|
Advanced Search Options
VAT / Sales Tax - Case Laws
Showing 241 to 260 of 27754 Records
-
2024 (10) TMI 1175
Violation of principles of natural justice - declination to grant waiver of pre-deposit to the appellant without assigning any reasons for such decision - declination to grant waiver of pre-deposit to the appellant even though the entire demand is based upon Section 61 of the VAT Act which is wholly irrelevant to the issue of determination of “sale price” - declination to grant waiver of pre-deposit to the appellant even though adjustment of tax liability is clearly permissible under Section 8 of the VAT Act - declination to grant waiver of pre-deposit to the appellant even though the appellant has a strong prima facie case squarely supported by decision of Hon’ble Supreme Court in the case of Southern Motors [2017 (1) TMI 958 - SUPREME COURT].
HELD THAT:- On perusal of the impugned order passed by the Tribunal dated 16.06.2022 as well as the order dated 18.11.2022 dismissing second appeals on the ground of non-payment of pre-deposit, it is opined that the Tribunal has admittedly not considered the prima facie case of the appellant while determining the amount of pre-deposit which ought to have been considered as per the decision of this Court in case of Kavya Marketing [2022 (4) TMI 1202 - GUJARAT HIGH COURT].
The impugned order passed by the Tribunal is accordingly quashed and set aside. The appeals are therefore allowed by remanding the matter back to the Tribunal to consider the prima facie case of the appellant for deciding the quantum of pre-deposit, if required.
-
2024 (10) TMI 1125
Input tax credit - non-existing or bogus entities - HELD THAT:- The appeal is disposed off in light of ratio in Ecom Gill Coffee Trading Private Limited [2023 (3) TMI 533 - SUPREME COURT] where it was held that 'Both, the second Appellate Authority as well as the High Court have materially erred in allowing the ITC despite the concerned purchasing dealers failed to prove the genuineness of the transactions and failed to discharge the burden of proof as per section 70 of the KVAT Act, 2003.'
Appeal allowed.
-
2024 (10) TMI 1124
Demand of central sales tax on movement of goods from the manufacturing units of the appellants situated in the State of Rajasthan to their depots in the State of Bihar and the State of Jharkhand - inter-state supply of goods or inter-state stock transfers? - HELD THAT:- Mere transfer of goods from a head office to a branch office or inter-branch transfer of goods which broadly come under the phrase “branch transfers” cannot be regarded as sale in the course of interstate trade for the simple reason that a head office or branch cannot be treated as having traded with itself or sold articles to itself by means of stock transfers. A contract of sale of goods would be effective when a seller agrees to transfer the property in goods to the buyer for a price and that such a contract may be either absolute or conditional. If the transfer is in presenti, it is called a “sale”; but if the transfer is to take place at a future time and subject to some conditions to be fulfilled subsequently, the contract is called an “agreement to sell”.
When the conditions subject to which the property in goods is to be transferred are fulfilled, the “agreement to sell” becomes a “sale”. When the “sale” or “agreement to sell” causes or has the effect of occasioning the movement of goods from one State to another, an inter-state sale would ensue and would result in exigibility of tax under section 3(a) of the Central Sales Tax Act.
Under the Liquor Policy, the Corporation is the wholesaler for all kinds of liquor, including beer. A manufacturer desirous of supplying beer to the Corporation for subsequent distribution shall have to submit documents, including the Master Agreement. The Corporation issues OFS on the depots of Carlsberg in the State of Bihar based on the stock requirements of the Corporation, but the Corporation has the right to decide the quantity for which OFS can be issued and the Corporation is also under no obligation to procure any specified minimum quantities of any brand of beer during the currency of the contract - The stocks have to be delivered at the concerned depots of the Corporation at the cost and risk of the manufacturer. Any delivery that deviates from the OFS is not acknowledged by the Corporation and would not be unloaded at the depots.
In the present case, in terms of the Liquor Policy of the State of Bihar, the Corporation is under no obligation to procure any specified minimum quantities of beer. The Corporation issues the OFS on the local depots of the appellants situated in the State of Bihar for supply of specified quantity of beer. The OFS have a validity period within which the goods are required to be delivered to the Corporation. Clause 10.1 of the Liquor Policy clearly provides that the supply of beer to the Corporation against OFS shall be construed as an agreement to sell under section 4(3) of the Sale of Goods Act. Clause 5A of the License also requires Carlsberg to maintain a minimum stock of liquor at its depots in the State of Bihar as prescribed by the Corporation from time to time and to recoup the stock within seven days in case it goes below the minimum limits - it is the OFS that concludes the contract of sale between Carlsberg and the Corporation. The movement of goods from the State of Rajasthan to the depots of Carlsberg in the State of Bihar, therefore, cannot be said to have been occasioned by reason of any sale agreement. The appellants treated the sale from its depots in the State of Bihar to the Corporation in the State of Bihar as sale and paid local VAT.
There can, therefore, be no manner of doubt that the movement of goods from the manufacturing units of the appellants situated in the State of Rajasthan to the depots of the appellants in the State of Bihar or the State of Jharkhand was not occasioned by any prior contract of sale or agreement to sell. The appellants had merely stock transferred beer from the manufacturing units of the appellants situated in the State of Rajasthan to the depots of the appellants situated in the State of Bihar or the State of Jharkhand. The movement of goods did not occur from the State of Rajasthan to the State of Bihar or the State of Jharkhand pursuant to the Master Agreement or the Liquor Policy.
The Master Agreement, therefore, cannot be treated to be an agreement to sell. It would, in fact, be in the nature of a standing order or a tender which does not amount to a sale or an agreement to sell. It is, therefore, clear that none of the clauses of the Master Agreement contemplate or refer to any inter-state delivery of the goods from the State of Rajasthan to the State of Bihar or the State of Jharkhand. The movement of goods cannot also be considered incidental to the Master Agreement. Reliance placed by the Rajasthan Tax Board and the learned senior counsel for the State of Rajasthan on clause 2 of the Master Agreement to justify that the movement of goods occurred incidental to the Master Agreement, is not correct.
It will, therefore, not be possible to sustain the order dated 24.11.2014 passed by the Rajasthan Tax Board. It is, accordingly, set aside and all the fourteen appeals filed by Carlsberg, United Breweries and Mount Shivalik are allowed.
-
2024 (10) TMI 1050
Evasion of tax - person responsible for such evasion - whether the petitioner can be seen as person who sought to evade the tax payable in respect of the consignment of jewellery that was brought by him from Mumbai to Cochin? - HELD THAT:- Taking in isolation the fact that the petitioner had not covered the consignment that was brought by him from Mumbai to Cochin by a valid Form 8FA declaration as mandated under the Kerala Value Added Tax Rules, the Commercial Tax Authorities in the State were perhaps justified in assuming that but for the detection, the petitioner might have well evaded his tax liability by clandestinely selling the consignment of jewellery within the State of Kerala. The imposition of a penalty on him in that event would have been acceptable. In the instant case however, we find that it is admitted by the Commercial Tax Officer at the Check Post in Walayar that the very goods that were brought by the petitioner from Mumbai to Cochin were taken back in their entirety to Mumbai via Coimbatore. The document produced by the petitioner as Annexure IV along with the O.T. Revision sufficiently corroborates the said fact.
As a matter of fact, there was no sale occasioned of the jewellery items brought by the petitioner from Mumbai to Cochin within the State of Kerala. Although at the stage of determining the penal liability of the petitioner under Section 67 of the Act, the State was justified in presuming that but for the detection/apprehension of the petitioner, the petitioner could well have evaded the tax due to the State, in the light of the subsequent events which clearly points to the petitioner not having actually sold any items within the State, and having taken the goods outside the State a lenient view in the matter of the imposition of penalty is called for.
The O.T. Revision is disposed off.
-
2024 (10) TMI 889
Classification of goods - electric motor - falling in capital goods under entry 27 of Schedule-IV or not - HELD THAT:- There are no reason to interfere with the impugned judgment and order passed by the High Court. Hence, the Special Leave Petitions are dismissed.
-
2024 (10) TMI 802
Challenge to assessment order - impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard - violation of principles of natural justice - HELD THAT:- The impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard, and by erroneously recording that the Petitioners’ representative was heard on 23 May 2023, when the impugned order was made on 20 March 2023. Even in this case, the impugned order, though allegedly made on 20 March 2023, was served upon Petitioner No.3 only on 1 July 2023, after four months.
This Petition is accordingly disposed of by quashing and setting aside the impugned order dated 20 March 2023 and the corresponding demand notice dated 20 March 2023. The request for remand is not acceded to, again, for the reasons set out in the judgment and order disposing of Writ Petition No.11929 of 2023, which apply in the facts and circumstances of this case.
-
2024 (10) TMI 800
Challenge to assessment order - impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard - violation of principles of natural justice - HELD THAT:- The impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard, and by erroneously recording that the Petitioners’ representative was heard on 23 May 2023, when the impugned order was made on 20 March 2023. Even in this case, the impugned order, though allegedly made on 20 March 2023, was served upon Petitioner No.3 only on 1 July 2023, after four months.
This Petition is accordingly disposed of by quashing and setting aside the impugned order dated 20 March 2023 and the corresponding demand notice dated 20 March 2023. The request for remand is not acceded to, again, for the reasons set out in the judgment and order disposing of Writ Petition No.11929 of 2023, which apply in the facts and circumstances of this case.
-
2024 (10) TMI 799
Challenge to assessment order - non-application of mind - violation of principles of natural justice - HELD THAT:- Though the impugned assessment order dated 24 May 2023 may be vitiated by non-application of mind, failure of natural justice, and even breach of Section 23 (4) of the MVAT Act, which statutorily incorporates the requirement of personal hearing, we cannot infer any manipulation, backdating, or subterfuge. Besides, there was no unreasonable delay in communicating the impugned assessment order dated 24 May 2023. The issue of this order being made beyond the statutorily prescribed limitation period also does not arise in this matter.
The facts and circumstances that persuaded not to accede to the prayer for remand in Writ Petition Nos. 11929 of 2023 and 11915 of 2023 are not the facts involved in the present Petition. Therefore, by balancing the interest of the Revenue and the Petitioners’ entitlement to fair treatment, it is satisfied that a remand would be in order after quashing the impugned assessment order.
The impugned assessment order dated 24 May 2023 is quashed and set aside - the matter is remanded to the assessing officer to make a fresh assessment order for FY 2015-2016 after giving the Petitioners reasonable opportunity of being heard - petition disposed off by way of remand.
-
2024 (10) TMI 798
Seeking refund alongwith interest in terms of Section 38 and 42 of the Delhi Value Added Tax Act, 2004 - non-furnishing of declaration forms - compliance with timelines or not - HELD THAT:- Admittedly, the refund was not released within the stipulated period of two months from the date of submitting the Form DVAT 2 in terms of Section 38 (3) (a) (ii) of the DVAT Act.
The State having received the money without rights and having retained and used it, is bound to make the party good, just as an individual would be under the circumstances. The obligation to refund the money received and retained without right implies and carries with it the right to interest. Interest is the return or compensation for use or retention of another’s money. Section 42 of the DVAT Act deals with payment of interest.
There is no material on record to indicate that the petitioner was in any manner responsible for delay in processing of the refund. There is not even any such allegation in the counter affidavit filed by the respondent. In terms of statutory time frame which stands constructed by Section 38 (3) (a) (ii) of DVAT Act, the refund had become payable on 26.12.2021. It is a clear case of illegal retention of money of the petitioner. The petitioner cannot be denied interest on the amount of interest withheld unjustifiably.
The petitioner is entitled for interest on refund. Admittedly, statutory rate of interest is 6% by virtue of notification dated 30.11.2005. Petitioner shall be therefore entitled to simple interest @ 6% per annum from the date it became due - Petition allowed.
-
2024 (10) TMI 797
Interest alongwith interest on refunds of excess amount deposited - non-furnishing of declaration forms - said amount not reflected in the returns filed for the relevant period, nor adjusted against the demands - no revised return filed within one year to claim the refund as envisaged under Section 28 of the DVAT Act - refund has been claimed after a gap of more than five years - HELD THAT:- It is clear from the language of Section 28 of the DVAT Act that if there is any discrepancy in the return furnished for the tax period, the assessee is liable to furnish a revised return. It is not the case of the respondent that there was any discrepancy in the return furnished by the petitioner and therefore the petitioner was not under any obligation to file the revised return under Section 28 of the DVAT Act, inasmuch as, the amount of Rs. 3,50,00,000/- deposited by the petitioner was not a tax but an amount deposited with the department, out of which, tax amount, if any, was to be deducted.
As is manifest on a conjoint reading of Section 35 (2) and 38 (2) of the DVAT Act, as long as objections remained pending with OHA, any amount claimed by the respondent would clearly not answer the description of an amount due or payable as contemplated under Section 38 (2). Respondent, therefore, cannot possibly seek to justify the retention of the refund claim on account of being barred by limitation. The delay in processing the refund is endemic to the DVAT authorities and if the same is considered, the delay, even if any, on the part of the petitioner approaching the authorities is not long. Respondent cannot possibly seek to justify the retention of refund claim on account of its having been deposited voluntarily or being barred by limitation. It is a clear case of unjust retention of the money of petitioner. Respondent clearly appeared to have acted arbitrarily in illegally depriving the petition of the refund as claimed, in flagrant violation of the mandate of Section 38 of the DVAT Act.
Grant of interest on refund - HELD THAT:- Interest is the return or compensation for use or retention of another’s money. The State having received the money without right, and having retained and used it, is bound to make the party good, just as an individual would be under the circumstances. The obligation to refund money received and retained without right implies and carries with it the right to interest. Section 42 of the DVAT Act deals with the payment of interest - In terms of Section 42 of the DVAT Act, a person is entitled to interest from the date the refund was due to be paid or the date when the amount was over paid by the person, whichever is later - A harmonious reading of Section 38 and 42 makes it clear that the interest is payable to the petitioner from the date when it accrued in terms of Section 38 (3) (a) (ii) of 2004 Act - petitioner would also entitled to interest along with refund of Rs. 3,50,00,000/- in terms of Section 42 (1) of the DVAT Act.
The impugned Refund Rejection Order dated 31.10.2023 is hereby quashed. Respondent is consequently directed to refund the amount of Rs. 3,50,00,000/- along with statutory interest as also the interest on refunds for the 1st, 2nd, 3rd and 4th quarters of AY 2012-13 from the date it fell due - Petition allowed.
-
2024 (10) TMI 796
Levy of Penalty in terms of Section 16(2)(d) of Tamil Nadu General Sales Tax Act, 1959 - sales/purchase suppression - addition on account of purchase suppression towards Aluminium winding wires, freight and Gross Profit - HELD THAT:- The trading account, if at all such document existed, ought to have been produced before the authorities at the time of inspection or at least before the assessing officer. No reason has been assigned for such nonproduction at the relevant point in time and neither has the Appellate Assistant Commissioner assigned any reason for permitting the admission of the document, belatedly. There is thus no evidence whatsoever to prove the assessee's argument that the stock relating to the turnover added as suppression of purchase/sales, formed part of the closing stock for the previous period. This argument of the petitioner is rejected and the conclusion of the Tribunal in this regard is confirmed.
Two equal time additions towards purchase suppression is unwarranted. The business premises of the petitioner has been subjected to inspection and the authorities had full access to the documents and books of accounts. They were thus in full possession of all particulars to enable a proper quantification of turnover. The books of accounts maintained by the petitioner have been accepted and the assessing authority has not rejected the same. The authority however found some material/evidences indicating purchase suppression and have made additions on this account, which is confirmed.
In the absence of any other material/evidence over and above what was found to lead to the addition made to turnover, there is no justification in estimating any further addition. The double equal estimates made amount to pure speculation as they are admittedly not based on any adverse material.
The two equal time additions deleted - the additions towards the purchase/sale suppression as well as the penalty sustained - petition disposed off.
-
2024 (10) TMI 783
Challenge to impugned order and the impugned demand notice - failure of natural justice - non-application of mind - legal mala fides - HELD THAT:- In the gross facts of the present case, there is no question of relegating the Petitioners to the alternate remedy of appeal under the provisions of the MVAT Act. In a case where the violation of the principles of natural justice is apparent, the objection based upon the non-exhaustion of alternate remedies is rarely entertained. In this case, the Respondents did not even raise or, in any event, press the objection based upon the non-exhaustion of the alternate remedies.
Though the impugned assessment order is dated 14 March 2022, the same was served upon the 3rd Petitioner (though it relates to the 1st and 2nd Petitioners) only on 1 July 2023, after 15 months. In the Affidavit filed on behalf of the 3rd Respondent, there is no explanation for this inordinate delay in communicating or serving the impugned assessment order dated 14 March 2022.
The impugned assessment order refers to notice being served upon the Petitioners and the Petitioners filing their reply to the show cause notice. However, in the Affidavit, it is admitted that no show cause notice was ever served upon the Petitioners, and therefore, the Petitioners had no opportunity to file any reply. Section 23 (4) of the MVAT Act provides for the issue of a notice followed by a reasonable opportunity to be heard before assessing any assessee to the best of his judgment. Since neither any notice was issued to the Petitioners nor that the Petitioners granted any opportunity of being heard, the impugned assessment order is liable to be set aside for failure of natural justice and breach of the provisions of Section 23 (4) of the MVAT Act.
The impugned assessment order is vitiated by legal mala fides - the impugned assessment order dated 14 March 2022 is entirely unsustainable and is required to be quashed and set aside for gross failure to comply with the statutory provisions in Section 23 (4) of the MVAT Act and the principles of natural justice and fair play, non-application of mind and legal mala fides.
The impugned assessment order needs to be quashed and set aside on the grounds of breach of Section 23 (4) of the MVAT Act, violation of the principles of natural justice and fair play, non-application of mind, and legal mala fides.
Whether in the facts of the present case, accede to Ms Vyas’s submission about remanding the matter to the assessing officer for fresh adjudication after granting full opportunity to the Petitioners of being heard in the matter? - HELD THAT:- The Petitioners have made out the strong prima facie case that the impugned assessment order dated 14 March 2022 was, in fact, not made on the said date but made beyond 31 March 2022, on which date the statutorily prescribed period for making an assessment order expired given the proviso to Section 23 (4) of the MVAT Act. Under the proviso, the Assessing Officer had eight years to assess the Petitioners and make the assessment order.
Any indulgence by way of remand would not only reward the respondents with an enhanced limitation period to complete the FY 2013-2014 assessment proceedings but embolden unscrupulous tax officials to manipulate orders or otherwise mistreat the assessees - it is declined to remand the matter to the assessing authority after quashing and setting aside the impugned assessment order purportedly made out on 14 March 2022.
The impugned assessment order, purportedly made on 14 March 2022, is quashed and set aside - petition allowed.
-
2024 (10) TMI 615
Challenge to demand notice for recovery of outstanding dues - whether the claims if any under the Gujarat Value Added Tax Act, 2003 which are not considered in the Resolution Plan would stand extinguished? - HELD THAT:- From the record, it is noticed that in the proceedings filed before NCLT, during CIRP process, the Assistant Commissioner of State Tax, as one of the operational creditors, lodged a claim of Rs.38,86,63,983/- for its dues under the Gujarat Value Added Tax Act, 2003 for the assessment years 2006-07, 2009-10, 2010-11 and 2011-12. Thus, it cannot be denied that the respondent authorities were not aware about the pending liquidation proceedings. Further, from record it appears that objections were not raised by the respondent authorities against approval of the plan. Since, respondent did not object to approval of the plan, question of respondent not being heard would not arise. No application was filed before NCLT in the pending proceedings by the State authorities.
In view of settled principle of law that once the resolution plan is approved, the claim, if any, stands extinguished and no claim can be made by any entity including the State Tax Authority, it is deemed appropriate to quash and set aside the demand notice dated 16.07.2020. Therefore, the demand notice dated 16.07.2020, issued by State Tax Officer (1), Unit-7, Ahmedabad is hereby quashed and set-aside.
Petition allowed.
-
2024 (10) TMI 559
Levy of commercial tax under the Commercial Tax Act as well as the Entry Tax Act - challenge to assessment orders - works contract or not - Build, Operate and Transfer (BOT) contract - scope of registered dealer as defined under Section 2 (gg) of the M.P. Entry Tax Act, 1976 - HELD THAT:- It is a settled law that no person has a right to collect a toll or any tax from private persons for using the road. The State Government gave a right to collect the toll to the petitioner from the vehicle passing through the road for a definite period to recover the only cost of construction i.e. the sale amount or the contract value, therefore, the Dy. Advocate General for the State has rightly contended that in this case, the contract amount or sale price is liable to be made to the contractor as a deferred payment by authorizing him to recover the toll tax and except this, there is no difference in the work done under the BOT scheme and in the normal works contract.
This issue has been considered in detail by the Full Bench of this Court in the matter of Viva Highways [2017 (5) TMI 1622 - MADHYA PRADESH HIGH COURT] before the Apex Court in which it has been held that the works contract means an agreement must be in writing, it must be executed of any work related to the construction, repair or maintenance of any building, superstructure or other amenities mentioned in the definition. Any agreement by whatever name is called, if it falls within the meaning of a definition of works contract as per the definition of 1983 it must be treated as the works contract.
The petitioner is misconstruing the terms of the agreement and the construction of Dewas by-pass road on a 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 the due permission from the State Government, it is nothing but a deferred payment by a mode of recovery of toll. Hence, there are no substance in the writ petition.
The petition being devoid of merit and substance are hereby dismissed.
-
2024 (10) TMI 558
Imposition of Entry Tax on the crude Soyabean Oil brought by the petitioners within the State of MP for manufacturing/refining Soyabean Refined Oil - revision filed u/s 62 of the MPCT Act read with the relevant provision of the Entry Tax Act - levy of tax also challenged on the ground that in case, the refining of Soya crude oil is treated as a process of manufacture then even in such case, soya crude oil being Raw material would be exempted under N/N. A-3-10-2000-ST-V(82) dated 06-09-2001.
HELD THAT:- In the case of Commercial Trade Tax V/s M/s Kumar Paints and Mills Store [2023 (3) TMI 943 - SUPREME COURT] the Apex Court considered the question with respect to the product which underwent mixing of base paint with different colours did not result in the new product after undergoing the process of manufacturing as defined under the U.P. Trade Tax Act. The revenue department contended that the sale of paints which had undergone mixing through a computerized process amounts to manufacture thereby resulting in new products.
The case in hand, admittedly the petitioner brought Soyabean crude oil within the State and after the process manufactured the refined oil. According to the petitioner, the entry tax on oil entered into the State of M.P. and after refining sent to the outside State hence the entry tax is not leviable because there is neither any consumption nor use of oil. The petitioner claimed the non-liveability on the ground that the process of refining does not constitute the process of manufacturing oil because before and after refining it remains the same commodity - The process of so-called refining has been explained in the aforesaid paragraphs with the help of the diagram clearly establishes that a big manufacturing plant is required to be installed for making Soyabean oil from crude Soya oil, therefore, the tax on entry of the goods into the local area has rightly been imposed for consumption/use or sale therein.
The petitioner is trying to avoid the payment of the entry tax solely on the ground that the petitioner is engaged in refining the crude Soya oil to Soyabean oil, no entry tax is leviable in view of Proviso 2 of Section 3 (1) of the Entry Tax Act, only in case of consumption or use of oil by the Assessee. It is correct that the Revisional Authority while rejecting the aforesaid contention has held that the process of refining crude oil does not constitute a process of manufacture in view of the said exclusion of the process of refining under notification No. 18 dated 01.04.1995 issued by the State under Section 2(o) of the MPCT Act, 1994.
As per Entry No.52 of List 2, VIIth Schedule of the Constitution of India, the tax on the entry of goods into the local area is leviable for consumption, use or sale therein even if it is called by whatever name manufacturing or refining. In the case of the petitioner, a new product Refined Soyabean oil emerges after applying various processes to the crude Soyabean oil. The cued soya oil is used in making finished consumable soyabean oil. Refined soyabean oil is a new commodity that is packed in bottles and cans of different sizes for sale in the market after undergoing various processes as explained. Therefore, there is a consumption/use in the local area before the sale of finished refined oil to other States by the petitioner. Even if the Revisional Authority has held that under notification No.18 dated 01.04.1995, the processing of refining of crude oil into refined soyabean oil cannot said to be manufacturing even then under N/N. 82 dated 06.09.2001 it is leviable for the Entry tax.
There are no ground to interfere with the order of the Assessment Authority and the Revisional Authority, therefore, all the Writ Petitions are hereby dismissed.
-
2024 (10) TMI 557
Entitlement of interest for grant of interest on the principal amount - bone of contention of the learned counsel for the petitioner is that the respondents were bound to refund the amount within six months from the date of the order of the Supreme Court i.e., 02.03.2006, they refunded the amount only on 25.04.2012 - HELD THAT:- A plain reading of Section 33-B of Andhra Pradesh General Sales Tax Act, 1957 makes it clear that when refund is as a result of order passed in an appeal or other proceedings, the amount must be paid without there being any claim preferred in that behalf by the assessee or licensee.
In the instant case, Section 33-B of the Act is applicable with full force. Admittedly, the order dated 02.03.2006 was passed by the Supreme Court, pursuant to which, refund was necessitated. Section 33-F of the Act talks about grant of interest, where no claim needs to be made - in a case of this nature, where the petitioner has succeeded in appeal from the Supreme Court, no claim was required to be made. Thus, Section 33-F of the Act is squarely applicable in the instant case.
A conjoint reading of Section 33-B and 33-F of the Act shows that the argument of learned counsel for the petitioner has substantial force. There is a statutory mandate ingrained in Section 33-B and Section 33-F of the Act to pay the statutory interest @ 12% per annum, after six months from the date of passing of the judgment of the Appellate Court, till the date of actual refund i.e., 24.04.2012. Thus, the respondents are directed to calculate and pay the said interest to the petitioner. The entire exercise of calculation and payment of interest to the petitioner shall be completed within (90) days from the date of communication of this order.
Petition allowed.
-
2024 (10) TMI 556
Maintainability of petition - availability of alternative remedy - Time Limitation - Challenge to Re-assessment Order and the consequential demand notice - claim for exemption from payment of Value Added Tax on “facility charges” disallowed - HELD THAT:- It is necessary to peruse Section 40 (4) of the JVAT Act, which specifies that no order of assessment and reassessment shall be made under section 40 (1) after the expiry of five years from the end of the year in respect of which the tax is assessable - In the present case, the Assessment Year is 2015-16 and five years from the end of the relevant year would be 31.03.2021. However, the order in the present case has been passed belatedly on 07.09.2021 and hence is clearly without jurisdiction and barred by limitation.
The Respondents have specifically admitted that the present reassessment proceedings have been initiated pursuant to an audit objection, under Section 42 (3) of the JVAT Act. In this regard it is pertinent to mention here that section 42 (3) of the JVAT Act only specifies one of the categories pursuant to which reassessment can be initiated and is therefore also subject to the rigours of limitation as provided under Section 40 (4) of the JVAT Act. Such period of limitation of five years cannot be given a complete go-by the Respondents as the stipulation has been inserted by legislature to give finality to proceedings to a certain assessment year. Completion of assessment of an assessee confers valuable right upon the said assessee and the said assessment proceeding can be subjected to re-assessment strictly in accordance with the statutory provisions contained under the Act.
This issue has already been decided by this Hon’ble Court in M/s. Rungta Mines Ltd. [2023 (8) TMI 786 - JHARKHAND HIGH COURT]. It is therefore, beyond cavil that the Order dated 07.09.2021 having been passed beyond the period of limitation, is void and bad in law.
Further, reassessment order being a nullity is without jurisdiction and hence its invalidity can be set up at any time. Since the present Order has been passed beyond the period of limitation, it has rendered the entire proceedings as a nullity.
Since the Order is a nullity, its invalidity can be set up at any point of time and alternative remedy is not a bar when the order is wholly without jurisdiction.
Re-assessment Order dated 07.09.2021 (Annexure-5) and the consequential demand notice dated 07.09.2021 (Annexure-6) demanding Rs. 2,37,69,924/- in respect of the Assessment Year 2015-16, are hereby, quashed and set aside - Application allowed.
-
2024 (10) TMI 500
Rate of tax applicable to the tread rubber that was sold by the assessee to the customers in the course of execution of the works contract - transfer of goods not in the form of tread rubber but in some other form - applicable rate would be 12.5% / 14.5% for the assessment years 2011-12 / 2013-14 respectively or not - HELD THAT:- It is found that apart from the fact that the clarificatory order dated 7.4.2016 admittedly governed the parties for the assessment years 2011-12 and 2013-14 respectively, the process adopted by the assessee for the purposes of retreading works involved the incorporation of a tread rubber strip manufactured by it on to the old tyres that were brought by the customers for retreading. The process of works contract apparently involved the scraping of the outer layer of the old tyre so as to make it suitable for the affixation/fusion of the tread rubber strips manufactured by the assessee onto it. There may have been other processes including vulcanization which were necessary for the purposes of effective retreading done on an old tyre. In our view, the processes undertaken by the assessee were sufficient to rob the tread rubber strips manufactured by it of their original identity and shape while being incorporated into the works contract of retreading the old tyre.
As rightly noticed by the First Appellate Authority and in the clarificatory order dated 7.4.2016, that the transfer of goods involved in the execution of the works contract in the instant cases was not in the form of goods but in some other form. The impugned orders of the Appellate Tribunal cannot be legally sustained. The appropriate rate of tax on the sale of tread rubber by the assessee would have to be taken as @ 12.5% for the assessment year 2011-12 and 14.5% for the assessment year 2013-14.
The O.T. Revisions are thus disposed by answering the questions of law raised in favour of the Revenue and against the assessee.
-
2024 (10) TMI 499
Classification of goods categorized as “vitamins and minerals pre-mix” - to be categorised in the category of Entry 29 of Schedule II of the Act, 2008 under the heading “chemicals” and to be taxed @ 4% or under the Entry 89 under the heading “ores and minerals” taxable @ 12.5%? - HELD THAT:- Section 4 of the Act, 2008 which a charging section clearly states that the “tax payable on sale of goods under this Act, shall be levied and paid.” accordingly tax is levied on the goods and not individually on the raw material from which the goods are prepared. Undisputedly, items given in Entry 29 are not the goods which are being sought to be taxed in the present case, but it is the finished product which is “vitamins and minerals pre-mix” - this Court is unable to accept contention of the revisionist that goods classified as “vitamins and minerals pre-mix” would fall under the category ‘chemicals’.
Whether “vitamins and minerals pre-mix” would fall under the category “drugs and medicines” as provided under Entry 41? - HELD THAT:- Entry 41 also specifically in its contents excludes medicated soap, shampoo, antiseptic cream, face cream, massage cream, eye gel and hair oil etc. This entry very clearly defines the products which are used for alleviation of any disease or its symptoms - “vitamins and minerals pre-mix” does not fall in the category of “drugs and medicines” nor has any material adduced either before the authorities below or before this Court that it would qualify for being classified as “drugs and medicines” and accordingly, there is no reason to accept the contention of the revisionist that “vitamins and minerals pre-mix” would fall under the category of “drugs and medicines”.
Inclusion of “vitamins and minerals pre-mix” under “ores and minerals” as defined in Entry 89 of Schedule II of the Act, 2008 - HELD THAT:- The said entry provides only for raw “oars and minerals”, without mentioning “vitamins and minerals pre-mix” falling under the said entry, and hence it is clear that “vitamins and minerals pre-mix” would not fall under the category of “oars and minerals”.
This Court does not find any infirmity in the order passed by the Additional Commissioner or the Tribunal that “vitamins and minerals pre-mix” would be termed as unclassified item and liable to be taxed as such - the revision is dismissed.
-
2024 (10) TMI 140
Challenge to assessment order on the ground of time limitation - assessment orders passed by the Assessing Officer for the Assessment years 2007-2008 to 2009-2010 were passed within the period of limitation prescribed for completion of the Assessment under the provisions of Pondicherry Value Added Tax Act, 2007 or not - work of powder coating undertaken by the Assessee amounts to execution of works contract or not - powder coating work involves transfer of property or not?
HELD THAT:- The definition of work-contract in Section 2(zp) is very wide. It includes any improvement modification, repair or commissioning or any movable or immovable property. Thus, without doubt the work undertaken by the Respondent–Assessee for 'powder coating' the products like yokes, links and tubes etc amounts to works contract. Since the activity of powder coating is in the nature of works contract, it is to be construed that there is a transfer of property in the execution of works contract. Therefore, the Respondent-Assessee is liable to pay tax under Section 15(1) of the PVAT Act, 2007. Therefore, both the substantial questions of law answered in favour of the Petitioner-CTO and against the Respondent-Assessee.
As per Section 24(1) of the Puducherry Value Added Tax Act, 2007, the Respondent–Assessee was required to file a tax return within a period of 15 days after end of the period in such manner as may be prescribed. A return submitted by the dealer along with tax due is to be accepted as self-assessed. As per proviso to Section 24(2) of the Act, the Assessing Authority may select either at discretion or as directed by the Commissioner any dealer for detailed assessment - As per Section 24(4), the Assessing Authority has to serve a notice, on completion of the Assessment and the dealer is required to pay balance of tax in accordance with terms of that notice. As per sub-section (5) to Section 24, no Assessment under Section 24 shall be made after a lapse of three years from the end of the year to which, the returns filed under the Act relates.
Admittedly, return pertains to the Assessment year 2007-08 to 2009-2010 as mentioned above. An earlier notice was issued on 05.03.2011 calling upon the Respondent-Assessee to show cause as to the basis on which exemption was claimed for issuance of C-Form for purchases made under Inter-State purchase and was followed by pre- Assessment notice dated 25.09.2014.
As far as the present case is concerned, a limitation is prescribed under Section 24(5) of PVAT Act, 2007 for completing assessment. As per Section 24(5), no assessment shall be made after a period of three years from the end of the year to which the return under the Act relates - the test to be applied is whether the notice for completing the assessment was issued within limitation i.e., three years to which the returns relates to. If so, even if the Assessment Order is passed beyond the period of three years, it will be in time.
In the present case, since notices were issued on 05.03.2011 i.e., within three years contemplated under Section 24(5) of the PVAT Act, 2007, the assessment orders passed on 12.12.2014, 22.12.2014 and 31.12.2014 are held to have been passed in time.
The substantial questions of law framed are answered in favour of the Petitioner- Commercial Tax Department - tax cases allowed.
............
|
9911796707
