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Showing 141 to 160 of 703 Records
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2009 (10) TMI 864
Whether the respondent had wrongly levied the higher rate of tax on the food and drinks items sold by the petitioner on the misconception that they are branded items?
Whether the respondent had wrongly levied the higher rate of tax on the food and drinks items sold by the petitioner on the misconception that they are branded items?
Held that:- In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondent and on a perusal of the records available, this court is of the considered view that the impugned proceedings of the respondent cannot be sustained in the eye of law. It is clear that section 3D of the Tamil Nadu General Sales Tax Act, 1959, as it stood prior to the amendment, which came into effect, from April 1, 2002, there was no distinction between branded and unbranded food and drinks.
As such, sales tax was levied on the food and drinks sold by the petitioner, at two per cent, in accordance with the unamended section 3D of the Tamil Nadu General Sales Tax Act, 1959. Since the assessment years of 1998-99, 1999-2000, 2000-01 and 2001-02, relate to the period prior to the amendment of section 3D, it would not be open to the respondent to levy sales tax at the higher rate of 16 per cent. Also the respondent had erred in relying on the Clarification No. 156 of 2003, in D. Dis. Acts Cell II/31073/2003/dated June 26, 2003 in proposing to impose the higher rate of tax on the food and drinks sold by the petitioner. Appeal allowed.
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2009 (10) TMI 863
Issues:
Challenge to order of Tamil Nadu Sales Tax Appellate Tribunal in two appeals; Non-receipt of order by petitioner leading to ex parte decision; Requirement of original order for filing application under regulation 9(2) of Tribunal Regulations; Lack of clarity on notice issuance to petitioner; Directions for petitioner to file necessary applications under regulation 9(2) within specified time frame.
Analysis:
The petitioner challenged a common order of the Tamil Nadu Sales Tax Appellate Tribunal in two appeals, which were decided ex parte due to the non-receipt of the final hearing notice by the petitioner. The petitioner contended that despite not receiving the order for two years, a notice of attachment was issued, prompting the filing of writ petitions. The issue raised was the necessity of the original order for filing an application under regulation 9(2) of the Tribunal Regulations. The petitioner argued that without the copy of the order, the Tribunal might not entertain an application for setting aside the ex parte order or restoration.
The regulation 9(3) stipulates a 30-day period for filing an application under regulation 9(2) from the communication of the dismissal order. The court clarified that the original order is essential only for calculating the limitation period under regulation 9(3). If the order was not communicated, the limitation period does not commence. The court emphasized that the production of the original order is significant only when there is a dispute regarding the date of communication, not as a condition precedent for entertaining an application under section 9(2).
The court noted that while the petitioner could have approached the Tribunal under regulation 9(2) without a copy of the order, the lack of clarity on whether the petitioner received any notice of the appeal was a crucial factor. The court suggested that the petitioner should move an application under regulation 9(2) to address this ambiguity. The judgment directed the petitioner to file necessary applications within two weeks, with the Tribunal instructed to entertain the applications even without the original order if it was not served on the petitioner. The Tribunal was also directed to consider any delay applications sympathetically if filed by the petitioner along with the application under regulation 9(2).
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2009 (10) TMI 862
Whether, on the facts and in the circumstances of the case, learned Sales Tax Tribunal is justified to conclude that the assessee has no dealing on pure silk sarees merely because such pure silk sarees costs ₹ 250 per piece during that period and thereby annulling the assessment made for the year 1986-87 under section 12(8) of the Orissa Sales Tax Act, 1947 which is contrary to the facts admitted by the assessee?
Held that:- The reference made by the Tribunal and for that matter the contentions raised by the learned counsel for the Revenue in the revision are pure question of facts and they are not mixed questions of fact and law. The reference is discharged and for that matter the revision is dismissed.
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2009 (10) TMI 861
Issues:
1. Writ of certiorari to quash an order on value added tax.
2. Dispute over the rate of tax levied on printer cartridges.
3. Appeal to the appellate authority under the Tamil Nadu Value Added Tax Act, 2006.
Analysis:
1. The petitioner filed a writ petition seeking a writ of certiorari to challenge an order issued by the second respondent regarding the imposition of value added tax at 12.5 per cent on printer cartridges, ink cartridges, and toner cartridges. The petitioner, a dealer in computers and related accessories, argued that the tax rate was arbitrary and contrary to the provisions of the Tamil Nadu Value Added Tax Act, 2006. The court considered the submissions of both parties and observed that the petitioner could appeal against the impugned proceedings under section 52 of the Act.
2. The Special Government Pleader representing the respondents highlighted a similar matter pending before the Principal Bench of the Madras High Court, where an interim injunction was issued against levying a 12.5 per cent tax on comparable goods. The petitioner was advised to pursue an appeal to the appellate authority as per the provisions of the Act. The court directed the petitioner to file an appeal within one week from the date of the order and instructed the appellate authority to consider the interim order issued by the Principal Bench and make appropriate decisions regarding the tax rate on the goods sold by the petitioner.
3. The judgment emphasized that the appellate authority should review the impugned order comprehensively, considering both the interim injunction and other aspects, and issue decisions in accordance with the law. The writ petition was disposed of with the mentioned observations, allowing the petitioner to appeal and directing them to do so promptly. The court concluded by stating that no costs were to be incurred, and connected miscellaneous petitions were closed accordingly.
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2009 (10) TMI 860
Best judgment assessment - Held that:- We opine that the assessee may be otherwise liable to pay the tax as quantified and determined by the revisional authority. The tax as quantified and determined by the revisional authority if has not yet got time-barred and the appellant was liable to pay this amount by way of tax to the State and the respondents are serious about ensuring that, definitely they can do that; in fact it is their duty but that can be achieved only if the respondents, the officials of the Commercial Tax Department take care to follow the statutory provisions at least now and not to act in a negligent and careless manner as had been done hitherto.
We are also surprised about the manner in which the Additional Commissioner has chosen to exercise his revisional powers to set aside the order of the appellate authority which was undoubtedly a correct order for the reason of the original authority not having jurisdiction to pass the best judgment assessment order.
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2009 (10) TMI 859
Alternative statutory remedy of appeals under section 62 of the Karnataka Value Added Tax Act, 2003 - Held that:- We are not inclined to accept the submission of Sri Prasad, learned counsel for the appellant to entertain these appeals and to keep these matters pending and to await further decision of the Supreme Court. If an earlier Division Bench of this court had already applied the law as had been declared by the Supreme Court in K. Raheja Development Corporation's case [2005 (5) TMI 7 - Supreme Court], we can only follow that and dismiss the appeals and Sri Prasad, the learned counsel for the appellant also urges us to do so. These writ appeals are dismissed at the threshold without being admitted.
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2009 (10) TMI 858
Issues:
1. Discrepancy in sales tax rate declared by the petitioner on electrical goods.
2. Imposition of penalty by the assessing officer.
3. Dismissal of application under section 71 of the M.P. Commercial Tax Act, 1994 by the Board.
Analysis:
The petitioner, engaged in the sale of electrical goods, declared a lower tax rate on starters and switches in their sales tax return, depositing tax at 3% instead of 12%. The assessing officer deemed the return false, imposed a penalty, and ordered tax recovery at 12%. The matter reached the Commercial Tax Appellate Board, which sided with the petitioner, affirming the 3% tax rate. Subsequently, the petitioner sought a decision on the penalty issue under section 71, but the Board dismissed the application citing non-raised grounds. The petitioner argued that if the tax rate was 3%, the penalty for a supposedly false return would be baseless. Conversely, the State contended that section 71 application approval requires valid grounds.
Upon review, the High Court noted the assessing officer's error in determining the tax rate and imposing the penalty based on the incorrect rate. Given the Board's findings supporting the 3% tax rate, the Court concluded that the petitioner's return was valid and tax paid correctly. Consequently, the assessing officer lacked jurisdiction to levy the penalty. In light of the Board's decision, the Court nullified the penalty order, ruling in favor of the petitioner and allowing the petition without costs.
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2009 (10) TMI 857
Whether the Tribunal was justified in holding that mere production of C forms is sufficient proof of inter-State sales?
Held that:- In view of our finding that failure of the respondent to prove inter-State movement will justify assessment of the turnover under the KGST Act, we have to necessarily reverse the order of the Tribunal which has allowed the appeal just based on C forms produced. However, we feel one more opportunity can be granted to the respondent to produce available proof of inter-State movement of goods before the assessing officer within a period of two months from the date of receipt of copy of this judgment for the officer to reconsider the matter and if required, cross-check the check-post records if available.
We make it clear that if proof of inter-State movement is produced for substantial quantity of the turnover, then the entire claim should be allowed because at this distance of time the respondent may not be able to produce L.Rs. for all the transactions. It is up to the respondent to produce copies of L.Rs., details of freight paid through cheques, etc. If evidence is produced, the assessing officer will revise the assessments granting concessional rate. On the other hand if the respondent fails to produce documents for substantial turnover of inter-State sales, then the Tribunal's order will stand reversed and the assessments made under the KGST Act will stand confirmed.
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2009 (10) TMI 856
Whetehr sales have to be treated as exempted from payment of tax as per 2002 Act - Held that:- The stand of the respondent that a separate notification for Union Territory, Chandigarh is required to be issued would not require any detailed consideration in view of the fact that notification issued by the Ministry of Civil Aviation under section 3 of the Act on November 18, 2002 would extend to all the States and Union Territories. It is further made clear that by letter dated February 10, 2003 (P4) circulated by the Ministry of Petroleum and Natural Gases intimating all the States and Union Territories the entitlement of the corporation like the petitioner stipulating that no tax/duties whether levied by the Central or State Government are leviable on the supply of fuel/lubricants on the air crafts of foreign countries. Even the refund has been permitted as the notification has come into force with effect from November 23, 2002.
As a sequel to the above discussion, this petition succeeds and order dated May 8, 2009 (P5) is set aside. Respondent No. 2 is directed to exclude the sale concerning ATF made to foreign aircrafts by the petitioner-corporation and re-determine the tax liable of the petitioner in accordance with law. The petition stands disposed of accordingly.
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2009 (10) TMI 855
Issues: State's challenge to Tribunal's acceptance of gross profit declared by respondent-assessee.
Analysis:
The State filed a revision challenging the Tribunal's acceptance of the respondent-assessee's declared gross profit of 29.18%. The assessing officer initially estimated gross profit at 55% due to inconsistencies with sale bills, but the appellate authority reduced it to 37%, which the State did not appeal. However, the Tribunal further reduced it to 29.18%. The Government Pleader argued that this acceptance of the gross profit amounted to validating defective accounts, while the assessee contended that the assessing officer's reliance on certain bills was unjustified as the maximum gross profit found in them was only 32%. The respondent was in the retail liquor trade, sourcing all liquor from a single agency, leading to uniform purchase costs for all bar hotels. Yet, variations in retail prices were due to factors like hotel status and competition in the area. Despite valid arguments by the assessee, the Court found the Tribunal's order untenable as it effectively endorsed flawed accounts. Therefore, the Court modified the order, reinstating the gross profit at 37% fixed by the first appellate authority, deeming it reasonable based on precedents and confirming cases.
In conclusion, the Court allowed the State's revision, modifying the Tribunal's decision to restore the gross profit rate set by the first appellate authority at 37%. The judgment highlighted the importance of maintaining consistency and reasonableness in profit estimations, especially in cases involving retail trade with factors affecting pricing variations.
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2009 (10) TMI 854
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that 'panjon' is bulk drug and is taxable at the rate of six per cent under Notification No. 1912 dated June 1, 1994 despite panjon or its formulation are not specified under Schedule First or Second to the Drug (Prices Control) Order, 1987?
Held that:- Panjon is not a formulation of the bulk drugs specified in the Second Schedule and, therefore, does not fall within the category of formulations specified as on March 31, 1994 in the Third Schedule under the Drugs (Prices Control) Order, 1987 and falls only under the residuary entry not included in item (a) above and liable to tax at the rate of eight per cent plus surcharge. The Tribunal has committed an error in levying the tax at the rate of six per cent under the entry "formulations specified as on 31st March, 1994" in the Third Schedule to the Drugs (Prices Control) Order, 1987. Revision allowed.
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2009 (10) TMI 853
Deemed sale - non disclosure of the turnover of rent receivable in the return - Held that:- Explanation I, clause (ii) says that sale is deemed to take place in the State of U.P. if the goods are used by the lessee within the State during any period, notwithstanding that the agreement for the lease has been entered into outside the State or that the goods have been delivered to lessee outside the State. Therefore, even if the agreement was executed at Delhi in view of the aforesaid provisions there was deemed sale in the State of U.P. and the trade tax authorities have a jurisdiction to levy the tax. So far as the submission of learned counsel for the applicant that the plant and machinery were immovable cannot be accepted. Such pleading has not been taken before the authorities below at any stage. So far as the penalty under section 15A(1)(a) is concerned, no error in the order of the Tribunal. Merely because the rent has not been received, the applicant cannot be absolved from the liability to disclose such sale in the return.
Sales with deferred payment are, also included within the ambit of definition of "sale" under section 2(h) of the Act and, therefore, such receipts were liable to be disclosed. The explanation of the applicant for not disclosing the turnover of rent receivable in the return has rightly not been accepted. Revision dismissed.
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2009 (10) TMI 852
Whether, on the facts and circumstances of the case, there is any legal evidence to fix the higher rates of dal and dal gram at ₹ 220 and ₹ 275 per quintal than the rates claimed by the assessee which were based on the certificate issued by the Market Committee, Tohana?
Held that:- The court is under obligation to presume a certified copy to be genuine. The use of expression "shall presume" clearly shows that such a document has to be considered as proved until and unless it is disproved. Section 4 of the Evidence Act defines the expression "shall presume" to mean that wherever the expression is used in the Evidence Act, then the court must presume the fact as proved unless and until, it is disproved. Accordingly, it has to be held that certificate issued by the Market Committee, Tohana authenticating rates of gram and gram dal at ₹ 155 to ₹ 160 has to be considered as genuine.
By mere conjectural observation, it cannot be concluded that there was any legal evidence on record in support of the conclusion of the Assessing Authority or subsequent authorities that prices at ₹ 220 to ₹ 275 in respect of gram and gram dal were justified. Accordingly, reference is disposed of and question of law referred is answered in favour of the assessee-petitioner.
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2009 (10) TMI 851
Seizure of goods - Held that:- The seizure of the goods made on suspicious presumption renders such a seizure arbitrary, and therefore, the Tribunal erred in law in only reducing the quantum of security for the release of the goods.
According the seizure itself being invalid, the goods ought to have been released without security. Under circumstances, the authorities are directed to release the goods forthwith. However, while releasing the goods, the authorities may take all precautions whatever they may feel necessary to ensure that the goods cross the State of U.P.
In the result, the revision is allowed. The order of the Tribunal dated September 26, 2009 is set aside and as directed the authorities shall release the seized goods forthwith without any security.
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2009 (10) TMI 850
Issues:
1. Disallowance of sales tax exemption on nylon tyre cord fabric
2. Demand of interest under section 23(3)
Disallowed Sales Tax Exemption:
The petitioner claimed sales tax exemption on the sale of nylon tyre cord fabric under entry 11(ii) of the Third Schedule to the Act. However, the Government argued that nylon tyre cord fabric is specifically covered by entry 59.02 of the Central Excise Tariff Act, which excludes it from falling under the general entry for man-made fabrics. The court noted that nylon tyre cord fabric is indeed covered by entry 59.02 of the Central Excise Tariff Act, which specifically includes "Tyre cord fabric of high tenacity yarn of nylon or other polyamides, polyesters or viscose rayon." It was established that a specific entry in the Tariff Act will exclude a general entry, hence nylon tyre cord fabric cannot be considered under any other entry, including man-made fabrics. Although the petitioner's exemption claim for the assessment year 1995-96 was not accepted, it was highlighted that entry 59.02 was later included in entry 11(ii) of the Third Schedule to the Act, granting exemption to nylon tyre cord fabric from April 1, 1999 onwards. The court dismissed the revision on this issue, emphasizing that the exemption was not available for the year in question but only from the specified date after the amendment.
Demand of Interest:
Regarding the petitioner's challenge against the demand of interest, it was argued that the petitioner had been given an installment facility for tax payment under a deferred scheme, and had timely remitted the arrears of tax as per the installment scheme without default. The court accepted this argument and allowed the revision against the demand of interest sustained by the Tribunal. Consequently, the order of the Tribunal and lower authorities levying and demanding interest for the alleged delay in tax payment for the relevant year was vacated.
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2009 (10) TMI 849
Whether, in the facts and circumstances of the case, the expenses incurred by the State or agencies of the Food Corporation of India after acquiring or purchasing the goods before delivery to the petitioner-dealer could form part of gross turnover and be subject to tax?
Whether, in the facts and circumstances of the case, could the market fee be included in the purchase turnover in view of Anand Swarup Mahesh Kumar v. Commissioner of Sales Tax [1980 (9) TMI 238 - SUPREME COURT OF INDIA ]?
Held that:- Considering the definition of expression "turnover" as defined in section 2(i) of the Act it is concluded that any sum charged for anything done by the dealer in respect of the goods at the time of or before delivery thereof would be included in the expression "turnover".
In view of the above, question No. (1) has to be answered against the Food Corporation of India and in favour of the Revenue. The reference stands disposed of accordingly.
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2009 (10) TMI 848
Disallowance of refund claim of tax paid by him at 12.5 per cent as against four per cent chargeable thereon - Held that:- We do not accept the submission of the learned Additional Government Pleader that the petitioner, who is a purchaser of the capital goods, is not entitled to have the benefit of total refund of the amount. The provisions of section 18(2) of the Act has to be given its full thrust and consequently, reject the plea of the learned Additional Government Pleader. In the circumstances, the claim of the petitioner as regards the refund of tax without any reduction has to be accepted. Consequently, all the writ petitions stand allowed as far as this aspect is concerned.
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2009 (10) TMI 847
Issues:
1. Seizure of goods during transit.
2. Discrepancies in the origin of goods.
3. Assessment of value and security demanded for release of goods.
4. Appeal against the order of seizure.
Analysis:
1. The revision pertains to the Tribunal's order concerning the seizure of goods during transit for the assessment year 2008-09. The applicant, a registered dealer, claimed the goods were sold to a specific company. However, the goods were intercepted by the Mobil Squad in Mathura, leading to doubts about the origin as per information received by the Commercial Tax Officer. A show-cause notice was issued due to discrepancies, and the applicant failed to produce necessary documents for verification, resulting in the seizure of goods.
2. The Commercial Tax Officer passed a seizure order based on collected materials and discrepancies, estimating the value of goods and demanding security for release. The Joint Commissioner upheld the seizure but reduced the value of goods and adjusted the security amount. The applicant, dissatisfied with the order, filed an appeal before the Tribunal, which was subsequently dismissed.
3. During the hearing, the applicant's counsel argued against the inference that the goods originated from Delhi, presenting documents indicating NOIDA as the loading point. Additionally, the counsel contested the valuation of goods and the security demand, citing a circular limiting security for intrastate movement by registered dealers. The standing counsel justified the seizure due to the absence of the bilty and lack of document production during the show-cause notice.
4. Upon reviewing the orders and submissions, the Court found a prima facie case for seizure but deemed the cash security demand excessive. The Tribunal's order was modified to release the goods upon depositing two times the tax and providing security in a non-cash form or bank guarantee for the remaining amount. Consequently, the revision was partially allowed, addressing the excessive security demand while upholding the seizure decision.
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2009 (10) TMI 846
Issues: Challenge to permission for reassessment for assessment years 1993-94, 1994-95, and 1995-96 under U.P. and Central laws.
The writ petition challenged the legality and validity of the permission granted by the Commissioner of Trade Tax to initiate reassessment proceedings for the assessment years 1993-94, 1994-95, and 1995-96 under U.P. and Central laws. The petitioner, a public limited company engaged in the manufacture and sale of electron guns, contended that no opportunity of hearing was provided before the impugned order was passed, violating the principles of natural justice. The petitioner argued that based on the precedent set by the court in S. K. Traders, Modi Nagar, Ghaziabad v. Additional Commissioner, Grade 1, Trade Tax Zone, Ghaziabad, the authority should have granted an opportunity of hearing. The respondent, however, argued that Section 21(2) does not mandate providing a hearing before granting permission for reassessment. The court considered the arguments and examined the relevant sections of the law.
The court noted specific averments in the writ petition that no notice was received, and no hearing was granted before passing the impugned order. The respondent's counter-affidavit stated that Section 21(2) does not require a hearing before granting permission for reassessment and that the Commissioner of Trade Tax does not impose any tax through such orders. Referring to the precedent in S. K. Traders, Modi Nagar, Ghaziabad v. Additional Commissioner, Grade 1, the court emphasized the necessity of providing an opportunity of hearing to the assessee and recording reasons while granting permission for reassessment. The court found that the respondent failed to distinguish the precedent's ruling.
Based on the precedent and considering the lack of opportunity provided before passing the impugned order, the court set aside the order dated March 13, 2000, and directed the matter to be reheard by the Commissioner, U.P. Trade Tax, with an opportunity for the petitioner to present their case. The court allowed the writ petition, emphasizing the importance of adhering to principles of natural justice. No costs were awarded in the judgment.
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2009 (10) TMI 845
Sariya manufacture - Whether only two per cent tax will have to be charged from the assessee ?
Held that:- In the instant cases, the revisionist has purchased raw material from the units which were enjoying the tax exemption under section 4A of the Act. Thus, the revisionist has paid "nil" tax on the raw material. To bring at par as per the notification dated May 21, 1994, the A. O. has rightly levied the tax at four per cent on the finished goods manufactured by the revisionist.
Ultimately, the Government will have to charge four per cent tax on the iron and steel rods (sariya) manufactured by the revisionist-assessee. Appeal dismissed.
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