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VAT / Sales Tax - Case Laws
Showing 261 to 280 of 27754 Records
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2024 (10) TMI 139
Dismissal of Revision Application for non-compliance of direction of pre-deposit - HELD THAT:- As the issue involved in this petition with regard to whether the VAT Tribunal was justified in directing the petitioner to pre-deposit the outstanding tax amount in the revisional proceedings filed under Section 75 of the VAT Act is already decided by this Court in the case of M/S LAXMI DYE CHEM VERSUS STATE OF GUJARAT [2023 (12) TMI 1353 - GUJARAT HIGH COURT]. This Court, after having considered the provisions of Sections 73, 74 and 75 of the Gujarat Value Added Tax Act, 2003, held 'On bare perusal of Section 75 of the GVAT Act, it does not provide for passing any order of pre-deposit as it is provided under Section 73(4) of the GVAT Act. Therefore, the impugned order of the Tribunal dated 21st March 2023 is beyond the scope of Section 75 of the GVAT Act insisting for pre-deposit to entertain the revision applications filed by the petitioner.'
The impugned order dated 25th August 2023 passed by the VAT Tribunal is hereby quashed and set aside. Consequential order dated 29th September 2023 passed by the VAT Tribunal for non-compliance of order dated 25th August 2023 is also required to be quashed and set aside and is accordingly quashed and set aside.
Petition allowed.
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2024 (10) TMI 45
Assessment order for recovery of alleged dues pertaining to the Financial Year 2014-15 - order issued post approval of resolution plan under IBC, 2016 - HELD THAT:- Considering the observation of the Hon’ble Apex Court in case of M/s. Ghanashyam Mishra & Sons (P) Ltd. [2021 (4) TMI 613 - SUPREME COURT], it is opined that the petition deserves to be allowed - it was held in the said case that 'That once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan.'
Impugned assessment order dated 08.01.2021 and the subsequent notices issued by the respondent are hereby quashed and set aside - petition allowed.
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2024 (10) TMI 44
Challenge to demand notice - petitioner seeks set-off of VAT payment as against entry tax liability - HELD THAT:- Section 4 of the Entry Tax Act provides for reduction in tax liability and states that where the importer of a motor vehicle remits entry tax, and becomes liable to pay sales tax under the General Sales Tax Act and additional sales tax under the Tamil Nadu Additional Sales Tax Act, 1970 as well, then liability under the General Sales Tax Act shall be reduced to the extent of entry tax paid.
For the availment of benefit under Section 4 of the Act, the assessee is required to establish a one-to-one nexus between the entry tax and VAT payment and prove that the payments relate to the same motor vehicles. It is only upon such onus being discharged, then the benefit of Section 4 would be available to the assessee.
The respondents have only taken note of the shortfall under statement II. The conflict can only be resolved if the liability under both enactments is crystallized. The admitted position as on date is that while returns filed under the TNVAT Act have been processed and assessments completed, the returns of entry tax filed on 16.04.2008 are pending.
This Writ Petition is disposed off.
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2024 (10) TMI 1
Remission of interest and penalty since tax amount has already been paid by the Petitioner no. 1-Company - benefit of the Amnesty Scheme - HELD THAT:- It is not in dispute that the petitioner filed a Purshis to avail the benefit of the Amnesty Scheme and made a prayer to remand the matter back to the first appellate authority so as to enable the petitioner to furnish C-Forms/F-Forms which were available with the petitioner. The Tribunal accordingly passed order on 10th January, 2020 which was communicated to the petitioner on 29th January, 2020 and thereafter the petitioner furnished C-Forms/F-Forms before the first Appellate Authority who passed the order on 28th February, 2020. It also appears from the record that the petitioner received the order from the first appellate authority on 16th March, 2020 and thereafter COVID-19 pandemic has started.
The benefit of COVID-19 pandemic situation is required to be extended to the petitioner, more particularly in view of the order passed by the Hon’ble Supreme Court in Miscellaneous Application No. 21 of 2022 in Suo Motu Writ Petition No.3 of 2020, by which the period from 15th March, 2020 till 28th February, 2022 was to be treated as a relaxation period for granting benefit of limitation.
The petitioner has already deposited sum of Rs. 06,04,393/- which is not disputed by the respondent to be payable under the Amnesty Scheme by 18th March, 2020. Thus, the petitioner has availed the benefit of the Amnesty Scheme, however the same is not given effect to by the respondent authorities on failure of the petitioner to communicate with the department because of the aforesaid two major factors viz. COVID-19 pandemic as well as death of the Consultant in the month of August, 2020.
The impugned communication dated 29th March, 2022 and consequential action taken by the respondents are hereby quashed and set aside and the respondents are directed to pass necessary order granting benefit of the Amnesty Scheme to the petitioner accepting amount of Rs. 06,04,393/- towards full and final settlement of the dispute for the year under consideration - Petition allowed.
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2024 (9) TMI 1765
Determination of total taxable turnover on the basis of judgement assessment - suppression of turnover - stock variation - non-maintenance of day to day stock account or closing stock inventory for the goods dealt - levy of penalty u/s 12(3)(b) of the Tamil Nadu General Sales Tax Act,1959 - HELD THAT:- Admittedly the petitioner's place of business was inspected by the Authorities on 22.10.2002 and 24.12.2002 and it was noticed that the Assessee had not maintained the day to day stock accounts or the closing stock inventory for the goods dealt by them and the sales bills have not been maintained in series. There was also a stock variation found in the opening stock and the materials available in the place of business with the corresponding sales to a tune of Rs.5,28,252/-. The Assessee did not offer any explanation for the same but rather on his own had voluntarily given a sworn statement admitting the above position. The Assessing Officer had rightly proceeded to pass the Assessment Order to the best of his judgement.
When the records submitted before the Authorities were found to be with interpolation and admittedly this theory of stock transfer was only introduced at the later stage by the Assessee who did not have any explanation available at the time of inspection and as such had voluntarily given a sworn statement admitting that there is difference in stock to the value of Rs.5,28,252/- and he has no explanation to offer, the Assessee is only making an attempt to retract from the sworn statement furnished earlier which cannot be allowed to be done and the statement must be given effect to.
In the instant case, as the Assessee did not have any plausible explanation to offer after inspection for the variation in stock, had admitted the discrepancies in the stock available and had voluntarily given sworn statement that there is no explanation available with them. Therefore the voluntary sworn statement offered by the Assessee has to be given effect to and the Assessee cannot be allowed to approbate and reprobate at the later stage.
In view of the settled position, the view expressed by the Appellate Authority that the materials submitted by the Assessee to substantiate their claim has to be considered rather then relying on the statement given by them during the inspection cannot be sustained and the Tribunal by taking note of these aspects has rightly arrived at a decision and set aside the order of the Appellate Authority by restoring the Assessment Order, which in our considered opinion needs no interference and thus sustained
Petition dismissed.
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2024 (9) TMI 1708
Challenge to Assessment Orders - the orders were within the time frame or not - penalty imposed u/s 22(5) of the TNVAT Act was within the period of limitation or not - HELD THAT:- Section 22(4) of TNVAT Act, 2006 is a stand-alone provision which is applicable in the above three circumstances. The limitation under Section 27(1)(a) of TNVAT Act, 2006 or under Section 22(5) of TNVAT Act, 2006 cannot be read into Section 22(4) of TNVAT Act, 2006 - Under Section 22(4) of TNVAT Act, 2006, there is no period of limitation prescribed for either initiating or passing an order. However, it should be within reasonable period. In case where any of the above three circumstances in Section 22(4) of TNVAT Act, 2006 are attracted, the Assessing Authority can also impose penalty equal to One Hundred and Fifty Percent (150%) of the difference of the tax assessed and the tax already paid as per the returns, with a caveat that such penalty cannot be imposed after a period of six years from the date of the Assessment Order and after reasonable opportunity of showing cause against such imposition.
The limitation under Section 22(5) of TNVAT Act, 2006 for imposing penalty also cannot be said to have expired for any of Assessment Years as the last date would have expired only on 30.10.2021, 30.10.2022 and 30.10.2023, whereas notices for reassessment under Section 22(4) of TNVAT Act, 2006 were issued well before the time limit under Section 22(5) of TNVAT Act, 2006 during the period when the Country was still under intermittent lockdown due to outbreak of Covid-19 pandemic.
The date of assessment for all the Assessment Years is 11.01.2021. Therefore, penalty imposed under Section 22(5) of TNVAT Act, 2006 for all the three years were well within the period of limitation.
Conclusion - i) There is no period of limitation under Section 22(4) of TNVAT Act, 2006 for passing an order, if any of the three circumstances stipulated in Paragraph 24 are attracted. ii) Though no period of limitation has been prescribed under Section 22(4) of TNVAT Act, 2006, such period has to be exercised within a reasonable period. The powers that have been exercised under Section 22(4) and Section 22(5) of TNVAT Act, 2006 are within reasonable period. iii) The limitation for imposing penalty is 6 years in terms of Section 22(5) of TNVAT Act, 2006.
The challenge to the Impugned Assessment Orders has to therefore fail - petition disposed off.
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2024 (9) TMI 1489
Local Body Tax (Entry Tax) - Constitutional Validity of Chhattisgarh Sthaniya Kshetra me Mal Ke Pravesh Par Kar Adhiniyam, 1976 - seeking quashing of notification dated 04/03/2014 - violative of Article 301 and 304 of Constitution of India and also violative of Article 14 of the Constitution of India - whether the impugned legislation is violative of Article 304 (a) of the Constitution of India? - whether entire State can be declared as local area in light of Judgment of the Hon’ble Supreme Court in Jindal’s case? - HELD THAT:- The validity of Act of 1976 came up for consideration before this Court in Steel Authority of India Vs. State of Chhattisgarh and others (and other cases), [2009 (9) TMI 911 - CHHATTISGARH HIGH COURT] in which this Court upheld the validity of the Act of 1976. The same was subject to challenge by petitioners therein before the Hon’ble Supreme Court. After the reference was answered by the Hon’ble Supreme Court in Jindal’s case (9 Judges). The matter were placed before the regular bench of the Hon’ble Supreme Court and liberty was reserved in favour of the petitioners to file a fresh writ petitions in light of Judgment of the Hon’ble Supreme Court in Jindal’s Case [2016 (11) TMI 545 - SUPREME COURT (LB)].
The argument of higher tax being imposed on goods imported from other state is violative of article 14 of Constitution of India cannot hold water in view Malwa Bus Service (Private) Ltd. v. State of Punjab and others [1983 (4) TMI 290 - SUPREME COURT] wherein Hon’ble Supreme Court held that a difference in the rate of tax by itself cannot be considered to be discriminatory and offensive to the equality clause.
The Power to State to grant tax reduction to local goods non discriminating as observed by the Hon’ble Supreme Court in Jindal’s Case (9 Judges) [2016 (11) TMI 545 - SUPREME COURT (LB)]. It has been further observed that constitutional validity of any taxing statute has, therefore, to be tested only on the anvil of Article 304 (a) and if the law is found to be non discriminatory, it can be declared to be Constitutionally valid without legislation having to go through the test or process envisaged by Article 304(b). It has been further observed that suffice to say that a fiscal statute shall be opened to challenge only under Article 304 (a) of the Constitution without being subjected to test of Article 304(b) either in terms of existence of public interest or reasonableness of the levy. Therefore, the validity of the impugned legislation and the notification to be tested on the anvil of Article 304 (a). The Court has to see as to whether the impugned legislation and notification are the tested of Article 304 (a) of Constitution of India.
It has to be brought on record that by virtue of any legislation, the party has suffered loss or it is restricted to perform trade and commerce in the given State in which the legislation is enacted. The impugned notification only prescribes the rates on the goods imported from outside and goods inside the State. The notification does not debar the petitioner to trade and commerce inside the State of Chhattisgarh - The power to impose tax is a plenary power with the State subject to the fact that while imposing higher tax rate on the goods imported from outside is not discriminatory. The fact remains as stated above that the notification does not debar the petitioners for trade and commerce in the State of Chhattisgarh.
The legislation cannot be declared ultra vires lightly. The taxing statute cannot be challenged only on the ground that the rate of taxation is higher. Until and unless it is said be colourable piece of legislation. It has not been established by the petitioner that the impugned legislation is enacted with colourable exercise of power or it is fraud on the legislative power. The argument was advanced that since there is a higher tax imposed on the goods imported from outside of the state hence it is discriminatory and cannot pass the test of Article 304 (a) of Constitution of India - it is also admitted that entire State is not local area and it is defined in section 2 (d) of definition clause of the Act of 1976. It is to be seen that there is no ambiguity in the definition clause. As to whether the petitioners suffered entry tax at multiple levels has not been substantially demonstrated. Hence, appropriate writ as claimed in this regard cannot be issued.
Placing reliance on the judgments of the Hon’ble Supreme Court and the discussion made herein, the petition is dismissed.
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2024 (9) TMI 1407
Waiver of tax under CST Act - difficulties in obtaining C-Forms - HELD THAT:- A decision has been taken in regard to these issues by this Division Bench in SRI SRINIVASA RICE MILL VERSUS COMMERCIAL TAX OFFICER AND OTHERS [2024 (9) TMI 1316 - ANDHRA PRADESH HIGH COURT], where it was held that 'It would be inequitable, to grant relief to those dealers who approached in the year 2019 while denying such relief to the dealers who approached later. In any event, the applications are only for the purposes of ascertaining the eligibility of the dealers/petitioners for grant of waiver'.
Following the above said Judgment, these Writ Petitions are disposed of with the following directions:-
1. The Endorsements issued by the respective tax authorities are set aside.
2. The respective tax authorities, shall consider the applications of the petitioners afresh and grant waiver to those petitioners who are able to comply with the requirements of the documents set out in the memos.
Petition disposed off.
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2024 (9) TMI 1353
Constitutional validity of Section 33 (5) of the Haryana Value Added Tax Act, 2003 - waiver of condition of pre-deposit of surety bond or bank guarantee - inability to furnish security in the form of surety bond or bank guarantee - HELD THAT:- While power does not lie with the appellate authority to waive the condition of pre-deposit of surety bond or bank guarantee in terms of Section 33 (5) of the HVAT Act, however, this Court is not precluded under Article 226 of the Constitution of India to direct the appeal to be heard without insisting upon the precondition.
It is true that the Supreme Court in M/s Tecnimont Private Limited [2019 (9) TMI 788 - SUPREME COURT] considered a separate set of provisions, however, we do not agree with the learned State counsel that merely because under Section 33 (5) of the HVAT Act the requirement is not of actual deposit but submitting a bank guarantee or adequate security to the satisfaction of the assessing officer. The provision has to be read differently. While such a provision may exist on the statute, the circular issued asking for irrevocable bank guarantee or security in the form of surety bond is too onerous a condition.
This Court is satisfied that the petitioners before us would not be in a position to submit security in the nature of surety bond as in all the cases the company or the concerned Directors would be required to have property worth the said amount which they do not possess. A person cannot be left remediless, and in view thereto, as opined in M/s Tecnimont Private Limited and Smt. P. Laxmi Devi [2019 (9) TMI 788 - SUPREME COURT] the Joint Excise and Taxation Commissioner (Appeals), Faridabad, is directed to hear the appeals without insisting upon the pre-condition required under Section 33 (5) of the HVAT Act and decide the appeals on merits.
Since the concerned appellate authority would not have the power to waive off the pre-deposit as required under Section 33 (5) of the HVAT Act, the order passed by the Haryana Tax Tribunal, Chandigarh, upholding the order of the Joint Excise and Taxation Commissioner (Appeals), Faridabad, in refusing to entertain the appeal without submitting surety bonds or pre-deposit cannot be said to be illegal - appeal disposed off.
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2024 (9) TMI 1317
Challenge to recovery notice - recovery of the dues of a Company from its Directors - alternative remedy under Section 287-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 - HELD THAT:- On a plain reading of sub-Section (1) of Section 12 of the Act, the liability of the Directors of a private company will arise when a private company is wound up after the commencement of the Act. Therefore, Section 12 (1) will have no application as an order of winding up has not been produced.
Therefore, when there was no provision under the Act under which dues of a limited company could have been recovered from its Directors, the third respondent was not justified in issuing the recovery certificate and demand notice against the appellant. These crucial factors have been ignored by the High Court. It ought to have been noted by the High Court that an attempt to recover tax payable by the Company from the appellant from its inception was illegal and, therefore, the appellant ought not to have been driven to the remedy of preferring an appeal.
The impugned judgments and orders of the learned Single Judge and the Division Bench are set aside. The notice of recovery dated 6th June, 2019 issued by the third respondent is hereby quash and set aside - Appeal allowed.
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2024 (9) TMI 1316
Seeking waiver of tax - non-production of C-Forms - Whether the petitioners can file their documents for obtaining waiver of tax, at a later date? - whether such waiver of tax can be given without any further assessment/re-assessment/appellate order being passed by the concerned taxing authorities?
HELD THAT:- The conditions for grant of waiver are contained in the memo dated 27.09.2016 which has been extracted above. A perusal of the terms and conditions, in this memo, make it clear that the waiver of tax given under the memos, is applicable to those dealers who remit their tax completely as per the provisions of the CST, Act for the period from 01.06.2014 to 31.12.2015 before 30.09.2018; complete their assessment for the period from 01.06.2014 to 31.12.2015 before 30.09.2018; produce documents of movement of goods in the form of lorry receipts/railway receipts and CST waybills; production of proof of exit of the goods from the State Andhra Pradesh by producing proof of exit from the last notified check post in the State or by production of ledger accounts or book entries relating to payment of charges for transporting goods to other States.
A cutoff date is prescribed only in relation to payment of tax under the CST, Act and for completion of the assessment for the period from 01.06.2014 to 31.12.2015. There is no cutoff date prescribed for production of the other documents mentioned above. In the circumstances, the contention of the learned Government Pleader for Commercial Tax, that the documents required for grant of waiver should be produced before the cutoff date cannot be accepted.
As far as the non-production of documents is concerned, the said non-production would be a question of fact, which would have to be gone into by the assessing authorities after considering whether the documents produced by the petitioners meet the terms and conditions set out in the memos.
It would be inequitable, to grant relief to those dealers who approached in the year 2019 while denying such relief to the dealers who approached later. In any event, the applications are only for the purposes of ascertaining the eligibility of the dealers/petitioners for grant of waiver.
The Endorsements issued by the respective tax authorities are set aside - The respective tax authorities, shall consider the applications of the petitioners afresh and grant waiver to those petitioners who are able to comply with the requirements of the documents set out in the memos - Petition disposed of.
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2024 (9) TMI 1164
Seeking restoration of VAT and CST registration certificates after cancellation due to non-filing of returns - failure to file returns due to lack of proper office facilities and staff - HELD THAT:- The cancellation order which is never served upon petitioner cannot be said to have come into existence. However, as per the record of the respondents authorities, the said cancellation orders are still alive and as such the order dated 30th December 2019 passed by the appellate authority considering the compliance made by the petitioner is not being implemented by the respondents authorities.
Both the orders dated 6th July 2017 cancelling the VAT and CST registration certificates of the petitioner are hereby quashed and set aside so as to enable the respondents authorities to give effect to the appellate order dated 30th December 2019 passed by the Deputy State Tax Commissioner, Circle – 7, Gandhinagar.
Petition disposed off.
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2024 (9) TMI 1068
Refund claim - misplacement of files by officials leading to delay in payment and reconstruction of files - entitlement to statutory interest on the refund amount - HELD THAT:- From the materials on record, it is apparent that the petitioner herein is entitled to the total amount of Rs. 37,87,166/- on account of refunds for the assessment years 1993-94, 1995-96, and 1998-99. The affidavit which has been filed on behalf of the respondent No. 2 does not deny the said figure. It has also been mentioned in the affidavit filed by the respondent No. 2 that the matter has been placed before the Government for approval after being processed from the Office of the Commissioner of Taxes.
This Court disposes of the instant writ petition with a direction to the respondents and more particularly the respondent No. 2 to ensure that the payment is made to the petitioner in respect to the amount of Rs. 37,87,166/- within a period of 4 (four) months from the date of a certified copy of the instant order is served upon respondent No.2 - Petition disposed off.
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2024 (9) TMI 1018
Validity of assessment order - exigibility to tax under the Delhi Tax on Luxuries Act, 1996 - Club and Association service - doctrine of mutuality - it was held by High Court that 'The decision of the Commissioner assailed shall not be liable to be treated as a precedent for any assessment period post the promulgation of the 2012 Amendment Act. Any assessments made or proceedings pending would have to be considered bearing in mind the observations rendered' - HELD THAT:- List for final disposal at 2 p.m. after four weeks.
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2024 (9) TMI 831
Challenge to order of attachment - Priority of charge of Multi-State Co-operative Bank over Sales Tax Department for recovery of dues - Section 26 (E) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - HELD THAT:- There is no material placed on record by the Sales Tax Department that the attachment of the secured asset was made in accordance with the provisions of the Maharashtra Land Revenue Code, 1966 and the Rules framed thereunder.
As held by the Full Bench in Jalgaon Janta Sahakari Bank Ltd and another [2022 (9) TMI 163 - BOMBAY HIGH COURT], an attachment made under the Code should be followed by a proclamation as required by the Rules framed thereunder. If the said procedure has not been followed, then the Sales Tax Department would not be in a position to claim priority notwithstanding the fact that the order of attachment was passed prior to 24/01/2020. The affidavit filed on behalf of the Sales Tax Department is silent in that regard.
Petition allowed.
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2024 (9) TMI 766
Levy of Entry tax - product being a tractor trailer - Interpretation of the definitions of "motor vehicle" and "vehicle" under the Motor Vehicles Act, 1988 and the Orissa Entry Tax Act, 1999 - HELD THAT:- The definition given of ‘motor vehicle’ and ‘vehicle’ in section 2 (28) (Act of 1988). Section 2(h) in the Entry Tax Act defines only motor vehicle to mean the same as defined in clause (28) of section 2 (Act of 1988) excluding, inter alia, tractor.
There is no dispute that product manufactured by petitioner does not have a motor. As such, it can only find meaning as given for ‘vehicle’, by section 2 (28) in Motor Vehicles Act. 1988. Section 2(h) in Entry Tax Act, 1999 defines ‘motor vehicle’. There is no definition of ‘vehicle’ in that Act.
The question is answered in the negative and in favour of petitioner - Petition allowed.
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2024 (9) TMI 765
Validity of the proceedings under Section 17-A of the Andhra Pradesh General Sales Tax Act, 1957 - Time limitation of the order declaring the sale void after seven years - HELD THAT:- The provisions of Section 17-A, provide the commercial tax department with a provision to safeguard recovery of revenue by permitting an authority under the Act to declare any transaction which takes away an asset out of the reach of the department. Needless to say, this provision would be available only where it is shown that such property had been alienated for adequate consideration and the purchaser was unaware of the liability of the vendor in alienating such property.
This provision came to be considered by a Division Bench of the erstwhile High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in the case of DAMERA RAMAKRISHNA AND OTHERS VERSUS COMMERCIAL TAX OFFICER (FAC), VIJAYAWADA AND OTHERS [2004 (10) TMI 556 - ANDHRA PRADESH HIGH COURT]. In this case, a Private Limited Company had fallen in sales tax arrears to the tune of Rs. 35,98,030/-. The said assessee, while steps were being taken to recover the tax dues, had sold away immovable property belonging it and orders under Section 17-A were passed - In the present case, the facts are different. The petitioner is no other than the son-in-law of the 5th respondent and the assertion of the petitioner that he was unaware of the tax dues of the 6th respondent, which was essentially a family concern of the 5th respondent, cannot be taken on face value.
In the present case, though the company is admitted to be in liquidation, no steps have been taken against the 5th respondent by issuance of a notice calling upon him to pay the tax dues of the 6th respondent Private Limited Company nor was the 5th respondent given an opportunity of hearing to demonstrate that there was no liability to pay such taxes. In the absence of such an opportunity being given to the 5th respondent, tax liability cannot be fastened upon the 5th respondent.
This Court is of the view that the proceedings of the 1st respondent dated 14.09.2007 would have to be set aside, subject to the condition that such proceedings can again be issued, provided steps are taken to fix liability of payment of tax dues of the 6th respondent on the 5th respondent and thereafter steps are taken for recovery of such tax dues.
This Writ Petition is allowed by setting aside the order passed by the 1st respondent in RcB2 191/2007, dated 14.09.2007 under Section 17-A of APGST Act, 1957. However, it shall be open to the 1st respondent or any other competent authority under the APGST Act or the successor Acts, provided such authority is vested in any authority, under the Successor Act, to take steps to ascertain whether the 5th respondent would be liable to clear the dues of the 6th respondent and whether such tax dues can be recovered from the 5th respondent, if it is found that he would be liable to pay the tax dues of the 6th respondent.
Petition allowed.
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2024 (9) TMI 764
Cancellation of assessment order - whether the Notification dated 13.09.2012 can be made applicable in the case of the present revisionist, whose goods were seized way back in the year 2008-2009? - HELD THAT:- As per the Notification dated 13.09.2012, the transporter during movement has to carry with him duly signed two copies of “Lorry Challan/E-generated Lorry Challan”, document of title to goods/GR/bilty, invoice/challan etc.
The present revisionist has been registered with the Ministry of Railways, and as per the letter dated 25.05.2006, he is bound to keep the complete address of the consignors as well as the consignee. When he was issued a show-cause notice before the assessment order dated 01.09.2009, and on that date, the Notification dated 13.09.2012, was not existing. Hence, the case of the revisionist has to be examined in view of the provisions of the Act applicable on the date when the assessment order was passed on 01.09.2009. In the present case, the provisions of section 49 (3) were done away by deleting the same by Notifications dated 13.09.2012 and 17.12.2012 with effect from 01.03.2012.
The law which was applicable with respect to the definition of the word dealer and whether the non production of the documents relating to the title of the goods i.e. duly signed two copies of “Lorry Challan/E-generated Lorry Challan”, document of title to goods/GR/bilty, invoice/challan etc., could be made basis to assess tax liability has already been considered by the Hon’ble Supreme Court in various judgments.
In the present case, after the Notification of 13.09.2012, and 17.12.2012, the State of Uttarakhand had established check-posts at Kashipur, Rudrapur, Haldwani, Dehradun, Haridwar and Rishikesh, and if they are non functional, then mobile squad has also been deployed. In the case of the revisionist when the goods were transported, there was no checking done on the way as the goods were being transported on the railways coach, and hence, there was no checking done during the transportation of these goods, and hence, when there no checking was done during the transportation of the goods, the revisionist being a transporter of the goods cannot be liable to pay tax, if he has not produced the evidence of the name of the consignors and consignees.
The order dated 02.04.2014, passed by the Commissioner Tax Tribunal, Dehradun Bench, Dehradun is set aside, and the order passed by the JCA dated 19.06.2012, is being upheld - the present revision is being allowed.
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2024 (9) TMI 763
Levy of penalty on the revisionist - ex parte penalty order was passed against the assessee - existence of mens rea or not - HELD THAT:- Before imposing penalty under Section 48 (8) of the Act, the Tax Assessment Officer has to be satisfied that the goods were imported in contravention of Section 48, is an attempt to evade assessment or payment of tax due or likely to be due under the Act. In this backdrop, the Tribunal, thereafter, proceeded to examine the alleged Declaration Form (Form DVI) of the import to the officer of the Trade Tax Department. The Import Declaration Form (Form XVI) was not in force, and its legal position will be like a waste paper, and in this backdrop, the Tribunal held that the trader had made the open contravention of the provisions of Section 48 (2). The Tribunal held that under Section 48A, the Import Declaration Form has to be given by the importer duly filled in and signed before the import of goods to the consignor.
There is no provision in the Uttarakhand Value Added Tax Act, 2005 to produce new prevailing import declaration form before the Inquiry Officer, and hence, subsequent new declaration form produced by the assessee, along with his reply to the show-cause notice, cannot be a ground not to impose penalty on the assessee.
After perusing the order of the Tribunal, it is worth highlighting that imposition of penalty is on the ground that the trader was importing the goods with an import declaration form, which was invalid Form-XVI, and trip-sheet under Section 48A had not been prepared.
The very fact that when the goods are seized as per the provisions of Section 43 of the VAT Act, the provisions of Section 48 would require to be examined, which deals with the power to seize goods. Even in Section 43 (5), where an order of penalty has to be passed, an opportunity of hearing has to be given, and the officer has to be satisfied that there was an attempt to willfully not show the goods in accounts, register and other documents, and only then the penalty has to be imposed not exceeding 40% of the value of goods. After seizure of the goods under Section 43 (4), the Assessing Authority has to give a show-cause notice as to why show-cause notice should not be imposed, and after giving notice, an opportunity of hearing as per Section 43 (5) has to be given, and after examining the evidence, a finding has to be given whether there was willful attempt to evade tax.
On issuance of show-cause notice, the trader had produced the valid declaration form (Form XVI). It is the case of the trader that he had sent the material to Mysore for job work. The job work was not done and the material was being brought back to the Uttarakhand without the job work. Hence, there was no payment made for the job work, and it was not the case of import of goods to the State of Uttarakhand. The goods, which were sent from Uttarakhand, were being brought back to Uttarakhand without job work. Hence, the nature of goods had not been changed, and it was the case of invalid declaration form, which was made basis to impose penalty.
Castrol India Ltd. & another vs. Commissioner, Commercial Tax [2012 (4) TMI 585 - ALLAHABAD HIGH COURT], was a case where under the U.P. VAT Act, 2008, the goods had been seized on the sole ground that the goods were not being accompanied by the Import Declaration Form (Form 38) under Section 50 of the Act. However, the original form was enclosed with the reply, and the Allahabad High Court held that the object of issuance of show-cause notice under Section 50(4) of the Act was to give to the party concern not only an opportunity to submit an explanation as to why the security may not be demanded, but also to explain why the goods may not be seized, and if in response to such a show-cause notice, the party produces necessary documents so as to remove the discrepancy, if any, found at the time of checking, the authorities are legally bound to consider the same before ordering for the seizure of the goods.
The ratio of the above judgment is applied to the facts of the present case that at the time of seizure, an invalid declaration form (Form XVI) was produced. However, subsequently, pursuant to the show-cause notice, the valid import declaration form (Form XVI) was produced, and it was not the case of the Assessing Officer that the valid import declaration form was fake, or there was discrepancy in the documents.
In the present case, keeping in view the above judgment referred to by learned counsel for the revisionist, the revision(s) is being allowed, and the order of the Tribunal is being set-aside.
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2024 (9) TMI 762
Legality of demanding security when all the relevant information relating to the said goods was already uploaded on the website of the department and the department had duly acknowledged the receipt of the uploaded information - whether Tribunal without deciding the fact relating to the intention of the dealer was legally justified to upload the demanded security when the said goods were being imported as raw material for the manufacture of Aata, Maida and Suji which are exempted under the VAT Act?
HELD THAT:- A perusal of the order nowhere shows that with respect to the goods in transit, there is any intension of evasion of tax, and the Assessing Officer has accepted the invoice and weighment slip and has finalized the assessment order. Since the Assessing Officer has accepted all the documents presented before him by the revisionist, the impugned order demanding security of Rs. 2,26,725/- (40% of the value of goods) is liable to be set-aside.
The present revision is being allowed, and the order dated 31.05.2014 and the order dated 11.06.2014 are being set-aside.
Application disposed off.
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