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Showing 121 to 140 of 536 Records
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2007 (12) TMI 442
Issues:
1. Interpretation of section 68 of the West Bengal Sales Tax Act and rule 211A of the West Bengal Sales Tax Rules, 1995 regarding the liability of a clearing agent for penalties.
Analysis:
The case involved a writ petition challenging an order passed by the Taxation Tribunal against a petitioner who acted as a clearing agent for consignors. The main issue was whether the authorities had the power to impose penalties on the petitioner under section 68 of the West Bengal Sales Tax Act and rule 211A of the West Bengal Sales Tax Rules, 1995. The petitioner argued that their duty as an agent ceased after delivering goods to the transporter named by the principal, and it was not their responsibility to produce documents during transportation. The court examined rule 211A(6) and (8) which deemed any infringement as a contravention of section 68. Section 68 of the Act stated that no person could transport goods except as prescribed. The court concluded that the petitioner, as a clearing agent, could not evade liability for penalties based on the Act's clear provisions.
The court considered whether the impugned notices describing the applicant as a transporter were valid, if there was a violation of section 68, and if the penalty orders should be set aside. The Tribunal extensively discussed these points and concluded against the petitioner. The court found no grounds to interfere with the Tribunal's decision, upholding their conclusion. Consequently, the writ petition was dismissed, and the order would also apply to another related case.
In summary, the judgment clarified the liability of a clearing agent under the West Bengal Sales Tax Act and Rules, emphasizing that agents cannot evade penalties by claiming their duties end after delivering goods to transporters. The court upheld the Tribunal's decision, highlighting the importance of complying with statutory provisions and rejecting the petitioner's arguments against the penalties imposed.
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2007 (12) TMI 441
Tax levy - defective show cause notice - whether the sales turnover of petitioner products is liable to be taxed only at four per cent and that the levy of tax at 12.5 per cent is illegal and unauthorized?
Held that:- In this case, the petitioner does not contend that the show-cause notice is defective for any reason as in exhibit P10 order and the petitioner has not even produced the show-cause notice dated June 7, 2007 that is referred to in exhibit P11 order of assessment. Therefore there is nothing on record to indicate that defective showcause notices has any relevance in so far as the assessment order that is under challenge in this case is concerned.
Having, regard to all the above, no justification to entertain the writ petition. If at all the petitioner is aggrieved, it has to take recourse to the statutory remedies that are provided for in the Act itself in which event, the appeal will be disposed of untrammelled by the findings in this judgment.
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2007 (12) TMI 440
Issues Involved:
1. Challenge to the order of the Deputy Commissioner of Commercial Taxes (DCCT/NC).
2. Discrepancy in the amount of tax in dispute.
3. Eligibility for settlement under the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 (SOD Act, 1999).
4. Interpretation of "arrear tax" and its implications.
5. Applicability of the principles from the V.J. Suraiya case.
6. Equality and uniformity within the same class of taxpayers.
7. Direction for reconsideration of the application by DCCT/NC.
Detailed Analysis:
1. Challenge to the Order of DCCT/NC:
The petitioner, proprietor of Pappu Traders, challenged the order dated June 27, 2007, by the DCCT/NC, communicated on August 29, 2007, which refused his application for settlement of dispute for the assessment period ending March 31, 2004, under section 8(2) of the SOD Act, 1999. The petitioner also challenged the show-cause notice dated June 15, 2007, issued by the DCCT/NC.
2. Discrepancy in the Amount of Tax in Dispute:
The petitioner had initially disputed the entire amount of Rs. 95,038.54 (including Rs. 93,038.54 as tax and Rs. 2,000 as purchase tax) in his appeal before the ACCT/NC. However, in the application for settlement under the SOD Act, 1999, he showed the arrear tax in dispute as Rs. 15,039, leading to the issuance of a show-cause notice by the DCCT/NC for showing two different figures.
3. Eligibility for Settlement under the SOD Act, 1999:
The petitioner contended that he was eligible for settlement under section 4 of the SOD Act, 1999, as his appeal was pending on August 31, 2006. The Tribunal noted that the petitioner fulfilled the eligibility conditions by filing the application on June 14, 2007, and hence his eligibility could not be questioned.
4. Interpretation of "Arrear Tax" and Its Implications:
The Tribunal clarified that "arrear tax" in dispute does not necessarily mean the difference between the tax paid and the assessed tax. It can include the difference between the tax admitted to be payable and the tax payable according to the assessment order. The Tribunal provided an illustration to explain that arrear tax in dispute can be higher than the amount paid under protest or due to a misconception.
5. Applicability of Principles from the V.J. Suraiya Case:
The Tribunal referred to the case of V.J. Suraiya v. Additional Commissioner, Commercial Taxes, West Bengal, to emphasize that equals should not be treated differently. The Tribunal observed that the differential treatment in the SOD Act, 1999, could lead to discrimination against taxpayers who had already paid a higher amount of tax.
6. Equality and Uniformity within the Same Class of Taxpayers:
The Tribunal noted that the SOD Act, 1999, should not discriminate between taxpayers who have paid different amounts of tax before filing an application for settlement. The Tribunal emphasized that there should be equality and uniformity within the same class of taxpayers.
7. Direction for Reconsideration of the Application by DCCT/NC:
The Tribunal set aside the order of the DCCT/NC communicated on August 29, 2007, and the show-cause notice dated June 15, 2007. The Tribunal directed the DCCT/NC to reconsider the petitioner's application afresh, allowing a reasonable opportunity of hearing. The Tribunal clarified that for the purpose of settlement of arrear tax in dispute, only the amount disclosed by the petitioner in his application under the SOD Act, 1999, should be considered, and not the amount disputed before the appellate authority.
Conclusion:
The petition was disposed of, with no order as to costs. The Tribunal emphasized the importance of fairness and non-discrimination in the application of the SOD Act, 1999, and directed the DCCT/NC to reconsider the petitioner's application based on the principles discussed.
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2007 (12) TMI 439
Penalty proceedings under section 15A(1)(o) of the U.P. Trade Tax Act, 1948 - Held that:- Tribunal's finding cannot be sustained that the goods were being imported only for the reason that the bags containing the "supari" was bearing marks of manufacturer of Kerala and Gwalior. In my opinion, this . Merely because the bags bore the marks of manufacturers of Kerala and Gwalior it was not enough to hold that they were being imported. It is possible that some other party had imported the goods in U.P. and thereafter sold it to the dealer. The importer may not have been a registered dealer and may or may not have paid the tax. The dealer could not be held to be an importer. But definitely as the dealer had failed to prove that he had purchased tax-paid goods within the State of U.P. he was liable to pay tax as the goods were found missing in the subsequent survey which indicated that the goods had been sold by the dealer. The law with regard to imposition of penalty is that the burden lies on the department to establish violation of section 28A(1) of the Act. With regard to turnover of the sales the burden would lie on the dealer. Similar view has been taken in the judgments referred to above, relied upon by the learned counsel for the dealer.
In view of the above discussion, the imposition of penalty cannot be justified and has to be set aside. Whereas the liability of tax has to be maintained.
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2007 (12) TMI 438
Issues:
Interpretation of the composition scheme for payment of entertainment tax under a specific notification.
Validity of the assessing authority's decision to impose tax liability on the assessee under the composition scheme.
Applicability of the composition scheme after its revocation by the Deputy Commissioner.
Jurisdiction of the Tax Board in remanding the matter to the assessing authority.
Analysis:
The High Court addressed the issue of interpreting the composition scheme for entertainment tax payment under a notification. The Tax Board held that the assessee could not be forced to pay tax under the composition scheme post its cancellation from May 22, 1999. The court emphasized that the choice to continue with the composition scheme lies with the assessee, and the department cannot compel participation. The assessing authority's decision to impose tax liability under the composition scheme was deemed incorrect.
Regarding the applicability of the composition scheme after its revocation by the Deputy Commissioner, the court clarified that the cancellation of the scheme on August 3, 1999, did not impact the period from May 22, 1999, to June 30, 1999. The court emphasized that the Deputy Commissioner's order did not mandate adherence to the composition scheme for the said period.
The court also discussed the jurisdiction of the Tax Board in remanding the matter to the assessing authority. The Tax Board's decision to remand the case for fresh assessment orders based on the returns filed by the assessee was upheld. The court concluded that no legal question arose from the Tax Board's order, leading to the dismissal of the revision petitions.
In summary, the High Court upheld the Tax Board's decision, emphasizing the assessee's right to choose the tax payment system post the composition scheme's revocation. The court dismissed the revision petitions, affirming that the assessing authority erred in imposing tax liability under the composition scheme and that the matter was correctly remanded for fresh assessment based on the returns filed by the assessee.
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2007 (12) TMI 437
Issues:
1. Confirmation of penalty under section 4B(5) of the U.P. Trade Tax Act, 1948.
2. Legality of penalty amount of Rs. 67,608.36.
3. Justification of penalty imposition based on relevant considerations.
Analysis:
1. The assessee, a manufacturer of glass goods, held a recognition certificate under section 4B for purchasing raw materials at concessional rates. The issue arose when the assessee sold damaged soda ash, purchased at concessional rates, to parties for manufacturing sodium silicate due to moisture damage. The Tribunal sustained the penalty imposed under section 4B(5) for contravening the terms of the eligibility certificate. The key question was whether the penalty imposition was legally justified. The Tribunal found that there was no evidence to establish that the sold soda ash was indeed damaged, concluding that the penalty under section 4B(5) was justified.
2. The assessee argued that the soda ash sold was damaged and not in the same condition as when purchased, hence contending that there was no violation of section 4B. However, the Standing Counsel argued that the assessee failed to provide evidence to prove the soda ash was damaged. The court agreed with the Standing Counsel, noting the absence of evidence to support the claim of selling damaged soda ash. As a result, the Tribunal's decision to uphold the penalty under section 4B(5) was deemed legally correct.
3. The court concurred with the Tribunal's finding that there was no proof that the 299.200 metric tons of soda ash sold by the assessee were damaged. As the Tribunal's conclusion was based on this lack of evidence, the penalty imposition under section 4B(5) was deemed justified. Consequently, the court upheld the Tribunal's decision, ruling against the assessee and in favor of the Revenue. The revision was dismissed with no order as to costs.
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2007 (12) TMI 436
Whether on the facts and circumstances of the case manipulated enhanced figure of sale and purchase and stock furnished by the dealer to the bank for the purposes of obtaining loan would amount to relevant material for the purposes of reassessment under section 21 of the Act and based on these projected figures, reassessment and determination of turnover and tax liability would be justified?
Held that:- As this court had given its nod to accept an explanation of higher projected figure by the dealer for different purposes before different authority, the explanation given by the dealer and as accepted by the appellate authority appears to be correct.In the facts and circumstances of the case the Tribunal erred in accepting the turnover shown before the bank to be the actual turnover of the dealer.
The revision accordingly succeeds and is allowed. The order of the Tribunal is set aside and that of the appellate authority is maintained.
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2007 (12) TMI 435
Issues Involved:
1. Legality of the certificate proceeding for tax recovery.
2. Legality of sealing the business premises.
3. Claim for damages due to the sealing.
Issue-wise Detailed Analysis:
1. Legality of the Certificate Proceeding for Tax Recovery:
The applicants challenged the initiation and continuation of the certificate proceeding for the realization of assessed tax and interest under the Bengal Finance (Sales Tax) Act, 1941. They argued that the recovery proceeding was initiated in contravention of section 11(4) of the Bengal Finance (Sales Tax) Act, 1941, as the amount demanded could not be recoverable under this section. They also contended that the appeals and stay applications were pending against the demands within the knowledge of the Certificate Officer, making the act illegal.
2. Legality of Sealing the Business Premises:
The applicants claimed that the sealing of their business premises was illegal. They argued that neither the Bengal Finance (Sales Tax) Act, 1941 nor the Bengal Public Demands Recovery Act, 1913 empowers the Certificate Officer to seal any business place. The Tribunal found that the act of sealing the business premises in execution of the certificate of demand was bad in law. The Tribunal observed that the Certificate Officer could not take custody of the immovable properties by sealing them. The mode of attachment of immovable property is provided in rule 54 of Order 21 of the Code of Civil Procedure (CPC), which does not permit sealing as a method of attachment.
3. Claim for Damages Due to the Sealing:
The applicants sought damages of Rs. 50 lakh for the illegal sealing of their business premises. The Tribunal noted that the applicants did not furnish particulars of the loss or assessment of the damages claimed. The Tribunal considered whether it had the jurisdiction to award damages under article 226 of the Constitution of India. It concluded that it had the power to award token or interim damages or exemplary damages in aggravating circumstances, as it enjoys the power of the High Court with its original civil jurisdiction excluding its power under article 227 and of judicial review of the Constitution of India as supplemental to the High Court of the State in respect of the State Acts specified in section 5 of the WBTT Act, 1987.
The Tribunal found that the act of sealing the business premises prevented the applicants' access to their books of accounts and other movable properties inside their business place, which caused financial loss and lowered their prestige in society. The Tribunal awarded exemplary damages of Rs. 1,000 to the applicants, to be paid by the State of West Bengal within three months. The Tribunal emphasized that the State must repair the damage done by its officers to the applicants' rights.
Conclusion:
The Tribunal held that the certificate proceeding and the sealing of the business premises were illegal. It awarded exemplary damages of Rs. 1,000 to the applicants, to be paid by the State of West Bengal, for the wrongful act of sealing the business premises. The Tribunal asserted its jurisdiction to award damages under article 226 of the Constitution of India, emphasizing the need to uphold the fundamental rights guaranteed by the Constitution.
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2007 (12) TMI 434
Rectification of the order - Held that:- At this stage it is not possible for us to record a finding whether there is any mistake in framing the assessment by the Excise and Taxation Officer-cum Designated Officer, Patiala.
Accordingly no view is being expressed with regard to the correctness of the amount of wrong ITC claim availed by the petitioner. However, keeping in view the various aspects and in the interest of justice, we deem it just and appropriate to exercise discretion by directing the respondent-Deputy Excise and Taxation Commissioner (Appeals), Patiala Division, Patiala to accept the pre-deposit amount of Rs. one crore. The aforementioned amount shall be considered sufficient compliance of the requirement of section 62(5) of the Act.
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2007 (12) TMI 433
Penalty under section 14B of the Punjab General Sales Tax Act, 1948 - Whether there is mens rea on the part of the appellant in the present case so as to attract penalty under section 14B of the PGST Act?
Held That:- Tribunal while deciding the appeal observed that the dealer had admitted the factual position regarding supply of material to the Panchkula Society directly by change of documents by ISSCO, Chandigarh who was the main supplier and that the dealer was working on its behalf as a supply contract as well as transporter. The only plea raised by the appellant was that this transaction was first of its kind and it was not aware of the legal position regarding charging of eight per cent inter-State tax and it was under those circumstances that only two per cent tax has been charged and had prayed for taking a lenient view and for reduction of the penalty to the minimum. A perusal of the aforesaid observations shows that the dealer had admitted regarding the commission of the offence but had only prayed for reduction in the quantum of penalty. Once it is established that the dealer was guilty of suppression of sales by charging less tax, it was the discretion of the Assessing Officer to have reduced the quantum of penalty.
Since the goods were meant for trade, the amount of penalty cannot be said to be excessive in any manner. In the facts and circumstances, no question of law much less a substantial question of law would arise from the impugned order as claimed by the appellant. Appeal dismissed.
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2007 (12) TMI 432
Auction sale - whether the present respondent is required to pay a sum of ₹ 2,74,894 towards the sales tax dues in addition to the amount payable towards the auction?
Held that:- Learned single judge was correct coming to the conclusion that there was no justification for the department to insist on payment of sales tax in view of the provisions contained in section 5(3) of the Central Sales Tax Act, 1956. Learned single judge, however, has given a direction to the present respondent to furnish bank guarantee, obviously with a view to ensure that in case it is ultimately found that section 5(3) is not applicable, liability relating to payment of sales tax can be recovered. Learned singe judge had also set aside the order of forfeiture on account of the conclusion that there was no justification for demanding payment of demurrage and penal interest inasmuch as the delay was not on account of the lapse on the part of the present respondent, but was on account of various unsustainable objections raised by the department from time to time. No justification to differ from the ultimate conclusion of the learned single judge. The writ appeal is accordingly dismissed.
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2007 (12) TMI 431
Demurrage charges and penalty - Held that:- We agree with the view taken by the High Court that the respondent could not be fastened with the liability to pay the demurrage charges or penalty, as the respondent was not responsible for the delay. Delay, if any, was caused by the appellant in not releasing the goods in spite of the specific directions issued by the High Court to that effect. Accordingly, the appeals are dismissed.
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2007 (12) TMI 430
Demurrage charges and penalty - Held that:- We agree with the view taken by the High Court that the respondent could not be fastened with the liability to pay the demurrage charges or penalty, as the respondent was not responsible for the delay. Delay, if any, was caused by the appellant in not releasing the goods in spite of the specific directions issued by the High Court to that effect. Accordingly, the appeals are dismissed.
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2007 (12) TMI 429
Constitutional validity of sections 3 and 4 of the Andhra Pradesh Tax on Entry of Goods into Local Areas Act of 2001, together with the notifications issued thereunder challenged
Held that:- For one to justify, a particular tax levied to be compensatory in nature, it is essential that there should be direct and intricate relationship between the collection of tax and its intended expenditure.Construction of roads, culverts and bridges or providing basic health care facilities or rest-houses for the transport operators on the waysides are not exclusively intended or meant for promoting any class, or even generally, the trade or commerce. Such basic and essential infrastructural facilities are also liable to be put to use by all others as well. In that respect, provision of such facilities like good motorable roads, illumination of streets or provision of parks or gardens cannot be rolled up and presented as the "specific end objectives" of the intended promotion of the interests of tradesmen or businessmen. The essential link between the infrastructure or facility or service, which is directly or even indirectly held to promote the cause of trade or commerce, is missing in them. Hence, we find ourselves not in a position to accord approval for the present impost as a compensatory tax.
Therefore, clearly the impugned law amounts to impeding the freedom of movement of trade or commerce across the territory of the nation. Further, it is admitted that the procedure prescribed to obtain the sanction of the President has not been obtained prior to enacting the impugned Entry Tax Act. Therefore, no hesitation to declare the impugned levy as unconstitutional.
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2007 (12) TMI 428
Constitutional validity of section 25 of the Maharashtra Tax Laws (Levy, Amendment and Repeal) Act, 1989 challenged in so far as it pertains to amending entry 9 and entry 61 in Part II of Schedule C to the Bombay Sales Tax Act, 1959 with retrospective effect from July 1, 1981.
Held that:- The Legislature by the impugned legislation brought out clearly that lamination sheets including lamination sheets which are used for surface lamination of table tops, furniture, panels, partitions or for like purposes shall always be deemed to be covered under entry C-II-61 and what was covered under entry C-II-61 shall always be deemed to be excluded from entry C-II-9. Thus, by retrospective amendment what was implicit is made explicit and such a clarificatory amendment cannot be said to be arbitrary or discriminatory.
The argument of the petitioners that the very fact that the Legislature chose to amend the entry C-II-9 with retrospective effect from July 1, 1981 shows that up to the date of amendment, the goods in question were taxable at six per cent under entry C-II-9 is also without any merit, because, by the retrospective amendment, none of the items set out in entry C-II-9 has been deleted. What is done by the retrospective amendment is to clarify that the items covered under entry C-II-61 were never covered under entry C-II-9. In other words, by retrospectively amending entry CII-9 it is clarified that the goods covered under entry C-II-61 were always intended to be excluded from entry C-II-9.
Thus it is difficult to accept the arguments advanced on behalf of the petitioners regarding the constitutional validity of retrospective amendment to entries C-II-9 and C-II-61. W.P.fails.
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2007 (12) TMI 427
Non-release of certain goods seized by the officials of the Commercial Taxes Department, while the goods were in transit - Held that:- In the present case, as of now, only ground on which the respondent is still holding on to the goods is for the realisation of the tax liability of the consignee for the months of April and May 2006. While for realising such amount, the subject-matter goods can definitely be put to auction sale in accordance with the procedure under the very enactment and Rules framed thereunder, if it is found there is surplus left over after such realisation of tax, that amount the State cannot retain as its own, but should necessarily return to the person to whom the goods belong. In the present case, if no one else should come forward to claim the proceeds of such sale, which if found to be in surplus of the tax liability and the petitioner alone should put forth a claim, it is only proper that the respondents be directed to pay such surplus amount to the petitioner.
In the result, this writ petition is disposed of directing the respondent to pay to the petitioner the surplus amount if any that remains after the subject goods are sold and the tax liability for which it had been detained is adjusted
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2007 (12) TMI 426
Penalty levied under section 45A of the KGST Act - Held that:- It is seen from exhibit P16 order that petitioners have not ventured to prove that sales were effected in U.P. after transfer of goods from Kerala to Kanpur on consignment basis. The petitioners could have produced consignment agency agreements, sale particulars, details of commission paid and even details of tax paid in U.P. for establishing their case. However, it is seen that not even an attempt is made to prove the transaction as consignment transfers as claimed by them before the lower authorities. In the circumstances, levy of penalty under section 45A of the KGST Act for evasion of tax is perfectly justified.
So far as quantum of penalty is concerned, penalty originally levied was ₹ 59,68,240 which was reduced by the Commissioner to around ₹ 18 lakhs after partially accepting the petitioner's claim. Therefore, the petitioner is not entitled to any quantum relief also.
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2007 (12) TMI 425
Evasion of tax - penalty levied - sale by brand name holder - Held that:- Since goods manufactured by the petitioner were for sale only to the brand name holder, inter-State movement of goods by the petitioner to Kerala is under contract of sale and therefore sale though subsequently made is actually an inter-State sale under section 3(a) of the Central Sales Tax Act, 1956 taxable in Tamil Nadu. The petitioner escaped CST assessment in Tamil Nadu because Tamil Nadu sales tax authorities would not have seen the contract under which goods are manufactured and sold by the petitioner. However, this is clearly a scheme of evasion of tax practised by the petitioner and the brand name holder.
This is a fit case for considering penalty on the petitioner as well as on the brand name holder for attempting evasion of tax. However, on account of the officer's diligence, evasion has not taken place because he made assessment by invoking section 19B. In the circumstances, probably, the assessing officer did not consciously invoke penalty provisions against the petitioner and the third respondent. In view of the above findings, the impugned order is upheld and the original petition is dismissed as devoid of any merit.
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2007 (12) TMI 424
Whether the assessing authority was justified in completing the assessments for the assessment years in question, by ignoring the orders passed by the District Level Committee, which had declared that the assessee is entitled for exemption from payment of sales tax on the sale of plywoods, both intra and inter-State sales
Held that:- As for the reason, that under the notification the District Level Committee is authorised to determine, whether a particular industry manufacturing a particular commodity is eligible for exemption from payment of tax under the Act or not. The negative list of industries is appended to the notification would specifically provide that certain industrial units manufacturing items such as biscuits, cement paints, packing cases, tea chests, plywood, etc., shall not be eligible for the concessions under the notification. Therefore, the District Level Committee while considering the application filed by the petitioner's industrial unit claiming exemption from payment of sales tax on the manufacture and sale of plywoods did not have jurisdiction to entertain such an application.
Therefore, it can safely be said that this is a case of District Level Committee having want of jurisdiction and not one of irregular assumption of jurisdiction. Therefore, the order passed by the District Level Committee in regard to plywood is one without jurisdiction and therefore, a nullity in the eye of law and therefore, the assessing authority was justified in passing the assessment orders for the assessment years 1997-98 and 1998-99 in levying tax under the Act on the sale of plywoods both under the KGST and CST Acts. No merit in these revision petition.
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2007 (12) TMI 423
Sales tax exemption in view of entry 43A of the Finance Department Notification dated July 26, 1996 - Held that:- In the present case basing upon the IPR, 1996 and the notification of the Finance Department dated July 26, 1996, the petitioner established its industry in village Saura in the district of Khurda, where Hi-Tek also set up its industry, for manufacture of aluminium wire rods and other aluminium products and started its commercial production on June 12, 1998 and Industries Department issued the notification dated February 2, 1999 providing that all priority industries, which are entitled to the incentives under the IPR, 1996, will have exemption for two additional years without any maximum limit. The Director of Industries also issued eligibility certificate for sales tax concession to the petitioner-industry, basing upon which the petitioner-industry was getting sales tax exemption and the eligibility certificate granted by the Industries Department has not been cancelled as yet.
Allow this writ petition and quash the assessment orders and first appellate orders in annexures 3A, 3B, 3C, 3D, 3E, and 3F as well as the second appellate order in annexure 3G and declare that the petitioner is entitled to avail the sales tax exemption in accordance with the IPR, 1996.
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