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Showing 301 to 320 of 1047 Records
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2011 (1) TMI 1293
Whether the phrase "all kinds of bricks" occurring in entry 2 of the Third Schedule to the Act be declared as exhaustive n so far as the petitioners are concerned?
Whether the clarification No. CLR CR.91/2006-2007 dated September 8, 2006 at annexure A issued by the second respondent be quashed?
Whether reassessment orders at annexures C and D for the assessment periods 2007-08 and 2008-09 bequashed?
Held that:- It is a fit case wherein the impugned orders of the assessment officer passed at annexures C, D and G, respectively, directing the petitioners to pay 12.5 per cent of VATexercising the power under section 4(l)(b) of the Karnataka Value Added Tax Act, 2003, could be quashed and they are accordingly quashed. It is made clear that the clarification issued in the circumstances, by the Commissioner at annexure A would not be made applicable to the tiles which are in the form of paving bricks and are held to be covered under the exhaustive definition of "all kinds of bricks/ asphalt tiles". It is directed to collect the tax for the said assessment years only at four per cent as provided under entry 2 of the Third Schedule to the KVAT Act. Appeal allowed.
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2011 (1) TMI 1292
Whether the Sales Tax Appellate Tribunal was justified in holding that the respondent-hotel, which got classification as a three star hotel with effect from September 11, 2002, is not liable to pay tax on cooked food and beverages sold in the hotel at eight per cent under entry 46 of the First Schedule to the Kerala General Sales Tax Act, 1963 for any period prior to the date of granting star classification?
Held that:- Star hotels referred to in entry 46 only mean hotels classified to be a star hotel by the approval and classification committee con stituted by the Government of India. Admittedly, the respondent could not have collected tax at eight per cent for any sale of cooked food or beverages prior to September 11, 2002. In fact, if tax was collected under entry 46 for any period prior to September 11, 2002 then the respondent would have been liable for penal action. So much so, we feel that the star classification referred to in entry 46 is the star classification provided by the Tourism Department for recognition and approval of star hotels.
Liability for tax on cooked food which is generally served in hotels is fixed under the statute with reference to the classification of hotels. In fact, only bar attached hotels and star hotels are specifically covered by entry 46. However other hotels engaged in sale of cooked food or beverages are covered by section 5B, which provides for collection of licence fee. In view of the provisions as above, we feel the respondent is liable for payment of tax at eight per cent under entry 46 from September 11, 2002 onwards, when the approval by the classification committee is made effective. For the periods until then, the responden
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2011 (1) TMI 1291
Issues:
1. Imposition of penalty under section 68 of the Punjab Value Added Tax Act, 2005.
2. Consideration of genuine documents in imposing penalties.
3. Legality and sustainability of impugned orders.
Analysis:
1. Imposition of Penalty under Section 68:
The appellant filed an appeal under section 68 of the Punjab Value Added Tax Act, 2005, challenging the penalty imposed by the Value Added Tax Tribunal. The Tribunal had imposed a penalty of &8377;1,39,500 under section 51(7)(b) of the Act, alleging an attempt to evade tax. The authorities concluded that the goods carried by the appellant were not covered by proper and genuine documents as required under section 51(2) of the Act. The Tribunal upheld the penalty, stating that there was an attempt to evade tax, leading to the imposition of the penalty. The High Court found no illegality or perversity in the concurrent findings of fact by the authorities, leading to the dismissal of the appeal.
2. Consideration of Genuine Documents:
The crux of the matter revolved around whether the goods vehicle intercepted by the Excise and Taxation Department was carrying genuine documents as mandated by section 51(2) of the Act. The Tribunal noted that the driver only had a delivery challan without essential details such as a number, proper recipient name, or destination. The absence of a goods receipt with the driver raised concerns about the authenticity of the transaction. The Tribunal concluded that the goods were intended for trade and lacked proper documentation, indicating an attempt to evade tax. This lack of genuine documents led to the imposition of the penalty under section 51(7)(b) of the Act.
3. Legality and Sustainability of Impugned Orders:
The appellant raised substantial questions of law regarding the legality and sustainability of the penalties imposed without considering the genuineness of the transaction. However, the High Court upheld the decisions of the lower authorities, emphasizing that no legal errors were found in their conclusions. The High Court affirmed that the penalty was justified under section 51(7)(b) of the Act due to the absence of proper and genuine documents as required by law. Consequently, the appeal was dismissed, highlighting the importance of complying with statutory documentation requirements to avoid penalties under the Punjab Value Added Tax Act, 2005.
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2011 (1) TMI 1290
Maintainability of the writ petition
Held that:- It is rather difficult to accept the submission of the counsel that the petitioner's representation does not bar the writ petition. Though it was not presented in the proper form, it would certainly amount to the petitioner availing of the remedy under the VATAct. Further the second respondent himself treated the representation as an appeal, and returned the same requiring rectification of the mistakes. On this ground, the writ petition is not maintainable.
The transit pass produced before us contains 10 columns only, and the signature of the CTO concerned and the certification by the officer in-charge of the exit check-post are absent. Therefore, we are not inclined to attach any importance to the transit pass produced along with the reply affidavit. We hasten to add that these are questions which have to be agitated before the appellate authority, and the writ petition is not a proper remedy. Appeal dismissed.
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2011 (1) TMI 1289
Whether the Sales Tax Appellate Tribunal is right in proceeding on the footing that in order to discharge the burden of proof contemplated under section 10 of the Tamil Nadu General Sales Tax Act, 1959 the proof of existence of registered dealers from whom the assessee purported to have purchased goods is sufficient, ignoring that for claiming second sales exemption the assessee has to prove earlier taxable sale?
Whether the Sales Tax Appellate Tribunal has not committed an error in not insisting upon proof of actual transaction of sale for claiming second sale exemption?
Held that:- On careful consideration of the order of the Appellate Assistant Commissioner as well as the Tribunal, we are convinced that such a conclusion arrived at by the Appellate Assistant Commissioner as affirmed by the Tribunal was based on relevant facts and materials and there is no reason to take a different view than what has been stated by the said authorities. We, therefore, do not find any scope to interfere with the order impugned in this revision petition. The questions of law raised in this revision are, therefore, answered against the petitioner. The tax case revision fails
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2011 (1) TMI 1288
Order passed by the revisional authority under section 22A(ii) of the Karnataka Sales Tax Act, 1957, forfeiting the sales tax paid by the assessee to the Government and rejecting his request for refund of the wrongly collected amount challenged
Held that:- The Commissioner secured the sales bills and sales particulars of other dealers who are dealing with the very same products before acting on the said documents. He issued one more notice to the assessee bringing to her notice the aforesaid material and calling upon her to show cause as to why the said material should not be taken into consideration. The said material compared with the returns filed by the assessee clearly demonstrate that the amount collected by the assessee is more than what they had collected inclusive of tax and therefore he was of the view that though in the sales bill and account book this tax component is not mentioned the amount which is received as sales consideration was inclusive of tax component. From the aforesaid material we are satisfied that the finding recorded by the Commissioner is based on legal evidence, in accordance with law and do not call for any interference.
The right of appeal has to be worked out within the four corners of law. When the law provides for a statutory appeal against the order of the Commissioner it is not open to the assessee to contend that he should have a right of first appeal, second appeal or revision as provided against the assessment order and therefore we do not see any merit in the said contention. Appeal dismissed.
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2011 (1) TMI 1287
Whether the order passed by the first respondent in Ref. M2/53216/96 SMR. No. 628/97 dated October 21, 2004 is a non est and unsustainable one in the eye of law?
Held that:- The show-cause notice has been issued in the present case to the petitioner on November 18, 1997. Even though the order has been passed on October 21, 2004 by the first respondent, yet the first respondent has commenced the proceedings to revise the assessment and issued the show-cause notice dated November 18, 1997 within five years from the date of the order of the second respondent dated May 30, 1996 and therefore, there is no violation as per section 34(2)(c) of the Tamil Nadu General Sales Tax Act, 1959 and in this regard, the contra plea taken by the petitioner is negatived by this court. Appeal dismissed.
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2011 (1) TMI 1286
Amendment brought into the Third Schedule of entry 23 of the Karnataka Value Added Tax Act, 2003 during 2008 permitting imposition of tax on insecticides that are used other than for agricultural purposes at 12.50 per cent instead of at four per cent challenged
Held that:- Even assuming that the Joint Commissioner would not act other than the way in which instructions were issued by the Commissioner of Commercial Taxes, and it has to be treated as good an order passed by the Commissioner himself in the matter of assessment/reassessment, however, still a reading of the amendment to entry 23 would need interpretation in the background whether, straightaway it falls within the meaning of insecticides only to attract four per cent tax and there could not have been any distinction between using of insecticide for agricultural or horticultural purpose and for domestic purpose, and it is a matter of appreciation of facts as well as question of law is involved.
Petitions are disposed of with liberty to the petitioner to approach the Appellate Tribunal and to take all such contentions. The Appellate Tribunal to dispose of the matter within three months from the date of appearance of the petitioner.
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2011 (1) TMI 1285
Issues:
1. Justification of Tribunal in canceling assessment under compounded rate.
2. Interpretation of provisions under Kerala General Sales Tax Act, 1963 regarding compounding scheme.
3. Permissibility of withdrawal from compounding scheme once opted by assessee.
Analysis:
1. The primary issue in this case was whether the Tribunal was justified in canceling the assessment under the compounded rate opted by the assessee under section 7 of the Kerala General Sales Tax Act, 1963. The assessees had initially applied for compounding at a rate of 120% of the tax payable for the previous year. However, the compounded rate was later increased to 200% by the Finance Act, 2002. The assessees continued to pay the lower amount until October 2002 when they applied to withdraw from the compounding scheme and pay tax on the actual turnover. The assessing officer initially accepted this withdrawal but later rejected it based on a court decision stating that once compounding is opted and accepted, withdrawal is not permissible. The High Court, following a previous decision, allowed the revisions and restored the order of the first appellate authority confirming the assessment under section 19 at the compounded rate.
2. The assessments involved in this case were for the year 2002-03, where the assessees had applied for compounding at a certain rate which was later revised by the Finance Act, 2002. The assessees continued to pay the lower rate until they applied to withdraw from the compounding scheme. The assessing officer initially accepted this withdrawal but later rejected it based on the court decision that withdrawal from compounding is not permissible once opted and accepted. The High Court, following a previous decision, upheld the assessment under section 19 at the revised compounded rate, emphasizing the importance of adhering to the provisions of the Kerala General Sales Tax Act, 1963.
3. The question of whether an assessee can withdraw from the compounding scheme once opted was a crucial aspect of this case. The assessing officer initially allowed the assessees to withdraw from the compounded rate and pay tax on the actual turnover. However, this decision was later reversed based on a court decision stating that withdrawal from compounding is not permissible once opted and accepted. The High Court, in line with the previous decision, emphasized the binding nature of opting for compounding and upheld the assessment under section 19 at the revised compounded rate, highlighting the importance of consistency and adherence to legal provisions in tax assessments.
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2011 (1) TMI 1284
Issues Involved:
1. Deletion of addition on account of bogus purchases.
2. Non-appreciation of inquiries establishing non-existence of suppliers.
3. Deliberate claim of purchase expenses to defraud revenue.
4. Reopening of assessment u/s 147.
5. Addition of 30% of total purchases.
6. Rejection of book results.
Summary:
1. Deletion of Addition on Account of Bogus Purchases:
The Revenue contended that the CIT(A) erred in deleting the addition of Rs. 5,57,722/- for AY 2003-04 and Rs. 21,08,558/- for AY 2004-05 on account of bogus purchases. The CIT(A) observed that 30% of the purchase cost would be a reasonable amount to cover the gains of the appellant.
2. Non-Appreciation of Inquiries Establishing Non-Existence of Suppliers:
The Revenue argued that the CIT(A) failed to appreciate the Department's inquiries, which established that suppliers M/s Girnar Sales Corporation and Shiv Metal Corporation did not exist at the given addresses. The assessee could not produce these parties before the AO or CIT(A) to establish the genuineness of the purchases.
3. Deliberate Claim of Purchase Expenses to Defraud Revenue:
The Revenue claimed that the assessee deliberately claimed purchase expenses in the names of the two non-existent parties, thereby reducing its profit to defraud the revenue of its due taxes. The AO inferred that the purchases from these parties were bogus and rejected the book results u/s 145(3) of the Act.
4. Reopening of Assessment u/s 147:
The assessee's appeal included a ground against the reopening of assessment u/s 147, which was not pressed by the learned AR on behalf of the assessee. Consequently, this ground was dismissed.
5. Addition of 30% of Total Purchases:
The CIT(A) upheld the addition of Rs. 2,39,024/- for AY 2003-04 and Rs. 9,03,667/- for AY 2004-05, being 30% of the total purchases from M/s Girnar Sales Corporation and M/s Shiv Metal Corporation. The CIT(A) referred to several ITAT decisions and concluded that 30% of the purchase cost would be reasonable to cover the gains of the appellant.
6. Rejection of Book Results:
The CIT(A) held that the AO had rejected the book results and made specific additions relating to non-genuine purchases. The assessee failed to establish the genuineness of the purchases, and the CIT(A) upheld the rejection of book results and sustained the addition based on ITAT decisions.
Conclusion:
The Tribunal dismissed the cross appeals of both the Revenue and the assessee for the two assessment years, upholding the CIT(A)'s decision to add 30% of the purchase cost as a reasonable amount to cover the gains of the appellant. The Tribunal found no merit in the grounds raised by both parties and confirmed the rejection of book results and the addition on account of bogus purchases.
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2011 (1) TMI 1283
Whether assessing authority and the Tribunal have erred in refusing to refund the excess amount?
Held that:- Section 7D provides a lump sum payment in the form of compounding money in lieu of tax payable. Section 2(n) defines "tax" which includes composition money. The applicant applied under the compounding scheme issued by the G.O. dated December 5, 2007 under the turnover slab of ₹ 200 crores. It was open to the assessing authority to accept the said application under the aforesaid slab or to reject it. In the present case the application has been accepted under the turnover slab of ₹ 200 crores. Under the compounding scheme for the turnover slab up to ₹ 200 crores the compounding money payable was ₹ 70 lacs only. Therefore, the assessing authority is not entitled to treat and accept any other amount over and above ₹ 70 lacs as compounding money under the scheme. The assessing authority as well as the Tribunal have erred in treating the entire deposit of ₹ 1 crore as compounding money after accepting the compounding application for the slab below ₹ 200 crores. The assessing authority is only entitled to retain the compounding money which is legally due. Any amount deposited in excess of the compounding money which is not due under the scheme is the excess amount of tax and is liable to be refunded under section 29 of the Act. The assessing authority and the Tribunal have erred in refusing to refund the excess amount. Appeal allowed.
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2011 (1) TMI 1282
Penalty levied under section 10A read with section 10(d) of the Central Sales Tax Act, 1956 challenged
Held that:- For the purpose of levy of penalty under clause (d) of section 10 of the Central Act, the relevant consideration is whether the goods purchased against form C have been used for the purpose for which registration has been granted or not. As stated above, the raw materials, etc., have been used for the printing of lottery tickets for which the registration was granted and, therefore, there was no violation of clause (d) of section 10 of the Central Act.
In the result, all the three revisions are allowed. The penalty levied under section 10A read with section 10(d) of the Central Act is hereby quashed.
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2011 (1) TMI 1281
Whether the highest tax payable to be reckoned from out of the preceding years is the assessed tax or the tax due under the return filed by the assessee?
Held that:- If the tax declared as payable in the return is equal or more than the tax found payable under the accounts, then such amount of tax as disclosed in the return has to be reckoned for the purpose of assessment of tax at compounded rate for the relevant year. So long as the provision in the statute does not provide for assessment of tax at compounded rate based on the tax assessed or demanded for any of the preceding three years, the Department cannot raise such a contention before the statutory authorities or before the Tribunal or before this court. We therefore uphold the order of the Tribunal and dismiss this revision case.
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2011 (1) TMI 1280
Whether when the assessment order was revised under section 21, the assessment order merged with that revisional order, therefore, the Additional Commissioner of Commercial Taxes had no jurisdiction to again revise the assessment order as it was not in existence at all?
if the Additional Commissioner of Commercial Taxes is exercising his power under section 22, setting aside the order of revisional authority as well as the assessment order, he should have set aside the entire order and should have remitted the matter back to the assessing authority for denovo enquiry and for fresh assessment, he could not have made a restricted remand and decided the other issues?
Held that:- It is not disputed that such a power is vested with the Additional Commissioner of Commercial Taxes. Therefore, when the revisional proceedings were initiated under section 22, revised order passed under section 21, the revision is maintainable and therefore, we do not see any substance in the said contention.
In the instant case, in respect of the matter where material available on record and on undisputed facts, he has passed the orders which is final. On matters where he did not have sufficient material and enquiry was required, he has remanded the matter to the assessing officer for enquiry. Therefore, said conduct cannot be found fault with as it is well within his jurisdiction. Appeal dismissed.
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2011 (1) TMI 1279
Issues Involved:
Assessment of tax under the Andhra Pradesh Value Added Tax Act, 2005 for the years 2005-06 and 2006-07. Appeal against the assessment order under section 31(1) of the Act. Enhancement of tax rate by the appellate authority under section 31(4)(a) of the Act. Compliance with rule 42 of the Andhra Pradesh Value Added Tax Rules, 2005 by the appellate authority.
The judgment deals with a case where the petitioner, a registered dealer under the Andhra Pradesh Value Added Tax Act, 2005, was assessed to tax for the years 2005-06 and 2006-07. The petitioner appealed the assessment order under section 31(1) of the Act. The appellate authority, in its order dated October 11, 2010, dismissed the appeal but increased the tax rate from four percent to 12.5 percent on the disputed turnover under section 31(4)(a) of the Act. The petitioner challenged this order on the grounds that it contravened rule 42 of the Andhra Pradesh Value Added Tax Rules, 2005, which requires issuing a notice to the dealer before enhancing the tax amount. The court noted that while the appellate authority has the power to enhance the tax amount, compliance with rule 42 is essential. The absence of issuing a notice to the dealer for enhancing the tax amount was a defect in the impugned order. The court set aside the order and remitted the matter back to the appellate authority, instructing them to consider all pleas by the petitioner and dispose of the matter within eight weeks in accordance with the law after issuing notice.
In the present case, the main issue revolved around the enhancement of the tax rate by the appellate authority under section 31(4)(a) of the Andhra Pradesh Value Added Tax Act, 2005. The court emphasized the importance of compliance with rule 42 of the Andhra Pradesh Value Added Tax Rules, 2005, which mandates issuing a notice to the dealer before determining the correct amount of tax payable. The court observed that the absence of such notice in the impugned order was a significant defect. Despite being a curable defect, the court set aside the order and directed the matter to be reconsidered by the appellate authority. This decision underscores the significance of procedural compliance in tax assessment matters, ensuring that dealers are given the opportunity to respond to any proposed enhancements in tax liability.
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2011 (1) TMI 1278
Whether the impugned order is totally arbitrary and amount to colourable exercise of power, as the learned Special Commissioner and Commissioner of Commercial Taxes, has given no reason to arrive at a decision, though he was to act as quasi-judicial authority while deciding a question under section 28-A of the Tamil Nadu General Sales Tax Act?
Whether the "textile machine clearer roller cleaner" is an item, which can only be used in textile machinery, and for no other purpose?
Held that:- The "textile machine clearer roller cleaner" can only be used in textile machinery and no other machinery. Learned counsel for the petitioner, therefore, is correct in contending that the impugned order, passed by the Special Commissioner and Commissioner of Commercial Taxes, cannot be sustained in law.
The contention of the learned counsel for the petitioner that the impugned order is arbitrary and non-speaking, also deserves to be accepted, for the reasons that even though the power exercised by the Special Commissioner and Commissioner of Commercial Taxes, was under section 28A, i.e., statutory power, but order is totally silent, with regard to reasons for coming to the conclusion, especially when with regard to other two items of similar nature, were held to be part of textile machinery.
Consequently, the writ petition is allowed. The impugned order is set aside and the respondents are directed to treat the textile machine clearer roller cleaner, be a part of textile machinery, assessable to four per cent tax
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2011 (1) TMI 1277
Issues involved: Submission of returns for assessment years 2006-07 to 2010-11, issuance of pre-assessment notices, objections filing, passing appropriate orders, return of cheques, setting aside of attachment notice.
Submission of returns for assessment years 2006-07 to 2009-10: The petitioner was directed to submit the returns for the assessment years 2006-07, 2007-08, 2008-09, and 2009-10 within 10 days from the date of receipt of the order if not filed already. Subsequently, the respondents were to issue pre-assessment notices for these years, allowing the petitioner to file objections, and then pass appropriate orders as per law.
Submission of return for assessment year 2010-11: The petitioner was also directed to file the return for the assessment year 2010-11. Following this submission, the respondents were authorized to pass necessary assessment orders for the year 2010-11 in accordance with legal procedures.
Return of cheques and setting aside of attachment notice: Cheques with specific numbers and dates were to be returned to the petitioner, and an attachment notice issued by the second respondent on a particular date was set aside. The writ petition was ordered accordingly, with no costs incurred, and connected miscellaneous petitions were closed.
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2011 (1) TMI 1276
Condonation of delay of 110 days caused in filing Tax Appeal (Stamp) seeked
Held that:- The applicant has sufficiently explained the delay that has been caused in preferring the tax appeal and that there is no wilful negligence on the part of the applicant, nor has the applicant ever given up the cause. In the circumstances, the delay caused in filing the appeal deserves to be condoned. Application allowed.
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2011 (1) TMI 1275
Exemption u/s 10B OR u/s 10A - wrong claim by the assessee - technical mistake - Assessee is engaged in the business of software development - contention of the assessee is that the assessee is 100% EOU entitled for exemption u/s 10A and wrongly claimed the deduction u/s 10B and it was a technical mistake in claiming deduction u/s 10B - requirements of provisions of Section 10A fulfilled or not - HELD THAT:- We are agreeing with the department that the condition for allowance of deduction u/s 10A and 10B are stood on different footing. However, the department cannot thrust upon the assessee to avail deduction u/s 10B only. If the assessee entitled for deduction u/s 10A instead of 10B, that claim required to be examined by the assessing officer in all fairness.
The issue of allowance of deduction u/s 10A though assessee made a claim before the lower authorities has not examined by the assessing officer. In the facts and circumstances of the case, we are of the considered opinion that it shall be in the interest of justice to set aside the issue in the grounds of appeal of the assessee to the file of assessing officer with a direction to decide the issue in accordance with law
The assessee appeal is allowed for statistical purpose.
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2011 (1) TMI 1274
Issues: Challenge to orders rejecting revision petitions under section 54 of the Tamil Nadu Value Added Tax Act, 2006.
Analysis:
The High Court of Madras, in the case involving writ petitions challenging orders rejecting revision petitions under the Tamil Nadu Value Added Tax Act, 2006, directed the petitioner to submit objections to the show-cause notices issued by the Assistant Commissioner within fifteen days. The court emphasized that the petitioner could file objections, including grounds raised in the revision petitions, and the first respondent would consider these objections and pass appropriate orders within four weeks. It was clarified that no recovery proceedings should be initiated against the petitioner until the first respondent passes appropriate orders. The court disposed of the writ petitions without costs and closed the connected miscellaneous petitions.
In a subsequent reference to W.P. Nos. 535 and 536 of 2011, the court decided that no further orders were necessary following the resolution of the issues in W.P. Nos. 533 and 534 of 2011. Consequently, the court closed the writ petitions in W.P. Nos. 535 and 536 of 2011, along with the connected miscellaneous petitions, without imposing any costs.
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