector of Central Excise, Meerut and Others (1994 (9) TMI 66 - SUPREME COURT), has made an elaborate discussion on this aspect and the ratio laid down by the Hon'ble Supreme Court is applicable to the present case.
Another submission of the learned counsel for the assessee on the basis of the Clause (e) in Sub Rule (4) of Rule 10 of the TNVAT, 2007, is misconceived one for the reason that the same was incorporated in the Rule on 03.12.2008 i.e., much after the assessment made in this case.
In the result, all the questions of law framed by this Court were answered against the appellant/assessee and answered in favour of the respondent/Revenue.
In light of the abovesaid detailed discussion and the overwhelming reasons for the conclusion arrived at by the Courts in the judgment cited and discussed, the impugned order is perfectly valid in the eye of law and the present Appeal fails and the same is dismissed.
The substantial questions raised are answered against the appellant/assessee and answered in favour of the respondent/Revenue.
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2025 (5) TMI 1359
Seeking rectification of error in the assessment order - mistakenly availed revision remedy instead of the appellate remedy under Section 77 of the OVAT Act - preferred due to inadvertence and on account of wrong advice - mistake of counsel - petition filled under Section 81 of the OVAT Act - Jurisdiction to entertain petitions under Section 79(2) - HELD THAT:- Faced with such situation, this Court deems it appropriate to hold that order dated 07.03.2019 passed by the Additional Commissioner of Sales Tax, Territorial Range, Cuttack-II, Cuttack and order dated 11.12.2014 passed by the Commissioner of Sales Tax, Odisha, Cuttack are nullity, inoperative and ineffective inasmuch as the said orders are passed without jurisdiction and authority under the statute. Therefore, this Court quashes the orders dated 07.03.2019 and 11.12.2014.
Considering the nature of transactions reflected in the assessment order dated 16.01.2017 passed under Section 42 of the OVAT Act and having regard to high stake demand of tax with imposition of penalty, the petitioner is entitled to avail opportunity to ventilate its grievance before the forum provided under the OVAT Act. Therefore, liberty is reserved to the petitioner to avail appropriate alternative remedy as available under the OVAT Act, if it is so advised.
Thus, the writ petition stands disposed of.
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2025 (5) TMI 1222
Taxable Turnover - Works contract - Construction of Road - Build-Operate-Transfer scheme - no actual sale or no transfer of property or goods during the relevant assessment years, and that there was no taxable turnover or business activity until the commencement of toll collection, which only started from 07.06.2001 - HELD THAT:- There is no such transfer of ownership or deemed ownership in favour of the contractor during the construction of the road and during the concessional period under the BOT scheme. The Government always remains the owner of the land both in works contracts or in BOT, and only possession is given to the contractor to construct the road and recover the cost of construction from the public or passengers by way of toll.
As held by the Division Bench of this Court in the case of Ashoka Infraways Private Limited [2024 (10) TMI 559 - MADHYA PRADESH HIGH COURT], apart from the Government, no one has the authority to collect the toll or service charges from any person. If that authority has been given to the contractor in the BOT scheme, instead of making direct payment for the construction of the road, there would be no escape from the tax liability on the contractor.
As per the BOT scheme, the payment to the petitioner for the work done was deferred by way of toll after completion of the concessional period, which doesn't mean that there was no sale during the Assessment Year 2000 – 01. As per the scheme of the commercial tax and entry tax, the tax is liable to be paid every year. Only the mode of payment was deferred, which has not been explained in the definition of 'sale' in Section 2 (t) (i) & 2 (t) (ii) of the Act of 1994. Section 2 (t) (vi) also clarifies that sale, with its grammatical variations and cognate expressions, means that a transfer of right to use any goods for any purpose (for a certain period) for cash, deferred payment, or other valuable consideration will also be treated as a sale.
In the case of Bharat Aluminium v/s The Commissioner of Sales Tax [1996 (4) TMI 451 - MADHYA PRADESH HIGH COURT], this Court held that for exchange of one item for another item is a sale. As per Rule 33 of the M.P. Commercial Tax Rules, 1995 (in short 'the Rules of 1995') also, the dealer shall specify in the return its turnover, the details of the sale/purchase for other than money consideration. The Assessing Officer shall fix the value of consideration in money for the purpose of determining the taxable turnover.
Admittedly, the petitioner is a dealer then certainly liable to pay taxes by filing a return on the goods purchased and brought into the State in execution of the works contract. The words 'project' and 'project cost' are defined in Clauses W3 and W4 of the agreement. According to the project, it shall mean survey, investigation, studies, design, construction, reconstruction, improvement, strengthening and repair. All the work related to the maintenance of the road, renewal of surface, bridge, tunnel, culvert, etc. and the cost offered to invest by the entrepreneur for completion of the aforesaid project shall be a project cost - the period of collection of the toll upon construction of the Dewas By-pass road was fixed for a fixed concession period, i.e. 3941 days for the Katni project and 3351 days for the Mhow – Ghatabillod project, by taking into consideration all the costs and expenses incurred in the construction work. The petitioner was required to make all arrangements for the money for construction of the bypass road, the petitioner was given the right to collect the toll after completion of the construction of the road for which period as above was fixed after considering the total cost of construction of the project and its recovery by way of collection of tolls. After the expiry of the said period, the petitioner shall not have any claim on the road as well as on a toll.
Conclusion - The petitioner is misconstruing the terms of the agreement and the construction of Dewas bypass road on BOT basis that it does not amount to execution of works contract, the petitioner executed the works contract on the land belonging to the State Government and recovered the construction and maintenance cost by way of toll with due permission from the State Government, it is nothing but a deferred payment by a mode of recovery of toll. The land on which roads were constructed by the petitioner remained in the ownership of the State. Hence, there are no substance in these writ petitions.
Petition dismissed.
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9911796707
