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Showing 101 to 120 of 583 Records
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2006 (9) TMI 524 - KERALA HIGH COURT
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... ... ..... d only according to the rate applicable to them. The learned Government Pleader referring to the definition of goods in section 2(xii) of the KGST Act submitted that all materials, commodities and articles used in the fitting out, improvements or repair of movable property, etc., are also goods. Further it was also stated that the tread rubber was purchased from outside the State and therefore liable to be taxed at the point of first sale within the State. We make it clear that it is always open to the sales tax authorities to verify the books of account of the petitioner and ascertain whether the turnover of materials purchased from outside the State have suffered tax. But the work undertaken by the petitioner would fall only under residuary entry No. 22 of the Fourth Schedule to the KGST Act. All the revision petitions are allowed as above. Orders passed by the authorities below are set aside. Assessing officer would pass consequential orders on the basis of this judgment.
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2006 (9) TMI 523 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... sition. After hearing the counsel for the parties, I find that the order passed by the Tribunal in Niphas Export 39 s case, which was relied upon by the Assessing Authority to levy tax and interest on the petitioner, having been reversed by this court, the matters needs re-examination by the Assessing Authority. Accordingly, order annexure P1 is quashed and matter is remanded back to the Assessing Authority for a fresh consideration in accordance with law. The petitioner is directed to appear before the Assessing Authority on October 27, 2006. Regarding the prayer for release of bank guarantee furnished by the petitioner in terms of directions given by this court, it is directed that the Assessing Authority shall decide the matter finally within three months from the date of appearance of the petitioner on October 27, 2006 and thereafter the bank guarantee shall be dealt with in terms of the order of assessment. The writ petition is disposed of in the manner indicated above.
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2006 (9) TMI 522 - ANDHRA PRADESH HIGH COURT
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... ... ..... on the State. Though it is a definite case of the petitioners that the impugned provision is violative of article 14 of the Constitution of India, no specific reason is given in the counter-affidavit filed by the State indicating any legitimate purpose that is sought to be achieved by making such a sub-classification. We see substantial force in the submission made by the learned counsel for the petitioner. The counter filed by the State is totally silent on this aspect nor could the learned Government Pleader appearing for the respondents bring to the notice of this court the existence of any legally tenable purpose that could be achieved by the impugned provision. In the circumstances, we are of the opinion that the impugned provision is violative of article 14 of the Constitution of India and is therefore required to be declared unconstitutional. Writ petitions are therefore allowed. But, in the circumstances without costs. That rule nisi has been made absolute as above.
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2006 (9) TMI 521 - KERALA HIGH COURT
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... ... ..... wner was not engaged in any business as dealer and the car was his personal asset, then, his sale to the petitioner would not attract any tax liability. If the petitioner has a case that seller was also a dealer, then the petitioner should have produced sale bill or cash memo showing collection and payment of tax in terms of rule 32(13) of the KGST Rules. In the absence of any such proof produced by the petitioner, the sale by the petitioner will be the first sale which is liable to tax under the Act, as the petitioner is a registered dealer under the KGST Act, carrying on business in the State. Under clause (b) of section 2(vi) business includes any transaction in connection with or incidental or ancillary to such trade, commerce, manufacture, adventure or concern. Sale of a business asset by a trader in the course of business is, therefore, rightly assessable to tax under the KGST Act. We, therefore, uphold the order of the Tribunal and dismiss the sales tax revision case.
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2006 (9) TMI 520 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... art of the judgment and the fact that H. Anraj 1986 61 STC 165 (SC) 1986 1 SCC 414, which had been relied upon in Vikas Sales Corporation 39 s case 1996 102 STC 106 1996 4 SCC 433 having been overruled, the judgment in Vikas Sales Corporation 39 s case 1996 102 STC 106 1996 4 SCC 433 should not be relied upon to negative the claim of the petitioner, we find that the contentions raised by the petitioner are liable to be rejected in view of observations in para 56 Para 52 in 2006 145 STC of the judgment, where judgment in Vikas Sales Corporation 39 s case 1996 102 STC 106 1996 4 SCC 433 has been overruled with prospective effect only. Meaning thereby that a binding precedent till the date of judgment, i.e., April 28, 2006. In view of our above discussions, we hold the provisions of section 61(2)(e) of the HVAT Act to be valid and also uphold the order of assessment passed by the Assessing Authority levying tax on these transactions. Accordingly, the writ petition is dismissed.
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2006 (9) TMI 519 - GUJARAT HIGH COURT
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... ... ..... which was initially pressed into service, was given up because on the basis of those entries, entry 2 and entry 5 of the notification could not have been interpreted. From the above discussion, this court finds that the view taken by the Tribunal that the assessee's works contract for fabrication and installation of plants falls under entry 2 and, therefore, taxable at 15 per cent and not under entry 5 under which it is taxable at five per cent of the Schedule to the notification issued under section 55A of the Act, is eminently just and deserves to be upheld. Accordingly, the reference is answered in the affirmative, i.e., in favour of the Revenue and against the assessee. As the reference is answered in the affirmative, Special Civil Application No. 12508 of 2002 stands disposed of accordingly. Ad interim relief granted earlier in Special Civil Appeal No. 12508 of 2002 is hereby vacated. There shall be no orders as to costs in any of the above referred to proceedings.
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2006 (9) TMI 518 - MADHYA PRADESH HIGH COURT
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... ... ..... ng the view in Bhawani Cotton Mills 39 case 1967 20 STC 290 (SC) AIR 1967 SC 1616 that it is no solace to say that such a person can get refund after completion of assessment. If the principles indicated in these cases are followed, large number of unnecessary litigations can be avoided. Hence the view taken by the division Bench of this court in Punj Lloyd Ltd. v. State of M. P. 1996 102 STC 299 is no longer correct after the aforesaid decisions of the Supreme Court. We declare that section 35 of the Act is beyond the competence of the State Legislature and is ultra vires the Constitution. Since we have declared section 35 of the Act as ultra vires the Constitution, it is not necessary for us to consider the other contention raised by the petitioner that section 35 of the Act does not exclude labour and other components from the value of works contract for the purpose of deduction at source at the rate of two per cent. The matter may now be placed before the division Bench.
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2006 (9) TMI 517 - MADRAS HIGH COURT
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... ... ..... under section 28-A of the Tamil Nadu General Sales Tax Act, wherein the court held that though the circular issued by the Commissioner under section 28-A is not binding on the assessing authority or the appellate authority, yet the court cannot overlook the fact that since the Commissioner is a superior authority to the assessing officer or appellate authority, it would be impracticable to expect the subordinate authority to take a view contrary to the view expressed by the Commissioner and hence the writ petition would be maintainable. This judgment has also no application to the facts of the present case. In the result, the writ petition partly succeeds. It is declared that the clarification dated August 19, 2005 would have only prospective application and consequently the impugned assessment order dated April 28, 2006 is quashed and set aside. In view of the above order, the writ appeal does not survive and it is dismissed. Connected miscellaneous applications are closed.
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2006 (9) TMI 516 - MADRAS HIGH COURT
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... ... ..... not understandable as to why the first respondent should shirk the responsibility imposed on them when deciding the elementary issue, which has been projected in this writ petition. In the light of the above, the writ petition succeeds and will stand allowed. The impugned order of the first respondent dated May 11, 2004 is hereby quashed and the first respondent is directed to re-consider the steel scrap produced in the writ petitioner 39 s industry as coming within the meaning of the word product so as to enjoy the eligibility certificate as per section 4(1)(a) of the certificate dated April 10, 2001 in accordance with the law laid down herein and accord all the necessary benefits arising out of the same. This exercise shall be done within four weeks from the date of receipt of a copy of this order. However, the parties are directed to bear their own costs. In view of the same, no further orders are necessary in W. P. M. P. No. 7423 of 2005 and the same shall stand closed.
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2006 (9) TMI 515 - CESTAT CHENNAI
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... ... ..... udgments have been noted. She submits that the appeal of BPL Telecom Pvt. Ltd. and BPL Ltd. were allowed at the stay stage itself. She submits that the issue is covered by these judgments and prays for allowing the appeal and stay application. The learned JDR on perusal of the records pointed out that the show cause notice in the present case has been issued after the amendment. He leaves the matter to the discretion of the Bench. On a careful consideration and perusal of the records, it is seen that the show cause notice in the present case has been issued after the amendment brought to the Finance Act to levy service tax retrospectively in respect of GTO. In terms of the cited judgments, demands will be sustainable only if the show cause notice had been issued prior to the amenment. As the 1. Oral. show cause notice has been issued after the amendment, the demands cannot be confirmed. Therefore, the stay application and appeal are allowed with consequential relief, if any.
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2006 (9) TMI 514 - KARNATAKA HIGH COURT
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... ... ..... s, the latter entry should be considered as a special entry in respect of those goods. In such a situation the special entry would cut down the scope of the general entry, so that both the entries could be read harmoniously and given effect to. The judgment supports the Revenue. Recently, a division Bench of this court in Venkateshwara Engineering Works v. Additional Commissioner of Commercial Taxes 2006 146 STC 681 has considered entry 56, Schedule VII and after noticing, the Division Bench has ruled that diesel generating sets are to be classified as machinery. Despite their generating electricity they are not electrical goods. In the light of this law available on record and in the light of the special entry available again in favour of Revenue, we are of the view that no legal errors as such are committed by any one of the authorities. Orders are acceptable in law. In the result, this petition stands rejected. Questions of law are answered against the assessee. No costs.
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2006 (9) TMI 513 - KARNATAKA HIGH COURT
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... ... ..... mmercial Taxes, Zone-II, Bangalore 1998 111 STC 117 (Karn), the court was considering the transaction as the acceptable one in the light of the supporting bills and the accounting books. In the second case, the court was considering the levy of penalty. It was noticed that since account book was made only pointed out by the accounting staff, these two judgments are not available to the assessee. The first judgment is in consideration of the court as per the relevant fact in that case. In the second case, the division Bench noticed as many as 58 boxes of gutka were duly accounted for on the same day of inspection by making a sale bill in the matter. Both the cases stand on different footing. In the result, we are of the view that the impugned orders are based on facts. Questions (c) and (d) are also answered in favour of the department. Ordered accordingly. No costs. Smt.S.Sujatha, learned Additional Government Advocate is given four weeks time to file her memo of appearance.
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2006 (9) TMI 512 - GAUHATI HIGH COURT
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... ... ..... ate as may be appropriate. In view of the judicial opinion expressed in Alied Traders 2002 1 GLT 482 and legislative dictum in section 47(1)(b)(i) of the Act, I am of the considered opinion that the concerned authorities of the IOC ought to have taken a decision on the petitioners 39 application under the aforementioned provision of the Act before resorting to the deduction of tax thereunder on the gross value of their bills. In the above view of the matter, this petition is closed with a direction to the respondent-IOC to take an appropriate decision on the petitioners 39 application under section 47(b)(i) of the Act taking note of the decision rendered in Alied Traders 2002 1 GLT 482(1) and the prescription of 1. Reported as Arunodoi Construction Co. (P) Ltd. V. State of Assam 2002 127 STC 561 (Gauhati). section 47(1)(b)(i) of the Act and, thereafter compute and realise the tax realisable, if any in law. The petition stands disposed of with the above observation. No costs.
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2006 (9) TMI 511 - KARNATAKA HIGH COURT
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... ... ..... ther goods for sale nor there is any consumption otherwise, since even after extraction of oil, the oiled sunflower cake and oiled groundnut cake continue to remain as oil cake with lesser quantity of oil and therefore they continue to remain the same commodity. The facts in that case stand totally on a different footing from the present set of facts. That was a case in which the court was considering the sunflower oil cake vis-a-vis groundnut oil cake. Whereas, in the present case, it is seeds versus cake. In these circumstances, the said judgment is not available to the assessee in the present set of circumstances. In the given circumstances, we are satisfied that the Tribunal has committed a serious error in accepting the case of the assessee and that the State is right in levying the tax under section 6 of the Act. In the result, we accept this appeal, the order of the Tribunal is set aside. Questions of law are answered in favour of the Revenue and against the assessee.
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2006 (9) TMI 510 - KARNATAKA HIGH COURT
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... ... ..... fficer for holding a fresh enquiry with regard to the percentage of establishment expenses in accordance with law. In the light of this remand order, the questions of law remain unanswered. Liberty is reserved to the assessing officer to seek such information as is necessary for the purpose of a fresh assessment order. Parties are directed to appear before the assessing officer without waiting for any notice on October 25, 2006. Liberty is reserved to the petitioner to file such documents as are necessary in support of his case. The assessing authority is directed to consider the material already available on record and the additional material, if any, and thereafter proceed to pass orders in accordance with law, without in any way being influenced by the earlier order or by this order. All contentions are left open. The assessing officer is directed to complete the proceedings within six months from the date of receipt of a copy of this order. Ordered accordingly. No costs.
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2006 (9) TMI 509 - KERALA HIGH COURT
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... ... ..... o. 291 of 2000 is only clarificatory and so much so that the Tribunal 39 s decision relying on the said notification is not sustainable. The S.T.Rev. cases are, therefore, allowed, reversing the order of Tribunal and upholding the assessment of turnover of chicks and chicken brought from outside State. However, since respondent/assessee is only a poultry farmer and the amnesty scheme was in force during 2004 and the S.T.Rev. cases themselves have been filed in 2004, we grant waiver of forty per cent of interest payable under section 23(3) of the Kerala General Sales Tax Act, 1963 provided petitioner clears the arrears of tax with sixty per cent interest in three equal monthly instalments, first of which shall be paid on or before October 15, 2006 and the remaining instalments on or before 15th of the two succeeding months. However, if the petitioner fails to pay the amounts as aforesaid, the waiver of forty per cent interest granted herein will automatically stand forfeited.
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2006 (9) TMI 508 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ts relied upon by the learned counsel for the State that khair wood is a raw material for katha and it is used as such which supported the stand that in common parlance also, khair wood was not treated as same commodity as timber. Merely because khair wood could also be used for construction purposes, as contended by the learned counsel for the assessee or was described in the definition of timber in the Forest Rules for purposes of enforcing the provisions of the Forest Act, would not be enough to say that in common parlance, khair wood was timber. There is no evidence to support the submission on behalf of the assessee that in common parlance, khair wood was treated as timber and used as such. In these circumstances, it has to be held that khair wood was different from timber for purposes of the entry specifying lesser rate of tax. For the above reasons, we answer the question referred against the assessee and in favour of the Revenue. Reference is disposed of accordingly.
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2006 (9) TMI 507 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... is dated December 2, 1982 and exemption is available to mills which came into production up to November 30, 1984, the intention was to provide for exemption only from December 1, 1979. This contention has no merit in view of the language used in the notification. The date from which the benefit is available to the dealers is not relatable to December 1, 1979, but to any date which is on or after the December 1, 1979 when the textile mill is established. The plain language of the notification cannot be read in any other manner. In the present case, the assessee established the textile mill after December 1, 1979 which came into production during 1984-85 before the cut-off date. The date of establishment will thus be the starting point of availing exemption, which may be available for a period up to five years from the said date, i.e., the date of establishment of textile mill. In view of above, we answer the question referred in favour of the assessee and against the Revenue.
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2006 (9) TMI 506 - UTTARAKHAND HIGH COURT
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... ... ..... asis of which it could be said that the assessee has indulged in such activities on other occasions also during the year and as such it would, in the fitness of things, be sufficient to determine the tax liability on the amount of Rs. 50,000 at the rate of 26 per cent treating it as first sale after import. As the learned Tribunal has recorded the finding of fact, that there is no other evidence on the basis of which it could be said that the assessee had indulged in such activities on other occasions also during the year, thus it rightly dismissed the second appeal filed by the department and partly allowed the appeal filed by the assessee. The impugned judgment and order passed by the Sales Tax Tribunal does not suffer from any infirmity. I do not find any merit in this revision and in my opinion the same is liable to be dismissed. The question of law framed in this revision is decided in favour of the assessee and against the Revenue department. The revision is dismissed.
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2006 (9) TMI 505 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... e Court held that surrender of unexplained acquisition of money by the assessee before the income-tax authorities may not be the sole basis for assessment under sales tax law. The question, whether acquisition of money by the assessee has resulted from transactions liable to sales tax, will have to be examined. Learned counsel for the petitioner was also confronted with the provisions of section 68 of the Punjab Value Added Tax Act, 2005 (for short, the 2005 Act ) which specifically provides that an appeal or revision lies to the High Court against any order passed by the Tribunal. But the counsel was unable to show as to how the writ petition would be maintainable in the wake of an alternative remedy of appeal or revision provided under the 2005 Act. In the above circumstances, we are of the view that no interference is called for with the order of the Tribunal remanding the matter to the Assessing Authority for fresh assessment. Accordingly, the writ petition is dismissed.
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