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VAT / Sales Tax - Case Laws
Showing 201 to 220 of 27754 Records
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2024 (12) TMI 268
Rejection of refund claims filed by the Respondent for the refund of Input Tax Credit under Section 18(3) of Tamil Nadu Value Added Tax Act, 2006 - refund claims were filed beyond 180 days from the date of expiry of period prescribed - HELD THAT:- As per Section 18(3) of the Tamil Nadu Value Added Tax Act, 2006, a refund claim had to be made within a period of 180 days from the date of accrual of such Input Tax Credit and not from the date of zero rate sales during the period in dispute - Similarly, under Rule 11(2) of the Tamil Nadu Value Added Tax Rules, 2007, as it stood during the period in dispute, a dealer who has effected zero rated sales as is contemplated under Section 18(1) of the Tamil Nadu Value Added Tax Act, 2006 could file a refund claim in electronic form W from accrual of such claim.
In this case admittedly there are no records to indicate that returns were assessed and therefore the accrual of refund of such Input Tax Credit cannot be said to have arisen either on the date of purchase of the inputs or on the date of export that is Zero Rated Sales as defined in Section 2(44) of the Tamil Nadu Value Added Tax Act, 2006 or within 180 days of the actual export during the period in dispute.
The export incentives in the form of refund of Input Tax Credit should not be denied and ought not to be denied as export bring precious foreign exchange to the country. These export incentives were conceived of and are being given at the time when the country was facing shortage of foreign currency when foreign exchange reserves were depleted impelling the Parliament as also the State Legislatures to boost exports in a bid to usher the foreign exchange into the country.
Question of restrictions if any statutorily can be said to have been put in a place only after 2010 pursuant to amendment to Section 18(3) of the Tamil Nadu Value Added Tax Act, 2006 vide Amendment Act 9 of 2010 with effect from 1st April 2010 as notified by G.O.Ms.No.24AA dated 02.03.2010 and amendment to Rule 11(2) of the Tamil Nadu Value Added Tax Rules, 2007 vide Notification No.SRO A-11/2010 dated 06.04.2010 with effect from the date of amendment to Section 18(3) of the Tamil Nadu Value Added Tax Act, 2006.
There are no error in the order passed by the learned Single Judge - petition by the Revenue dismissed.
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2024 (12) TMI 219
Maintainability of petition - availability of alternative remedy - Attempt to make misleading statements and omitting to make statements that are required in such matters in the context of the availability of alternate remedies - Section 26 of the Maharashtra Value Added Tax Act, 2002 - HELD THAT:- Since the Petitioner is being relegated to avail of the alternate remedy, it is clarified that all contentions of the Petitioner and the Respondents on merits are kept open.
At this stage, learned counsel for the Petitioner states that the appeal will be filed within four weeks after paying the costs. Suppose such an appeal is indeed filed within four weeks after complying with all the preconditions required under the law and paying the costs. In that case, the Appellate Authority should entertain the appeal on merits without adverting to the limitation issue. This is because the Petitioner instituted this Petition within the limitation period prescribed for instituting appeal.
The Petition is disposed of.
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2024 (12) TMI 218
Challenge to assessment order - wrongful availing of input tax credit - HELD THAT:- A reading of the two counter affidavits and also letter of the petitioner which has been enclosed at Page No.27 seems to indicate that the said letter was sent on 25.12.2014 which accompany an acknowledgement in the Letter Delivery Book which is also dated 25.12.2014. It is highly implausible for the petitioner to have undelivered such a letter on 25.12.2014 as the said date is a holiday it being Christmas day and also highly unlikely an acknowledgement also would not have been given on 25.12.2014 being a holiday. Therefore, prima facie there are indications that there is no truth in the submissions of the petitioner that on 25.12.2014, a letter would have been issued by the petitioner and acknowledged by the respondent in the petitioner's Letter Delivery Book on the same day.
Therefore, the challenge to the impugned order on the ground that the petitioner had surrendered the registration under TNVAT Act, 2006 and CST Act, 1956 cannot be accepted. In any event, whether indeed transaction was carried out by the petitioner during the period in dispute in the year 2016-2017 or not is to be verified from the electronic file and IP address which the Department will have in its possession.
This Writ Petition is disposed of by directing the respondents to verify as it from which IP address the transactions were made by for filing returns in the name of the petitioner, during the period in dispute which has facilitated wrongful availing of the input tax credit and passing thereof to unscrupulous dealers.
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2024 (12) TMI 217
Recovery of dues of the Company from a deceased director's estate - Request to lift the attachment over the subject property - HELD THAT:- It is not in dispute that the husband of petitioner had resigned on 07.02.2013 and has expired on 11.08.2017 whereas, the recovery proceedings were initiated after the death of the husband of the petitioner in the month of June, 2018. It also emerges from the record that the first recovery notice under Section 152 of the Bombay Land Revenue Code 1879 was issued on 07.08.2018 which is placed on record along with the additional affidavit at page 111 of the petition by the respondent.
On perusal of provisions of Sub-Section (3) of Section 53 of the VAT Act read with Section 18 of the CST Act, it is clear that the recovery proceedings can be initiated upon the Director of the Company in liquidation, when the Director proves that non-recovery cannot be attributed to any gross negligence, misfeasance or breach of trust on his part. It is therefore necessary to give an opportunity of hearing to the Director whereas, in the facts of the case, the Director i.e. the husband of the petitioner had expired on 11.08.2017 which is much prior to the issuance of the initiation of the recovery proceedings. Moreover, in case of the C.V. Cherian [2012 (3) TMI 372 - GUJARAT HIGH COURT] it is held that 'As regards the faint plea of lifting the corporate veil, as per the settled legal position, the corporate veil is not to be lifted lightly. It is only when there is strong factual foundation for lifting the corporate veil that the question of examining the applicability of the principle of lifting such veil would be required to be examined. In neither of the two petitions raising the controversy, the authorities have passed any specific order fastening the liability on the Directors personally, much less any factual foundation has been laid to invoke the doctrine of lifting the corporate veil. Hence it is not necessary to dilate on the said principle any further.'
The impugned recovery proceedings including the order of recovery certificate as well as the order of attachment issued by the respondents-authorities to recover the outstanding dues of the Company in default M/s. Oren Kitchen Appliances Pvt. Ltd. are not sustainable in eye of law and are accordingly quashed and set aside - Petition allowed.
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2024 (12) TMI 4
Rejection of prayer of the petitioners for representation by their advocate - challenge to quash CR Case - Prosecution proceedings against the Partners of the Firm for evasion of Tax - HELD THAT:- From the record of proceeding, it is seen that having registered the C.R. case, a summon has already been issued to the petitioner and the petitioner had entered appearance through the learned counsel before the learned trial Court below. Though it is contended in this petition, the prayer for representation of the petitioner is disallowed, the order sheets annexed along with this petition donot disclose anything to that effect rather the order sheet reflects that the petitioner’s application for adjournment and for his absence was duly considered by the learned trial Court below by order dated 13.12.2012.
This Court has also perused the complaint filed by the authorities as recorded hereinabove, and reading of the aforesaid materials if taken on its face value discloses the offences as alleged inasmuch as this Court in exercise of its power under Section 482 of Cr.P.C. cannot go into the factual dispute and allegation as raised in the present case more particularly, when such facts are not admitted by the Taxation department.
The criminal petition stands dismissed. Interim order, if any, passed earlier stands vacated - LCR be returned back.
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2024 (11) TMI 1462
Challenge to order passed by the Competent Authority u/s 34(8) of the U.P. Value Added Tax Act, 2008 for the Assessment year 2006-2007 - HELD THAT:- The High Court granted liberty for the appellant(s) herein to file an appeal against the order dated 29.06.2010 referred in para 4 of the impugned order.
There are no good reason to interfere with the impugned order passed by the High Court - appeal dismissed.
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2024 (11) TMI 1440
Maintainability of a writ petition under Article 226 of the Constitution of India in the case at hand - Challenge to proceedings by which the dealership should be terminated - petitioner was not the person running the retail outlet - violation of the principles of natural justice.
Is the petitioner entitled to maintain a writ petition under Article 226 of the Constitution of India in the case at hand? - HELD THAT:- In N.G.Projects Ltd. [2022 (3) TMI 1589 - SUPREME COURT], the Apex Court was considering the rejection of a bid pursuant to a tender invited by the Road Construction Department, Jharkhand. Considering the afore situation, the Apex Court held that the writ court should refrain itself from endorsing the decision over the decision taken as to whether or not to accept the bid of a tenderer, especially when the courts do not have the expertise to examine the terms and conditions of the present day economic activities of the State. The Apex Court also cautioned that the courts should not find fault with a magnifying glass in its hand; rather, the courts are only to examine whether the decision-making process is correct. In my opinion, the afore judgment cannot be applied to the facts and circumstances of the case at hand, insofar as, here, the petitioner is complaining of the absence of procedural fairness since, according to her, there is violation of the principles of natural justice. The Apex Court, in the afore judgment, has also held that the High Court can examine whether the decision-making process is one in tune with the known principles of administrative law.
Insofar as the allegation raised by the petitioner is with reference to the violation of the principles of natural justice at the hands of the 1st respondent herein, which is admittedly an instrumentality of the State, the petitioner is justified in approaching this Court under Article 226 of the Constitution of India.
Is there any violation of the principles of natural justice in the case at hand? - HELD THAT:- The fundamental rule that the “one who decide must hear” may not be strictly applied to “institutional hearing”. In that case, ultimately this Court found that a hearing to be provided by the Commissioner of Commercial Taxes with reference to Section 59A(2) of the KGST Act was not institutional but personal. It is in the afore circumstances that this Court interfered with the impugned order therein and directed reconsideration of the issue.
A reference to the agreement entered into between the petitioner and the respondent Corporation is also to be made. The petitioner has produced the said agreement as Ext. P1 along with this writ petition. It is seen that the agreement is entered into between the “Indian Oil Corporation” and the petitioner herein. A reading of the said agreement would also show that the appointment of the petitioner as the dealer is effected by the “Corporation.” It is only that on behalf of the Corporation, a designated Manager is signing the agreement. The petitioner, being the dealer, is to act according to the said terms and conditions, not to the detriment of the Corporation and also not against the terms and conditions thereof. Under clause 56 of the agreement, the respondent Corporation is granted liberty to terminate the agreement in question. Thus, it is seen that the petitioner is entering into the agreement with the respondent Corporation and is also continuing to act on the basis of the covenants of the said agreement, set out by the Corporation. Ultimately, the termination also takes place at the hands of the “Corporation”, and it is only that the Corporation is being represented by its officials.
This Court notices that the impugned order at Ext. P2 is issued for and on behalf of the Indian Oil Corporation Limited and it is only that the same is communicated/signed by the State Head. A detailed procedure has already been noticed and is provided with respect to the hearing granted and the manner in which the decision is arrived at. In my opinion, it is a case of institutional hearing and the rules of natural justice, to the extent applicable, have been followed in the matter. Merely because the hearing has been extended by the then State Head and the impugned order issued by the current State Head that may not be a reason for upsetting the impugned order.
Is any prejudice caused to the petitioner on account of the violation of principles of natural justice, if there is any? - HELD THAT:- There is no violation of the principles of natural justice in the case at hand. On account of the above, there is no requirement to consider this question posed.
Conclusion - The writ petition was maintainable under Article 226 of the Constitution of India due to the alleged violation of natural justice. However, the Court found no violation of natural justice in the issuance of the termination order, as the hearing process was institutional. The Court emphasized that in institutional decision-making, the rule that the one who hears must also decide does not strictly apply.
Petition dismissed.
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2024 (11) TMI 1337
Challenge to action of the respondents in freezing his saving bank accounts with the purpose to recover the VAT dues of M/s East Bourne World Cuisine Private Limited, where the petitioner was a former director - HELD THAT:- The company has itself filed an appeal before the appellate authority, which is still pending. It is also noticed that the company is functional and the petitioner is no more a director of the said company. In the circumstances, there was no occasion for the respondent to attach the bank accounts of the petitioner for recovery of its dues as against the concerned company.
A perusal of Section 83 (3) of Companies Act also reflect that the recovery from the director of a company can only be made when such a company has been wound up. Even under the Companies Act, 1956, the provision for recovery from the director is not available at the stage prior to winding up of the company - There is also no case of allegation of mismanagement of the company and in such circumstances also, the order would have to be obtained from the concerned NCLT.
The order of attachment of the saving accounts of the petitioner and the notice dated 12.02.2021 are quashed and set aside. The petitioner is held to be entitled to receive a sum of Rs. 1 lac as penal cost for wrongful attachment of his bank accounts putting him in unnecessary financial distress. The amount of Rs. 1 lac shall be paid by the respondent authorities and deposited in his bank account within two months, failing which interest @ 18% shall also be paid, which may be recovered from the concerned delinquent officer, who has arbitrarily issued attachment order without authority.
The writ petition is allowed.
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2024 (11) TMI 1336
Rectification application to recall earlier order - error apparent in the original order or not - HELD THAT:- Mistake of law is an interpretation of law which a particular Court may hold. However, merely because a different interpretation can be taken of the provisions of law, rectification application cannot be allowed to be entertained.
There has been a gross abuse of the process of the Court in passing the order dated 24.12.2007, and the same therefore, cannot be allowed to be sustained. The same is accordingly set aside.
The VAT appeal is allowed.
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2024 (11) TMI 1277
Imposition of condition relating to 'C' form over and above what has been contained in the Notification - Whether the Notification under Section 8(5) would run in parimeteria with the rates of tax stipulated in the Schedule and whether the conditions stipulated in Section 8(4) have to be read into the Notification itself? - HELD THAT:- Reference may be made to the decision of the Jharkhand High Court in TATA MOTORS LIMITED VERSUS STATE OF JHARKHAND AND OTHERS [2012 (9) TMI 911 - JHARKHAND HIGH COURT]. In that case, the benefit of reduced rate of tax per a Notification issued under Section 8(5) of the CST Act had been refused on the ground that the parties were unregistered dealers - In that case as well, the assessee has unfortunately not brought to the notice of the Bench the judgment in the case of DEPUTY COMMISSIONER OF SALES TAX VERSUS AYSHA HOSIERY FACTORY (P.) LTD. (AND OTHER APPEALS) [1992 (1) TMI 303 - SUPREME COURT] and what has been cited are the judgements STATE OF RAJASTHAN AND ANOTHER VERSUS SARVOTAM VEGETABLES PRODUCTS (AND OTHER APPEALS) [1996 (4) TMI 405 - SUPREME COURT] and several other judgments. However, and fortuitously for the assessee in that case, the High Court has been persuaded to make distinction between the applicability of a Section 8(5) Notification in the case of a transaction under Section 8(1) of the CST Act vis-a-vis a transaction under Section 8(2) of the CST Act.
In the former, the rate of tax stipulated is qua the registered dealer, whereas in the latter, the rate of tax stipulated is qua the unregistered dealer. In our respectful opinion, this distinction is one without a difference as Section 8(5) makes no distinction between its applicability qua a situation falling either in Section 8(1) or 8(2), unless the Notification under Section 8(5) itself makes such distinction, stipulating that the reduced rate is applicable only on transactions falling either under Section 8(1) or 8(2). In the Notification in question, it is an omnibus reduction of rate and there is no denial of rate to any specific category of transaction.
The impugned order of assessment is quashed and this Writ Petition is allowed.
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2024 (11) TMI 1276
Assessment of turnover under the Tamil Nadu General Sales Tax Act, 1959 for the periods 1996-97, 1997-98, and 1999-00 - inclusion of freight charges in the sale price of cement - HELD THAT:- None of the orders of assessment conduct an examination of the nature envisaged by the AAC in remand order dated 31.08.2000. No doubt, the assessing authority has attempted a cursory comparison of the transactions pre and post 05.10.1996 in the order for the period 1996 – 97, noting that the sale price was Rs. 84,975/- for 10 tonnes of white cement vide invoices upto 5.10.96 and Rs. 85,670/- for 10 tonnes vide invoice dated 26.11.1996.
It cannot be understood how the above figures support the department’s contention that there has been suppression of freight in the second invoice dated 26.11.1996 as that figure is, in fact, higher than the sale price pre 05.10.1996. As far as 1997 – 98 is concerned, there is no question of comparison, as all the transactions have taken place post 05.10.1996. In this case, there is reference to a single invoice dated 31.3.1995 and again, it cannot be appreciated how, based on this invoice, the assessing officer comes to the conclusion of suppression.
As far as 1998 – 99 is concerned, three invoices had been examined, one dated 31.3.1995, the second, a depot transfer invoice dated 17.02.1999 and the third, an invoice dated 14.02.1999. Learned Additional Government Pleader would draw attention to the fact that the depot transfer invoice relates only to a transfer between Kottayam and Coimbatore and was for a sum of Rs. 74,644/-. This price would, admittedly, not include a component of freight.
The object of Section 12A of the TNGST Act is to bring to tax turnover that, according to the authority, has been supressed by reduction of sale price in the accounts of an assessee. The suppression, in this case, is said to be the freight. An important factor in this matter is that the books of the petitioner have not been rejected and the assessments are based on the books. The admitted position is that the books reflect the component of freight charges and the cost of cement.
The impugned orders are set aside - these writ petitions are allowed.
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2024 (11) TMI 1076
Imposition of penalty u/s 22(5) of the TNVAT Act, 2006 - petitioner would submit that the petitioner has paid the tax immediately after the inspection for the assessment years and therefore, there was no question of any best judgment assessment involved in the present case - HELD THAT:- The petitioner cannot escape from the penal consequence under Section 22(5) of the TNVAT Act, 2006 merely because the tax was paid after inspection and before the assessment order dated 29.12.2017 was passed under Section 22(5) of the TNVAT Act, 2006. The question of filing a revised return on 31.07.2016 was also not available in view of the Rule 7(9) of the TNVAT Rules, 2007.
As per Rule 7(9) of the TNVAT Rules, 2007, only if a return was filed and the dealer finds any omission or error, he can file a revised return rectifying the omission or error within a period of six months from the last day of the relevant period to which the return relates. Revised return cannot be filed if the tax payable is unearthed on account of an inspection or audit or receipt of any other information or evidence by the assessing authority.
The question of self assessment on the so called return filed on 31.07.2016 cannot be countenanced. The provision of Section 22(5) of the TNVAT Act, 2006 is clear. The authorities have no discretion to either drop penalty where tax has been evaded. Even if no best judgment has been made, the tax payable by the petitioner after evasion was noticed during inspection has been admitted. The fact remains that the tax was not paid in time and tax has been paid pursuant to the inspection on 15.07.2016. The return that was purportedly filed on 31.07.2016 is not a return recognized under the provisions of TNVAT Rules, 2007. It was not return in the eye of law.
The decision rendered by the Hon'ble Supreme Court in the context of Section 16 of TNGST Act, 1959 which was followed by the Division Bench of this Court in Ram Sun Fabi Techs Case [2008 (11) TMI 645 - MADRAS HIGH COURT] cannot be applied to the facts of these cases as the provisions are different.
These Tax Case Revisions are dismissed.
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2024 (11) TMI 1039
Levy of purchase tax under Section 7-A of the Tamil Nadu General Sales Tax Act, 1959 during the Assessment Year 1994-1995 - defective parts that were collected from the customers by providing maintenance services to the customers / clients on behalf of the head office - HELD THAT:- A reading of sub-section (1) to Section 7-A of the Act makes it clear that the question of subjecting the respondent to purchase tax would arise only if there was a purchase of defective spare parts by the respondent from the customers / clients, question of involving Section 7-A of the TNGST Act, 1959 will apply.
In the present case, it cannot be said that the respondent was purchasing the defective spare parts from the customers / clients. All that, the respondent did was to replace the old defective parts with the new parts and gave a discounts on the replaced new parts to the customers.
Since there was no purchase of defective parts, question of levying purchase tax at the rate mentioned in Section 3 or Section 4 of TNGST Act, 1959 under Section 7-A of TNGST Act, 1959 does not arise - there are no merit in the challenge to the impugned order of the Tribunal - tax case dismissed.
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2024 (11) TMI 981
Allowing the claim of second sale exemption contrary to established facts that the so-called sellers were either non-existent or had not handled the goods - Deletion of consequential penalty under Section 12(5)(iii).
Whether the Tribunal was legally right in allowing the claim of second sale exemption despite the sellers being non-existent or not having handled the goods? - HELD THAT:- When the burden was on the dealer to prove the factum of second sale, the respondent had not discharged the burden of proving the actual first sale, for him to successfully claim the exemption on the ground of second sale. The Tribunal had erroneously shifted the burden from the dealer to the revenue, which is against Section 10 of the Act and had come to the conclusion that the revenue had not established by proving that the purchase of the respondent was a first sale.
Similar issue in M/S. MKR CASHEW EXPORTS VERSUS THE SECRETARY, TAMILNADU SALES TAX APPELLATE TRIBUNAL (MB) , CHENNAI, THE DEPUTY COMMERCIAL TAX OFFICER, PANRUTI (RURAL). [2024 (8) TMI 1485 - MADRAS HIGH COURT] where the dealer was not able to prove the factum of first sale to claim the exemption on the ground of second sale, as the burden of proof was on the assessee to prove the transaction.
Further, in A.S.Ganapathy Chettiar Vs. The State of Tamil Nadu [1976 (3) TMI 209 - MADRAS HIGH COURT], relied on by the learned Government Advocate for the appellant, the Division Bench of this Court has held that the burden of proving that there was an earlier taxable sale was on the assessee.
In view of the above decisions and the fact that the respondent dealer had failed to prove the transaction of the factum of first sale, the first question of law is answered in favour of the revenue and against the assessee.
Whether the deletion of the consequential penalty under Section 12(5)(iii) by the Tribunal is legally tenable? - HELD THAT:- In the instant case, the respondent had put forth a claim of second sales and further they submitted the documents, which on enquiry were found to be bogus and fictitious and the respondent had made no attempts to produce the documents through dealers before the authorities for confirmation of the alleged first sale. In view of our findings arrived at question No.1, the respondent, who is liable to pay tax had not filed any return for the assessment year 1982-83 and have wilfully suppressed taxable turnover and therefore, the Assessing Officer had rightly imposed the penalty under Section 12(5)(iii) of the Act - the decision of the Tribunal in deleting the penalty imposed by the Assessing Officer under Section 12(5)(iii) of the Act cannot be sustained. Under such circumstances, the second question of law is also answered in favour of the revenue and against the assessee.
The impugned order of the Tribunal is set aside and the assessment order as confirmed by the appellate authority stands restored - this Tax Case stands allowed.
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2024 (11) TMI 711
Challenge to order of the Sales Tax Appellate Tribunal (STAT/Tribunal) - rate of tax - quantification of penalty under Section 23 of TNGST Act - HELD THAT:- On the quantification itself, it is seen that it is an admitted position that the Circular is clarificatory and retrospective in nature. Thus, though it is dated 05.01.200,1 it would apply to all pending assessments, including the present assessment relating to the period 1998-99. The reason for issuance of the Circular appears to an incorrect thinking on the part of the assessing officers that the penalty under Section 23 of the Act must mandatorily of 150% only.
What the Commissioner has sought to clarify that the provision allows for discretion to be exercised by the assessing officer under Section 23 to levy penalty of a sum 'not exceeding one and a half times the tax payable'. Hence, the authorities may impose penalty at any rate upto amount from one to 150%. Despite the officer used to as a matter of rote and mechanically levy penalty only 150%.
The admitted position is that the levy of penalty is attracted qua the present proceedings. However, the officer has erred in not examining as to the quantification of the same and has proceed to automaticaly impose penalty at the rate of 150%. Hence, the matter stands remanded to the file of the assessing authority to determine only the quantification of penalty.
Petition allowed in part.
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2024 (11) TMI 662
Dismissal of appeal for want of compliance of pre-deposit order passed by it without considering the merits of the assessee’s case on the issue of pre-deposit - failure to appreciate that in view of the approval of input tax credit by the First Appellate Authority the entire tax demand become otiose - insistence for further payment towards pre-deposit and grant of any stay against recovery - HELD THAT:- It appears that the Tribunal ought to have taken into consideration the appellate order whereby, the brought forward towards Input Tax Credit of Rs. 1,12,01,251/- was permitted for the period under consideration i.e. 2014-15 and the appellant ought to have been directed to block such credit of Rs. 18,00,000/- out the said brought forward Input Tax Credit for consideration of the appeals on merits.
The appellant shall file an undertaking on affidavit before the Tribunal that the appellant shall not utilize the block Input Tax Credit amounting to Rs. 18,00,000/- from the input tax amounting to Rs. 1,12,01,251/- duly carried forward from Financial Year 2013-14 to 2014-15 which is available for utilization and shall not utilize such credit amount till the time the appeal is decided by the Tribunal - Upon filing such undertaking by the appellant before the Tribunal, the Tribunal shall hear the Second Appeal No. 813/2019 on merits.
In view of the disposal of the appeal, Civil Application as well Special Civil Application would not survive and the same are accordingly disposed of.
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2024 (11) TMI 606
Levy of luxury tax under Kerala Building Tax Act, 1975 - transfer of ownership of a portion of a residential building - HELD THAT:- The petitioner has not made out any case for grant of relief. It is not disputed before me that the residential building of the petitioner as it originally stood had an area in excess of the limits specified in Section 5A of the 1975 Act, and thus it was liable to the levy of luxury tax under that provision. The building was also duly assessed to luxury tax. According to the petitioner, the petitioner has also discharged the liability towards luxury tax, and in the year 2018 he transferred/settled a portion of the building in favour of his wife, therefore, the petitioner is no longer liable to pay luxury tax. This contention of the petitioner cannot be accepted.
As rightly pointed out by the learned Senior Government Pleader, if the contention of the learned counsel for the petitioner is accepted, any person who is liable to pay luxury tax under the provisions of Section 5A of the 1975 Act could escape from the liability by transferring a portion of the building to his/her spouse or a near relative. The fact remains that the entire building continues to be in the occupation and enjoyment of the petitioner, and such a device would amount to evasion of tax as distinguished from tax planning.
The device adopted by the petitioner was not an effort at tax planning; it was clearly an attempt to evade tax.
The petitioner is not entitled to the reliefs sought in the writ petition. The writ petition fails, and it is accordingly dismissed.
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2024 (11) TMI 543
Validity of the notices issued under Sections 84 and 27(1)(a) of the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act, 2006) - time limitation for revising assessment orders - HELD THAT:- As far as the limitation is concerned, it is sufficient if a notice is issued for revising the assessment in time. This Court earlier had an occasion to deal with the case of TVL. VICTUS DYEINGS VERSUS THE ASSISTANT COMMISSIONER (ST) [2019 (8) TMI 823 - MADRAS HIGH COURT] in the context of Section 27 of the TNVAT Act, 2006., wherein the dispute related to the Assessment Years 2007-08 to 2010-2011 respectively - As per proviso to Section 22(2) of the TNVAT Act, 2006 , the assessment years were deemed to have been completed on 30.06.2012. Thus, any proceedings to revise the assessment which is deemed to have been completed under proviso to Section 22(2) of the TNVAT Act, 2006 had to be completed within six years for the deemed assessment under Section 27 of the TNVAT Act, 2006.
It is a well settled principle of law that mere mentioning of a wrong provision or non-mentioning of a provision would not invalidate an order, if the court and/or statutory authority had the requisite jurisdiction therefor.
The notices that were issued on 23.07.2014 were also notices issued under Section 27(1)(a) of the TN VAT, Act, 2006. There was only a typographical error in the notices and they were supposed to be issued under Section 27(1)(a) of the TN VAT Act, 2006. The tenor of the notice also make it clear that they were issued for the purpose of revision of Assessment, though Section 84 of the TN VAT Act, 2006 can be invoked only to correct errors apparent face on record - The grounds raised by the petitioner on 12.09.2014 was rejected by the Assessing Officer stating that the powers under Section 84 of the Act could not be invoked for these Assessment Years namely 2010-11 and 2012-13 which culminated in orders dated 31.07.2014.
Having concluded that the notices issued in the year 2014 dated 23.07.2014 were indeed notices under Section 27(1)(a) of the TN VAT Act, it has to be held that the the Assessments completed by the second respondent dated 04.01.2021 , 31.12.2020 and on 07.01.2021 were within the period of limitation prescribed under Section 27(1)(a) of the TN VAT Act, 2006.
These writ petitions stand dismissed.
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2024 (11) TMI 396
Condonation of delay - revisions were beyond the period of limitation - non-submission of Form – C and Form – F - HELD THAT:- It is nobody's case that the respondent has not submitted Form – C & Form – F in support of its sales. The same Form – F was got verified from the Assessing Authority by the order of the first appellate authority, but still, the first appellate authority, instead of deciding the issue, has remanded the matter. Feeling aggrieved by the said order, cross-appeals were preferred, but the Tribunal, after detailed discussion and verification of the records, recorded a finding of fact in favour of the respondent, which has not been specifically challenged in the present revisions.
Thus, no interference is called for in both the revisions. No question of law arises in the present revisions - both the revisions are dismissed.
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2024 (11) TMI 395
Interpretation of statute - Section 18 (A) (5) of the CST Act - pre-deposit for admission of appeal and stay of recovery - HELD THAT:- It is found that the Appellate Authority was examining the case on an application under Section 18 (A) (5) of the CST Act, as is apparent from the first para of the order and proceeded to frame a question of law for the purpose of admission. But while passing the order, it has made a stay of recovery, subject to condition of depositing 10% of the tax due. The language may be a little misleading, but the very purpose is of depositing 10% of the tax due, as a pre-condition for admission in stay, which is in consonance with Section 18 (A) (5) of the CST Act.
Thus, it is clear that the admission of appeal would be subject to pre-deposit of 10% of the tax, which has been directed by the VAT Appellate Tribunal. The order, therefore, does not warrant any interference.
The writ petitions are dismissed.
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9911796707
