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VAT and Sales Tax - Case Laws
Showing 381 to 400 of 27295 Records
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2023 (8) TMI 115 - BOMBAY HIGH COURT
Composition Scheme - Interpretation of statute - Condition No. 3 of N/N. VAT 1510/CR-65/Taxation-1 dated 09.07.2010 - restriction on set-off only in respect of purchases of those goods involved in the execution of a works contract the property in respect of which (goods) are transferred in the execution of such works contract - non-restriction on set-off in respect of purchases of goods involved in the execution of a works contract the property in respect of which (goods) are not transferred in the execution of such works contract.
HELD THAT:- Pursuant to the powers vested in it by virtue of the provisions of Section 42(3A) of the MVAT Act, the State Government has notified the Composition Scheme vide the said Notification dated 9th July 2010. As held by this Court in the case of Maharashtra Chamber of Housing Industry and Others (Supra), a dealer has the option as to whether to opt for such a Composition Scheme or not and there is no compulsion or obligation upon a dealer to opt for such a scheme.
As per the Composition Scheme notified by the said Notification dated 9th July 2010, the composition amount is one percent of the agreement amount specified in the agreement or the value specified for the purpose of stamp duty in respect of the said agreement under Bombay Stamp Act, 1958, whichever is higher - the Scheme provides for tax at a flat rate of one percent on the aforesaid amount. However, Condition No. 3 provides that a dealer who opts to pay composition under the said Scheme shall not be eligible to claim set-off of taxes paid in respect of the purchases.
In the present case, the Appellant’s claim of set-off pertains to administrative expenses as well as expenses towards the lease of construction equipment which were used for the purpose of undertaking construction activity. The Appellant could not have executed the contract without the said expenses - On a plain reading of Condition No. 3 of the said Scheme, it is clear that the said condition prohibits a dealer opting for the Scheme from claiming set-off of taxes paid in respect of purchases. There is no merit in the argument of the Appellant that, just because Condition No. 3 refers to “the purchases”, it applies only in respect of certain kind of purchases and does not apply in respect of certain other purchases. If Condition No. 3 wanted to make an exception in respect of certain kind of purchases, then it would have expressly stated so. In the absence of any such exception made by Condition No. 3, in our view, on the plain language of Condition No. 3, it applies to all purchases.
Further, the whole purpose of such a Composition Scheme is to provide for a convenient, hassle-free and simple method of assessment. By opting for the Composition Scheme, the contractor saves himself the bother of book keeping, assessment, appeals and other such things - this being the purpose and object of such a Composition Scheme, this very purpose and object would be totally and completely defeated if the argument of the Appellant is accepted and the AO has to make an enquiry as to what goods have been transferred and in respect of what purchases set-off can be claimed.
Thus, no substantial question of law arises in the present Appeal. The Appeal is dismissed.
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2023 (8) TMI 114 - MADRAS HIGH COURT
Maintainability of appeal - limitation under Section 51 of the Tamil Nadu Value Added Tax (TNVAT) Act, 2006 - HELD THAT:- It is noticed that the petitioner's tax amount of Rs. 3,32,800/- has already been recovered towards duty that was confirmed in the Assessment Order dated 20.01.2022 for the Assessment Year 2014-2015. The petitioner has not paid the tax that was determined vide impugned order dated 25.07.2022 for the Assessment Year 2015-2016 amounting to Rs. 5,83,125/- - To balance the interests of the petitioner and the revenue, this Court is inclined to dispose these two writ petitions by directing the petitioner to file a statutory appeal before the Appellate Commissioner under Section 51 of the TNVAT Act within a period of 30 days from the date of receipt of a copy of this order together with a pre-deposit of 50% of the disputed tax.
Subject to such compliance, the appeal for the Assessment Year 2015-2016 shall be numbered. As far as the Assessment Year 2014-2015 is concerned, since the entire amount has been recovered, the appeal shall be numbered, if such appeal is filed within a period of 30 days from the date of receipt of a copy of this order.
Writ Petitions are disposed of.
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2023 (8) TMI 113 - KERALA HIGH COURT
Levy of penalty in terms of Section 47(6) of the KVAT Act - gold ornaments brought into Cochin by the petitioner were in fact taken back to Mumbai by the petitioner on the same day or not - scope of term “baggage” for the purposes of the Explanation I to S. 46 (3) of KVAT Act - HELD THAT:- It is not in dispute that in respect of the amount of Rs. 15 lakhs that was paid by the petitioner towards alleged tax due on the said consignment, he has disputed his tax liability by preferring an application for refund, which has not been adjudicated by the intelligence officer till date. Rather than issue a direction to the intelligence officer to adjudicate the matter at this belated stage, it is felt that on account of lapse of time this aspect can now be adjudicated by the Appellate Tribunal, which is the final fact finding authority, after calling for the refund application filed by the petitioner from the Intelligence officer concerned.
The other issue raised by the petitioner, namely whether for the purposes of imposition of penalty under Section 47 of the KVAT Act, the transportation of gold ornaments as personal luggage would have any implication considering the provisions of Explanation 1 to Section 46(3) of the KVAT Act, also has to be considered by the Appellate Tribunal. The said aspect although specifically raised by the petitioner in the appeal before the Tribunal and noticed by the Tribunal at paragraph 3(2) of the order impugned herein, was not adverted to in the operative part of the order of the Tribunal. The issue requires to be considered by the Tribunal since it may have a bearing on the legality of the penalty imposed on the petitioner.
Matter remanded back to the Tribunal for a fresh adjudication of the matter - appeal allowed by way of remand.
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2023 (8) TMI 112 - MADRAS HIGH COURT
Non-speaking order - Revision Order under Section 27 of the TNVAT Act - revision order without issuance of any notice to petitioner - violation of principles of natural justice - HELD THAT:- The impugned order has been passed after awaiting for a long period after order dated 16.06.2015 was passed in W.P.No.14652 of 2015 on 16.06.2015 the impugned order has been passed is without following the principles of natural justice. Therefore, the impugned order is unsustainable. The impugned order is therefore liable to be quashed and it is accordingly quashed. The case is remitted back to the respondent to pass a speaking order on merits in accordance with law within a period of eight (8) weeks from the date of receipt of a copy of this order.
Petition allowed.
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2023 (8) TMI 111 - MADRAS HIGH COURT
Failure to pay appropriate tax - import of goods for trading purpose or not - petitioner was not heard before the impugned order was passed - violations of principles of natural justice - HELD THAT:- There is no admission by the petitioner in the affidavit filed in support of the present Writ Petition. Notice dated 16.06.2022 has not served on the petitioner before the impugned order dated 30.06.2022 was passed. The date 16.06.2022 in the impugned order appears to be CAG Audit defects, as is evident from the reference in the preamble to the impugned order. Copy of the said CAG Defect Memo dated 16.06.2022 of CAG Audit team also appears to have not been served to the petitioner before the impugned order was passed on 30.06.2022.
The impugned order is set aside and the case is remitted back to the respondent to pass an appropriate order within 75 days from the date of receipt of a copy of this order - Petition allowed by way of remand.
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2023 (8) TMI 110 - MADRAS HIGH COURT
Award of tender/auction for toll collection for lorry entry - forbearing the respondents from collecting any fee/toll charges for the lorries - It is the contention of the petitioner that the first respondent has no right to collect toll from the vehicles entering into the petitioner's premises - HELD THAT:- On perusal of the Section 249 of the Coimbatore City Municipal Corporation Act, this Court is of the view that the above Section gives right to recover the expenses caused by extraordinary traffic in the Civil Court by proving the same. Except that, it does not permit to levy tax. Admittedly, there is no material whatsoever available on record so as to substantiate the submission of the first respondent to show that only because of the lorries entering into the petitioner's warehouse the roads suffered damages and to meet out that expenses recovery has to be made.
In JINDAL STAINLESS LTD. AND ANOTHER VERSUS STATE OF HARYANA AND OTHERS [2006 (4) TMI 120 - SUPREME COURT] the Hon'ble Apex Court has held that the compensatory tax is a charge for offering trade facilities and they are based on the principle of equivalence.
Thus, as in the auction notice the amount has been fixed as Rs. 30,000/- and the same would not commensurate to the expected expenses as alleged in the counter. Such view of the matter, this Court is of the view that the action of the first respondent Corporation to collect toll only from the lorries entering the petitioner's premises is nothing but discriminatory and cannot be said to be compensatory in nature.
The writ petition is allowed.
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2023 (8) TMI 109 - MADRAS HIGH COURT
Reopening of assessment - Time limitation - impugned order dated 22.04.2022 for the assessment year 2007-08 challenged on the premise that the same is barred by limitation - HELD THAT:- The original assessment order dated 24.10.2013 although refers to Section 22(2) of the Act, it appears that the same cannot be traced to Section 22(2) of the Act in view of the fiction contained in the proviso to Section 22(2), which provides that all assessments from the assessment year 2006-07 till 2010-11 shall be deemed to have been assessed on 30.06.2012. In view of the above deeming the assessment under Section 22(2) of the Act is deemed to have been made on 30.06.2012. Any assessment made after 30.06.2012 could be traced to Section 27 of the Act, which prescribes six years from the date of orders of assessment, viz., 30.06.2012. Thus, any assessment ought to have been made under Section 27 of the Act on or before 30.06.2018.
Assuming that this assessment dated 24.10.2013 is traceable to Section 27 of the Act and the present impugned order is also traceable to Section 27 of the Act, the impugned order dated 22.04.2022 ought to be in compliance with the limitation prescribed under Section 27 of the Act, which provides that any assessment ought to be made within six years from the date of the assessment. In the present case, the original assessment is deemed to have been made in terms of Section 22(2) of the Act on 30.06.2012.
This Court is of the view that the impugned proceedings being barred by limitation, the same is bad for want of jurisdiction and a nullity. In such circumstances, interference under Article 226 of the Constitution of India is warranted inasmuch as question of limitation relates to jurisdiction. An order barred by limitation is a nullity.
This Court is of the opinion that the impugned proceedings is barred by limitation and thus bad for want of jurisdiction and a nullity - Petition disposed off.
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2023 (8) TMI 54 - SC ORDER
Levy of penalty on applicant (Government Institution) under Section 8(D)(6) of the U.P. Trade Tax Act, 1948 - it was held by Allahabad High Court that Initiation of penalty proceedings under Section 8(D)(6) against a Government Institution has not helped the revenue, but such exercise has led to financial loss to the Government by unnecessary expenditure on litigation which, at any cost, should be avoided.
HELD THAT:- There are no merit in the Special Leave Petition - SLP dismissed.
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2023 (8) TMI 53 - BOMBAY HIGH COURT
Refusing to condone the delay in filing appeal under section 35 of the Goa Value Added Tax, 2005 - HELD THAT:- A reading of section 35 would go to show that in ordinary course the petitioner should have preferred the appeal within one year from the date of receipt of the order i.e. one year from 11.06.2020 if there is a reasonable cause. The appeal therefore ought to have been filed in ordinary course, on or before 11.06.2021. This period of one year expired during the period prescribed i.e. 11.06.2020 to 28.02.2022.
A reference to the various orders passed by the Supreme Court regarding the extension of limitation during the Covid-19 pandemic period is necessary. A reading of the order passed by the Supreme Court in the case of Cognizance for Extension of Limitation passed on March 2020 [2020 (5) TMI 418 - SC ORDER], reveals that the Supreme Court took Suo Motu cognizance of the difficulties that might be faced by the litigants in filing petitions/applications/ suits/appeals/all other quasi proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the COVID-19 pandemic. On 23.03.2020, the Supreme Court directed extension of the period of limitation in all proceedings before Courts/Tribunals including the Supreme Court w.e.f. 15.03.2020 till further orders. On 08.03.2021, the order dated 23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021.
Thereafter, due to a second surge in COVID-19 cases, the Supreme Court Advocates on Record Association (SCAORA) [2022 (1) TMI 385 - SC ORDER] intervened in the Suo Motu proceedings by filing Miscellaneous Application No. 665 of 2021 seeking restoration of the order dated 23.03.2020 relaxing limitation. The Supreme Court extended the period of limitation in all proceedings before the Courts/Tribunals w.e.f 15.03.2020 till 02.10.2021.
In the present case, the respondent no. 2 was of the opinion that as the appeal was filed on 17.08.2022, the same is beyond the period of 90 days as per the order dated 10.01.2022 passed by the Hon'ble Supreme Court. It pertinent to note that the Supreme Court restored the order dated 23.03.2020 and directed that in continuation of the subsequent orders dated 23.03.2020, 27.04.2021 and 23.09.2021, the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings - The assessment order dated 04.06.2020 impugned in appeal before the respondent no. 2, was passed during the period 15.03.2020 till 28.02.2022. The said period will have to be excluded for the purpose of limitation - there are no hesitation in coming to the conclusion that the starting point of limitation for the purpose of filing an appeal under section 35 of the VAT Act against the assessment order dated 04.06.2020, which was passed during the period between 15.03.2020 till 28.02.2022 will have to be computed from 01.03.2022. The period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation. The respondent no. 2 was not justified in proceeding on the footing that the appeal should have been filed within a period of 90 days from 01.03.2022.
The appeal filed by the petitioner before the respondent no. 2 was accompanied with the proof of payment of the amount as required under section 35 of the VAT Act. Hence, the writ petition is allowed. The impugned order is set aside. The matter is remitted to the Tribunal. The application for condonation of delay be considered afresh by the Tribunal in the light of the provisions of subsection (2) of section 35 of the VAT Act on its own merits and in accordance with law.
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2023 (8) TMI 52 - BOMBAY HIGH COURT
Disallowance of F forms - disallowance for the reason that the Commissioner of Sales Tax, Rajasthan had issued a notification declaring these ‘F’ forms obsolete and invalid under Rule 17(10) of the Central Sales Tax (Rajasthan) Rules - HELD THAT:- The Tribunal after considering the law as laid down by the Apex court in State of Maharashtra Vs. Suresh Trading Company [1996 (2) TMI 451 - SUPREME COURT] held that the dealer was entitled to rely upon the certificate of registration of the other dealer and to act upon it. Whatever might be the effect of the retrospective cancellation of the other dealer, it could have no effect upon any person who had acted upon the strength of a registration certificate when the registration was effective. The Tribunal also observed that Hon’ble Apex Court had held that it was not the duty of persons dealing with registered dealers to find out whether a state of facts existed which would justify the cancellation of their registration.
The judgment of the Apex Court in State of Karnataka Vs. Ecom Gill Coffee Trading Private Limited [2023 (3) TMI 533 - SUPREME COURT], relied upon by Ms Chavan, will be of no assistance to appellant since in that case the court held that the the ITC can be claimed only on the genuine transaction of the sale and purchase and if a dealer knowingly issues or produces a false tax invoice, credit or debit note, declaration, certificate or other document, such a dealer is liable to pay the penalty. In that case, the assessing officer had doubted the genuineness of the transactions and given cogent reasons on the basis of evidence and material on record. But in the case at hand, the assessing officer had himself found the F forms in order and issued the intimation in Form No. 604 on 9th July 2013 allowing the claim of transfer of goods to agent (movement of goods to the State of Rajasthan occasioned not by the reason of sale).
There are no substantial question of law - appeal dismissed.
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2023 (8) TMI 51 - BOMBAY HIGH COURT
Set off on the purchase of HSD - authorities disputed the admissibility of set off on the purchases of HSD on the ground that under Rule 54(b) of Maharashtra Value Added Rules 2005, the set off was barred - HELD THAT:- The Hon’ble Apex Court in ASSISTANT COMMISSIONER, INCOME TAX, RAJKOT VERSUS SAURASHTRA KUTCH STOCK EXCHANGE LTD [2008 (9) TMI 11 - SUPREME COURT] has held that a judicial decision acts retrospectively. The Judges do not make law, they only discover or find the correct law. The law has always been the same and if a subsequent decision alters the earlier one, the later decision does not make a new law. It only discovers the correct principle of law which has to be applied retrospectively. The Hon’ble Apex Court held that even when an earlier decision of the court operated for quite sometime, the decision rendered later on would have retrospective effect, clarifying the legal position which was earlier not correctly understood.
The Tribunal was justified in rejecting the claim because the High Court has clarified in Gupta Metallics [2012 (8) TMI 818 - BOMBAY HIGH COURT] that the provisions of Section 54(b) of the Act did not allow the set off to be granted on purchase of HSD. Certainly, the Commissioner in an application under Section 56 of the Act cannot say it will have prospective effect.
There are no reason to interfere. Appeal dismissed.
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2023 (8) TMI 7 - SC ORDER
Classification of goods - toughened glass manufactured and sold by the appellant - to be classified as “glass and glassware” or as an unclassified item subjected to lower tax? - HELD THAT:- The nature and description of articles in Item No. 39 of the Tariff Notification, emphases the kind of goods which are covered and at the same indicate the class of goods which are not covered. In the opinion of this Court, the article manufactured by the appellant-assessee clearly falls within the description of Item No. 39.
In TRUTUF SAFETY GLASS INDUSTRIES VERSUS COMMISSIONER OF SALES TAX, UP [2007 (8) TMI 21 - SUPREME COURT] this Court had observed pertinently in relation to the same legislation held that The High Court proceeded on the basis that while interpreting the words ’glass and glass wares’ in the entry, it should be interpreted as it is understood by the persons dealing in them. It held that the articles manufactured by the assessee cannot be described as glass or glass wares. The view of the High Court would have been correct had the expression "in all forms" not succeeded the expression "glass and glass wares".
The judgment of the High Court, therefore, does not call for interference. The appeals are dismissed.
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2023 (8) TMI 6 - BOMBAY HIGH COURT
Lien on property on account of sales tax dues - dues of a secured debtor rank above the dues of the State Government or not - Seeking initiation of contempt action against the respondents for having committed a breach of the order passed by a Co-ordinate Bench of this Court - HELD THAT:- In so far as the petitioners’ case that a letter dated 16 March 2021 issued by the respondent to petitioner No. 3 would amount to breach of the order dated 10 January 2020 passed by the Division Bench, is totally untenable. This for the reason that such a communication did not in any manner obstruct the sale of the property by the petitioners to realise its dues by exercising its first charge as per the orders dated 10 January 2020 passed by the Division Bench. Secondly, the petitioners in alleging breach have totally overlooked that petitioner No. 3 taking the benefit of the order dated 10 January 2020 had already proceeded to issue an auction proclamation on 11 February 2021 under which petitioner Nos. 1 and 2 had submitted their bids which came to be considered by petitioner No. 3. Petitioner Nos.1 and 2 were declared to be successful bidders by issuance of a communication by petitioner No. 3 titled as “Successful Bid Confirmation Letter”. Thereafter, on 5 March 2020 petitioner Nos. 1 and 2 had made part payment/consideration in purchasing the auctioned property, from petitioner No. 3. All this has happened prior to the respondent issuing letter dated 16 March 2021. Thus, to infer any intentional disobedience to defeat an order dated 10 January 2020, is unacceptable.
It may be observed that once the Court recognizes the first charge of petitioner No. 3 and in pursuance thereto actions were taken by petitioner No. 3 to auction the mortgaged property, it cannot be said that the issuance of the letter / Notice dated 16 March 2021 and 9 April 2021 respectively by the respondents alleged to be issued in breach of the orders, would even remotely amount to any intentional disobedience of the orders passed by this Court.
The Court considering the position in law has held that apart from recognizing the first charge of petitioner No. 3, the charge of the Sales Tax Department on the mortgage property had continued to operate even on transfer of the said property in the hands of petitioner Nos. 1 and 2 as auction purchasers, as it was on the very terms and conditions of “as is where is basis”, “as is what is basis” and “whatever is there is basis”, the petitioner Nos. 1 and 2 had purchased the property.
The present contempt petition appears to be not bonafide and is dismissed.
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2023 (8) TMI 5 - BOMBAY HIGH COURT
Maintainability of petitioner's original appeal - time limitation - appeal was in prescribed format or not - HELD THAT:- The petitioner had instituted the appeal against the common assessment order (CST and VAT) dated 27.04.2017 and 12.07.2017. This was admittedly within the prescribed period of limitation. However, because of the confusion due to the filing of the consolidated appeal, the VAT appeal may not have been in the prescribed format. Therefore, the VAT appeal in the prescribed format was placed on record on 15.04.2019 for the convenience of the appellate authority. Such placement does not amount to originally instituting the appeal. Therefore, the approach of the first appellate authority was rather hyper-technical. The appeal should have been following the law rather than nonsuiting the petitioner based on such technicality.
A valuable right of appeal on merits should not have been denied for such hyper-technical considerations. When technical and substantive concerns are pitted against one another, the latter must prevail over the former. The Administrative Tribunal also failed to appreciate the matter from this perspective, and therefore, these orders warrant interference.
The impugned order set aside - petitioner's appeal restored - appeal disposed off.
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2023 (7) TMI 1234 - KERALA HIGH COURT
Goods - Levy of Service Tax or Sales tax - activity of developing and supply of customised software to its clients - Levy of penalty - wilful suppression of facts or not - HELD THAT:- Even a customised software will satisfy the definition of 'goods' for, it is evident that it has the attributes having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of being transmitted, transferred, delivered, stored and possessed. Once the said attributes are seen satisfied in the software in question, then whether the software is treated as customised or non-customised, it would nevertheless be categorised as 'goods' for the purposes of levy of tax - The said view of the Supreme Court has since been followed in later decisions including a recent decision of the Supreme Court in COMMISSIONER OF SERVICE TAX DELHI VERSUS QUICK HEAL TECHNOLOGIES LIMITED [2022 (8) TMI 283 - SUPREME COURT].
Merely because the software developed by the respondent/assessee in the instant case was customised for a particular user and was not sold to other users, the charges collected from the customer cannot escape the levy of sales tax under the KGST Act. This is more so because the mere fact that it was customised for a particular user did not lead to the software ceasing to be goods for the purposes of levy of sales tax.
Issue in favour of the assessee and against the Revenue.
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2023 (7) TMI 1233 - KERALA HIGH COURT
Validity of Best Judgement Assessment - fixation of rate of Gross Profit - 70% or 80% of cost of goods sold (COGS) - invocation of provisions under Section 41(1) of the Kerala General Sales Tax Act, 1963 - HELD THAT:- In the instant case, the Appellate Tribunal found that the assessee was given the opportunity, both at the time of issuance of notice for the production of the books of accounts as well as at the time of issuance of proposal notice, to produce the books of accounts. However, the assessee did not avail of those opportunities. The Appellate Tribunal noticed that no audited statements in Form 50A and 50B were produced before the first appellate authority and no such audited statements were produced before the Tribunal as well. After considering the rival contentions, the Appellate Tribunal, by the order dated 03.11.2022, dismissed the appeals filed by the assessee.
In the instant case, in Annexure-A assessment orders for the year 2017-18 and 2018-19, the assessing authority fixed gross profit at the rate of 80%, to complete the assessment for those years on the basis of ‘best judgment assessment’. In Annexure-C orders for the year 2017-18 and 2018-19, the first appellate authority modified Annexure-A assessment orders by adopting a gross profit of 70% of the cost of the goods sold for those assessment years, considering the fact that the assessee is conducting business at a distance of 8 kilometres from the town. It is an admitted fact that, for the years 2015-16 and 2016-17, the assessing authority adopted a gross profit of 65% of the cost of the goods sold, while completing the assessment of the assessee for those years on the basis of ‘best judgment assessment’, in the assessment orders dated 11.03.2020 and 16.03.2020.
In best judgment assessment there is always a certain degree of guesswork and it is the assessee himself who is to blame, as he did not submit proper accounts. In the facts and circumstances of the case on hand, it cannot be said that the estimation of gross profit by the assessing authority at 70% of the cost of the goods sold for those assessment years is not bona fide or without a rational basis.
There are no reason to interfere with the orders of the authorities below, which are impugned in these S.T. Revisions - Revision dismissed.
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2023 (7) TMI 1170 - MADRAS HIGH COURT
Principles of natural justice - No personal hearing was afforded to the Petitioner before passing the impugned assessment order - Amendment made to Entries 1 and 2 of Second Schedule to the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- The Petitioner was not granted any opportunity to put forth their submission on merits. It was submitted that under similar circumstances, this Court was pleased to direct the Assessing Officer to revoke the assessment after granting an opportunity to the Petitioner to put forth their submission on merits.
The impugned assessment order, dated 12.09.2022 passed by the Respondent are hereby quashed and the matters are remanded back to the Respondent for fresh consideration. The Respondent shall pass final orders in accordance with law after granting reasonable opportunity of personal hearing to the Petitioner - Petition disposed off.
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2023 (7) TMI 1060 - PUNJAB AND HARYANA HIGH COURT
Revision of remand assessment order - vires of Section 174 (2) (3) of Haryana Goods and Services Tax Act, 2017 - effective and alternative remedy of filing reply not effected - opportunity to file appeal against the order passed by the revisional authority before the appropriate forum not provided - HELD THAT:- It is very much explicit that the High Court can entertain a writ petition even though the alternative remedy has not been availed if there is pure question of law and the matter can be decided without going into disputed questions of fact, if the proceedings initiated by the assessing authority/any other revenue authority are without jurisdiction or, if there is violation of principles of natural justice or if the writ petitioner seeks enforcement of any fundamental right. The main thrust of argument raised by the petitioner for assailing the impugned show cause notice is that it was illegal and without jurisdiction and was liable to be quashed as it was issued in violation of Section 29 (2) (e) of the HVAT Act by respondent No.2 who would require it to produce documents and books of accounts pertaining to the A.Y. 2011-12 while conducting proceedings on this notice though the petitioner was not required to maintain and preserve such documents and books of account beyond a period of eight years from close of relevant assessment year. The argument so raised by the petitioner appears to be attractive but on a careful perusal of the record, the same lacks any merit.
When the respondent No.2 in the impugned notice has not sought production of the account books for the relevant assessment year and when the respondents have rather clarified that they would not be needing production of the same at the stage of determining the impugned show cause notice, the impugned notice could not be stated to be illegal or without jurisdiction merely because it was issued after expiry of period of eight years from the closing of A.Y. 2011-12.
In the present set of circumstances, any finding by this Court at this stage is likely to be prejudicial to the interest of either of the parties to this petition. The issues raised in the show cause notice are required to be determined by the respondent No.2 at the first instance. The matter has to be determined in the light of the submissions that may be advanced by the petitioner as well as the revenue in course of such determination. The question as to whether the assessment order is liable to be revised is yet to be determined by the revisional authority. In such circumstances, the writ petition does not deserve to be allowed. Consequently, without expressing any opinion on the merit of the issues raised in the course of the arguments, this petition is dismissed but the petitioner is allowed, a further period of 30 days from today to file reply to the impugned show cause notice and to participate in the proceedings.
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2023 (7) TMI 1013 - SUPREME COURT
Levy falling upon the trade mark or brand name owner in the case of first sale of any product by such brand name holder or owner - Sale of Plastic moulded furniture - First point sale or not - further sale denied to fall within the mischief of Section 5(2) of the Kerala General Sales Tax Act (KGST Act) - holding brand names by two different licensing arrangements - HELD THAT:- In the present case, it is evident that both Kaveri and the assessee are authorized to use the trade mark and brand “Nilkamal” through separate arrangements. It appears that despite this fact, the present assessee is not engaged in manufacture of the goods in Kerala but is only selling them in that State. On the other hand Kaveri appears to be a manufacturer / dealer whose entire produce is sold to the assessee. In view of the categorical ruling of this Court in “Kail” there can be doubt that the sale to the assessee by Kaveri cannot be ignored by any stretch of the imagination - not in the least because Kaveri was an exempted unit at the relevant time. The fact that an exemption prevailed and enured in favour of a unit does not in any way detract from the circumstance that the levy subsists. This fundamental aspect appears to have been completely ignored by the High Court when it ruled that such sale had to be ignored altogether.
The High Court, therefore, acted clearly in error in reversing the findings of Tribunal - the impugned judgment and order is hereby set aside; the appeals are allowed.
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2023 (7) TMI 1012 - SUPREME COURT
Method of calculation or the method of determining the exemption limits under the scheme, extended by the State, to multiplexes, who had put up capital infrastructure - Denial of extension of New Package Scheme of Incentives for Tourism Projects - invocation of doctrine of promissory estoppel - HELD THAT:- It is evident from the terms of the Scheme and the exemption notification which gave effect to it, fixed to limits i.e. (1) a time limit and (2) quantification of the exemption. The latter could be subject to the first i.e., in the event, the amount reached the exemption limit were achieved, before the expiry of the period in question (5-10 years), no further exemption could be claimed. The state, however, omitted to provide any mechanism to determine how the exemption limits could be worked out for the purpose of notional calculation of the quantified limit. This meant that a reasonable workable method of calculation had to be applied.
The state’s contention is founded on the assumption that the amount collected during the exemption period by the multiplex owners, also included in element of tax. This assumption, in the opinion of this court is flawed because there could have been no collection which amounted to tax. Furthermore, multiplex/theatre-owners were under an obligation to file monthly returns in terms of the enactment. This would have taken care of any allegation of abuse. The state’s additional argument was that since the element of tax was notionally included in the collections – by multiplexes, -during the exempted period, a further amount equivalent to the tax collectable had to be added.
As the High Court concluded- and in the opinion of this Court correctly so, this contention was bereft of any logic and was plainly unreasonable. There is concededly, a gap in the manner how tax exemption limits can be discerned. Undoubtedly, the law is now settled that exemption notifications have to be interpreted strictly, and against assesses in case of ambiguity.
A reasonable method of calculating benefit of tax exemption, for the purpose of considering (whether the 100% limit equivalent to capital expenditure) was reached or not is to notionally determine the tax amounts payable during the relevant period, when the multiplexes enjoyed tax exemption. This is possible, having regard to the returns filed by them during the time when they sought and were granted exemption. The outer limit (100% investment) is a discernible amount, which the units would be able to furnish, with appropriate proof in their books of accounts, and valuations furnished by them. Clearly enunciating this principle and applying to the facts of this case, High Court has followed a reasonable method which cannot, in this court’s opinion, be faulted.
This court holds that there is no merit in this appeal - Appeal dismissed.
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