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Showing 141 to 160 of 658 Records
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2007 (11) TMI 576
Benefit of sales tax concession withdrawn - Held that:- The HLSC after taking into account all the conditions appears to have issued and approved the case of the petitioner-industrial unit as a new industrial unit eligible for sales tax concession to the tune of ₹ 885.15 lacs which is 100 per cent of total FCI for a period of 10 years from the date of issue of entitlement certificate for manufacturing of automobile accessories namely: catalytic of manufacture converters falling under NIC Board manufacture of parts and accessories NEC for transport equipment NEC. A perusal of letter dated March 18, 2005 (annexure P 14) further shows that the aforementioned decision was taken by HLSC in its 89th meeting held on December 6, 2004.
A review is by no means an appeal as disguised whereby an erroneous decision is reheard and corrected. Review lies only for a patent error as apparent from the face of record. Therefore, we find that the HLSC has admittedly made an attempt to correct erroneous decision particularly the issue, which has been adjudicated upon, therefore, the impugned order dated June 7, 2007 (annexure P 17) is liable to be set aside.
For the reasons aforementioned, this petition succeeds. Order dated June 7, 2007 (annexure P 17) passed by HLSC in its 99th meeting [withdrawn the benefit of sales tax concession of ₹ 885.15 lacs, granted in favour of the petitioner-company pursuant to the decision of the HLSC that was taken in the 89th meeting, held on December 6, 2004 (P 17)] is hereby quashed and the order dated December 6, 2004 taken by HLSC in its 89th meeting is restored.
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2007 (11) TMI 575
Sales tax on palmolive oil - refund claim petition - interest on non late payment of refund - Held that:- . Section 33F(2) lays down that when refund is withheld under the provisions of section 33C, as was done in the present case, the State Government shall pay interest at the aforesaid rate on the amount of refund ultimately determined to be due as a result of the appeal or further proceedings for the period commencing after six months from the date of order referred in section 33C of the Act, to the date the refund was granted.
It becomes clear that as a result of further appeal, the point of reference would be the order made under section 33C of the Act. So, the interest, in our view, would be payable from a date after six months of the order having been passed under section 33C of the Act, withholding the refund. In the present case, the order withholding the interest was passed on February 4, 1998. W.P. allowed and the petitioner is held entitled to interest at the rate of 12 per cent per annum on ₹ 1,86,811 (Rupees one lakh eighty six thousand eight hundred and eleven only) from August 4, 1998 till January 18, 2006.
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2007 (11) TMI 574
Excess tax paid without refunding the same or adjusting the same against the surcharge payable - Held that:- In the present case the tax paid at compounded rate by the assessee is under section 7 of the Act wherein the question of any deduction of tax does not arise. Further the assessee has no option in the matter of deduction at source, since even the statute mandates the awarder to deduct at source. So ultimately if it is found, at the time of assessment, any further tax liability, certainly the assessee will be obliged to pay such excess and if it is found that such tax paid before the completion of the assessment is in excess over his liability, necessarily he should be given refund of the amount after adjusting any balance due or surcharge due under the order of assessment. In this case, there is a further liability on the assessee to pay surcharge. Therefore, whatever excess amount paid by him has to be adjusted against the surcharge payable and if there is any further excess, necessarily the assessee is entitled for refund of the same. The confirmation under section 7(12) of the Act in such circumstances, is wholly unauthorised and without juris- diction. The assessment orders to the extent confirmation under section 7(12) are set aside.
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2007 (11) TMI 573
Exemption from payment of sales tax in terms of S.R.O. No. 1729 of 1993 as amended by S.R.O. No. 1092 of 1999 and modified by S.R.O. No. 295 of 2000 denied
Held that:- The activity carried on by the petitioner in its unit at Kanjikode, Palakkad, engaged in the production of soft drinks is a manufacturing activity within the meaning of S.R.O. No. 1729 of 1993.
In terms of the scheme for exemption from payment of tax as contained in S.R.O. No. 1729 of 1993, the certificate of eligibility to be issued by the Director is intended only to certify the actual commencement of commercial production of the unit before the cut-off date and the monetary limit of tax exemption that the unit would be eligible for. At the same time the Director of Industries is not required to certify the entitlement of the unit for tax exemption.
The entitlement of the unit for exemption from payment of tax is to be certified by the Deputy Commissioner of Sales Tax, in S.R.O. No. 1729 of 1993. Such certification of the entitlement is to be contained in the exemption certificate issued by the Deputy Commissioner.
Exhibit P24 order passed by the Deputy Commissioner cannot be said to be without jurisdiction. It is with jurisdiction and the finding therein to the effect that the petitioner has not satisfied the conditions mentioned in S.R.O. No. 1729 of 1993 as amended by S.R.O. No. 1092 of 1999 and modified by S.R.O. No. 295 of 2000 is correct and justified. The said finding does not require any interference.
Exhibit P24 is therefore upheld subject to the finding in para (i) above, viz., the activity carried on by the petitioner in its unit for the production of soft drinks is a manufacturing activity within the meaning of S.R.O. No. 1729 of 1993.
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2007 (11) TMI 572
Tooth pastes - whether or not medicated or as defined under the Drugs and Cosmetics Act, 1940? - Held that:- We do not find any justifiable ground to accept the contention of the petitioner to hold the items in question as medicinal preparation by the mere application of the decision relied on by the assessee-petitioner herein without any factual basis to hold so.
Considering the fact that the proceedings challenged before this court are at the stage of assessment, the contention now raised before this court merits to be taken before the assessing authority concerned for consideration on merits. If there is any delay on the part of the petitioner in filing the objections on the said date, it is open to the assessing officer to pass necessary orders on merits and complete the proceedings.
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2007 (11) TMI 571
Entry of goods to the local area - Whether the authorities were right in holding that the petitioner had caused entry of chassis on behalf of the K.S.R.T.C. and liable to pay entry tax for causing the entry of chassis into local area, wherein in fact, the petitioner had not caused the entry of chassis into the local area? - Held that:- If the petitioner has not done anything except building the body on the chassis supplied by the K.S.R.T.C. within its premises, we are of the opinion that sub-section (2) of section 3 of the Act and the Explanation thereto does not attract the petitioner to pay tax since it has not caused any entry of goods to the local area. The authorities by misappreciation of the facts of the case, have wrongly called upon the petitioner to pay the tax.
In the circumstances, we answer the question of law raised in this petition in favour of the assessee
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2007 (11) TMI 570
Discretion exercised by the Commissioner of Commercial Taxes - Held that:- Where statute provides that an individual should be given a reasonable opportunity before any decision is taken, then the decision taken by the authority can be termed as quasi-judicial. In the absence of any specific provision laying down a procedure of affording an opportunity, there is no need to provide personal hearing before deciding an application under section 28A of the Act. The decision of the Commissioner of the Commercial Taxes, dated July 24, 2006 cannot be termed as arbitrary or unjust. Therefore, in the absence of any procedural violation, the discretion exercised by the Commissioner of Commercial Taxes, is reasonable, fair and in conformity with section 28A of the Act, do not find that any valid reasons to hold that the impugned clarification is arbitrary and illegal.
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2007 (11) TMI 569
Levy tax at the rate of eight per cent on the compact discs sold - Held that:- Recourse to a remedy under article 226 of the Constitution of India is permissible, if the petitioner applies for enforcement of the fundamental rights; where there is violation of the principles of natural justice or where the orders of proceedings are wholly without jurisdiction or vires of an Act is challenged. Whether the petitioner had sold "writable compact disc" or "video compact disk" is a matter of evidence and therefore, this court would not venture to deal with the factual aspects. The order impugned in this writ petition cannot be termed as unfair or unreasonable or defies reason. Where factual adjudication of the matter is necessary, writ petition would not be the proper remedy. The petitioner has not satisfied any one of the parameters to avail the extraordinary remedy provided under writ jurisdiction. W.P. dismissed.
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2007 (11) TMI 568
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to hold that the plastic boxes sold by the dealer are taxable at the rate of 2.5 per cent as jewellery boxes ?
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal is legally justified to accept the account books of the dealer despite the adverse material found at the time of survey on July 24, 1998 indicating otherwise ?
Held that:- In the present case, there is no evidence to establish that the so-called jewellery boxes which were actually plastic boxes were being sold along with the jewellery. That could only have been so if the jeweller who was selling ornaments was selling the jewellery boxes along with the ornaments. In the absence of any evidence to establish this fact that the packing material, i.e., the alleged jewellery boxes were being sold with the jewellery, it was not justified on the part of the Tribunal to come to the conclusion that in this case the benefit of section 3AB could have been given to the assessee.
Therefore, the conclusion of the Tribunal on both counts is bad and not justified. There is no finding whatsoever on record that the plastic boxes were the packing material which was being sold along with the jewellery. Therefore, hold that the order of the Tribunal is bad and not justified. Both the questions are thus answered in favour of the revisionist and against the assessee.
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2007 (11) TMI 567
Tax on differential turnover - whether the Pioma Industries, i.e., the petitioner herein and M/s Rasna Private Limited are related or they are two independent concerns in order to bring them within the purview of section 2(1)(s)(iv) of the APGST Act?
Held that:- In order to bring within the scope of the amended provisions of section 2(1)(s)(iv) of the APGST Act the Revenue is required to establish the case as indicated in Atic's case [1984 (6) TMI 51 - SUPREME COURT OF INDIA]. It has been further made clear that the dealer sought to be brought under the amended provision must have interest in the business of the dealer alleged to be the related person and in turn the dealer alleged to be the related person to the petitioner-appellant should have interest in the business of each other, which means mutuality of interest.
W.P. allowed and remanded. Set aside the impugned order dated March 31, 2007 passed by the first respondent and remit the matter to the first respondent with a direction to pass appropriate orders in accordance with law with reference to the findings of the Supreme Court in Atic's case [supra] as directed by the Tribunal, within a period of eight weeks from the date of receipt of a copy of this order. Counsel for the petitioner is given liberty to produce necessary material to satisfy the first respondent on the point whether the two concerns viz., Pioma Industries and Rasna Private Limited come within the purview of clause (iv) of the Explanation to section 2(l)(s) of the Act or not
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2007 (11) TMI 566
Issues Involved:
1. Imposition of penalty for non-compliance with procedural requirements under the West Bengal Sales Tax Act, 1994 and the West Bengal Sales Tax Rules, 1995.
2. Determination of whether the goods were actually taken out of West Bengal.
3. Consideration of mens rea (intention or ill-motive) in the imposition of penalty.
4. Judicial discretion in the imposition of penalties.
Issue-wise Detailed Analysis:
1. Imposition of Penalty for Non-compliance with Procedural Requirements:
The petitioner, a customs authorized clearing and forwarding agent, failed to produce the transit declaration at the Chichira check-post as required under the West Bengal Sales Tax Act, 1994 and the West Bengal Sales Tax Rules, 1995. The Assistant Commissioner imposed a penalty of Rs. 5,75,000 for this non-compliance, later reduced to Rs. 2.5 lakhs by the Deputy Commissioner. The Tribunal noted that both authorities imposed the penalty based solely on procedural non-compliance without investigating whether there was an actual attempt to evade tax.
2. Determination of Whether the Goods Were Actually Taken Out of West Bengal:
The petitioner provided evidence, including an endorsed way-bill at the Jamsala check-post in Orissa and certificates from the Superintendent, Central Excise, Customs and Service Tax, Balasore, and a Chartered Accountant, confirming that the goods were received at Birla Tyres' factory in Balasore. The Tribunal found that the goods were indeed transported out of West Bengal and received in Orissa, negating the possibility of tax evasion within West Bengal.
3. Consideration of Mens Rea in the Imposition of Penalty:
The Tribunal acknowledged that penalty under the Sales Tax Act is a civil liability and does not necessarily require proof of intention or mens rea, referencing the Supreme Court's decisions in R.S. Joshi v. Ajit Mills Limited and Guljag Industries v. Commercial Taxes Officer. However, it emphasized that mere procedural infringement without any impact on revenue should not automatically result in a penalty. The Tribunal stressed that the purpose of the procedural requirements is to prevent tax evasion, and penalties should be imposed judiciously, considering the context and consequences of the infringement.
4. Judicial Discretion in the Imposition of Penalties:
The Tribunal highlighted that the imposition of penalties should be a discretionary exercise, considering all relevant circumstances. It cited the Supreme Court's decision in Hindustan Steel Ltd. v. State of Orissa, which stated that penalties should not be imposed for technical or venial breaches or when the breach results from a bona fide belief. The Tribunal found that while the petitioner was negligent in not informing the authorities about the exit of the goods, there was no possibility of tax evasion. Therefore, it set aside the penalty but imposed a sum of Rs. 30,000 as a measure of deterrence for the petitioner's negligence.
Conclusion:
The Tribunal concluded that while the procedural non-compliance by the petitioner warranted scrutiny, the actual transportation of goods out of West Bengal and their receipt in Orissa negated any possibility of tax evasion. The imposition of a heavy penalty was deemed unjustified, and the Tribunal exercised its discretion to set aside the penalty, subject to a deterrent payment of Rs. 30,000 by the petitioner. The application was disposed of with no order as to costs.
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2007 (11) TMI 565
Power of the State to levy purchase tax under section 7A on goods purchased, the sale of which enjoyed exemption under the notification issued under section 17 and sent on consignment basis to outside the State otherwise by way of sale under section 7A(1)(c) of the Tamil Nadu General Sales Tax Act, 1959 - Wheteher is unconstitutional and beyond the legislative competence of the State under entry 54, List II of the Seventh Schedule to the Constitution of India and ultra vires entry 92B of List I of the Seventh Schedule to the Constitution and void as repugnant to article 14, violative of article 301 and not saved by article 304(b) of the Constitution of India?
Held that:- The charge under section 7A need not be necessary to check exemption but certainly it is pointing at the loophole caused by the circumstances stated under section 7A. If the goods are not available in the State for subsequent taxation by reason of the circumstances mentioned in section 7A(1)(a),(b),(c), then the purchaser is made liable under section 7A.
Taxation, as such, is not an infringement of the freedom guaranteed by article 301. Yet, it is settled law that tax laws are not outside the purview of Part XIII of the Constitution.However, where the levy is not discriminatory or restrictive or having a direct and immediate restriction on the trade and intercourse, on a mere inconsequential indirect remote impediment, the levy cannot be struck down under article 301. The flow of trade and commerce depends upon a variety of factors like location, availability of market, materials and other infrastructural facilities. In the circumstances, we do not find any basis to sustain this objection that the levy is restrictive of the trade and commerce. As to the contention based on article 304(b), unless and until the petitioner is able to show that the provisions of article 301 or 303 are offended, the question of invoking article 304(b) does not arise. The contentions of the petitioner cannot be upheld and the same is rejected.
As already held "that section 7A is at once a charging as well as a remedial provision. Its main object is to plug leakage and prevent evasion of tax". Assessee appeal dismissed.
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2007 (11) TMI 564
Sales Tax Incentive Scheme - interpretation - Proceedings under clause 9(b) of the Incentive Scheme, 1987 - breach of conditions contained in clause 4(e)(i) - Held that: - In view of the subsequent amendment in the Scheme, the very foundation of the recovery proceedings initiated against the petitioner vide communication dated September 15, 2007 issued by the Additional Commissioner (VAT and IT), Commercial Taxes, Jaipur, for alleged breach of condition does not survive. The impugned communication/notice issued by the Additional Commissioner (VAT and IT) and District Level Screening Committee ignoring the said amendment is not sustainable in the eye of law - petition allowed.
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2007 (11) TMI 563
Whether section 5 of the Limitation Act would be applicable, when an application is moved under the first proviso to sub-section (1) of section 61 of the Act?
Held that:- The Act expressly and/or by necessary implication excludes the power of the High Court to condone the delay in making application beyond the period of limitation of 90 days, except to the extent of sections 4 and 12 of the Limitation Act. This being the position, the mere fact that the law was understood otherwise is immaterial. On a reading of the provisions of the Act, the court has no jurisdiction to entertain an application beyond 90 days, except to the extent of considering the period under sections 4 and 12 of the Limitation Act. In the light of above discussion, the notice of motion for condonation of delay of 130 days is not maintainable and consequently the motion is dismissed. As the motion is dismissed, consequently, the application for reference is dismissed as not maintainable.
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2007 (11) TMI 562
Undervaluation - non payment of duty - Held that:- In view of the orders passed by the Commissioner of Income-tax (Appeals), Chennai, dated March 31, 1998 holding that there are contradictory statements made by the witnesses examined by the Central excise authorities, reliance placed on such statements, by the assessing officer to revise the taxable turnover, is not proper. Therefore, in the interest of justice, the petitioner should be given an opportunity to place before the Appellate Tribunal, the orders passed by the CEGAT and the Commissioner of Income-tax (Appeals), Chennai in Appeal Nos. 198 and 199/199798, dated March 31, 1998 to prove their case that there was no undervaluation.
In so far as issue relating to removal of veneers without payment of duty, during the year 1991, local sales made to Tvl. Duoesty, Madras were not billed and accounted for and treated as suppression under the Tamil Nadu General Sales Tax Act for the year 1990-91, the petitioner shall pay a sum of ₹ 50,000 towards the tax element and on such payment, the appellate authority shall consider the issue afresh. Appeal allowed and the matter is remitted back to the appellate authority to dispose of the appeal in accordance with the statutory provisions, within a period of six weeks from the date of receipt of a copy of this order.
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2007 (11) TMI 561
Revision of assessment - denial of the copies of the records and an opportunity of cross-examining the persons, on whose statements the enforcement authorities had arrived at their conclusions to fasten the liability on the dealers such as the petitioners?
Held that:- Considering the submissions made by the learned counsels appearing on behalf of the parties concerned and on analysing the cases cited and in view of the facts and circumstances in which the present writ petitions have arisen, this court is of the considered view that the petitioners have an alternate appellate remedy in accordance with law to seek for the reliefs sought for by them. Once it is accepted that the petitioners have the appellate remedy, it is not open to them to come before this court by way of filing the writ petitions under article 226 of the Constitution of India, unless it is clearly shown that the impugned orders have been passed by the respondent by following the law, which is ultra vires or in violation of the principles of natural justice.
Thus the petitioners have not shown sufficient reason or cause for this court to interfere by setting aside the impugned orders of the respondent, while a statutory appeal remedy is available to the aggrieved parties
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2007 (11) TMI 560
Participation in auction - Notification dated June 11, 2007 challenged - Held that:- High Court shall not adopt any generous and casual approach in applying the right to livelihood under article 21 of the Constitution of India to a case involving contractual dispute. In this case, the petitioner, having agreed to the terms and conditions of the notification and consciously participated in the auction and his bid was also confirmed is estopped from seeking any relief contrary to the tender notification. The tender conditions cannot be altered after the parties entered into the arena.
The petitioner failed to comply with the conditions mentioned in the tender notification dated July 11, 2006, besides that the period of licence already expired and that the impugned notification dated June 11, 2007 was cancelled and fresh tender notification dated June 21, 2007 was issued by the third respondent in which the fourth respondent has offered the highest amount, this court is of the view that both the writ petitions are liable to be dismissed and accordingly, they are dismissed.
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2007 (11) TMI 559
Issues: Classification of multifunctional digital copier machine under the West Bengal VAT Act, 2003 based on HSN code 8471.60 or Schedule CA.
Analysis:
1. Issue: Classification of the multifunctional digital copier machine under the West Bengal VAT Act, 2003.
- Details: The applicant challenged the Commissioner's order that the copier machine did not fall under HSN code 8471.60 but under Schedule CA, attracting a higher sales tax rate. The Commissioner argued that the copier did not qualify as a computer peripheral under entry No. 3 of Schedule C, Part II of the Act.
2. Issue: Interpretation of the definition of "peripheral equipment" and its application to the copier machine.
- Details: The Commissioner defined "peripheral equipment" as devices working with a computer but not the computer itself. The copier's dependency on the computer for printing was crucial in determining its classification as a computer peripheral under HSN code 8471.60.
3. Issue: Comparison with previous judgments and rulings.
- Details: The applicant cited judgments classifying similar products under HSN code 8471.60, while the Commissioner relied on the copier's primary function as a printer to justify the higher tax rate under Schedule CA. The Tribunal considered various rulings and judgments to determine the copier's classification.
4. Issue: Principal function and classification criteria.
- Details: The Tribunal analyzed the copier's principal function, emphasizing that if the printer component met the conditions of HSN code 8471.60, the entire copier could be classified as a computer peripheral. The Tribunal concluded that if the copier's primary function was printing and it was connectable to a computer, it fell under HSN code 8471.60.
5. Issue: Modification of the impugned order.
- Details: The Tribunal modified the Commissioner's order, directing that if a copier's printer was connectable to a computer and its principal function was printing, it should be classified as a computer peripheral under HSN code 8471.60, aligning with entry No. 3 of Schedule C, Part II of the West Bengal VAT Act, 2003.
6. Judgment: The Tribunal's decision was unanimous, with both members concurring on the modification of the impugned order to clarify the classification criteria for multifunctional digital copier machines under the West Bengal VAT Act, 2003.
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2007 (11) TMI 558
Reassessment proceeding under section 12(8) of the Orissa Sales Tax Act, 1947 challenged - Non-communication of reason for reopening of the assessment in writing to the petitioner - Held that:- As discussed the petitioner had rightly treated the royalty paid to the Government for procurement of tamarind from the leased out area as "purchase turnover" of the tamarind for the purpose of payment of tax under the Act.
the reason for reopening of the assessment has been indicated to the petitioner by the STO and only on that basis it has filed the present writ petition. It makes no difference even if the reason is not indicated in writing, but communicated to the dealer on its appearance before the assessing officer. Hence, the petitioner's challenge to the notice issued under section 12(8) of the Act on the ground of noncommunication of the reason for re-opening in writing fails.
But, the writ petition is allowed on the grounds discussed and the notice purported to have been issued under section 12(8) of the Act vide annexure 1 is quashed. There shall be no order as to costs.
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2007 (11) TMI 557
Constitutional validity of the West Bengal State Tax on Consumption of Goods Act, 2001 challenged - Held that:- The provisions of the West Bengal State Tax on Consumption or Use of Goods Act, 2001 levying tax on entry of goods into any local area from outside the State is violative of article 301 read with article 304 of the Constitution of India and ultra vires.
As the provisions of the impugned Act imposing tax on entry of goods imported from outside the State into local areas are declared ultra vires all impugned orders levying consumption tax on goods imported from outside the State by the petitioners in these applications and consequential demands are also set aside. Bank guarantees, if any, obtained from any of the petitioners in the present applications for securing consumption tax are directed to be released within one month from the date of communication of this order.
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9911796707
