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Showing 141 to 160 of 739 Records
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2008 (12) TMI 712
Issues:
1. Liability to pay sales tax at the point of first purchase on the collection and sale of cardamom by a society promoting agricultural produce marketing.
Analysis:
The judgment of the Kerala High Court dealt with the issue of whether a petitioner society, primarily focused on marketing agricultural produce of tribal members, is liable to pay sales tax at the point of first purchase on the collection and sale of cardamom. The assessing officer initially treated the collection and sale of cardamom by the petitioner as purchase and sale, subjecting them to sales tax. However, the appellate authority found that the petitioner was engaged in marketing produce of members and did not actually purchase the cardamom from them. The appellate authority noted that the petitioner collected cardamom from members against receipts without indicating a purchase price, entrusting it to auctioneers for sale. The Tribunal, while referring to trading accounts, presumed a sale had occurred. The petitioner argued that no purchase of cardamom was shown in the trading account and that tax had been paid by auctioneers at the first point of purchase, as evidenced by certificates. The High Court found that there was no evidence of actual purchases by the petitioner, and the bye-laws only focused on marketing produce, not purchasing from members. Despite some sales to dealers in the State, the absence of purchases meant that first purchase tax could not be levied on the petitioner. The court upheld the findings of the first appellate authority and reversed the Tribunal's decision, emphasizing the lack of purchases by the petitioner as per the society's bye-laws and documents submitted.
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2008 (12) TMI 711
Issues:
1. Seizure of damaged trailer for non-production of way-bill.
2. Imposition of penalty and confirmation of penalty order.
Analysis:
1. Seizure of damaged trailer: The petitioner, owner of a trailer involved in an accident in Orissa, transported it to West Bengal for repairs. The petitioner argued that no way-bill was required for transportation, as the trailer was permanently registered in West Bengal. The tribunal found that the check-post authority treated the damaged trailer as scrap, demanding a way-bill. The petitioner later obtained a way-bill but was not accepted by the authority. The tribunal noted discrepancies in the dates of seizure, driver's presence, and acceptance of the way-bill. Considering the registration documents, accident report, and repairable condition, the tribunal held the seizure invalid, as the way-bill was produced before the authority.
2. Imposition of penalty: The tribunal observed that the penalty was imposed without considering the petitioner's intention to evade tax. The officer mechanically imposed the penalty without proper assessment. The confirmation of the penalty order lacked judicial scrutiny, as it ignored the date of seizure and the documents produced. The tribunal concluded that both the penalty imposition and confirmation were illegal and lacked proper application of mind. Therefore, the tribunal set aside the seizure, penalty imposition, and confirmation, quashing the demand notice.
This detailed analysis highlights the legal arguments, evidence presented, discrepancies in dates, and the tribunal's reasoning for setting aside the orders. The judgment emphasizes the importance of proper legal procedures, evidence evaluation, and application of law in taxation matters.
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2008 (12) TMI 710
Issues:
Claim for sales tax exemption on purchase turnover of rubber wood for manufacturing packing cases under Notification S.R.O. No. 1090/99 before and after an amendment.
Analysis:
The petitioner, engaged in manufacturing packing cases, claimed sales tax exemption under item 41 of Notification S.R.O. No. 1090/99 on the purchase turnover of rubber wood used in manufacturing. The exemption was denied due to an amendment (S.R.O. No. 278/2004) specifically bringing rubber wood under the exemption, which was not applicable earlier. The Tribunal upheld the disallowance based on the pre-amendment status. The key issue was whether rubber wood qualifies as "softwood" under the original entry 41 of the notification.
The exemption under item 41 of S.R.O. No. 1090/1999 pertains to the turnover of softwood for specific manufacturing purposes, with the condition of payment of sales tax under relevant Acts. The petitioner had sold packing cases outside the State, subject to Central sales tax. The debate centered on whether rubber wood, prior to the amendment, falls under the definition of "softwood." The petitioner argued that the amendment was clarificatory, as rubber wood is a type of softwood commonly used in making packing cases. The Government Pleader contended that rubber wood does not meet the softwood criteria, necessitating the later amendment.
The Court accepted the petitioner's argument, emphasizing that softwood is a broad term encompassing various wood types falling under the softwood category. While hard wood is durable for construction and furniture, softwood is used for packing cases, plywood, etc. Rubber wood, although perishable in its natural state, is commonly utilized for making packing cases, plywood, and other products. The Court noted that the amendment likely aimed to prevent disputes by explicitly including rubber wood as a softwood item. Given rubber wood's characteristics and common usage in making packing cases, the Court deemed the amendment clarificatory, thus entitling the petitioner to exemption from the original notification date.
As a result, the Court allowed the revision case, affirming the petitioner's eligibility for exemption and directing the officer to revise the assessment to grant exemption on the purchase turnover of rubber wood.
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2008 (12) TMI 709
Whether the Sales Tax Appellate Tribunal is justified in holding that the Notification No. II(1)/CTRE/206/77, dated September 7, 1977 issued under section 17 of the TNGST Act, 1959 exempting tax payable under the said Act on the sales by canteens run by a Managing Committee or Co-operative Society of State or Central Government servants on a no-profit no-loss basis for the benefit of the said State or Central Government employees is not applicable to Corporation staff in spite of G.O.Ms. No. 600 declaring them as Government servants?
Held that:- The Tribunal was justified in negativing the plea raised by the petitioner that the staff of the Madras Corporation are also "Government servants" and as such they are entitled to the exemption granted by the Government to the servants of the Union as well as State. Accordingly, substantial question of law is answered against the petitioner.
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2008 (12) TMI 708
In the High Court of Madras, the case involved an assessee who reported total and taxable turnover for the assessment year 1998-99. The accounts of the assessee were inspected due to of stock variation noted. A proposed turnover was made by adding the actual and estimated suppression. The Tribunal accepted the plea of the assessee regarding the annual maintenance contract turnover and remanded the appeal for verification of records. However, the Tribunal refused to interfere with the stock variation discrepancy. The Tribunal failed to consider the reconciliation statement produced by the assessee. The High Court remanded the matter to the assessing officer for re-examination of stock variation in light of the reconciliation statement, emphasizing the importance of compliance with regulations when presenting additional evidence. The tax case was disposed of accordingly.
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2008 (12) TMI 707
Whether this court has no jurisdiction to entertain a writ petition challenging the proceedings initiated by a competent authority, appointed under the provisions of the Kerala General Sales Tax Act, 1963?
Held that:- This court is of the considered view that the contention of the learned counsel appearing on behalf of the respondents that this court does not have the jurisdiction to entertain the writ petition is devoid of merits. Since the petitioner is based at Chennai and a part of the cause of action had arisen within the jurisdiction of this court, the preliminary objection raised on behalf of the respondents, with regard to the jurisdiction of this court, cannot be sustained.
From the records available, it is seen that the writ petition had been admitted by this court, on January 10, 2003, and rule nisi had been issued calling for the records relating to the matter. In such circumstances, in view of the limited relief sought for by the petitioner and in the interest of justice, this court is inclined to issue a direction to the first respondent, without going into the merits of the case, to comply with the request of the petitioner, within a specified period.
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2008 (12) TMI 706
Whether the Sales Tax Appellate Tribunal was correct in their conclusion that the chemicals used in the process of tanning raw hides and skins involves transfer of property and liable for tax under section 3B of the Tamil Nadu General Sales Tax Act, 1959?
Held that:- Even though the learned counsel has produced before us the process chart, the fact remains that those particulars were not produced before the authorities below. The appellate authority simply stated that transfer of property can take place in any form but however did not give any factual finding as to how the transfer of property took place in the present case. Therefore we are of the considered opinion that the matter requires to be considered by the assessing authority afresh.
Accordingly we set aside the order dated May 25, 2000 of the Sales Tax Appellate Tribunal and the matter is remitted to the assessing authority for fresh consideration. The petitioner is directed to produce materials before the assessing authority in support of their contention that there was no transfer of property involved in the process and the chemicals were completely washed away in the process and as such acted merely as a "catalyst". The particulars so furnished by the assessee has to be considered by the assessing officer and a factual finding should be recorded with due opportunity to the petitioner. Since the matter pertains to the assessment year 1995-96, the assessing authority is directed to decide the issue as expeditiously as possible and in any case, within a period of three months from the date of receipt of a copy of this order.
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2008 (12) TMI 705
The High Court of Allahabad dismissed a revision filed by the State under the U.P. Trade Tax Act, 1948 for the assessment year 1993-94. The Tribunal was justified in granting full exemption to the dealer under section 4A despite investment being below 50 crores. The investment was later shown to be Rs. 106.85 crores, leading to the dealer being granted 100% exemption. The court found no legal question and upheld the Tribunal's decision, dismissing the revision with no costs.
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2008 (12) TMI 704
The High Court of Madras, in the case of KULASEKARAN A., J., reviewed assessment orders from 2002-03 to 2005-06. The petitioner challenged the orders due to a consolidated notice being issued by the respondent without separate notices for each year. The respondent's assessment orders were objected to, but still passed. The court heard arguments from both sides, acknowledging the petitioner's application under section 55 of the Tamil Nadu General Sales Tax Act, 1959. Despite this, the court found the consolidated notice to be legally unsustainable, rendering the assessment orders invalid. Consequently, the court quashed the assessment orders and directed the respondent to issue separate notices within two weeks. The petitioner must then submit explanations and documents within four weeks, after which the respondent must consider the submissions, hear the petitioner, and issue a new order within four weeks. The writ petitions were disposed of with no costs incurred. Connected miscellaneous petitions were closed accordingly.
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2008 (12) TMI 703
Whether petitioners entitled to tax exemption under the Karnataka Sales Tax Act, 1957 ?
Held that:- The appellants were justified in issuing the endorsement to them stating that they are not entitled for the benefit of exemption from payment of tax exemption that was impugned in the writ petitions and the learned single judge has erroneously quashed the same by wrongly applying the Government order which has no application to the fact-situation and further the observation of the learned single judge that the State Government estopped from taking the plea that the exemption notification not applicable after the notification issued under the provisions of the KVAT Act, suffers from error in law.
The learned single judge is not correct in holding that in the absence of implied or express repeal of the 1993 notification issued under section 8A(1) of the KST Act, the State Government is estopped from contending that the respondents are not entitled to claim tax exemption. Such a contention of the respondents is contrary to the decision in the case of Mathra Parshad and Sons v. State of Punjab reported in [1961 (12) TMI 63 - SUPREME COURT OF INDIA] relied upon by the learned Additional Government Advocate to contend that there is no promissory estoppel against the Government and the exemption notification applied to the respondents/hotels is not legal and valid. For this reason also the impugned order is liable to be set aside.
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2008 (12) TMI 702
Notification No. 698/XXVII (8) Commercial Tax (VAT)/ 2007, dated November 14, 2007 - whether is illegal, ultra vires and void?
Held that:- There is no illegality in issuing the impugned notification dated November 14, 2007, rescinding the earlier notification dated January 9, 2006. The present case does not relate to any issue relating to Central excise or income-tax. Apart from this, what is most important in this case is that in pursuance of the industrial policy of 2003, the petitioner had already complied and got allotted the plots in industrial area of State in the year 2005 to set up its factory, while notification dated January 9, 2006, relating to exemption in Central sales tax, was issued in the year 2006. After the factory has been established, the petitioner cannot say that he was allured in setting up the industry only for the reason that the Government had promised reduced rate of Central sales tax, notification in respect of which was in fact issued subsequent to the establishment of the factory.
The cases referred to on behalf of the petitioners do not relate to industries, which were set up before the promise was given relating to the exemption in the tax. Therefore, in the opinion of this court, on the facts and circumstances of the case there is no question of violation of doctrine of legitimate expectation, nor is the Government in the present case bound by principle of promissory estoppel, as the impugned notification was issued only consequent to the amendment in section 8 of the Central Sales Tax Act, 1956, vide Tax Laws (Amendment) Act, 2007. Appeal dismissed.
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2008 (12) TMI 701
Issues Involved:
1. Whether freight charge was a component of and included within the agreed sale price.
2. When the sale of the insulators was completed and the property in the insulators was transferred from the seller to the buyer.
3. Whether freight was charged for post-sale delivery effected by petitioner No. 1-company as an agent of the buyer or bailee of the goods.
Issue-wise Detailed Analysis:
1. Whether Freight Charge was a Component of and Included within the Agreed Sale Price:
The Tribunal examined whether the freight charge was part of the sale price based on the terms and conditions of the agreement. The Tribunal referred to the definition of "sale price" under section 2(31) of the West Bengal Sales Tax Act, 1994. The Tribunal noted that the freight and insurance charges were quoted separately from the ex-works price in the tender, agreement, and invoices. The Tribunal distinguished the case from Hindustan Sugar Mills Ltd. [1979] 43 STC 13 (SC) by emphasizing that the freight was not included in the sale price but was a separate charge agreed upon by both parties. The Tribunal concluded that the freight charge was not a component of the sale price and thus not subject to sales tax.
2. When the Sale of the Insulators was Completed and the Property in the Insulators was Transferred from the Seller to the Buyer:
The Tribunal analyzed the terms and conditions of the contract to determine the point of transfer of property. It referred to section 23 of the Sale of Goods Act, 1930, which deals with the appropriation of unascertained goods to the contract. The Tribunal found that the property in the insulators passed to the SEB when the goods were inspected, tested, packed, sealed by the SEB's officers, and despatch clearance was issued. The Tribunal noted that the contract stipulated that the date of successful inspection and issuance of the works test certificate was the date of delivery. The Tribunal held that the sale was legally completed at the point of despatch clearance, and the property in the goods transferred to the SEB at that time.
3. Whether Freight was Charged for Post-Sale Delivery Effected by Petitioner No. 1-Company as an Agent of the Buyer or Bailee of the Goods:
The Tribunal considered whether the petitioner acted as an agent of the SEB for the transportation of goods post-sale. The Tribunal found that the contract was for both the supply and delivery of insulators, with the petitioner obligated to deliver the goods physically to the SEB's stores. The Tribunal noted that the freight charge was separately quoted and agreed upon, indicating that it was a separate charge for the transportation service provided by the petitioner. The Tribunal concluded that the petitioner was not acting as an agent of the SEB but was fulfilling its contractual obligation to deliver the goods, and the freight charge was a separate reimbursement for this service.
Conclusion:
The Tribunal set aside the impugned assessment order, appellate order, and revisional order that imposed sales tax on the freight and insurance charges. The Tribunal held that the freight charge was not part of the sale price, the sale was completed upon despatch clearance, and the petitioner was not acting as an agent of the SEB for the transportation of goods. The application was allowed to the extent indicated, with no order as to costs.
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2008 (12) TMI 700
Whether the action of respondents charging the enhanced rate of tax of 25 per cent for the sales effected before February 1, 1979, is valid, since the enhancement in the rate of tax from 10 per cent to 25 per cent came into operation with effect from February 1, 1979 in view of the letter and instructions Memo. No. Ft. -37-4/73/iv dated May 21, 1980?
Whether the sale of the forest by auction is complete at the fall of hammer or at the time of receiving royalty in instalments as part payment of consideration and the liability of sales tax accordingly?
Whether interest is chargeable on the said payment if made in instalment and tax accordingly deposited?
Held that:- We answer question No. 2 as Sale of forest, in question, completed not at the fall of the hammer, but on expiry of the 30-day period from the date of auction. This 30-day period from the date of sale of auction expired on November 5, 1978, and, therefore, the sale was complete on November 6, 1978.
Coming to question No. 1. When the sale was complete on November 6, 1978, the rate of tax prevailing on that date, i.e., 10 per cent of the sale proceeds was applicable and the liability of the dealer, i.e., Divisional Forest Officer, was to pay tax at the said rate.
Question No. 3 becomes immaterial and irrelevant in view of our answer to question No. 2.
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2008 (12) TMI 699
Whether non-competent authority is delving into the affairs of the petitioner in respect of the concluded assessment for the years April 2005-March 2006, April 2006-March 2007, April 2007-March 2008, by virtually holding a roving enquiry into the concluded assessment
Held that:- No reason to interfere with the impugned notices. It is open to the petitioner to make available the records or books of account or the requirements as intimated to the petitioner under the provisions of the Act by the "prescribed authority" or the "competent authority" unless the requirement of the petitioner is one which compels him to act beyond the provisions of the Act. Submission of Sri Sarangan, learned Senior Counsel, that mere change of opinion on the part of any competent authority cannot be a ground for proceeding under section 39 is also not required to be examined as the petitioner was not issued any notice under section 39 of the Act, but the present enquiry appears to be for the satisfaction of the prescribed authority whether the assessment already concluded warrants reassessment or otherwise.
It is open to the petitioner to pursue other remedies as and when required and as available in law. Otherwise this writ petition is dismissed.
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2008 (12) TMI 698
If the dealer has failed to comply with the provisions in sub-section (2) of section 23, he would not get any benefit to register as dealer under the West Bengal Value Added Tax Act, 2003 in question from the date of the application which he has filed?
Held that:- It appears from the said rule that the dealer has to make an application within the time-limit mentioned in section 23(2). In the instant case, it appears that the dealer has failed to apply within the time mentioned in section 23(2) and the certificate of registration shall be made valid from the date of incurring liability which has already been defaulted by the dealer as it appears from the facts in question, and, further it has been specifically stated, in case such application made after the said time-limit, certificate for registration shall be valid from the date of order of granting registration.
In the facts and circumstances of the case, such rule has been prescribed by the authority which has been given authority under section 114 of the VAT Act and furthermore, under section 23(2) of the said Act. Therefore, no infirmity in the said rule which has been framed by the authority without taking into consideration the moot and reasons as has been stated for enacting the Act in question.Accordingly, in our considered opinion, there is no violation by the said authority in framing of such rule and, thereby, it cannot be said that there is any violation of the Act in question or any article of the Constitution of India. Therefore, we cannot declare that the said rule 6(2) is ultra vires in the facts and circumstances of the case.
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2008 (12) TMI 697
Whether the petitioner having been treated to be eligible, could be denied the benefit of investment after the date of unit having been put in the negative list?
Held that:- Admittedly, on the date of commercial production and also on the date of issue of entitlement/exemption certificate, the petitioner was in the negative list and could not be considered to be eligible unless applicability of notification dated December 16, 1996 was confined to units which started investment after the said date.
Once the petitioner has been treated to be eligible, there was no valid reason to further classify the benefit of investment up to the date of amendment, putting the unit in the negative list. Appeal allowed.
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2008 (12) TMI 696
Amending notification dated July 23, 1999, whereby converted timber has been included within the meaning of "timber" challenged - Held that:- Timber and timber trees", as per dictionary meaning as also the interpretation of these words by various judgments, including those of the Supreme Court, are those trees or the wood of those trees which are used as material for construction of houses or for manufacture of items of furniture. Trees, the wood of which is not used for the aforesaid two purposes, are not timber trees nor is the wood of such trees timber.
The Government, which granted concession vide notification dated February 7, 1992, on its own could not (sic) recall that notification or amend the same with a view to narrowing down or expanding its scope.Therefore, it cannot be said that the amending notification dated July 23, 1999 is ultra vires. Appeal dismissed.
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2008 (12) TMI 695
Whether conversion of plastic sheets/tubings into plastic covers would amount to manufacture?
Held that:- With the available facts before us, the only conclusion that can be reached is, that, while processing plastic sheets/tubings into plastic covers/ bags, no new commercially different commodity would emerge and therefore, there is no manufacture as such and since purchase of plastic sheets has already suffered tax, the sales turnover of plastic covers/bags is a second sale and therefore, not liable for payment of tax under the Act.
Thus the questions of law framed by the Revenue requires to be answered against the Revenue and in favour of the assessee
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2008 (12) TMI 694
Whether the Tribunal was correct in holding that the commodity sold by the petitioners are cosmetics which are coming under Part F entry 10(i)(a), (b) and (c) of the First Schedule to the Tamil Nadu General Sales Tax Act, 1959?
Held that:- There was no attempt made by the Tribunal to assess the merits or otherwise of the contentions raised by the parties in support of their respective case. The Tribunal being the final forum of facts should consider the rival contentions and render a factual finding with regard to the lis. In the case on hand, the legality and correctness of the order passed by the Appellate Assistant Commissioner was at large before the Tribunal. Therefore the order must indicate the reasons which weighed with the Tribunal to set aside the order of the Appellate Commissioner. Except reproducing the views of the assessing authority, there is nothing in the order suggesting independent consideration of the matter by the Tribunal. Since we are remitting the matter to the Tribunal for fresh consideration, we refrain from expressing anything on merits.
In the result, the impugned order of the Tribunal is set aside and the matter is remitted to the Tribunal. It is open to the parties to produce materials in support of their contention before the Tribunal and the Tribunal has to give a factual finding with respect to the issues involved in the matter.
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2008 (12) TMI 693
Whether the finding that firm order had not been placed for necessary plant and machinery is correct, and whether what is the interpretation to be placed on the said words in a notification of this nature?
Held that:- Going by the principle of purposeful interpretation, we may not be justified in accepting the extreme positions canvassed by the appellant on the one hand and the respondents on the other hand. We would think that the purport of the clause would be that if the party had acquired a substantial portion of the necessary plant and machinery or placed firm orders in this regard before January 1, 2000 alone, it could be held entitled to the benefit of exemption. As far as the facts of this case are concerned, as already noted, in our view, the appellant has succeeded in proving that it has placed firm orders in respect of plant and machinery worth only ₹ 1,05,00,000, when the total value of the plant and machinery is in the region of ₹ 32 crores. Even if we were to include installation and commissioning of the blow-moulding machine stated to be worth ₹ 15,00,000 as plant and machinery, the total amount would still be only ₹ 1,20,00,000. In such circumstances, there is absolutely no merit in the contention of the appellant and the writ appeal deserves to be dismissed, and we do so.
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