|
Advanced Search Options
Case Laws
Showing 121 to 140 of 782 Records
-
2007 (3) TMI 715
Issues:
1. Validity of levy and demand of interest for belated payment of sales tax for the assessment year 1991-92.
2. Applicability of Section 24A of the Tamil Nadu General Sales Tax Act, 1959 regarding creation of charge on property.
3. Interpretation of Sections 24(2) and 24(3) of the said Act in relation to payment of interest on belated tax.
Analysis:
1. The petitioner challenged the levy and demand of interest for belated payment of sales tax for the assessment year 1991-92. The petitioner argued that as an auction purchaser of the property, he was not liable to pay the sales tax due, which he had already paid to the respondent. The petitioner contended that the charge created over the property ceased once the amount was accepted by the department, and therefore, the demand for interest was not legally sustainable. However, the court held that under Section 24(2) of the Act, an automatic charge is created over the property upon tax becoming payable. Since there were sales tax arrears, the statutory charge was created over the property sold to the petitioner, justifying the payment of sales tax and interest for belated payment.
2. The court examined the applicability of Section 24A of the Act, which deals with creating a charge on assets to defraud revenue. The petitioner argued that since there were no pending proceedings and the charge was created over the property after completion of proceedings, the demand for interest was not valid. However, the court reasoned that until the tax due along with interest under the Act is completely discharged, the argument based on Section 24A cannot be accepted. The court emphasized that the automatic charge created over the property justified the demand for interest on belated tax payment.
3. In interpreting Sections 24(2) and 24(3) of the Act, the court clarified that upon tax becoming payable, a charge is automatically created over the property. The court emphasized that the petitioner was liable to pay interest for belated payment of tax as per the statutory provisions of the Act. The court rejected the argument that the charge created over the property ceased upon payment of tax to the department, highlighting the legal obligation to pay interest on belated tax payment until the entire amount due is discharged. Consequently, the court dismissed the writ petitions challenging the levy and demand of interest for belated payment of sales tax for the assessment year 1991-92, finding no illegality or irregularity in the authorities' orders.
-
2007 (3) TMI 714
Issues involved:
The judgment involves the challenge to an order passed by the Assam Board of Revenue affirming the revisional order u/s 36 of the Assam General Sales Tax Act, 1993, regarding the assessment of a limited company engaged in the business of manufacture and sale of electrical goods for the assessment year 1995-96.
Assessment of Sales Turnover:
The petitioner company submitted its return showing sales of a total amount, but the assessing officer determined a different sale proceeds amount for the petitioner, leading to the levy of tax. The Deputy Commissioner of Taxes initiated a proceeding under section 36 and set aside the assessment order on the ground of suppressed sales amount, which was later rectified. The Assam Board of Revenue rejected the appeal filed by the petitioner, leading to the writ petition challenging the orders.
Legal Arguments - Petitioner's Counsel:
The petitioner's counsel argued that the jurisdiction u/s 36 can only be exercised if the assessing officer's order is both erroneous and prejudicial to the Revenue. They contended that the power must be invoked only if both pre-conditions are present, emphasizing that the error must be jurisdictional. They cited relevant case laws to support their arguments regarding the correct interpretation of the Act.
Legal Arguments - Revenue's Counsel:
The Revenue's counsel refuted the petitioner's contentions, stating that the assessing officer had ignored crucial information leading to an erroneous assessment. They argued that the assessing officer's failure to investigate discrepancies in stock and sales values constituted a jurisdictional error, making the order prejudicial to Revenue. They defended the revisional order and the decision of the Assam Board of Revenue.
Court's Analysis and Decision:
The court considered the arguments of both parties and emphasized that an erroneous order u/s 36 must involve a jurisdictional error. It highlighted that the assessing officer's failure to verify crucial facts and conduct necessary inquiries amounted to a gross irregularity, justifying the exercise of revisional power. The court concluded that the conditions for invoking powers u/s 36 were met in this case, upholding the orders of the Deputy Commissioner of Taxes and the Assam Board of Revenue. The writ petition was dismissed, and no costs were awarded.
Conclusion:
The court upheld the revisional order and the decision of the Assam Board of Revenue, finding the writ petition without merit and dismissing it. The judgment reaffirmed the importance of jurisdictional errors in invoking revisional powers under the Act.
-
2007 (3) TMI 713
Issues involved:
Prayer for mandamus to direct furnishing of details regarding alleged local sales instead of stock transfer.
Analysis:
The petitioner, a textile manufacturer and registered dealer under state and central sales tax laws, reported turnover for 2002-03. An inspection led to a dispute where assessing officer proposed treating despatches to Kerala depot as local sales, not stock transfers. Petitioner sought details of orders placed by buyers to respond effectively. The court noted petitioner's duty to provide material supporting stock transfer claim. Counsel argued against predetermined decision by authorities. Court allowed petitioner to submit objections within ten days, directing assessing authority to consider objections and materials before proceeding further, emphasizing fair consideration without influence from initial proposal.
-
2007 (3) TMI 712
Issues:
1. Validity of the interim order passed by the Tribunal granting stay of payment of 75% of disputed tax.
2. Whether the Tribunal should be directed to take up the main appeal for consideration.
3. Modification of the direction for furnishing security.
Analysis:
1. The petitioner sought a writ to direct the Tribunal to re-dispose the stay petition in T.P. No. 92 of 2004. The petitioner's contention was regarding an assessment order made for the assessment year 1996-97 under CST, treating transactions as inter-State sales. An interim order by the Tribunal granted stay of 75% of the disputed tax, with a condition to pay the balance by a specified date. The court considered the financial implications of interfering with the Tribunal's order, noting that a significant portion of relief had been granted to the petitioner. The court decided not to interfere with the payment of tax as directed by the Tribunal but modified the direction for furnishing security by requiring a personal bond from the company's directors.
2. The petitioner argued that the Tribunal should be directed to take up the main appeal for consideration instead of keeping the interim order in place. The court, after considering the submissions from both parties, decided that since a substantial relief had already been granted to the petitioner in the form of the interim order, it was not necessary to direct the Tribunal to take up the main appeal immediately. However, the court directed the Tribunal to consider the petitioner's appeal if it was ripe for hearing without disrupting the Tribunal's schedule.
3. The court modified the direction for furnishing security by requiring a personal bond from the directors of the company instead of any other form of security. This modification was made considering the financial implications and the fact that a major portion of relief had already been granted to the petitioner through the interim order. The court balanced the interests of both parties and ensured that the petitioner had to provide a personal bond as security while allowing the Tribunal to proceed with the appeals of the year 2003 without significant alterations to its schedule.
In conclusion, the court disposed of the writ petition without imposing any costs, and the connected miscellaneous petition was closed. The judgment provided a balanced approach by considering the financial implications, the relief granted to the petitioner, and the need to maintain the Tribunal's schedule while ensuring that the petitioner provided appropriate security in the form of a personal bond.
-
2007 (3) TMI 711
Issues:
Challenge against the cancellation of recognition certificate for purchase of CI castings due to manufacturing process carried out by a third party on job-work basis.
Detailed Analysis:
The present revision under section 11 of the U.P. Trade Tax Act, 1948 was filed against the order of the Tribunal dated December 29, 2000, pertaining to the assessment year 1995-96. The dealer, who was issued a recognition certificate for the purchase of CI castings, faced cancellation of the certificate on the grounds that the dealer was not directly manufacturing the goods but getting them manufactured through other parties on a job-work basis. The assessing authority's order was challenged by the dealer before the Deputy Commissioner (Appeals), Agra, who allowed the appeal and set aside the assessing authority's decision. Subsequently, the Commissioner of Trade Tax filed an appeal before the Tribunal, which rejected the appeal and upheld the decision of the first appellate authority.
The judgment referred to a previous case, Bulbu Prasad Amarnath v. Commissioner of Sales Tax, where it was held that for a dealer to be considered a manufacturer of a product, it is not necessary that the goods should be manufactured by the dealer directly. The law recognizes the dealer as a manufacturer even if the goods are manufactured through a third party on a job-work basis. The court emphasized that the key factor is the control and involvement of the dealer in the manufacturing process, regardless of whether the physical manufacturing is done by the dealer or through a third party.
In light of the precedent set by the aforementioned case, the court found that the present revision was squarely covered by the decision. It was reiterated that the manufacturing carried out by a third party on a job-work basis can still be attributed to the dealer, as long as the dealer exercises control and oversight over the manufacturing process. Consequently, the court upheld the order of the Tribunal, dismissing the revision as lacking merit.
In conclusion, the court affirmed the decision of the Tribunal based on the legal principle established in the previous case, emphasizing that the involvement and control of the dealer in the manufacturing process are pivotal in determining the dealer's status as a manufacturer, even if the physical manufacturing is outsourced to a third party on a job-work basis.
-
2007 (3) TMI 710
Issues:
1. Interpretation of section 88 of the Tamil Nadu Value Added Tax Act, 2006.
2. Validity of rejecting the application under section 16D of the TNGST Act.
3. Rights and liabilities accrued under the TNGST Act post-repeal.
Analysis:
1. The petitioner claimed exemption on sales for the assessment year 1996-97 under the TNGST Act. The assessing authority assessed certain values to tax without issuing a pre-assessment notice. The petitioner invoked section 16D of the TNGST Act post-repeal, but the application was rejected based on section 88 of the Tamil Nadu Value Added Tax Act, 2006. The petitioner argued that accrued interest and vested rights cannot be divested by the repealed Act. Citing a Supreme Court decision, it was contended that rights and liabilities under the former Act continue post-repeal. The court agreed, stating that the vested right accrued to the petitioner for invoking section 16D cannot be divested, setting aside the rejection and remitting the issue back for reconsideration.
2. The rejection of the application under section 16D was challenged on the grounds that the repealed Act saved certain actions under the TNGST Act. The court found that the rights of the petitioner under the TNGST Act were saved by the Repealed Act, and the reason for rejection was not legally sustainable. The order was set aside, emphasizing the importance of considering the point of laches in the reassessment.
3. The court concluded by disposing of the writ petition without costs and closing the related miscellaneous petition. The judgment highlighted the significance of preserving accrued rights and ensuring proper consideration of legal provisions in matters of assessment and repeal of tax laws.
-
2007 (3) TMI 709
Issues: Interpretation of eligibility for concessional rate of tax on high speed diesel oil under Central Sales Tax Act for manufacturing activities.
The judgment involves two revisions under section 11 of the U.P. Trade Tax Act, 1948, challenging an order of the Tribunal related to the assessment year 2000-01. The dealer was engaged in manufacturing activities and registered under both the U.P. Trade Tax Act and the Central Sales Tax Act, 1956. The dispute arose when the assessing authority denied the benefit of high speed diesel oil for manufacturing gur, claiming it was used in the generator for electricity generation, not directly in manufacturing. The Tribunal, however, allowed the appeals, considering the generator as machinery, citing relevant case laws and holding high speed diesel oil eligible for concessional rate of tax. The issue revolved around the interpretation of whether high speed diesel oil used in a generator for electricity generation qualifies for concessional tax benefits under the Central Act.
The learned Standing Counsel argued that high speed diesel oil used for electricity generation, not directly in manufacturing, should not be eligible for concessional tax benefits. He contended that unless electricity generated was used in production, the diesel engine for electricity generation does not qualify for tax benefits. The court examined the order of the Tribunal, emphasizing the categorization of a generator as machinery by previous court rulings and referred to relevant sections and rules under the Central Act regarding goods eligible for concessional tax rates.
The court analyzed Section 8(3)(b) of the Central Act and Rule 13 of the Central Sales Tax (Registration and Turnover) Rules, 1957, which specify that goods used in manufacturing, processing, or electricity generation are eligible for concessional tax rates. The court noted that the language of the law does not restrict the use of items in electricity generation solely for sale purposes, making any item used for electricity generation eligible for concessional tax rates. The court observed that the generator was installed in the factory, and there was no evidence to suggest that the electricity generated was not used in production.
Referring to past judgments, the court highlighted a case where the Orissa High Court held that the provision applies to a generator, whether as the exclusive or subsidiary source of electricity. The court concluded that high speed diesel oil used for generator operation for electricity generation qualifies for concessional tax benefits under Rule 13 of the Rules and Section 8(3)(b) of the Central Act. Consequently, the court dismissed both revisions, upholding the Tribunal's decision regarding the eligibility of high speed diesel oil for concessional tax rates under the Central Act.
-
2007 (3) TMI 708
Issues:
Challenge to levy of additional sales tax under Tamil Nadu Additional Sales Tax Act, 1970 for a specific period.
Analysis:
The petitioner filed a petition before the Tribunal challenging the levy of additional sales tax on the taxable turnover reported for a particular period. The petitioner argued that the levy was against the provisions of the Tamil Nadu Additional Sales Tax Act, 1970 and beyond the taxing powers of the respondent. The original petition was converted to a writ petition upon transfer to the High Court.
The respondent had issued a proposal notice to levy additional sales tax on a taxable turnover after deducting a certain amount. Despite the petitioner's objections, the respondent passed the order levying additional sales tax for the specified period. The petitioner requested a revision of the assessment, which was not accepted. It was contended that the levy for that period exceeded the respondent's powers as the taxable turnover did not exceed a certain limit.
Upon hearing arguments from both sides and examining the assessment order, it was noted that the proposal for additional sales tax was duly served on the dealer, and the petitioner did not raise any objections until after the assessment order was passed. The assessing officer determined the turnover to be taxed, and no appeal was filed for several years until the challenge in 2004.
The High Court observed that the matter in the writ petition was appealable under the Tamil Nadu General Sales Tax Act, 1959. The petitioner had the option to appeal before the first appellate authority. Citing relevant decisions, the court emphasized that it was not delving into the merits of the case due to unexplained delays on the part of the petitioner for over six years.
The High Court disposed of the writ petition with no costs, and the connected miscellaneous petition was closed accordingly.
-
2007 (3) TMI 707
Issues:
1. Writ petition seeking mandamus for refund claim under TNGST Act.
2. Interpretation of section 7F of TNGST Act for refund of tax deducted at source.
3. Correct application filing and grievance conveyance.
4. Direction to respondent for timely consideration of refund application.
Analysis:
1. The petitioner filed a writ petition seeking a writ of mandamus to direct the respondent to consider and pass an order on the refund claim made under section 7F of the Tamil Nadu General Sales Tax Act, 1959 and rule 18F of the Tamil Nadu General Sales Tax Rules, 1959. The petitioner claimed that they were not liable to pay tax under section 3B or section 7C for a works contract with Chennai Port Trust, as the transactions were interstate and CST had been paid at the appropriate rate to the originating state. The Port Trust had deducted tax at source, which the petitioner sought as a refund.
2. Section 7F(6) of the TNGST Act allows for the refund of tax deposited if the dealer proves to the assessing authority that they are not liable to pay tax under specified sections. The corresponding rule 18F also provides for the refund of excess amounts paid. The court directed the respondent to consider the petitioner's application for refund in accordance with section 7F and rules 18F, 18(6) of the TNGST Rules, provided the assessing officer is satisfied that the petitioner is not liable to pay tax under the relevant sections.
3. The court noted discrepancies in the affidavit filed in support of the writ petition, including incorrect dates and inconsistencies in the complaint presented. The learned counsel for the petitioner acknowledged the errors and requested the court to adjust the prayer accordingly. Despite these issues, the court proceeded to address the core matter of the refund claim based on the statutory provisions of section 7F(6) and related rules.
4. In the interest of justice, the court ordered the respondent to consider the petitioner's refund application within twelve weeks from the date of the court's order. The court clarified that this direction did not imply a finding in favor of the petitioner but was a directive for the proper disposal of the application in accordance with the statutory provisions. The writ petition was disposed of without costs, emphasizing the importance of adhering to the legal procedures for refund claims under the TNGST Act.
-
2007 (3) TMI 706
Constitutional validity of the Haryana Local Area Development Tax Act, 2000 - levy and collection of tax on entry of goods into local areas for consumption, use or sale - individual service - Whether a levy is compensatory or not has to be decided with reference to the nature of the levy itself? - Violation of Article 301 - HELD THAT:- A perusal of statutory provisions shows that the levy of tax is on entry of goods into a local area for consumption, use or sale and the tax is payable by the importer with reference to value of goods at a specified rate. The tax collected is to be distributed by the State Government among the local bodies. The same is to be utilised for development facilitating free-flow of trade and commerce on infrastructural facilities such as roads, bridges, culverts, sewerage, drainage, sanitation, waste-management, electricity, drinking water and other infrastructural facilities. At least 60 per cent of the amount is to be utilised. The board is to ensure balanced development of the local areas and recommend allotment of proceeds of tax and changes in the rate of tax. The board is also to ensure that the proceeds of tax are not more than the amount actually required for development of local areas.
We find merit in the contention raised on behalf of the petitioners. The levy is not to meet the cost of any specific facility already provided or planned to be provided. The parameters clearly laid down in Jindal [2006 (4) TMI 120 - SUPREME COURT] are that compensatory tax represents the costs incurred in procuring facilities/services on the principle of "pay for value". It is a charge for offering trade facilities. It adds to value of trade and commerce. It is based on the principle of equivalence. It must have a broad proportion to the benefit derived to defray the cost of regulation or to meet the outlay incurred for some special advantage to trade and commerce and intercourse. The impugned levy initially was meant to be for assistance to local areas for their development generally and the amendment brings about only a superficial change in the language while retaining the basic character of the levy as a source for raising general development. In this view of the matter, we are unable to hold that the facial test is met. Mere specification of the 60 per cent of the amount being in line with judgments dealing with the levy of fee is of no consequence when the very subject-matter of utilisation cannot be treated as any special direct or exclusive service or benefit to the payer of the tax.
Thus, the data given by the State in respect of the amount Spent does not stand scrutiny. As rightly pointed out by learned Counsel for the petitioners, the expenditure incurred is 17 per cent of the total collection and the expenditure is far less than the collection of much more amount under other statutes levying compensatory taxes to cover the cost of at least some of the very same services. The burden of proof on the State cannot be held to have been discharged.
Though the levy was earlier upheld by this Court with reference to the parameters as understood from the judgments of the honourable Supreme Court, including judgments in Bhagatram [1994 (11) TMI 337 - SUPREME COURT] and Bihar Chamber of Commerce [1996 (2) TMI 430 - SUPREME COURT], which now stand disapproved by the Constitution Bench, applying the parameters as laid down in Jindal [2006 (4) TMI 120 - SUPREME COURT], we are of the view that the impugned levy is not compensatory in character. The same amounts to restriction on free flow of trade and commerce and is hit by Article 301 of the Constitution of India.
We record our finding accordingly.
-
2007 (3) TMI 705
Issues:
Challenge to circular issued by authorities under Tamil Nadu General Sales Tax Act, 1959.
Analysis:
The petitioner-association claimed that their sales of ball bearings were mostly against form XVII declarations, covered under section 3(3) of the Act. Previously, ball bearings were taxed separately under section 3(2) until the Government of Tamil Nadu inserted section 3(5) and issued a circular in 2001. The petitioner argued that the circular was not in line with statutory provisions and should be invalidated. Individual assessees who sought similar relief were directed to have their assessments made by the assessing officer. The court emphasized that assessments must adhere to statutory provisions and not be solely based on circulars. The court clarified that circulars do not override statutory provisions, and assessments should be rectified through proper legal procedures if necessary.
The court noted that the petitioner-association, being a traders' association, lacked a cause of action to challenge the circular before the court. It was reiterated that assessments must strictly follow statutory provisions, and even without the circular, the assessing officer could apply section 3(5) of the Act. The court highlighted the protection provided to assessees, including issuing notices of proposal before assessment orders and allowing objections to be raised against proposals conflicting with statutory provisions. The court expressed that entertaining petitions based on internal correspondence between officers would not serve the intended purpose.
Ultimately, the court concluded that the petitioner-association had no grounds to approach the court, similar to individual assessees who were advised to address authorities. Consequently, the writ petition was dismissed without costs.
-
2007 (3) TMI 704
Issues:
1. Application under section 22 of the Punjab General Sales Tax Act, 1948 for referring a question of law.
2. Dispute regarding taxability of submersible pump sets and penalty imposition.
3. Questions of law raised by the applicant.
4. Consideration of regular assessment and tax-free status of submersible pumps.
5. Jurisdiction of authorities in summary penalty proceedings.
6. Legal sustainability of determining taxability in summary proceedings.
Analysis:
1. The judgment addressed an application filed under section 22 of the Punjab General Sales Tax Act, 1948, requesting a question of law arising from an order passed by the Sales Tax Tribunal to be referred to the court. The applicant, a registered dealer dealing in submersible pump sets, faced a penalty imposition under section 14(B)(7)(ii) of the Act due to a detained vehicle carrying submersible pumps.
2. The dispute revolved around the taxability of the submersible pump sets and the penalty imposed by the authorities. Despite the dealer's claim that the goods were tax-free and supported by bills, the penalty was upheld by inferring an intention to evade tax based on the premise that the submersible pumps were taxable under the Act.
3. The applicant raised two questions of law: firstly, challenging the authorities' decision on the taxability of the goods in summary proceedings, and secondly, inquiring whether monoblock pumps and submersible pumps fall under a specific category or are used as agricultural implements.
4. The court considered the regular assessment for the accounting year 2003-04, where the assessing authority had accepted that submersible pumps were tax-free items. This acceptance during regular assessment contradicted the penalty imposition in the summary proceedings, indicating a discrepancy in the tax treatment of the goods.
5. The judgment highlighted the jurisdictional issue, emphasizing that if the assessing authority had already determined the tax-free status of the submersible pumps during regular assessment, the check post authorities should not have held otherwise during summary penalty proceedings. The court referenced a previous case to support the argument that the penalty imposition in such circumstances was without jurisdiction.
6. Ultimately, the court held in favor of the assessee, concluding that the action of the authorities in determining the taxability of the goods in summary proceedings was not legally sustainable. The judgment disposed of the petition accordingly, addressing the concerns raised by the applicant regarding the penalty imposition and tax treatment of the submersible pumps.
-
2007 (3) TMI 703
Issues:
1. Whether respondent Nos. 1 and 2 can insist on payment of arrears of tax from the petitioner for a third respondent.
2. Interpretation of the effect of section 12(7) of the Andhra Pradesh General Sales Tax Act, 1957 and rule 28(14) of the Andhra Pradesh General Sales Tax Rules, 1957 regarding the surety's liability.
3. Validity of earlier judgments by the court in light of rule 28(14) of the Rules.
Analysis:
1. The writ petitions sought a direction to prevent respondent Nos. 1 and 2 from demanding payment of arrears of tax related to a third respondent from the petitioner. The petitioner argued that his surety for the third respondent was limited to one assessment year and not perpetual, citing previous court judgments. The court considered the arguments and noted that the surety's liability is tied to the duration of the registration certificate, as per rule 28(14) of the Rules. The court found that the earlier judgments did not require reconsideration, and consequently, the impugned notices were quashed, allowing the writ petitions.
2. The court delved into the interpretation of section 12(7) of the Andhra Pradesh General Sales Tax Act, 1957 and rule 28(14) of the Andhra Pradesh General Sales Tax Rules, 1957 concerning the surety's responsibility. The learned Government Pleader contended that the surety remains valid as long as the registration certificate is active, as per rule 28(14). The court agreed with this interpretation, emphasizing that the surety's obligation extends to the tax payable for the specific year for which the surety was provided. The court's analysis highlighted the significance of the language in rule 28(14) in determining the duration and scope of the surety's liability.
3. The court addressed the validity of earlier judgments in light of rule 28(14) of the Rules. The court found that the previous judgments did not consider the implications of rule 28(14) and upheld the view that the surety's obligation remains in force for the tax payable for the specified year. By aligning the interpretation with the provisions of rule 28(14) and other relevant rules, the court concluded that the earlier judgments did not require reassessment. Consequently, the court allowed the writ petitions, quashed the impugned notices, and directed the respondents to consider the petitioner's entitlement to refunds in accordance with the Rules.
-
2007 (3) TMI 702
Issues involved: Interpretation of section 3F of the U.P. Trade Tax Act, 1948 regarding tax liability for transfer of right to use goods.
Summary:
The present revision u/s 11 of the U.P. Trade Tax Act, 1948 challenges the Tribunal's order for the assessment year 1995-96, based on the dealer receiving a sum from Dugdh Utpadan Sahkari Sangh Limited, Bulandshahar. The assessing authority alleged tax liability u/s 3F for transfer of right to use a chilling plant. The dealer contended that the chilling plant was never transferred and the payment was for supplying milk and water at a specified temperature. The first appellate authority accepted the dealer's plea, upheld by the Tribunal.
Upon review, it was found that the dealer provided milk and water at a specified temperature under the agreement, and the chilling plant was not transferred for use. Expenses were borne by the dealer, and in case of power failure, chilling would be done by ice. Citing the case of Bharat Sanchar Nigam Ltd. v. Union of India, it was emphasized that delivery of possession of goods is necessary for transfer of right to use. As the chilling plant was not delivered to Dugdh Utpadan Sahkari Sangh Limited for use, the case did not fall under transfer of right to use goods. The revision was dismissed for lack of merit.
In conclusion, the revision u/s 11 of the U.P. Trade Tax Act, 1948 failed and was dismissed, as the chilling plant was not transferred for use, and the case did not meet the criteria for transfer of right to use goods.
-
2007 (3) TMI 701
Issues involved: Interpretation of tax liability on turnover of tin containers purchased within the State of U.P. under the U.P. Trade Tax Act, 1948 for assessment years 1974-1977.
Summary:
The applicant, engaged in the business of manufacturing and selling edible oil in tin containers purchased within U.P., contested tax liability on the turnover of tin containers. The assessing authority initially taxed only the value of the oil, but later included tin containers in the turnover based on a court decision. The revisions challenged this inclusion, citing precedents Commissioner of Trade Tax v. Prag Ice and Oil Mills and others, where separate pricing for containers indicated independent taxability. The court noted tin containers as a distinct commercial commodity taxable at the point of manufacture or importation. Referring to Jamana Flour & Oil Mills case, it affirmed that separate contracts for containers warrant separate tax treatment. Relying on past judgments, including Commissioner of Trade Tax v. Maluk Chand Cotton and Oil Mill, the court held that since tin containers were purchased within U.P., and the applicant was not the manufacturer or importer, the turnover of tin containers was not taxable. Consequently, all revisions were allowed, and the Tribunal's order was set aside.
-
2007 (3) TMI 700
Issues involved:
1. Taxability of tin containers used for sale of vegetable and edible oil.
2. Exclusion of purchase of coal from unregistered dealer from turnover.
3. Taxability of refining mustard oil as an activity of manufacture.
4. Reopening of the issue regarding the use of soyabean oil seeds for oil manufacture in remand proceedings.
5. Levying interest on late payment of admitted tax on purchase of soyabean oil seeds.
Issue 1 - Taxability of tin containers:
The High Court affirmed that tin containers are separately liable to tax based on a previous judgment. The purchase made within the State of U.P. does not attract additional tax liability.
Issue 2 - Exclusion of coal purchase from turnover:
The Supreme Court upheld the validity of section 3AAAA, overturning the previous judgment. The Tribunal is directed to quantify the tax liability on coal purchase from an unregistered dealer in accordance with section 3AAAA.
Issue 3 - Taxability of refining mustard oil:
The Supreme Court has ruled that refining mustard oil constitutes manufacturing, creating a new product. The Tribunal's decision that refining does not amount to manufacture is legally unsustainable.
Issue 4 - Reopening of soyabean oil seeds issue:
The Tribunal failed to address the legal contention that the issue of using soyabean oil seeds for oil manufacture through solvent process was not covered in the remand order. The Tribunal's decision on this issue is quashed.
Issue 5 - Levying interest on late payment:
The Tribunal is directed to reexamine the levy of interest on admitted tax after resolving the above issues. All sales tax revisions are allowed in part, and the matter is remanded to the Tribunal for fresh consideration within six months.
-
2007 (3) TMI 699
Issues: Benefit of concessional rate of tax on purchases of rice bran, applicability of section 4B(1)(a1) of the U.P. Trade Tax Act, 1948.
In this judgment by the Allahabad High Court, the revision under section 11 of the U.P. Trade Tax Act, 1948 was directed against an order of the Tribunal related to the assessment year 1993-94. The dealer had purchased rice bran as a commission agent for the principal against form IIIB, claiming the benefit of concessional tax rate. However, the assessing authority and the first appellate authority disallowed the benefit on the grounds that rice bran was not a declared commodity. The Tribunal, relying on a previous court decision, allowed the concessional rate of tax. The court noted that the issue was covered by a decision in the case of Commissioner of Trade Tax v. Malti Devi, where it was held that since rice bran was not a declared commodity, the provisions of section 4B(1)(a1) did not apply. The court also referred to a Division Bench decision which clarified that the benefit under section 4B(1) was only for dealers holding a recognition certificate. The court highlighted the addition of sub-section (a1) to section 4B(1) providing benefits to dealers without recognition certificates for transactions of declared goods only. As rice bran was not a declared commodity and the dealer did not hold a recognition certificate, the benefit of concessional tax rate was deemed inadmissible. Consequently, the court allowed the revision, set aside the Tribunal's order granting the benefit of the concessional tax rate on rice bran purchases, and directed the Tribunal to take appropriate action under section 11(8) of the Act.
-
2007 (3) TMI 698
Issues:
Violation of section 10(b) of the Central Sales Tax Act, 1956; Misuse of registration certificate leading to penalty imposition under section 10A of the Act.
Analysis:
The case involved a revision under section 11 of the U.P. Trade Tax Act, 1948, challenging an order related to the assessment year 1997-98 under the Central Sales Tax Act, 1956. The applicant was granted registration for processing potato, vegetable, fruits, and manufacturing ice. Machinery purchased was used in constructing a cold storage. The assessing authority alleged misuse of registration as ice was not manufactured. The penalty was imposed under section 10A of the Act. The Deputy Commissioner (Appeals) set aside the penalty, but the Tribunal partially allowed the appeal, reducing the penalty amount. The applicant argued that machinery was used for cold storage and ice manufacturing, and there was no violation of section 10(d) of the Act. The court referred to precedents and observed that the use of machinery in cold storage construction was under a bona fide belief and not without reasonable excuse, setting aside the penalty.
The court analyzed section 10(d) of the Central Act, emphasizing the importance of a reasonable excuse for not using purchased goods for specified purposes. Referring to the Delhi Cold Storage case, it differentiated between preservation and processing of goods in a cold storage. However, in the present case, registration was granted for processing goods, justifying the use of machinery in cold storage construction. The court cited the Raghubir Cold Storage case, where penalty imposition was overturned due to a reasonable cause for default. It concluded that the applicant used goods in cold storage construction under a bona fide belief, providing a reasonable excuse, and thus, the penalty was not sustainable.
In conclusion, the court allowed the revision, setting aside the Tribunal's order and quashing the penalty under section 10A of the Central Act. The judgment highlighted the importance of a reasonable excuse for deviations from intended use under tax laws, emphasizing bona fide beliefs and precedents to justify actions in specific circumstances.
-
2007 (3) TMI 697
Issues Involved:
1. Refund of excess tax deposited.
2. Applicability of Section 29A of the U.P. Trade Tax Act to the Central Sales Tax Act.
3. Procedural vs. substantive provisions in tax law.
Issue-wise Detailed Analysis:
1. Refund of Excess Tax Deposited:
The applicant sought a refund for the excess tax deposited for the assessment years 1994-95 and 1995-96, amounting to Rs. 1,85,264.50 and Rs. 3,73,453, respectively. The assessing authority denied the refund under Section 29A of the U.P. Trade Tax Act, arguing that the applicant had collected this amount from customers, making it refundable to the customers, not the applicant. This view was upheld by the first appeals and the Tribunal.
2. Applicability of Section 29A of the U.P. Trade Tax Act to the Central Sales Tax Act:
The applicant contended that Section 29A of the U.P. Trade Tax Act does not apply to the Central Sales Tax Act. They cited decisions from the apex court in Khemka & Co. (Agencies) Pvt Ltd. v. State of Maharashtra [1975] 35 STC 571, India Carbon Ltd. v. State of Assam [1997] 106 STC 460, and the Bombay High Court in Commissioner of Sales Tax v. Ramkrishna Kulvantrai [1976] 37 STC 564 to support their argument that no tax can be levied without the authority of law as per Article 265 of the Constitution of India.
The Standing Counsel argued that the refund provisions are procedural and have been adopted by Section 9(2) of the Central Sales Tax Act. The inclusion of "refund" by Act No. 61 of 1972, effective from April 1, 1973, makes the refund provisions of the U.P. Trade Tax Act applicable to the Central Act.
3. Procedural vs. Substantive Provisions in Tax Law:
The court examined the provisions of Section 9(2) and 9A of the Central Sales Tax Act, both before and after the Finance Act, 2000. It was noted that the procedural provisions of the State law, including refunds, have been made applicable to the Central Act. The court distinguished between procedural provisions (like refunds) and substantive provisions (like interest and penalties).
The court referenced the apex court's decisions in Khemka & Co. (Agencies) Pvt Ltd. v. State of Maharashtra and India Carbon Ltd. v. State of Assam, which held that procedural parts of State provisions apply for enforcing the substantive law of the Central Act. However, the court noted that refunds are procedural and do not require a substantive provision. Thus, Section 29A(2) and 29A(3) of the U.P. Trade Tax Act, being procedural, apply to the Central Act.
The court also cited the apex court's validation of Section 29A of the U.P. Trade Tax Act in Kasturi Lal Harlal v. State of U.P. and Kheria Brothers, Lalitpur v. Assistant Commissioner (Judicial), Sales Tax, Jhansi.
Conclusion:
The court concluded that the revisions lacked merit and dismissed both the revisions. The provisions of Section 29A of the U.P. Trade Tax Act were deemed applicable to the Central Sales Tax Act, and the procedural nature of refund provisions justified their application under Section 9(2) of the Central Act.
-
2007 (3) TMI 696
Issues involved:
The issues involved in the judgment are coercive recovery of sales tax and penalty by the assessing authority before statutory remedies are exhausted, imposition of penalty by the assessing officer, remand of the matter to the assessing officer by the Appellate Assistant Commissioner, coercive steps taken by the assessing authority against the petitioner, declaration of the petitioner-company as a sick company, and the timeline for filing appeals before the appellate authorities.
Coercive Recovery of Sales Tax and Penalty:
The petitioner sought a writ of mandamus to prevent the assessing authority from taking coercive steps for demanding and collecting arrears of sales tax and penalty for the assessment years 1996-97, 1997-98, and 1998-99 until statutory remedies are exhausted under the Central Sales Tax Act, 1956 and Tamil Nadu General Sales Tax Act, 1959.
Imposition of Penalty and Remand:
The assessing officer had completed the assessment for the mentioned years and imposed penalty due to the claim made by the reduced rate of tax and exemption under certain forms. The petitioner filed appeals before the Appellate Assistant Commissioner who remanded the matter to the assessing officer after setting aside the penalty imposed.
Coercive Steps by Assessing Authority:
While the appeals were pending, the assessing authority took coercive steps by pressurizing the petitioner's bankers to pay the amount due, despite the appeals being heard and reserved for orders. The petitioner argued that such actions were not legally acceptable, especially when the appeals were pending.
Declaration of Sick Company and Additional Developments:
The petitioner-company was declared as a sick company under the Sick Industrial Companies (Special Provisions) Act, 1985. During the argument, it was highlighted that the penalty imposed by the assessing officer had been set aside by the Appellate Assistant Commissioner, and certain matters were remitted back for assessment orders. The petitioner contended that they had the right to file appeals before the second appellate authority within the prescribed time limit.
Judgment and Order:
The court directed the assessing authority not to take coercive steps against the petitioner for demanding and collecting arrears of sales tax and penalty until the appeal time expires. The petitioner was also given the option to move the appellate authority for interim orders. The writ petitions were disposed of with no costs, and connected miscellaneous petitions were closed.
............
|
9911796707
