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VAT and Sales Tax - Case Laws
Showing 241 to 260 of 27243 Records
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2023 (10) TMI 107
Power of review - error apparent on the face of record or not - Extraction of coal primarily for captive consumption in its Industrial Unit situated at Jamshedpur - transfer of goods for captive consumption and not for sale - demand of additional tax liability - HELD THAT:- It transpires that Petitioner-Tata Steel Ltd. is having its industrial unit at Jamshedpur wherein it is engaged in manufacturing of Iron and Steel. It has its colliery in the District of Dhanbad known as ‘Jamadova Colliery’ and from the said colliery, coal is being extracted and stock transferred to its unit at Jamshedpur in the District of East Singhbhum for captive consumption, which is ‘intra-state stock transfer’. Original assessment proceedings of the petitioner were completed and its gross turnover was accepted and no dispute was raised with respect to intra-state stock transfer of goods.
A bare perusal of Section 21(1A) of the Bihar Finance Act would reveal that if any dealer claims that he is not liable to pay any tax on the part of his turnover by reason of transfer of such goods to any other dealer or agent or principal ‘for sale’ the burden of proving this claim shall be on the dealer and the dealer would furnish before the prescribed authority a declaration in the form and in the manner prescribed. Under the Rules, the declaration prescribed is Form IX-D - In the instant case, admittedly, the dealer-Tata Steel Ltd. stock transferred its goods to its Jamshedpur Unit for ‘captive consumption’ and not for ‘sale’ and, thus, on a bare reading of Section 21(1A), it would be evident that there was no requirement of furnishing of statutory Form IX-D.
A perusal of the review order would demonstrate that the review order has been passed not for correcting any mistake or error apparent on the face of record, but review order has been passed to change alleged erroneous decision which is not permissible in the eye of law. Reference in this regard may be made to numerous decisions of Hon’ble Apex Court, wherein it has been clearly held that power of review is limited to correcting ‘mistake/error apparent on the face of record’ and not to change an ‘erroneous decision’ - reliance can be placed in the case of S. Madhusudan Reddy v. V.Narayan Reddy, reported in (2022) SCC Online SC 1034 [2022 (8) TMI 1337 - SUPREME COURT].
Thus, the very initiation of the review proceedings pursuant to Show Cause Notice dated 04.01.2011 was void ab initio, as neither any satisfaction was recorded by the Assessing Authority nor any reason was assigned for initiation of review proceedings - It is a settled law that vague show cause notice lacking details amounts to violation of the principles of natural justice and in that view of the matter, we are inclined to entertain the present writ applications.
Petition disposed off.
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2023 (10) TMI 106
Maintainability of petition - availability of alternative remedy - levy of penalty, interest and a direction to deposit a sum of Rs. 86,04,010/- after adjusting a sum of Rs. 5,82,646/- deposited in excess, in the year 2008-09 - delayed payment of tax - HELD THAT:- From the arguments advanced and the materials brought on record it is satisfied that this is not a fit case where the existence of alternative remedy can be bypassed. The petitioner shall have all liberty to raise all such plea/ grounds as raised before us before the Appellate Forum. In such view of the matter the petitioner is relegated to file an appeal before the Appellate Authority under Section 57 of the VAT Act 2008.
The writ petition is dismissed on the ground of availability of alternative remedy.
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2023 (10) TMI 105
Violation of principles of natural justice - no opportunity of cross-examination was given to the dealer - rejection of sales which were not proven - non-production of ‘F’ forms - HELD THAT:- In the present case, opportunity of hearing could only be granted to the appellant had he appeared before the assessing authority. As per order Annexure A-2, dated 28.12.2007, number of opportunities had been given to the appellant, however, he did not put in appearance nor produced any ‘F’ form and the authority proceeded against ex-parte and had passed the order on the basis of evidence with them and the verification carried out at their own level from Delhi. When it was found that the dealer had accounted for these transactions at Delhi, they extended the benefit of ‘F’ form to the appellant. The appellant authority has not referred to the provisions of Section 3(a) of the Central Sales Tax Act, Rules 1957 as reflected at Page 43 of the paper book where the assessee apart from producing form ‘F’ is required to maintain all the conditions to claim the benefit of exemption to claim these sales on consignment basis.
The appellant has not assisted in giving complete addresses of the Company namely, Shakti Trading Company and Ghansi Ram & Co. and on the basis of F forms they could not get benefit under Section 3(a) of the Central Sales Tax Act Rules 1957. The appeal has been rightly accepted by the tribunal.
No substantial question of law arises for consideration in the present appeal as the appellant-assessee never chose to appear before the Excise and Taxation Officer-cum-Designated Officer, Mansa and this finding of fact recorded by the authorities, after giving verification is not a question of law which needs to be examined now.
Since the appellant had not appeared and lead any evidence to show that his sales were interstate or within the State, the order passed by the Tribunal does not require any interference as no substantial question of law arises for consideration - Appeal dismissed.
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2023 (10) TMI 5
Classification of goods - installation cables, outlet or connection modules, patch cords, patch panels, network cards, fibre optic cables etc. - covered in Entry C. 20 (ii)(b) of the Second Schedule to the Karnataka Sales Tax Act, 1957 or not - HELD THAT:- Reliance placed in the case of Collector of Central Excise v. Grasim Industries [2005 (4) TMI 64 - SUPREME COURT] and Castrol India Ltd. v. C.C.E. [2005 (2) TMI 847 - SUPREME COURT], which had ruled that the phrase “that is to say” are to be given a restrictive meaning, rather than expanding the scope of the preceding words. In Castrol India, it was held the expression “that is to say” in sub-heading 2710.60 has to be interpreted to be words of limitation. The fact that sub-heading 2710.60 contains an exclusion clause goes to show that there may be other lubricating oils which may fall in the residuary heading “others”.
Having regard to these facts, the Court is satisfied that the final decision classifying all the items in question, as falling in Part ‘E’ of the Second Schedule to the Karnataka Sales Tax Act, 1957 is correct.
Appeal dismissed.
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2023 (9) TMI 1429
Adjustment of Demand with the Refund while objections were pending - Refund the amounts claimed along with interest as per the return which was submitted by the petitioner for the first quarter of Financial Year 2016-2017 - deeming fiction as envisaged u/s 74(9) had come into play or not on the failure of the OHA to make the decision against the objections of 2010-11 within a period of 15 days form the service of notice in DVAT-41 - HELD THAT:- In the case of FLIPKART INDIA PRIVATE LIMITED VERSUS VALUE ADDED TAX OFFICER, WARD 300 & ORS. [2023 (8) TMI 987 - DELHI HIGH COURT] it was held that where a refund is claimed and stands embedded in the self-assessment form which is submitted, the respondents are liable to release the amount as claimed within two months from the date when the return is furnished in a situation where the assessee submits return on a quarterly basis. Undisputedly it is the provisions of Section 38(3)(a)(ii) of the Act which apply to the petitioner here.
The ambit of Section 38(2) of the Act is explained and it is held that an adjustment against a refund claim could only be made in respect of a tax demand which is “due” and “enforceable”. On a conjoint reading of the said provision along with Section 35(2) of the Act, it is concluded that till such time as objections are pending before the OHA, the tax demand cannot be said to have “crystalised” so as to be adjusted against the refund as claimed.
In the facts of the present case it is found that not only have adjustments been made contrary to the mandate of Section 38 of the Act, the demand as raised for FY 2010-2011 and which has been adjusted against the refund as claimed is additionally liable to be set aside on grounds resting on the provisions contained in Section 74 of the Act.
The position which therefore emerges is that not only would the Hearing Notice of 24 May 2022 be rendered unsustainable in law, even the adjustments which have been made in the Refund Order of 29 April 2022 would be contrary to the provisions of the Act. It is concluded that since it is manifest that insofar as the demand for FY 2010-2011 is concerned, the objections would be deemed to have been accepted and granted by the Commissioner upon the expiry of 15 days when computed from 04 May 2022. The demand as created in terms of the assessment order as framed would thus clearly not survive - as a consequence of which the Commissioner would stand denuded of the jurisdiction to adjudicate upon those objections once the statutory fiction comes into effect. Section 74(9) in that sense not only accords a closure but commands to hold that the objections preferred by the assessee would be deemed to have been accepted.
Turning then to the adjustments which have been made with respect to the demand for the first quarter of FY 2017-2018, the respondents do not dispute that the objections tendered by the petitioner before the OHA remain pending on its board. The demand for the first quarter of FY 2017-2018 is clearly rendered unenforceable and could not have been adjusted against the refund as claimed by the petitioner for the first quarter of FY 2016-2017. This aspect is clearly covered by the decision in Flipkart.
The instant writ petitions is allowed and the Hearing Notice dated 24 May 2022 is quashed. The Refund Order of 29 April 2022 shall for reasons aforenoted stand set aside to the extent that it adjusts an amount of Rs. 13,60,14,547/-.
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2023 (9) TMI 1419
Classification of goods - Whether specific entry no.35 of Schedule-IV do not cover the 'Argon Carbon Dioxide, Oxygen, Hydrogen, Carbon gases as "Other non metals? - HELD THAT:- It is quite apparent that gases involved in the products in question are individually covered under Entry No. 35 of Part B of Schedule IV to the RVAT Act.
Whether a combination/mixture of these gases, which are individually covered, can be ousted from the said Entry? - HELD THAT:- It cannot be emphasized enough that in indirect tax matters, long standing classification cannot be disturbed merely on personal opinion/knowledge. The revenue has to discharge its burden to prove that the change in classification is warranted and necessary by adducing cogent and corroborating evidence. Mere assertion or personal opinion, even of the Commissioner, without any supporting evidence is of no use or value. Since the revenue has not discharged its burden to show that the products in question, i.e. mixture of the gases which are individually covered under Entry No. 35 ('Industrial Inputs'), would not be covered in the broad Entry No. 35 of Part B ('Industrial Inputs') of Schedule IV to the RVAT Act, the levy of additional tax and interest cannot be sustained.
The question of law framed have to be answered in favour of the petitioner- assessee and against the respondent-revenue.
All STR allowed.
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2023 (9) TMI 1369
Time limitation - present Writ Petition was filed by the petitioner on 04.07.2022 immediately after the impugned order dated 01.06.2022 was served within the statutory period prescribed for filing the appeal before the expiry of limitation for filing statutory appeal before the Appellate Authority had expired - Wrongful determination of taxable turnover under Rule 8(5)(d) of the TNVAT Rules, 2007, r/w Section 5 of the TNVAT Act, 2006.
HELD THAT:- Section 5(1) of the TNVAT Act, 2006 is the charging provisions for works contract. The taxable turnover is to be determined under Rule 8(5) of the TN VAT Rules,2007. Only the amounts specified in Clauses (a) to (i) to Rule 8(5) of the TNVAT Rules, 2007 are to be allowed to be deducted for determining the taxable turnover in the case of works contract - If amount is not ascertainable from the books of accounts maintained and produced by a dealer before the assessing authority, deduction shall be of such amount as is calculated at the rate specified in column (3) of the Table to Rule 8(5) of the TNVAT Rules, 2007.
Since, it is the case of the petitioner that few more TDS certificate have been issued to the Petitioner by the Greater Corporation of Chennai, the petitioner is directed to furnish the same to the respondent within a period of thirty (30) days from the date of receipt of a copy of this Order.
The 1st respondent is directed to issue a corrigendum to the impugned order by revising the tax liability after adjusting the TDS certificates said to have been issued during the pendency of this Writ Petition, within a period of sixty (60) days from the date of receipt of a copy of this order.
The petitioner shall thereafter file an appeal before the Appellate Authority under the provisions of the TNVAT Act, 2006, within a period of ninety (90) days from the date of receipt of a copy of this order.
Petition dismissed.
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2023 (9) TMI 1368
Principles of natural justice - rejection of application for recovery of arrears in mechanical manner without assigning any reasons - authority to adjust under Rule 51 of the Bombay Sales Tax Rules, 1959 against dues payable under the Maharashtra Purchase Tax on Sugarcane Act, 1962 - HELD THAT:- The reply affidavit does not justify order dated 21st August 2019 passed by the Deputy Commissioner of State Tax in rejecting the Petitioner’s application under Section 7 of the Maharashtra Settlement of Arrears of Tax, Interest, Penalty or Late Fee Ordinance, 2019. It does not furnish any reasons whatsoever to disentitle the Petitioner for such settlement. Insofar as the refund adjustment order is concerned, it also appears that the Deputy Commissioner has proceeded to issue such orders patently without jurisdiction as he could not have assumed jurisdiction of an authority under the 1962 Act. On such count, the impugned refund adjustment order is rendered bad and illegal.
It appears that although such refund order is passed on 25th July 2019, the Deputy Commissioner has proceeded to exercise jurisdiction under Rule 51 of the Bombay Tax Rules, 1959 (the 1959 Rules), whether it was at all permissible to invoke the provisions of the 1959 Rules is another question, which also goes to the root of the matter. Be that as it may, the refund adjustment order cannot be sustained for want of jurisdiction.
The impugned order dated 21st August 2019 is quashed and set aside. The refund application of the Petitioner would be required to be restored to the Deputy Commissioner to be decided in accordance with law - Petition allowed.
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2023 (9) TMI 1367
Validity of assessment order - disallowance of claim of exemption made by the petitioner under Section 6(2) of the Central Sales Tax Act. 1956 - denial on the ground that the sale in question to the ultimate buyer was not taken place during the inter-State movement of the goods in question and according to the Assessing Officer sale by the petitioner to its ultimate buyer took place prior to the purchase by it from its seller - HELD THAT:- On a plain reading of Section 3 along with explanation (i) and (ii) and Section 6(2) of the Central Sales Tax Act along with the aforesaid Trade circular it clearly appears that the commencement of movement of the goods is effected in case of movement from one State to another State from the time of delivery of such consignment to the transporter and is terminated at the time when delivery is taken from such transporter and also is effected by transfer of documents of title of such consignment to a subsequent buyer during the movement from one State to another State.
The main grounds of refusal to grant exemption to the petitioner, under Section 6(3) of the Central Sales Tax Act, 1956, by all the Authorities below are that the transfer of title/sale by the petitioner to the ultimate buyer was effected before the commencement of movement and not during the movement of the goods in question which finding on considering the facts and circumstances of the case and provisions of law, is perverse and misinterpretation of relevant provisions of the Act and the notification in question.
The respondents could not show any piece of evidence to establish that the subsequent sale to the ultimate buyer effected prior to the commencement of movement of goods in question as defined under Section 6(2) read with explanation 2 and 3 under Section 3 of the Central Sales Tax Act as well as the aforesaid notification dated 4th October, 2010.
The impugned order of all the impugned Authorities are not sustainable in law - Petition disposed off.
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2023 (9) TMI 1366
Industrial Promotional Assistance (IPA) scheme - principle of promissory estoppel - whether the respondent authorities can claim to have changed their policy midway vis-à-vis the petitioners and the entities covered by the special package only? - HELD THAT:- Nothing in the materials on record or from the arguments of the respondent authorities indicate that there was a declared change of policy or withdrawal of the special package given to the petitioners at any point of time.
In the present case, not only was a special package specifically granted to the petitioners on March 2, 2006, but the respondent authorities went on continuously acting on the same for more two years by duly disbursing the subsidies in favour of the petitioners - The present case is not a case where the State made a promise of giving a subsidy, but subsequently changed the policy decision, thereby depriving prospective applicants for such subsidy from getting the subsidy.
The attempt of the respondent authorities to invoke the principles of the 2004 scheme and the caps stipulated therein as well as the principles embodied in the 2000 scheme, per se, is entirely mala fide and arbitrary and designed to defeat the petitioners’ legitimate claim for the balance amount under the special package - there is no scope of giving a premium to such arbitrary endeavour of the State.
The respondent authorities to ensure that the balance amount due to the petitioners, to the tune of Rs. 1,18,22,02,436/-, in terms of the break-up given in the supplementary affidavit filed by the petitioners today, to which the petitioners are entitled to under the special package-in-question, be disbursed to the petitioners at the earliest, positively within three months from date - Application allowed.
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2023 (9) TMI 1365
Validity of preassessment notices - challenge on the premise that the impugned notices are barred by limitation in terms of Rule 5 (6) of the Central Sales Tax (Puducherry) Rules 1967 - time limitation - HELD THAT:- Though the question here relates to one of limitation, this Court is not inclined to entertain the batch of writ petitions at the stage of show cause notice for it is trite law that though there is no absolute bar or embargo against entertaining writ petitions against notices, however, interference should be in rare cases and not as a matter of routine. Though, the restriction is self imposed it has been consistently held that High Court shall exercise restraint in entertaining writ petitions under Article 226 of the Constitution of India at the stage of show cause notice. This Court is of the view that whether the notices are barred by limitation or not can be adjudicated by the authority issuing the notice and it is open to the petitioner to submit its objection to the proposal including the plea of limitation.
Limitation is a mixed question of fact and law which is yet another reason as to why this Court is not inclined to entertain the writ petition at the stage of show cause notice. The writ petitions are disposed of with liberty to the petitioner to file their objections within a period of 6 weeks from the date of receipt of a copy of this order, if any such objections are filed, the Respondent shall consider the same after providing the petitioner reasonable opportunity of personal hearing.
Petition disposed off.
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2023 (9) TMI 1276
Seeking refund of the amount paid in excess in view of the TDS deducted from the State bills of the petitioner and paid to the State Government - rejected in view of non-passing of the order of assessment orders for the assessment years 2010-11 to 2015-16, within the provisions of Section 29 of the Tripura Value Added Tax Act, 2004 - HELD THAT:- The impugned order dated 31-8-2021 is hereby set aside. The case for the assessment year of 2010-11 to 2015-16 under the Tripura Value Added Tax Act, 2004 is remanded back to the Respondent No. 3 for passing the order under Sections 29 and 43 of the Tripura Value Added Tax Act, 2004 after giving the petitioner a reasonable opportunity of being heard.
Petition disposed off.
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2023 (9) TMI 1250
Applicability of ratio of decision of the Apex Court for the similar matters in other states - Classification of goods - Mosquito Mats, Coils and Vaporizers - Mortein Insect Killers - Petition sought clarification of the observations of this Court in M/S RECKITT BENCKISER (INDIA) LTD. VERSUS COMMISSIONER COMMERCIAL TAXES & ORS.[2023 (4) TMI 408 - SUPREME COURT] as the said observations ought not to be construed to be general observations, but only in the context of the Kerala Value Added Tax Act and the notifications issued thereunder.
HELD THAT:- It is clarified that the observations made by this Court in judgment dated 10.04.2023 in paragraphs 9.1. and 9.4 are made in the context of Kerala Value Added Tax Act and are not general observations, which could apply to other State enactments.
Application disposed off.
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2023 (9) TMI 1249
Provisional attachment of Bank Accounts - validity of notice being an intimation under Section 38 of the Maharashtra Value Added Tax Act, 2002 - HELD THAT:- Section 35 of the MVAT Act pertains to provisional attachment to protect revenue in certain cases. The same was issued more than a year back, hence, such provisional attachment stands automatically revoked by operation of law by virtue of the provisions of sub-section (2) of Section 35 of the MVAT Act, which mandates that every provisional attachment shall cease to have an effect after the expiry of one year from the date of the service of an order issued under Sub-section (1) - there are no order, whereby the proviso below sub-section (1) was invoked and/or for any reasons to be recorded in writing, the period of one year as contained in the order was in any manner and as permissible in law was extended. Thus, in our opinion, by operation of law, the provisional attachment of all demat accounts has come to an end.
The interest of justice would require to stay the impugned notice dated 11th April 2022, issued by the Respondents under Section 38 of the MVAT Act against the Petitioner - the provisional attachment of the Demat Accounts of the Petitioner and his family members has lapsed by virtue of the provisions of Subsection (2) of Section 35 of the MVAT Act.
List the matter on 15th September 2023, High on Board.
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2023 (9) TMI 1187
Recovery of penal interest - Violation of principles of natural justice - impugned order of recovery of interest has been passed without hearing the petitioner - non-renewal of license of Excise vends - HELD THAT:- It is not the respondents case that the licence gets automatically renewed without its cancellation or suspension, therefore, for the period of three financial years from 1995-1998, the petitioner having no licence to run the business of liquor, it was not liable to pay the licence fee for that period. It seems that the petitioner under the hope and expectations that his application for shifting of his business from Link Road to Bus Stand, Jammu shall be considered which was ultimately allowed by the respondents had paid an amount of ₹8.50 lacs as licence fee for that period besides an amount of ₹6.00 lacs deposited earlier in terms of Court’s order. The petitioner, has thus, deposited the amount of ₹14.50 lacs on account of licence fee and on withdrawal of his petition and till then interim order passed by this Court was operating which had conditioned that the petitioner shall pay an amount of ₹6.00 lacs and remaining amount shall be payable after the disposal of the writ petition.
The impugned communication requiring the petitioner to remit penal interest of ₹14.49 lacs in terms of Section 24-A of the J&K Liquor Licence and Sales Rules, 1984 can be ordered to be deposited only on non-payment of the licence fee. Since the licence fee had been deposited by the petitioner in terms of the Court order, the same cannot be said to be a delayed payment so as to incur the penal consequences of paying interest in terms of Section 24-A of the J&K Excise Act. Rule 20 of the J&K Liquor Licence and Sales Rules, 1984 provided that licence unless renewed is determined on 31st March at the end of the financial year.
Petition allowed.
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2023 (9) TMI 1057
Levy of purchase tax - penultimate sale - raw hides and skin purchased without tax were converted as dress hides using materials purchased at concessional rate of tax under Section 3(3) of the TNGST Act - It was held by High Court that the petitioner is therefore not entitled to exemption under Sections 5(3) and 5(4) of the Central Sales Tax Act, 1956 - HELD THAT:- No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India.
SLP dismissed.
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2023 (9) TMI 1056
Seeking permission to withdraw the petition - settlement having been arrived at already - HELD THAT:- The petition is dismissed as withdrawn.
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2023 (9) TMI 1006
Refund of Input Tax Credit - Adjustment of refund with tax demand - Delay in processing the refund beyond - petitioner did not respond to several notices issued under Section 59 (2) of DVAT Act - time limitation - HELD THAT:- A fortiori the impugned adjustment letter dated 18 November, 2022 cannot be sustained in law since the mandate of Section 38 read with Section 39 and 59 of the DVAT Act was not followed. Therefore, the petitioner is entitled to the refund claimed.
Validity of default notices of tax & interest - HELD THAT: All said and done, in so far as issuance of the impugned default notices of tax & interest is concerned, in light of the case of the respondent that revised return dated 31 March 2017 was filed for the 4th quarter 2015-16 and notices under Section 59(2) DVAT Act dated 19 February 2016, 27 May 2016 and 25 May 2018 were not complied with by the petitioner, the only recourse in law is to file a statutory appeal under Section 74 of the DVAT Act and it would be open to the petitioner to raise all objections regarding untenability of the impugned default notices of tax & interest including under Section 34 of the DVAT Act with regard to the limitation prescribed for assessment or re-assessment.
The instant Writ Petition is partly allowed to the effect that the impugned adjustment order dated 18 November 2022 is hereby quashed and the respondent is consequently directed to refund the amount of Rs. 17,10,15, 285/- for the 4th quarter of 2015-16 and also Rs. 5,44,39,148/- for the 1st quarter of 2017-18 along-with interest as per Section 42 of the DVAT Act from the date it fell due till realisation.
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2023 (9) TMI 1005
Validity of assessment order - failure of appellant to deposit the pre-deposit amount - disallowance of input tax credit - HELD THAT:- The appellant shall deposit Rs. 50 lakhs within a period of 15 days from today and Rs. 50 lakhs shall be deposited before 31.10.2023 and Rs. 1 crore before 30.11.2023 with the respondent instead of bank guarantee - The appellant shall also file an undertaking to the aforesaid effect before this court within a period of one week from today - The appellant shall tender a bond to the satisfaction of the Assessing Officer for the remaining amount of pre-deposit as directed by the Tribunal.
The matter should be remanded to the First Appellate Authority as the First Appellate Authority has dismissed the appeals of the appellant without going into the merits. The matter is therefore remanded to the First Appellate Authority.
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2023 (9) TMI 911
Refund of excess Input Tax Credit - purchases from dealers covered by the Deferment Scheme, 2005 notified under section 62 of HP VAT Act - presumptive taxation - it was held by High Court that the appellant is entitled for refund - HELD THAT:- There are no merit in the Special Leave Petition.
SLP dismissed.
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