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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 27247 Records
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2024 (3) TMI 843 - GUJARAT HIGH COURT
Direction to make pre-deposit under section 73(5) of the GVAT Act as a condition to proceed with the matters on merits filed under section 73 of the GVAT Act - HELD THAT:- In case of M/s. Aims Biotech, when the Tribunal was passing the order dated 05.04.2022 without reference to the order passed in M/s. Nirman Life Science, neither the appellant nor learned advocate for the respondents have drawn attention of the Tribunal with regard to the order passed in case of the appellant - Tribunal has also imposed the cost of Rs. 6000/- upon the appellant while passing aforesaid order.
The impugned order passed by the Tribunal is also quashed and set aside and the matter is remanded back to the First Appellate Authority for fresh hearing to determine the pre-deposit as per section 73 of the GVAT Act. First Appellate Authority shall hear both the appeals of M/s. Aims Biotech as well as M/s. Nirman Life Science together within a period of two months from the date of receipt of copy of this order after deposit of the cost of Rs. 6000/- by the assessee in each case.
The appeals are accordingly disposed of.
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2024 (3) TMI 791 - ALLAHABAD HIGH COURT
Levy of penalty u/s 54(1)(2) of the U.P. VAT Act, 2008 - men-rea on the part of the assessee is an essential pre-requisite condition for imposition of penalty or not - penalty can be imposed upon assessment is made on the basis of Best Judgement Assessment or not - imposition of penalty of 7 times the total tax imposed towards alleged concealed turnover was justified when the express provision of Section 54(1)(2) of the Act provides for imposition of a maximum penalty of 3 times of concealed turnover.
HELD THAT:- A perusal of Section 28(2) of the Act 2008 would indicate that where after examination of books, accounts and other records referred to in Section 28(1) of the Act, 2008 the assessing authority is satisfied about correctness of sale or purchase or both, it may the assess the amount of tax payable by the dealer - A further perusal of Section 28(2) of the Act 2008 indicates that the power of assessment of the amount of tax payable by the dealer on such turnover and for determining the amount of input tax credit admissible to the dealer has been given to the assessing authority and further where the assessing authority is of the opinion that turnover of sale or purchase or both disclosed by the dealer is not worthy of credence it may determine to the best of its judgement the turnover of sale or purchase or both and assess the tax payable on such turnover.
The assessment order dated 30.10.2010 would indicate that the same has been passed considering the provisions of Section 28(2) of the Act, 2008 on the basis of best of its judgement meaning thereby that it is an assessment which has been made by the assessing authority.
The jurisdiction of the assessing authority while taking recourse to the "best judgement assessment" is well settled. Hon'ble Supreme Court in the cases of State of Kerala vs C. Velukutty [1965 (12) TMI 32 - SUPREME COURT], The Commissioner of Income Tax, Calcutta v. Padamchand Ramgopal [1970 (4) TMI 2 - SUPREME COURT], M/s Joharmal Murlidhar and co. v. Agricultural Income Tax Officer, Assam and others [1970 (8) TMI 5 - SUPREME COURT] and Shri S. M. Hasan, S.T.O. Jhansi and another v. M/s New Gramophone House, Jhansi [1975 (9) TMI 177 - SUPREME COURT], has categorically held that while assessing on the basis of "best judgement" the assessing authority has to make the assessment honestly and on the basis of intelligent well grounded estimate rather than pure surmises i.e. the assessment so made while taking recourse to the "best judgement assessment" should be on reasonable guess based upon the material available before the assessing authority.
The order of penalty passed under Section 54(1)(2) of the Act, 2008 is based on the order of the assessing authority as passed under Section 28(2) of the Act, 2008. The assessment order under Section 28(2) of the Act, 2008 is on the basis of well grounded estimate or reasonable guess as held by Hon'ble Supreme Court meaning thereby that the said order does not indicate the willful attempt to defeat or circumvent the tax law to reduce the tax liability. Once the sine qua non to imposition of penalty is evasion of payment of tax and for evasion there has to be a willful act consequently the Court will have to examine as to whether there has been willful act on the part of the revisionist in evasion of tax.
The revisionist has already paid the tax as assessed after modification by the learned Tribunal vide the order dated 22.06.2016. At no stage is there any finding of any willful evasion of tax by the revisionist or a finding of there being any deliberate attempt on the part of the revisionist in avoiding the payment of tax. It is for the authorities to specifically prove the evasion of payment of tax on the part of the revisionist where the evasion has been defined as a willful attempt i.e. the authorities would have to prove a willful attempt on the part of the revisionist to evade tax. In absence thereto the order imposing penalty on the revisionist based on the assessment order passed under Section 28(2) of 2008 cannot be said to fall within the ambit of any of the eventualities as provided under Section 54(1)(2) of the Act 2008 more particularly it cannot be considered to be an evasion of payment of tax by the dealer / revisionist so as to attract the penalty as has been imposed on the revisionist.
The judgement and order dated 06.04.2021 passed by learned Commercial Tax Tribunal, Lucknow in Second Appeal No. 50 of 2017 is set aside - revision allowed.
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2024 (3) TMI 790 - MADRAS HIGH COURT
Violation of principles of natural justice or not - petitioner failed to respond to the show cause notice or avail of an opportunity of personal hearing - Validity of assessment order - HELD THAT:- The documents on record include the show cause notice dated 23.02.2023. The said notice offered a personal hearing to the petitioner. Therefore, the respondents cannot be faulted for the petitioner failing to avail of such opportunity. At the same time, it is noticeable that the impugned order does not make reference to the earlier reply issued by the petitioner in February 2020. It is also noticeable that a sum of Rs. 4,55,013.70 was appropriated from the petitioner's bank account in the Punjab National Bank as against the total amount due of Rs. 4,52,341/- under the impugned assessment order. Therefore, at this juncture, revenue interest is fully secured. In these circumstances, the impugned order calls for interference solely with a view to provide an opportunity to the petitioner.
The impugned assessment order is quashed and the matter is remanded for reconsideration. The petitioner is permitted to submit a reply to the show cause notice dated 23.02.2023 within a period of two weeks from the date of receipt of a copy of this order - Petition disposed off by way of remand.
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2024 (3) TMI 587 - BOMBAY HIGH COURT
Levy of VAT on royalty on which Service Tax has already been paid - It is the respondent’s contention that the assessment orders dated 29 March, 2019 and 31 March, 2020 could not have been passed by the Assessing officer at Mazgaon jurisdiction and in fact such orders ought to have been passed by the Assessing Officer at the Kalyan jurisdiction - HELD THAT:- Insofar as the period which was spent by the petitioner in pursuing the present proceedings are concerned, which is the period from 11 November, 2022 till the passing of this order, the petitioners would be entitled to avail of the benefit under the provisions of Section 14 of the Limitation Act - Insofar as the period of limitation for filing the statutory appeal is concerned, all contentions of the respondents in regard to any issue of limitation and more particularly on the question that the assessment orders dated 2 March, 2017 and 7 June, 2017 were not served in September, 2022 but earlier thereto, we keep open the contentions of the parties.
Needless to observe that for the period 2010-11, 2011-12 in respect of which assessment orders dated 29 March, 2019 and 31 March, 2020 are sought to be withdrawn, the petitioners would be entitled to file statutory appeal as permissible in law within a period of six weeks from today. If so filed, let the appeals be decided without an objection as to limitation and on merits.
Petition disposed off.
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2024 (3) TMI 487 - ANDHRA PRADESH HIGH COURT
Levy of interest on late payment of profession tax - requirement to deduct the profession tax from the salaries and wages of the employees - time limit for filing return and payment of profession tax under the Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 - interest for delayed payment of tax - HELD THAT:- In State of Himachal Pradesh v. Himachal Techno Engineers [2010 (7) TMI 875 - SUPREME COURT] one of the questions which arose was that “whether the period of three months can be counted as 90 days” while answering, the Hon’ble Apex Court held that, considering Section 34 (3) of the Arbitration and Conciliation Act 1996 and also the definition of ‘month’ as defined in Section 3 (35) of the General Clauses Act, 1897 that the legislature had the choice of describing the periods of time in the same units, that is, to describe the periods as “three months” and “one month” respectively or by describing the periods as “ninety days” and “thirty days” respectively. It did not do so. Therefore, the legislature did not intend that the period of three months used in sub-section (3) to be equated to 90 days, nor intended that the period of thirty days to be taken as one month - The Hon’ble Apex Court clearly held that a ‘month’ does not refer to a period of thirty days, but refers to the actual period of a calendar month.
The present case pertains to the period prior to the amendment in Rule 12 by which a specific date i.e., on or before 10th day of the month succeeding the month for which the return has to be filed, has been specified.
The further submission of the learned counsel for the petitioner based on the amendment in the year 2011 is that it ‘the amendment’, fortifies that there was no date prescribed prior to the amendment and consequently, the same has been specified by way of amendment and consequently, there would be no liability for payment of interest. The said submission also deserves rejection. Even if there was no specified date, as has now been incorporated in Rule 12, it cannot be said that there was no date prescribed for filing return or/and payment of tax - Now in view of the amendment of Rule 12 (1) the said period is ‘on or before 10th day of the month succeeding the month for which the return has to be filed’.
From the aforesaid provisions of Sections 4, 5, 7, 11, 12 of the Act 1987; the Rules 12 unamended (as the present case is prior to amendment), 13, 24 of the Rules 1987 and Form-V, it is evident that the liability for payment of interest on tax is on the assessee, if the assessee does not deduct the tax at the time of payment of salary or wages. Liability would also be if after deducting, the assessee fails to pay the tax as required by or under the Act. Such liability was monthly liability for payment of tax and filing of returns. This liability to pay the interest is in addition to the amount of profession tax if the same was not paid on monthly basis i.e., up to the last date of the succeeding month for which the return had to be filed.
There are no substance in the submissions advanced by the learned counsel for the petitioner that there was no liability to make payment of interest, as there was no time specified for payment of professional tax - the impugned order does not suffer from any illegality.
Petition dismissed.
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2024 (3) TMI 445 - ANDHRA PRADESH HIGH COURT
Exemption granted on turnovers relating to Bottle breakage charges and Levy of Rental Charges at 5% on bottles and craters - HELD THAT:- When the bottles travels from the manufacturer to wholesaler and the retailer, the active possession of bottles and crates are in the hands of sellers. The Tribunal found fault with the revisional authority analysis that generally all lease transactions will be for a specified period. However, Section 5-E of the Act provides for unspecified period and the appeal was allowed to that extent.
There is no question of law framed by the petitioner for entertaining the Tax Revision Case. An order of remand for re-assessing the factual possession cannot be considered as an erroneous decision on the question of law. As seen from the order of the Tribunal, the Tribunal has not decided on any issue on the question of law. It has fairly considered the issues before it and passed the orders partly allowing the appeal and remanding back to the Revisional Authority.
There is no question of law framed by the petitioner for entertaining the Tax Revision Case. An order of remand for re-assessing the factual possession cannot be considered as an erroneous decision on the question of law. As seen from the order of the Tribunal, the Tribunal has not decided on any issue on the question of law. It has fairly considered the issues before it and passed the orders partly allowing the appeal and remanding back to the Revisional Authority.
The Tax Revision Cases are dismissed.
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2024 (3) TMI 444 - MADRAS HIGH COURT
Validity of assessment orders in respect of assessment years 2007-08 to 2014-15 - freight not reported and goods sold with under value - petitioner contended that the computation in respect of freight charges in the notice under reply is not based on any material evidence, but entirely based on assumptions and presumptions - Whether proceedings relating to assessment years 2007-08 to 2010-11 are barred by limitation? - HELD THAT:- Under Section 27(1) of the TNVAT Act, the limitation period in respect of escaped assessment is six years from the date of assessment. Section 22(2) deals with deemed assessment. The principal clause prescribes that there will be deemed assessment on the 31st October of the succeeding year to the relevant assessment year - Admittedly, assessment orders were not issued in these cases pursuant to returns being filed. Since the proviso applies to these cases, as regards assessment years 2007-08 to 2010-11, limitation should be computed from 01.07.2012. If so computed, the assessments relating to the above mentioned orders are within the six year period of limitation because re-assessment proceedings were initiated pursuant to notice dated 12.08.2016.
In the impugned assessment orders, the assessing officer has applied a flat rate per consignment based on the State from which the consignments were delivered to the petitioner. For instance, as regards the State of Gujarat, the freight charges per consignment was fixed at Rs. 1,00,000/-. As regards the State of Rajasthan, it was fixed at Rs. 80,000/-. The assessment orders also record the petitioner's contention that about 13 consignments from Gujarat were of the value below Rs. 50,000/- per consignment. Effectively, the freight charges determined by the assessing officer were twice the value of the consignment as regards those 13 consignments. Similarly, the petitioner has pointed out that six consignments were below the value of Rs. 1,00,000/-. Once again, the freight charges determined by the assessing officer is slightly more than the value of consignment as regards these six consignments. These illustrations demonstrate that the assessing officer did not determine the alleged suppressed freight charges on a rational basis. Hence, the assessment orders as regards assessment years 2007-08 to 2013-14 warrant interference.
With regard to this assessment year, the petitioner had filed a rectification petition which was disposed of by order dated 05.06.2020. In the notice dated 12.08.2016, the suppressed turnover with regard to freight was specified as Rs. 89,31,520/-. As against this, in the rectification order, the assessing officer has determined the suppressed freight charges as Rs. 13,17,651/- and computed tax on that basis. It also appears that some additional factors were taken into consideration in the rectification order.
The impugned assessment orders are quashed and these matters are remanded for re-consideration - petition disposed of by way of remand.
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2024 (3) TMI 400 - ALLAHABAD HIGH COURT
Condonation of delay in filing rectification application - Refusal to entertain the rectification application of the petitioner on the ground that the same was time barred - attachment of bank account - HELD THAT:- It is to be noted that the Supreme Court in In Re: Cognizance for Extension of Limitation [2022 (1) TMI 385 - SC ORDER] allowed the limitation to be extended till February 28, 2022.
The petitioner, in the present case, has filed the application on March 11, 2022, that is, only 11 days after the end of the above period. Furthermore, petitioner’s case is that it was not made aware of the order dated March 18, 2017 and it came to know about the said order only on September 14, 2021 when its bank account was attached.
Without going into hyper technicality with regard to period of limitation, this Court keeping in mind the Supreme Court judgment for extension of period of limitation and the fact that Section 5 of the Limitation Act would apply to Section 31 of the VAT Act is of the view that the delay in filing the rectification application should be condoned. In light of the same, the order dated April 6, 2022 passed by the Tribunal is quashed and set aside with a direction upon the Tribunal to hear the rectification application of the petitioner on merit and decide the same within four months from date.
Petition allowed.
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2024 (3) TMI 225 - SC ORDER
Condonation of delay in filing appeal - sufficient cause for condoning the delay or not - HELD THAT:- The High Court has not been convinced by the reasons stated for seeking condonation of delay and hence has dismissed the appeals on that ground.
The High Court has also considered the case of the appellants on merits and has simply extracted the findings of the Tribunal and has observed that there was no illegality or perversity in the said findings. Without going into the question as to whether the respondent was entitled to exemption under Section 11(1)(i) of Haryana Special Economic Zone Act, 2005 (HSEZ Act) and particularly after the amendment made to the said provision.
These petitions disposed off by observing that the High Court was right in dismissing the applications seeking condonation of delay in filing the appeals and consequently the appeals on that ground only.
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2024 (3) TMI 224 - MADRAS HIGH COURT
Validity of orders of assessments under the Puducherry Value Added Tax Act, 2007 - challenge on the premise that the same has been completed without even issuing a show cause notice to the petitioner contrary to Section 24 of the Act which provides that no assessment shall be made without the grant of reasonable opportunity and thus a nullity - violation of principles of natural justice - HELD THAT:- This Court is conscious of the fact that writ petition under Article 226 of the Constitution of India would not be entertained normally if statutory remedy is available. However, existence of alternate remedy is not an embargo or an absolute bar to exercise power under Article 226 of the Constitution of India but a self-imposed restriction and the following circumstances viz., violation of principles of natural justice or lack of jurisdiction or error apparent on the face of the record are some of the exceptions carved out to the rule of alternate remedy for exercise of discretion under Article 226 of the Constitution of India. The impugned orders are made in violation of principles of natural justice and thus falls within the exceptions carved out to the rule of alternate remedy for entertaining writ petition under Article 226 of the Constitution of India.
While this Court is conscious of the fact that though law of limitation does not strictly apply to the writ petitioner, nevertheless Courts would be loathe in permitting writ petitions after inordinate and unexplained delay or laches. Though the same by itself may not be an absolute impediment to exercise judicial discretion and rendering of substantial Justice. From a reading of the extract from the affidavit filed by the petitioner this Court is satisfied with the explanation for the delay in approaching this Court. Importantly, the orders having been made in complete disregard to the mandate contained in Section 24 of the Act, the impugned orders of assessment are a nullity and thus liable to be set aside. The petitioner would treat the impugned orders of assessment as show cause notice and submit its objections within a period of 4 weeks from the date of receipt of a copy of this order and the Respondents shall proceed to complete the assessment within a further period of 12 weeks from the date of receipt of objections.
In the event the petitioner fails to submit its objections within the period stipulated herein i.e., 4 weeks from the date of receipt of a copy of this order, the orders of assessment will stand restored and it shall be open to the Respondents to proceed in accordance with law.
The writ petition disposed off.
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2024 (3) TMI 223 - MADRAS HIGH COURT
Rectification of error - assessments deemed to have been completed in terms of Section 22(2) of the TNVAT Act, 2006 as amended vide Act No.23 of 2012 with effect from 19.06.2012 - It is the case of the petitioner that the impugned notices issued seeking to revise the assessment on 04.11.2020 for the respective assessment years were time-barred.
HELD THAT:- Since the monthly returns filed by the petitioner under Section 21 of the TNVAT Act, 2006 read with Rule 7 of the TNVAT Rules, 2007 were incorrect, the respondent was entitled to pass orders dated 24.12.2020 to the best of his judgement after the completion of the year in terms of Section 22 (4) of the TNVAT Act, 2006 - There is no limitation prescribed for passing order under Section 22(4) of the TNVAT Act, 2006. The language adopted in Section 22(4) of the TNVAT Act, 2006 merely indicates that the assessment order has to be passed after the completion of that year. It would imply that such assessment orders have to be passed within the reasonable period.
Assessment orders cannot be passed long after the expiry of the limitation prescribed under Section 27 of the TNVAT Act, 2006, had the petitioner filed proper monthly returns in time with all the particulars as was required for completing the assessment.
The Impugned Assessment Orders dated 24.12.2020 and Impugned Notices dated 20.12.2021 for Assessment Year 2011-2012 and for Assessment Year 2012-2013 challenged in W.P.No.513 of 2022 and W.P.No. 516 of 2022 are liable to be quashed. There is no merits in challenge to Assessment Orders dated 24.12.2020 and Impugned Notices dated 20.12.2021 for the Assessment Year 2013-2014 - Petition disposed off.
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2024 (3) TMI 123 - ALLAHABAD HIGH COURT
Availment of Input Tax Credit - appeal dismissed on the basis of invoices and bank transactions inasmuch as the transactions have not been proved as a bonafide and genuine transactions otherwise establishing the actual transportation of goods - finding of fact has been recorded against the dealer and the benefit has been allowed only on the basis of tax invoices and bank transactions - HELD THAT:- In the present case, counsel on behalf of the revisionist has submitted that the documents in relation to the transportation of goods were also provided to the authorities below. However, the same do not find reflection in the order passed by the first appellate authority and the Tribunal. It is also true that the Tribunal has recorded finding that the Department has not been able to show any adverse document against the revisionist. The ratio of the decision of the Tribunal is contrary to the judgment of the Apex Court in THE STATE OF KARNATAKA VERSUS M/S ECOM GILL COFFEE TRADING PRIVATE LIMITED [2023 (3) TMI 533 - SUPREME COURT] as the Tribunal has granted the I.T.C. merely on the basis of invoices and payment details.
The order passed by the Tribunal is required to be quashed and set-aside with a direction to the Tribunal to hear the matter afresh allowing the revisionist to produce documents in relation to the transactions including transportation documents and any other relevant document which the petitioner wishes to place. The Department may also be allowed to adduce further evidence, if it so desires - The Tribunal to decide the matter afresh.
The revision petition is, accordingly, allowed.
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2024 (3) TMI 122 - ALLAHABAD HIGH COURT
Violation of the principles of natural justice - impugned order is non-reasoned as the application for recall of the order was considered as application for rectification of mistake only - failure to consider the explanation of the Revisionist as sufficient cause for non- appearance on the date (07.12.2016) on which hearing was fixed - date of which certified copy of the Order dated 08.12.2016 is obtained, is to be considered as the date from which limitation period commences under the Uttar Pradesh Trade Tax Act, 1948 or Uttar Pradesh Value Added Tax Act, 2008 - affidavit of the Revisionist is enough to establish that the copy of order was not served upon the Revisionist - HELD THAT:- Absence of reasoning would render the judicial order liable to interference by the higher court. Reasons are the soul of the decision and its absence would render the order open to judicial scrutiny. The consistent judicial opinion is that every order determining rights of the parties in a Court of law ought not to be recorded without supportive reasons. Issuing reasoned order is not only beneficial to the higher courts but is even of great utility for providing public understanding of law and imposing self- discipline in the Judge as their discretion is controlled by well- established norms. Absence of reasoning is impermissible in judicial pronouncement.
It is the duty cast upon the Appellate Authority that even if it is in agreement with the view taken by the first Appellate Authority, it should give its own reasons/findings which may indicate that there has been application of mind and also the consideration of grounds raised in the appeal by the revisionist. In absence of reasons it is difficult to come to a conclusion that there has been any application of mind by the Tribunal and such an order in the opinion of the Court cannot be sustained and deserves to be set aside.
The question posed for consideration in the revisions is answered in favour of the assessee and it is held that the Tribunal has committed manifest error of law in not complying the provisions of Clause 5 of Section 63 of the Rules, 2008 - the impugned order dated 08.12.2016 is hereby set-aside - revision allowed.
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2024 (3) TMI 64 - MADRAS HIGH COURT
Time Limitation for reopening of assessment - impugned notice were issued after a lapse of five years for these assessment years - HELD THAT:- If no returns were filed or if the returns filed were incomplete or returns filed were incorrect or did not accompany any of the documents prescribed with proof of payment of tax, the Assessing Officer has to make a proper enquiry and assess a dealer to the best of this judgement, subject to such conditions as may be prescribed, after the completion of the year.
There are no records to substantiate that the petitioner had filed returns in time for the respective assessment years in various assessment circles as is contemplated in Rule 7 of the TNVAT Rules, 2007. No Assessment Order was passed by the Assessing Officer for the years in question. Therefore, question of either inferring deemed assessment as is contemplated under section 22 (1) and (2) of the TNVAT Act, 2006 or actual assessment would not arise for the purpose of computation of limitation under Section 27 of the TNVAT Act, 2006.
Since no Assessment Order came to be passed, question of the petitioner getting an opportunity to file a fresh return as is contemplated under section 22 (6) (a) (b) or (c) of the TNVAT Act, 2006 also did not arise - Since no returns were filed by the petitioner in time or thereafter as is prescribed under Rule 7 of the TNVAT Rules, 2007, it has to be construed that the Impugned Assessments dated 23.12.2019 is the first assessment passed by the Assessing Officer under Section 22(4) of the TNVAT Act, 2006.
The limitation for reopening the Assessment under Section 27 of the TNVAT Act, 2006 will apply only six years thereafter. Therefore, there is no merits in the challenge to the Impugned Order. Since the demand has now been confirmed there cannot be any interference with the Impugned Notices issued to the respective banks attaching the accounts of the petitioners maintained with them.
Petition dismissed.
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2024 (3) TMI 2 - MADRAS HIGH COURT
Refund of tax - contention of the appellant is that, by way of deduction of 2% tax at the time of payment and on his declaration of the turnover for every assessment years, he is entitled for refund of tax - whether the judgment rendered in Mahindra and Mahindra Ltd. [2020 (11) TMI 970 - MADRAS HIGH COURT] has any bearing to the case in hand? - HELD THAT:- The judgment in Mahindra and Mahindra Ltd. relied upon by the learned counsel for the appellant is in respect of entertaining a Writ Petition without exhausting alternate remedy. In the above referred case, without affording opportunity, order levying penalty was issued and therefore, without preferring statutory appeal, the assessee approached this Court. In the said circumstances, the Division Bench of this Court held that existence of alternate remedy will not disentitle the writ petitioner to invoke Article 226 of the Constitution when the action of the statutory authority is unfair and against the principles of natural justice.
The facts involved in the case cited is different from the facts of the case in hand. It is not the case of the appellant that he was not given an opportunity. In fact, the impugned notice of the fourth respondent clearly indicates that the notice is to afford an opportunity for being heard and for participating in the proceedings. Therefore, by no stretch of imagination, the dictum laid in Mahindra and Mahindra Ltd. will apply to the case in hand.
Section 22(2) and amendment to Section 28 of the TNVAT Act to be read together to understand the intention of the legislature. The returns filed prior to 19.06.2012 under the self assessment scheme, but no explicit assessment orders are passed in these cases. By introducing the deeming clause, the assessee gets the privilege of assessment. At the same time, to prevent escaped assessment, the authority is vested with the power to revise any return, which has been deemed to have been assessed by virtue of Section 22(2) of the TNVAT Act and such power to revise, is restricted to the period of six years.
In this case, the assessing authority while causing the show cause notice has given opportunity to the assessee to participate in the proceedings. The order of the assessing authority is not final. The statute provides for appeal remedy. Hence, this Court finds that the Writ Petitions are frivolous litigations initiated by the assessee to circumvent the procedure established. Hence, this Court finds no merit in the Writ Appeals.
Appeal dismissed.
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2024 (2) TMI 1299 - SC ORDER
Sales tax demand for use of invalid ST-1 Forms, by the selling dealer - it was held by High Court that The rejection of the Forms in the present case and claiming deduction on the basis thereof for the sale of PVC resins at ₹ 9,25,52,964/- was contrary to law. The findings of the Sales Tax Tribunal and the Authorities below are accordingly reversed - HELD THAT:- Leave granted. Hearing be expedited.
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2024 (2) TMI 1298 - ALLAHABAD HIGH COURT
Rectification of mistake - Refusal to exercise the jurisdiction under Section 31 of the U.P. V.A.T. Act, 2008 - miscarriage of justice or not - failure to exercise a jurisdiction duly vested by the authority of law - HELD THAT:- Perusal of Section 31 of the U.P. V.A.T. Act, 2008 would indicate that there is no such restriction in the learned Tribunal exercising its power of rectifying the mistake in as much as Section 31 of the U.P. V.A.T. Act, 2008 does not provide that such power can only be exercised by learned Tribunal in exparte orders rather Section 31 of the Act 2008 goes to the extent of empowering any officer, authority, learned Tribunal or this Court on its own motion or on the application of the dealer or any other interested person to rectify any mistake apparent on the face of record in any order passed under the provisions of the Act, 2008. Once no such restriction is contained under the provisions of the Section 31 of the Act 2008 as such it is apparent that learned Tribunal has patently erred in law in rejecting the said application vide the order dated 16.04.2018.
The matter is remitted to learned Tribunal to decide the application of the petitioner filed under Section 31 of the Act, 2008 in accordance with law - the revision is partly allowed.
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2024 (2) TMI 1247 - SC ORDER
Classification of goods - Ujala Supreme - classifiable under Entry No. No.54 (113) of Schedule-A, Part II-A of H.P. VAT Act, 2005 as ‘synthetic organic colouring matter’ or not? - It was held by High Court that The product ‘Ujala Supreme’ is held liable for VAT under H.P. VAT Act at the rate which is applicable for items against Entry 54(113) of the Part-II of Schedule-A of H.P. VAT Act - HELD THAT:- It is not required to interfere in the matter(s) - SLP dismissed.
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2024 (2) TMI 1246 - GAUHATI HIGH COURT
Maintainability of petition - Jurisdiction - powers of AO to re-assess the escape turnover - Power of suo moto revision.
Maintainability of petition - HELD THAT:- The Supreme Court of India in the case of Godrej Sara Lee Limited Vs. Excise and Taxation Officers-cum-Assessing Authority and Others [2023 (2) TMI 64 - SUPREME COURT] has observed that the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and the Article 226 does not, in terms, impose any limitation or restraint on the exercise of powers to issue writs. Mere existence of an alternative statutory remedy would not oust the jurisdiction of this court to entertain writ petitions and to issue prerogative writs under Article 226 of the Constitution of India, if the case of the petitioner falls within any of the exceptions carved out in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai [1998 (10) TMI 510 - SUPREME COURT].
There appears to be no dispute at bar that the power of assessment under Section 14 of the Nagaland (Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants) Taxation Act, 1967 has been delegated to the Superintendent of Taxes by the Commissioner of Taxes under Section 45 of the said Act. In the instant case also, in all the writ petitions, the original assessment orders were passed by the Superintendent of Taxes.
The petitioner’s contention, in all three writ petitions, is that the powers to re-assess the escape turnover is primarily vested by Section 14 on the Assessing Officer and same is to be exercised subject to certain limitations and that in exercise of power under Section 20(1) of the Act, the Additional Commissioner does not have the power to re-assess the escape turnover which is outside the purview of the powers of suo-motu revision conferred on the Additional Commissioner. In the present bunch of writ petitions, the petitioner has challenged the very jurisdiction of the respondent authorities to issue impugned show cause notices as well as to pass impugned order.
From a reading of subsection (1) of Section 20, it is clear that the power of suo-moto revision can be exercised by the Commissioner only if, on examination of the records of any proceeding under this Act, he considers that any order passed therein by the person appointed to assist him is “erroneous in so far as it is prejudicial to the interest of revenue” - The Commissioner cannot initiate proceedings with a view to starting fishing and roving inquiries into matters or orders which are already concluded. Such actions will be against the well accepted policy of law, and there must be a point of finality in all legal proceedings. That stale issue should not be re-activated beyond a particular stage, and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must be in other spheres of human activity.
For exercising powers under Section 20 of the Nagaland (Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants) Taxation Act, 1967, the Commissioner must come to a conclusion that the orders passed by the person appointed under Section 5 of the Act to assist him is erroneous, however, in the instant case, bare perusal of the orders dated 09.09.2020 passed in connection with the Assessment year 2014-2015, 2012-2013 and 2013-2014, it appears that though it is observed therein that the assessment orders are erroneous so far as it is prejudicial to interest of revenue, however, it is also mentioned therein that it requires further inquiry and verification, which itself shows that the respondent No. 3 had not arrive at a conclusion that the order of assessment passed by the Assessing Officer were erroneous, rather, it appears that the respondent No. 3 had embarked upon reverification and recalculation of the assessment proceedings which were already examined by the assessing authority at the time of completion of the original assessment - The finding that the assessment orders are erroneous and prejudicial to the interest of revenue must be based on the materials available from records called for by the Commissioner and for arriving at the said conclusion, he cannot call for the documents from the assessee himself as it would amount to reexamination and reverification of the returns filed by the assessee.
The respondent No. 3 cannot initiate proceedings with a view to start a fishing and roving inquiry in matters or orders which are already concluded unless there are materials available on records called for by him from which he arrives at a conclusion that the assessment orders are erroneous and prejudicial to the interest of revenue - the power under Section 20 of the Act cannot be exercised by the Commissioner without satisfying the two components mentioned in the Section 20(1) of the Act, the Commissioner does not have the power to reexamine the accounts and determine the turnover himself at a higher figure merely because he is of the opinion that the estimate made by the assessing authority was on the lower side.
This Court is of considered opinion that the respondent No. 3 acted beyond jurisdiction in issuing show cause notices dated 28.04.2020 to the petitioner for the assessment years mentioned therein and also in issuing orders by which the assessment for the years 2012-2013, 2013-2014 and 2014-2015 were revised and turnover escaped assessment and short payment of notice taxes were determined. The respondent No. 4 has also acted beyond jurisdiction in issuing demand notices dated 09.09.2020 on the basis of orders passed by respondent No. 3 - The proceeding for suo-motu revisions under Section 20 (1) of the Act in all three cases pending before the Additional Commissioner of Taxes are hereby quashed.
Petition allowed.
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2024 (2) TMI 1217 - SC ORDER
Validity of recovery certificate dated 12.6.2019 issued by the respondent No. 3 - refund the amount of advertisement tax paid in advance by the petitioner - HELD THAT:- The interest of justice would be subserved if the interim order dated 05.08.2019 is continued till the disposal of the writ petition. Since the matter is remanded to the High Court, the parties are directed who are represented by their respective counsel to appear before the High Court on 11.03.2024 without expecting any separate notices from the High Court and bring to the notice of the concerned Roster Bench the remand of the matter so that it could be considered and disposed of expeditiously as possible. With the cooperation of the parties it is expected that the High Court will dispose of the matter as expeditiously as possible.
Appeal disposed off.
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