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VAT / Sales Tax - Case Laws
Showing 41 to 60 of 27753 Records
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2025 (5) TMI 853
Challenge to assessment order - non-consideration of explanation provided by the applicant/revisionist - principles of natural justice - HELD THAT:- On a pointed query put to the counsel for the revisionist as to where any ground has been taken in the grounds so taken in the grounds of appeals filed before the authorities below, he could not show any such ground, rather he that material evidence and documents have not been considered. Even before this Court, no such pleadings have been raised in the present revision that in spite of specific pleadings being made, pressed or argued, the same has not been considered, rather he tried to refer his written argument so submitted before the tribunal.
The argument raised by the counsel for the revisionist can be accepted, but on the contrary, the record shows that the first appellate authority party allowed the appeal, which will go against the interest of the revisionist. Once the argument of counsel for the revisionist is accepted that the orders have been passed without considering the material available on record, since the Revenue has not preferred any appeal against the order impugned, this Court refrain itself for going into it, on the basis of argument raised by the counsel for the revisionist.
Conclusion - The general contention of non-consideration of evidence is insufficient to overturn the impugned orders, especially when the appellate authorities had partly allowed the revisionist's appeals.
The impugned orders do not call for any interference by this Court - Petition dismissed.
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2025 (5) TMI 852
Rejection of application filed by the petitioner No. 1-Company under Vera Samadhan Yojna, 2019 - rejection on the ground that the petitioner No. 1-Company has not paid the full amount against the outstanding amount intimated to the petitioner No. 1-Company - HELD THAT:- It would be germane to refer to the Amnesty Scheme, 2019 which is a benevolent Scheme for recovery of the old outstanding dues in pending Appeals to reduce the cost of litigation of the Government. As per the provisions of the Clause 8 of the Amnesty Scheme, the petitioner was required to give the benefit of the Scheme on payment of the first installment being 10% of the total outstanding dues to be paid before 15th March, 2020 and remaining 90% to be paid from April, 2020 in eleven equal installments. Clause 8(4) of the Scheme provides that if the monthly installment is not paid within time, then such installment can be paid with 1.5% interest per month before the 20th Day of the next month.
The petitioner has not paid the 6th and 7th Monthly installments within the due date and therefore, the petitioner did not pay the interest amount of Rs. 1,175.07/- as per the Amnesty Scheme - The respondent-Authority therefore, on the ground that the petitioner did not pay the 6th and 7th monthly installments with interest, literally interpreted the provisions of Clause 8(4) of the Amnesty Scheme and rejected the Application of the petitioner on the ground that full amount is not paid.
Such literal interpretation of benevolent Scheme could not have been made by the respondent-Authority without giving any intimation to the petitioner for outstanding amount of interest, if any, to be paid. The impugned order dated 23rd February, 2022 could not have been passed rejecting the application filed by the petitioner under the Amnesty Scheme.
Conclusion - The petitioner is entitled to the benefit of the Amnesty Scheme despite the shortfall in interest payment, due to lack of prior intimation and the benevolent nature of the Scheme.
The impugned order dated 23rd February, 2022 is hereby quashed and set aside and the respondents are directed to give the benefit of the Amnesty Scheme to the petitioner and refund the amount of Rs.4,78,833/- which was recovered subsequently from the attached Bank Account of the petitioner after adjustment of the interest amount of Rs. 1,175.07/- along with interest at the rate of 9% per annum from the date of such recovery till the date of payment of such refund amount to the petitioner - Petition allowed.
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2025 (5) TMI 851
Challnege to revisional order passed by the Commissioner of Taxes under the TVAT Act, 2004 for the assessment years 2014-15, 2015-16, 2016-17 and 2017-18 (up to June 2017) - reopening of assessment for the year 2014-15 beyond five years without issuance of notice under Section 31(1) of the TVAT Act, 2004 - HELD THAT:- The petitioner has been able to make out sufficient grounds to interfere in the matter. The Revisional Authority has also failed to decide the question of law which was raised in the revision petition i.e. determination of a fresh turnover beyond the returns without rejection of the returns of the petitioner for the above periods April to June, 2017 or reflecting any exercise as to whether the turnover was increased relying on the same materials produced by the Assessee along with his returns. The assessment order dated 29th July, 2019 does not reflect any exercise undertaken or any material relied upon to undertake the best judgment assessment for the financial year 2017-18.
The matter therefore, requires to be remanded for a fresh assessment for the relevant year 2017-18 including on the question of penalty. Petitioner has not been able to dispute that notices for assessment proceedings for the relevant year 2017-18 were issued on 13.02.2019 which was well within the period of five years prescribed for assessment under Section 33 of the TVAT Act.
Conclusion - The common impugned revisional order dated 15th October, 2022 is set aside so far as it relates to tax periods 2014-15, 2015-16 and 2016-17 whereas the same stands interfered to the extent that the matter is remanded to the Assessing Authority for carrying out a fresh assessment proceeding for the year 2017-18, tax periods April to June, 2017 in accordance with law.
Petition allowed by way of remand.
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2025 (5) TMI 637
Deduction of Entry Tax - assessment was done based on the guiding principles laid down in the Supreme Court judgment in M/s Gannon Dunkerley and Co. [1992 (11) TMI 254 - SUPREME COURT] - HELD THAT:- The assessment order was passed by the Assessing Officer on 20-12-2016 upholding the demand of Rs. 4,13,55,339/- for the assessment year 2009-10 against which appeal was preferred by the applicant / assessee, which was dismissed by the appellate authority on 24-9-2018 holding that the accounts book does not show closing work in progress, opening work in progress and the entry of purchase is made for lesser amount, therefore, the records are not reliable and upheld the order passed by the Assessing Officer. It was categorically held by the appellate authority that the judgment rendered by the Supreme Court in the matter of M/s Gannon Dunkerley and Co. and others v. State of Rajasthan and others cannot be applied, as the documents were not made available as per the said judgment for the authority to follow the principles of law laid down therein. The Commercial Tax Tribunal also dismissed the further appeal preferred by the assessee / applicant herein on 9-9-2022 making observation regarding non-supply of proper documents. Ultimately, on 5-9-2022, the Tribunal under Section 55 (1) of the Act has referred the substantial questions of law which have been quoted in the opening paragraph of this order.
A careful perusal of the order passed by the learned Tribunal in appeal, would reveal that the Tribunal has not held that the assessment has been done following the guiding principles laid down in M/s Gannon Dunkerley and Co. In absence of any such finding, the questions referred by the learned Tribunal do not arise for determination by this Court. As such, the Tribunal did not hold that the assessment has been done following the guiding principles laid down in M/s Gannon Dunkerley and Co.
A careful perusal of sub-section (4) of Section 55 of the Act would show that if the High Court is satisfied that the case stated is not sufficient to enable it to determine the question of law raised, it may call upon the Tribunal to make such additions or alterations as the Court may direct in that behalf - the Tribunal did not hold that the assessment has been done following the guiding principles laid down in M/s Gannon Dunkerley and Co.
In exercise of the power under Section 55 (4) of the Act, the Tribunal is directed to alter the substantial question of law suitably and frame the question afresh for determination of this Court.
The matters are referred to the Tribunal to suitably alter the question of law for determination of this Court in the following manner and refer the same to this Court:-
“Whether under the facts and circumstances of the case, the Tribunal was justified in upholding the assessment made without following the guiding principles laid down by the Supreme Court in M/s Gannon Dunkerley and Co. (supra) and consequently erred in determining the Value Added Tax and the Entry Tax?”
Application disposed off.
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2025 (5) TMI 636
Violation of doctrine of promissory estoppel - Tax exemption benefits promised under the earlier Industrial Policy and Schemes validity of the amendments and the non-issuance of appropriate order by the Finance (Taxation) Department for extension of the period of eligibility - extensions have been granted to other similarly situated industries while similar benefits have been denied to the writ petitioners - hostile discrimination - HELD THAT:- In Dai Ichi Karkaria Ltd Vs. Union of India & Ors, [2000 (4) TMI 42 - SUPREME COURT] referring to the earlier precedents in Kasinka Trading [1994 (10) TMI 64 - SUPREME COURT] and Shrijee Sales Corporation [1996 (12) TMI 61 - SUPREME COURT], the Apex Court held that the law in respect of promissory estoppels is well settled and that even in respect of exemptions made by the Government the doctrine of promissory estoppel will not be applicable if the change in the stand of the Government is made on account of public policy.
Coming to the facts of the present proceedings, there is no doubt that the benefits under the Industrial Policy of 2008 was sought to be given effect to by the Scheme of Assam Industrial (Tax Exemption) Scheme 2009. The scheme itself makes it very clear that these benefits for exemption of VAT is till the currency of the VAT Act. Subsequent to the GST regime, the Assam Industries (Tax Reimbursement for Eligible Units) Scheme 2017 was introduced for extension of the period for granting customized tax incentives under the Industrial Policy of 2008 although only in respect of the States share of the GST paid by such industries - The contention of the petitioners that under the Industrial Policy of 2008, the promise of 100% VAT exemption and which came to be implemented by the Tax Exemption Scheme of 2009 must be continued to be extended even under the GST regime to include the Central Share of GST paid by the industries/units of the petitioners in view of the earlier promise or representation made under the Industrial Policy of 2008 read with the erstwhile Tax Remission Scheme of 2009 and failure to do so as hit by the doctrine of promissory estoppels. Such contention of the writ petitioners cannot be accepted and are therefore rejected.
The notification dated 30.12.2019, whereby the Government notified the Assam Industries (Tax Reimbursement for Eligible Units) (Amendment) Scheme, 2020 reflects the policy decision taken by the Government. The Respondents have taken a stand that this is the policy adopted by the Government in view of the financial hardships which has been faced by the Government for various reasons. There is no gain saying that constitutional courts in exercise of the powers of judicial review can interfere with statutes or Rules or even schemes if the same are found to be unconstitutional. However, the Courts, while exercising judicial power, do not ordinarily interfere with policy decisions of the Executive unless the policy decision can be faulted on grounds of malefide, unreasonableness or arbitrariness or unfairness, etc.
In the facts of the present case, the case projected by the petitioners is that the Amendment to the reimbursement scheme of 2020 by which the powers conferred on the finance department to grant extension of benefits has been taken away is premised on the ground of violation of the doctrine of promissory estoppel and legitimate expectation - It is well settled that change in law is in furtherance of public policy. The challenge to the amendments brought in by the impugned Notification dated 30.12.2019 to the Assam Industries (Tax Reimbursement for Eligible Units) Scheme, 2017 has been assailed on the ground of violation of Article 14 as it is contended that the government has resorted to unreasonable classification by which the petitioners’ have been ignored while other similarly situated units have been given due benefit. It is also settled that where a vires of a statute is under challenge, courts must adopt every possibility to arrive at an interpretation that will not render the legislation otiose or unconstitutional.
This Court therefore holds that the projection of the respondents that in extending the benefit to Varun Beverages while the application of the petitioners remained unconsidered was based upon reasonable classification cannot be accepted in the absence of any materials placed before this Court as to how this reasonable classification was arrived at - While considering such representation, the Respondents will give due consideration to all the attending facts and circumstances as have been done in cases of other similarly situated units or industries. Since this Court has come to a finding that the case of the petitioners deserve consideration by the Respondents in the same manner as other similarly situated units were given their consideration prior to impugned amendment, there is no necessity to interfere with the impugned amendment brought in. If the consideration as directed by the Respondents is given by taking into all relevant materials and the yardsticks applied to other similarly situated units, then this Court is of the view that the same will adequately redress the grievances of the petitioners.
This Court therefore directs the respondent authorities to consider the claims of the petitioners by applying the same yardstick as have been done in other similarly situated units and instances of which is placed before the Court by referring to orders passed in case of one Varun Beverages. If on the facts and circumstances as applicable to the writ petitioners their cases are found to be similarly situated as the other units or industries who have been given the benefit of extension for the period of exemption of taxes then similar benefits must be granted to the writ petitioners. The respondent authorities will consider the claims of the writ petitioners in the light of the directions granted above within a period of 60 days from the date of receipt of certified copy of this order.
Conclusion - i) While the State was entitled to adapt its tax exemption schemes to the new GST regime and public interest considerations, the Amendment Scheme, 2020's withdrawal of extension power was valid as a policy decision. However, the failure to consider the petitioners' pending applications for extension, while granting extensions to other similarly situated units, was arbitrary and violative of Article 14. ii) The doctrine of promissory estoppel did not apply to compel extension beyond the statutory limits or reimbursement beyond the State's share of GST, given the change in law and public interest. iii) The petitioners did not have vested rights to the benefits beyond the statutory and policy framework in force post-GST.
Petiiton allowed in part.
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2025 (5) TMI 570
Effect of delegated legislation of amendment to Rule 20 (2) (n) vide, G.O.Ms.No.2201, Rev. (CT-II) Dept. dated 29.12.2005, introduced under section 13 (1) of the VAT act denying the ITC for coolers - retrospective effect or not - ITC on tax paid on breakages of glass bottles, which occur in the manufacturing process and are sold as scrap.
Input Tax Credit (ITC) on purchases of coolers and refrigerators made during the year 2004-05, in light of the retrospective amendment - HELD THAT:- The Hon’ble Apex Court in a case of Union of India and another Vs. Pradeep Kumari and others [1995 (3) TMI 489 - SUPREME COURT], inter alia held that in relation to beneficial legislation, the law is well-settled that while construing the provisions of such a legislation, the Court should adopt a construction which advances, the policy of the legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it.
The Hon’ble Apex Court in Girdhari Lal & Sons Vs. Balbir Nath Mathur & Others [1986 (2) TMI 253 - SUPREME COURT] relying on the other decisions of the Hon’ble Apex Court held that the object and purpose of the amendment to remove the mischief and defect for which the amendment was necessitated is required to be considered and borne in mind and the Parliament’s intention is ascertained and the object and purpose of the legislation is known, it then becomes the duty of the Court to give the statute a purposeful or a functional interpretation.
According to a plain reading of Rule 20 (2) of the AP VAT Rules, 2005, the revision petitioner, M/s Pearl Beverages, is entitled to and eligible for the Input Tax Credit (ITC) on refrigerators, coolers, and deep freezers purchased by manufacturers of soft drinks and ice cream. This is because the right was taken away due to an amendment made under Section 37 of the AP VAT Act, which introduced provision (n) to the negative list without providing any justification. The amendment is not clarifying, and since a vested cannot be taken away retrospectively, it is unfair, and arbitrariness applies.
The right accrued to the revision petitioner/Assessee/Pearl Beverages Limited on the date when they paid tax cannot be taken away by way of amendment. As held by the apex court in several decisions that a rule cannot be applied retrospectively removing the accrued or vested right, as the amendment has not given any reason for effecting retrospectively.
ITC of tax paid on breakages of glass bottles, which occur in the manufacturing process and are sold as scrap - HELD THAT:- An Input Tax Credit can be claimed when a manufacturer buys a raw material and pays a certain amount of tax on those purchases. They can deduct that tax amount from the tax they need to pay when selling their finished products. Where in the case on hand the petitioner/ assessee who purchased glass bottles for not to use for manufacture to produce some other product by using the product purchased and petitioner is not the manufacturer of the bottles. The petitioner / assessee has purchased the bottles for storing of the liquid which does not fall under the manufacturing of another product.
The contention of the petitioner / assessee is that FIFO (First in First out) method would be applicable. FIFO method is generally used to determine the value of any item moving out of a stock account and those remaining in stock at any point of time. When applied to an account holding dematerialised stock, it implies that, out of the existing holdings, the item that first entered into the account is deemed to be the first to be sold out. There is no evidence the product moved of stock those remaining in stock and they are invoiced - the issue is answered against to the revision petitioner.
Conclusion - The amount paid by the revision petitioner is refundable to the extent of input tax credit on the coolers and refrigerators. The revision petitioner is entitled to the input tax credit for the coolers and refrigerators, while the rest of the claim is rejected.
The Tax Revision Case is, therefore, allowed partly.
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2025 (5) TMI 569
Challenge to assessment order - addition of 40% to the Contractual Transfer Price (CTP) and making an assessment on the same and levying tax - HELD THAT:- In the assessment order, after setting out the stand taken by the writ petitioner in their written submission dated 19th June, 2018, the Assessing Officer has pointed out that the petitioner/dealer has deviated from the practise, which they had followed in the earlier years without any explanation if a dealer is undoubtedly entitled to resort to tax planning, but not tax avoidance.
One more aspect, which is conspicuously missing in the assessment order is to the basis of addition of 40%. No explanation is forthcoming, as could be seen from the assessment order. Therefore, we are of the view that the matter should be re-examined by the Assessing Officer after affording an opportunity to the petitioner to produce documents and particulars and after affording an opportunity of personal hearing to the authorised representative either virtually or in person, the fresh assessment order be passed on merits and in accordance with law.
Considering the fact that the Assessing Officer has made certain observations in the assessment order dated 27th June, 2018 on which the petitioner/dealer had no opportunity to put forth the case, those observations shall be treated as a show-cause notice and the petitioner is directed to submit his reply alongwith supportive documents within a period of three weeks from the date of receipt of server copy of this order, after which an opportunity of personal hearing shall be afforded to the authorised representative of the writ petitioner/dealer either virtually or in person and a fresh assessment order be passed on merits and in accordance with law.
Conclusion - The addition of 40% to the Contractual Transfer Price is not adequately explained or justified and reassessment is directed on merits after affording the petitioner a fair opportunity to be heard and produce relevant documents.
Petition disposed off.
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2025 (5) TMI 396
Disallowance of exemption towards inter-State consignment transfers - levy of penalty u/s 12(3)(b)(v) of the Tamil Nadu General Sales Tax Act - HELD THAT:- It is appropriate to refer the judgment of the Hon'ble Supreme Court in Deputy General Manager (Appellate Authority) Vs. Ajai Kumar Srivastava [2021 (1) TMI 1312 - SUPREME COURT], wherein the Hon'ble Supreme Court dealt the contours of powers of the Court under Article 226 of the Constitution of India. It was held by The Apex Court that 'The Constitutional Court while exercising its jurisdiction of judicial review Under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.'
It is well settled principle of law that whenever any factual finding is rendered by the authorities, the Writ Court normally will not interfere, unless the same is perverse or contrary to law. Therefore, there is a duty cast upon this Court to find out whether the factual findings rendered by the Sales Tax Appellate Tribunal is in accordance with law. On harmonious reading of the impugned orders, the very reasoning for rejection the assessee's claim under Section 6A of Central Sales Tax Act is on three folds. (i) The agent sold the goods on the cost value, (ii) that the agent did not split the sale in a smaller quantity and (iii) receipt of sale price in advance. In order to substantiate the same, the Sales Tax Appellate Tribunal has extracted certain transactions of assessee's agents. No doubt in some invoices, the gross sale amount at the hands of the agent, and net amount received by the assessee are one and the same. Therefore, we need to consider whether such thing by itself is an indication of direct inter-State sale.
At this juncture, it is relevant to refer the judgment relied by the Revenue. In Andaman Timber Industries Ltd's case [1997 (11) TMI 500 - MADRAS HIGH COURT], the dealer has directly sent the goods in the name of ultimate buyer of the other State, whereas, in the case in hand, admittedly, the agent is available at the relevant place, and the stocks were transferred by the agent to the buyer on the same day.
Conclusion - The transactions qualify as inter-State consignment transfers eligible for exemption under Section 6A.
The impugned order is set aside - petition allowed.
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2025 (5) TMI 313
Recovery of dues - priority of claim over the dues - secured creditor (Petitioner-Bank), having registered its security interest under the SARFAESI Act with CERSAI prior to the attachment order by the Sales Tax/M-VAT Department, has priority over the State's claim and charge on the secured asset or not - HELD THAT:- The core issue involved in the present matter is no more res integra in the light of the view taken by this Court in the Full Bench Judgment of Jalgaon Janta Sahakari Bank Ltd [2022 (9) TMI 163 - BOMBAY HIGH COURT]. Once the security interest of the creditor is registered under the provisions of the SARFAESI Act with CERSAI Act, the priority as provided under Section 26-E comes into play.
In the present matter admittedly, the security interest is registered with CERSAI on 09/07/2011 and much thereafter, on 02/02/2015, the order of attachment of secured asset has been passed by the Tax Officer. Respondent No. 1 has only produced attachment order and one 7/12 extract of the secured asset with its reply. Nothing else is produced. Not even Mutation Entries under which the encumbrance is recorded. No material in support of any steps for proclamation is produced.
It is noted here that nothing is brought to notice that the attachment order was registered with CERSAI by the Respondent Tax Authorities as required under section 26B(4) of the SARFAESI Act. The authorities were bound by the said requirement after 24/01/2020 when chapter IVA was brought on the statute book including section 26B to 26E thereof. It is material to note that the sale has taken place as e-auction sale under notice dated 06/12/2022 and there was sufficient time in the interregnum for the Respondent Authorities to register its attachment order.
Undisputedly, it is also not shown of steps taken by the Respondent State to undertake the proclamation of attachment order as contemplated with beat of drum or other customary mode or its copy being affixed on some conspicuous part of the secured asset and also on the notice board of concerned Talathi office. Therefore it cannot be said that Respondent No. 8 had either constructive or actual notice of the State dues. In that view of the matter, Respondent No. 8 can not be held bound to pay the State dues and it can not be said that the encumbrance will continue on the secured asset.
Conclusion - The Petitioner-Bank has a priority over Respondent Nos. 1 and 2, who do not have charge over the secured asset sold to the Respondent No. 8. The Petitioner-Bank having sold the secured asset to the Respondent No. 8 during the enforcement of the security interest under the provisions of SARFAESI Act, it gives clear title to the Respondent No. 8, free from encumbrance claimed by the Respondent Nos. 1 and 2 – Tax Authority.
Petition allowed.
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2025 (5) TMI 312
Condonation of delay of 29 days in payment of the last two installments under the 'Vera Samadhan Yojna, 2019' amnesty scheme, due to Covid-19 pandemic hardships - HELD THAT:- It is the uncontroverted position that after paying a substantial amount of approximately a little less than Rs. 3,00,000/-, the Petitioner was unable to pay an amount of Rs. 55,780/-, only within the time within which he was required to pay, but nevertheless paid the entire amount under the Scheme. In this circumstances, it can be inferred that the Petitioner must have succumbed to dire and compelling necessity and reasons beyond the control of the Petitioner that the timeline for the last two installments only could not be adhered to by the Petitioner. The clear and unequivocal intention to avail the Scheme can be noticed from the fact that the Petitioner although belatedly paid up the entire amount. In Sunflowers [2020 (1) TMI 265 - GUJARAT HIGH COURT], this Court discussed the object and purpose of the Amnesty Scheme as 'the object of the amnesty scheme is to bring about expeditious and effective resolution of old disputes and recoveries of old outstanding dues of the Government and reduction of administrative costs. Since such scheme is applicable to all pending cases, the officers acting under the relevant statutes are expected to respect the object of the scheme and to ensure that the assessees get the benefit under the scheme.'
From the Order of the Hon’ble Apex Court in Yashi Construction [2022 (3) TMI 110 - SC ORDER], it is not apparent whether Covid hardship etc. were either pleaded before the Court or whether the amount concerned was fully paid up by the Assessee in the said case. Hence, this Court in these circumstances deems it more appropriate to follow the decision of the Hon’ble Apex Court in the case of Dalchandra Rastogi Vs. CBDT [2019 (2) TMI 420 - SC ORDER], which has been referred to and relied upon by a Division Bench of the Hon’ble Delhi High Court in IA Housing [2022 (11) TMI 1308 - DELHI HIGH COURT]. This Court is accordingly of the view that the Petitioner, due to demonstrable hardships was unable to pay the last two installments under the said Scheme after having diligently paid the first ten installments within the stipulated time, cannot be said to have rewritten or modified the “Vera Samadhan Yojna 2019” in any manner. As held in the catena of decisions of this Court, the Hon’ble Delhi High Court as well as the Hon’ble Supreme Court, the object and purpose of an Amnesty Scheme has to be seen from that angle which furthers the object of the Scheme, than which merely renders the Scheme illusory and denies the benefit to the Assessee and adds to the pendency of conflicts with the State. In such view of the matter, the present petition succeeds.
The delay of 29 days in making the payment under the aforesaid scheme is hereby condoned.
Conclusion - The Petitioner, due to demonstrable hardships was unable to pay the last two installments under the said Scheme after having diligently paid the first ten installments within the stipulated time, cannot be said to have rewritten or modified the 'Vera Samadhan Yojna 2019' in any manner. The delay is condoned.
Application allowed.
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2025 (4) TMI 1646
Rejection of permission sought by the Petitioner to file revised returns for rectification of the stock transfer for the period 3rd Quarter 2018-2019, after the due date - rejection is on the ground that the time period for the same has expired - HELD THAT:- Let ld. Counsel for the Respondent, place on record a short note in this regard - The Registry shall also place before this Court a list of the matters which have a similar issue.
List on 20th May, 2025.
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2025 (4) TMI 1593
Recovery of arrears of sales tax - priority of claims of secured creditor bank's equitable mortgage created in 1991 over the claims of the Commercial Taxes Department arising from sales tax arrears under the Tamil Nadu General Sales Tax Act, 1959 - interpretation and applicability of Section 26E of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) - HELD THAT:- The records make it clear that this arrangement has been on-going since December 1991. The impugned notices/communications have been issued only in December 2002 and hence, the arrangement between the bank and the defaulters was already in place for more than a decade when the impugned notices were received. On a careful perusal of the records of the Commercial tax Department as well as DRT/DRAT, it is concluded that the available documents establish the legitimacy of the factual position of the bank in these writ petitions.
As far as the question of priority is concerned, Section 26E of the SARFAESI Act is a specific provision which states that notwithstanding anything contained in any other law for the time being in force and after the registration of security interest, it is the debts due to the secured creditor that shall have priority over all other debts and revenues, including those payable to the Central or State Government or local authority. Hence, as far as SARFAESI Act is concerned and with respect to the question of priority, it is Section 26E, which is a specialized section, that would apply. The provisions of Section 34 of the RDB Act are, by contrast, general in nature - in the juxtaposition of Section 26E of the SARFAESI Act with Section 34 of the RDB Act, it is Section 26E of the SARFAESI Act that will provide the necessary impetus for determining the priority of a charge of security interest in favour of the Financial Institution, as Section 34 of the RDB Act is, by comparison, only a general provision.
It is very clear that it is the provisions of Section 26E of the SARFAESI Act and Section 34 of the RDB Act would prevail over the provisions of Section 24 of the TNGST Act. Additionally, this is a case where security interest has been created by the bank as early as in 1991, prior to the charge imposed by the Sales tax Department. Section 24 of the TNGST Act does not provide for priority by creation of a first charge in respect of the demands raised under that Act. Hence, Section 26E of the SARFAESI Act and Section 34 of RDB Act would prevail, in public interest.
Conclusion - Section 26E of the SARFAESI Act and Section 34 of the RDB Act would prevail over the provisions of Section 24 of the TNGST Act, in public interest.
The impugned notices and communications are quashed and both writ petitions are allowed.
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2025 (4) TMI 1389
Entitlement for concessional central sales tax - respondent despite falling in the negative list would still be entitled to the tax rebate as set out in the notification dated 01.04.2013, that too, for the period 2015-16, especially, when it was not disputed before the authorities below that the industrial unit of the respondent falls in the ‘negative list’ - failure to take into consideration the judgment of the Hon’ble Supreme Court in Lloyd Electric and Engineering Limited vs. State of Himachal Pradesh & Ors, [2015 (9) TMI 370 - SUPREME COURT], wherein the Hon’ble Supreme Court has held that the State Government cannot speak in two voices - principles of natural justice - HELD THAT:- In Ambica Quarry Works v. State of Gujarat and others [1986 (12) TMI 365 - SUPREME COURT], the Hon’ble Supreme Court held that the ratio of any decision must be understood in the background of the facts of that case. Relying on Quinn v. Leathem, it has been held that the case is only an authority for what it actually decides, and not what logically flows from it.
In Union of India v. Amrit Lal Manchanda and another [2004 (2) TMI 361 - SUPREME COURT], it has been stated by the Hon’ble Supreme Court that observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. The observations must be read in the context in which they appear to have been stated. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
It was not disputed before the Hon’ble Supreme Court that the appellant therein was found eligible for said concession since it satisfied the parameters prescribed in the notification till 31.03.2009. These incentives were thereafter extended not only for five years up to 19.05.2009 but were thereafter extended vide notification dated 29.05.2009 upto 31.03.2013 or till the time CST is phased out or whichever is earlier.
This notification clearly excluded the industrial units specified in the negative list from the concessional rate of 1.5% of the taxable turnover of such goods w.e.f. 01.04.2013 for a period of five years or till the implementation of the Goods and Services Tax Act, whichever is earlier - the notification clearly excluded the industrial units specified in the negative list from the concessional rate of 1.5% of the taxable turnover of such goods w.e.f. 01.04.2013 for a period of five years or till the implementation of the Goods and Services Tax Act, whichever is earlier.
Conclusion - i) The respondent's industrial unit, being part of the negative list, is not entitled to the concessional CST rate of 1.5% under the notification dated 01.04.2013. ii) The assessment imposing CST at the rate of 2% and associated interest and penalty is valid and rightly upheld by the assessing and appellate authorities.
Appeal allowed.
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2025 (4) TMI 1388
Dismissal of Second Appeal for non-payment of pre-deposit, especially when the Appellant has already made pre-deposit in the First Appeal - Tribunal exceeded the pre-deposit amount to an extent of the entire tax demand - increasing the pre-deposit amount in Second Appeal in comparison with the pre-deposit amount of first appeal, when the tax demand has been reduced in comparison of the first appeal.
HELD THAT:- The appellant submitted that total demand disputed by the appellant in the Second Appeal before the Tribunal is around Rs. 4,50,000/- whereas the appellant has already deposited Rs. 1,80,000/- (Rs. 1,30,000/- before the First Appellate Authority and Rs. 50,000/- before the Tribunal) and therefore, the appellant has also prayed for waiver of remaining amount of pre-deposit before the Tribunal but the Tribunal did not consider the request of the appellant and dismissed the appeal of the appellant and as such, the appellant is prevented from availing the opportunity to make submissions on merits of the case.
In view of above submission by the appellant, the interest of justice would be served, if the order passed by the Tribunal for pre-deposit of Rs. 3,00,000/- is modified.
The order of the Tribunal is modified by giving credit of Rs. 1,30,000/- deposited by the appellant before the First Appellate Authority, reducing the pre-deposit amount to Rs. 1,70,000/-. As the appellant has deposited Rs. 50,000/- before the Tribunal, the Appellant is directed to deposit Rs. 1,20,000/- towards pre-deposit within a period of four weeks from today. On deposit of Rs. 1,20,000/- within four weeks, the Second Appeal No. 610/2021 shall stand restored to file of the Tribunal.
Appeal is disposed off.
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2025 (4) TMI 1317
Validity of assessment orders - variation of 317.64 Cubic meters of granite - appeal dismissed on the ground that the said appeals are beyond the period of limitation permissible under the provisions of the A.P. Value Added Tax Act, 2005 - HELD THAT:- The orders of assessment passed by the Commercial Tax Officer state that the petitioners had not produced any material before the Commercial Tax Officer to demonstrate that there was no variation in the quantity of granite quarried and the quantity of granite sold by the petitioners. On that basis, the Assessing Officer had passed the orders of assessment. The petitioners do not choose to file any appeals, against the said orders of assessment, within the period of limitation stipulated under the provisions of the VAT Act. The appeals were filed, with an inordinate delay, and beyond the period of time, which could be condoned by the appellate authority.
The maximum period within which the appeals could have been filed and the further period, which can be condoned by the Appellate Authority, had expired even before the Covid outbreak in March 2020. As such, the order of the Appellate Authority also cannot be faulted.
Conclusion - The writ petitions are clearly barred on account of laches. Apart from that, no cogent reasons are set out for challenging the orders of assessment or the orders of appeal.
Petition disposed off.
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2025 (4) TMI 1316
Interest on delayed refunds - entitlement for enhanced rate of interest - relevant date for calculation of interest - HELD THAT:- As per the provisions of the JVAT Act, 2005, the amount of interest starts accruing automatically after 90 days from the date of submission of application of refund, which was submitted by the petitioner on 16.09.2020 and 90 days therefrom expired on 15.12.2020, hence interest will start accruing w.e.f. 16.12.2020.
In the instant case the interest is calculated as per Rule-19 (2) (a) of the Jharkhand Value Added Tax Rules, 2006. However, taking a clue from the order of Alok Shankar Pandey [2007 (2) TMI 329 - SUPREME COURT] that had the Revenue paid the interest to the Petitioner at the right time, the Petitioner could have invested that amount. Thus, the Petitioner is certainly entitled for enhanced rate of interest. Accordingly, the Petitioner is entitled for the interest @ 9% p.a. which comes to Rs. 72,14,351/, for the period from 16.12.2020 to 20.03.2023 i.e. for 826 days delay on the refund of the amount of Rs. 3,54,21,551.00.
The ground of the respondents with regard to payment of less interest in the background of Suo Moto Writ Petition (C) No. 3 of 2020) [2022 (1) TMI 385 - SC ORDER] that the period from 15.03.2020 to 28.02.2022 excluded while calculating the interest amount, is untenable and without any legs to stand in the eye of law. The Petitioner is entitled for the interest @ 9% p.a. which comes to Rs. 72,14,351/, for the period from 16.12.2020 to 20.03.2023 i.e. for 826 days delay on the refund of the amount of Rs. 3,54,21,551.00.
The Respondent Department is directed to pay the differential amount of interest @ 9% p.a. to the petitioner on account of interest accrued on the principal amount of Rs. 3,54,21,551/- after deducting Rs. 20,43,775/- which was refunded belatedly to the petitioner on 21.03.2023 i.e., after delay of 826 days from the date of refund application filed by the Petitioner. It is made clear that the Respondent department shall make payment of such interest @ 9% after proper calculation within a period of 10 weeks from the date of receipt/production of a copy of this order.
Conclusion - i) Application for refund was submitted by the petitioner on 16.09.2020 and 90 days therefrom expired on 15.12.2020, hence interest will start accruing w.e.f. 16.12.2020. ii) The Petitioner is certainly entitled for enhanced rate of interest.
The instant writ application stands allowed.
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2025 (4) TMI 1284
Classifiation of goods - revision in the rate of tax - liquid carbon dioxide - taxable at 5% or 14.5%? - to be classified within Entry-100 (190) in Schedule-IV of the VAT Act or under Entry 100(190)? - time limitation for passing revisional order - revision order was passed after about six years from the date of service of the assessment order.
Time limitation for passing revisional order - HELD THAT:- In S. Kasi vs. State through the Inspector of Police, Samaynallur Police Station, Madurai District [2020 (6) TMI 727 - SUPREME COURT], the petitioner had sought statutory bail, available under Section 167 (2) of the Code of Criminal Procedure, on the ground that the charge sheet, in his case, had not been filed within 60 days of his incarceration or of his being placed in judicial custody. The State contended that the period stipulated under Section 167 (2) Cr.P.C., would stand extended by virtue of the judgment of the Hon’ble Supreme Court dated 23.03.2020. The Hon’ble Supreme Court, after going through the order passed by the Hon’ble Supreme Court in IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER] held that 'To obviate the difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.'
In view of the observations of the Hon’ble Supreme Court in S. Kasi vs. State through the Inspector of Police, Samaynallur Police Station, Madurai District, which was followed by the Hon’ble High Court of Calcutta and High Court of Delhi, it must be held that the extension of time granted by the Hon’ble Supreme Court in the order dated 23.03.2020 and order dated 10.01.2022 would only extend limitation to litigants, who are seeking to approach the appropriate Courts and tribunals and such extension of limitation is not available to an authority acting under any statute. In the circumstances, the order of revision is beyond the period available under Section 32 of the VAT Act and is consequently non est.
Classification of goods - HELD THAT:- What is required to be seen is whether carbon dioxide, whether in liquid form or in gaseous form, would fall under Heading No.2811. As submitted by the learned counsel for the petitioner, the description of goods in Entry 100(190) of Schedule-IV is other inorganic acids and other inorganic oxygen compounds of non-metals and carbon dioxide definitely would fall within such a category. The fact that there are other products mentioned under the main Heading No.2811 would not mean that carbon dioxide does not fall within Heading No.2811. In any event, Heading No.2811 21 specifically mentions carbon dioxide, it may however be noted that there is no qualification that carbon dioxide should be in a gaseous form. In the absence of any such qualification, carbon dioxide in gaseous form or liquid form, would fall under HSN Heading No.2811 and also in Entry No.100(190) of Schedule-IV of the VAT Act.
Conclusion - i) The order of revision is beyond the period available under Section 32 of the VAT Act and is consequently non est. ii) Carbon dioxide in gaseous form or liquid form, would fall under HSN Heading No.2811 and also in Entry No.100(190) of Schedule-IV of the VAT Act.
The order of revision requires to be set aside and is accordingly set aside - Petition allowed.
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2025 (4) TMI 1181
Challenge to assessment order - invocation of extended period of limitation - absence of willful evasion of tax by the petitioner - Section 21 (5) of the A.P VAT Act - Penalty order - HELD THAT:- A best judgment order, of assessment, in the case of willful evasion of tax, by the dealer, would mean that the period of assessment, of six years, for every month would commence from the 20th day of the succeeding month, where returns have been filed in time. As there is no dispute that the returns have been filed, by the petitioner, within the prescribed time, the limitation of every month would have to be taken into account. In such circumstances, the order of assessment, dated 31.03.2021, is beyond the period of limitation set out for the months of April to February of the financial year 2014-15. Since the assessment order is beyond the period of limitation, the order of assessment, dated 31.03.2021, passed by the 1st respondent is to be set aside for the period April, 2014 to February, 2015.
The fact remains that the period beyond limitation would have to be excluded and a fresh computation of the tax that would have paid would have to be undertaken. For this purpose, it would be more appropriate that the entire order is set aside and the matter is remanded for a fresh assessment, by the Assessing Officer, for the period which is within limitation. Apart from this, the petitioner has also raised a ground that the levy of tax @ 14.5%, without giving the benefit of the composition scheme, is impermissible as the Assessing Authority had not verified the forms of composition given by the petitioner and endorsed by the 1st respondent.
Penalty order - HELD THAT:- The order of Penalty, dated 21.05.2021, is based upon the order, dated 31.03.2021. Once the order of assessment itself has been set side, the order of penalty would not survive.
Conclusion - Since the assessment order dated 31.03.2021 is beyond the period of limitation set out for the months of April, 2014 to February, 2015, the order of assessment passed by the 1st respondent is to be set aside for that period.
The order of assessment, passed by the 1st respondent on 31.03.2021 as well as the order of penalty, passed by the 1st respondent on 21.05.2021 set aside - petition allowed.
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2025 (4) TMI 1180
Refund of excess tax credit - applicability of provisions of Rule 18(3)(b) of the Andhra Pradesh VAT Rules, 2005, read with Section 22 of the A.P. Value Added Tax Act, 2005 (the VAT Act) - HELD THAT:- While Section 22 (3) would be applicable to the Central Government, the State Government and the organizations mentioned in Section 22 (3), the provisions of Section 22 (3-A) would be applicable only to the Government of A.P., or any local authority. It would not be applicable to the Central Government - The State is relying upon the provisions of Rule 18 (3) (b) to contend that any payments made in excess of tax liability of the dealer, by a Government authority, can be forfeited under Rule 18 (3) (b).
A closer look at Rule 18 would show that the said Rule specifically stipulates that it would be applicable for payments made under Section 22 (3-A). As the Central Government is not covered under Section 22 (3-A), the provisions of Rule 18 (3) would not be applicable. Consequently, the State cannot refuse refund of amounts to the credit of the petitioner on the ground of Rule 18 (3) of the VAT Rules.
Concluson - Excess tax credits arising from contracts executed for the Central Government are refundable and cannot be forfeited under the provisions invoked by the Revenue in this case.
This writ petition is allowed setting aside the assessment order, dated 30.10.2023, passed by the 3rd respondent with a consequential direction to the 3rd respondent to refund the amount of Rs. 20,19,710/- along with interest under the provisions of the APVAT Act and the Rules made thereunder.
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2025 (4) TMI 1108
Rejection of second Restoration Application filed by the petitioner seeking restoration of Restoration Application No. 1 of 2023, which in turn sought restoration of Second Appeal No. 1172 of 2018 - non-appearance of the petitioner's advocate before the Tribunal due to being occupied in High Court proceedings and other work commitments - HELD THAT:- It appears that the Tribunal ought not to have rejected the Restoration Application No. 12 of 2023 on the ground that the matter is pending for ten years and the applicant has not paid any amount towards tax demand. The Tribunal should have considered the facts of the case to grant the relief to the petitioners for benefit of production of Form-F in accordance with law so as to grant relief during the course of hearing of Second Appeal No. 1172 of 2018. The matter is pending before the Tribunal prior to 2018 and still pending for adjudication and therefore, the Tribunal should not have dismissed the restoration application on that ground of pendency of the litigation.
Conclusion - The Tribunal ought not to have rejected the Restoration Application No. 12 of 2023 on the ground that the matter is pending for ten years and the applicant has not paid any amount towards tax demand.
This petition is disposed off by imposing a cost of Rs.25,000/- on the petitioner to be deposited with the Tribunal within a period of two weeks from the date of receipt of a copy of this order and on that condition, the impugned order of the Tribunal dated 21/08/2023 passed in Restoration Application No. 12 of 2023 is quashed and set aside and Restoration Application No. 1 of 2023 in Second Appeal No. 1172 of 2018 is ordered to be restored to file.
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