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Showing 141 to 160 of 862 Records
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2009 (3) TMI 971
Whether, in the facts and circumstances of the case, Tribunal is correct to apply the test of business to the transaction falling in clause (ii) of section 2(b) of the Orissa Sales Tax Act, 1947?
Held that:- In the present case, manufacturing and selling of iron, steel products, chemical fertilizers, etc., are the main business activities of the petitioner. It is a registered dealer both under the OST and CST Acts and it regularly pays tax on sale of these goods. It is an ongoing big business concern and sporadic/occasional sale of scrap materials and old unserviceable materials is obvious. It cannot be said that such transaction is not in connection with, or incidental or ancillary to the main business in terms of section 2(b)(ii) of the OST Act. Therefore, the sale of scrap materials and old unserviceable materials is liable to tax. Thus answer the question in negative, i.e., in favour of the petitioner-Revenue and against the dealer.
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2009 (3) TMI 970
Whether the payments made by petitioner must be adjusted towards the tax and not towards interest?
Held that:- The facts of this case are to be noted as admittedly, all payments were made after January 1, 2000. The words of section 55 are clear and unambiguous, namely, if any payment is made it has to be appropriated towards interest accrued on such tax or other amount and the balance available is to be appropriated towards the principal amount. The words "tax" and "principal amount" appear to be used interchangeably. Thus there is no merit in the contention raised by the petitioner on the basis of section 59 of the Indian Contract Act.
The mere fact that the payment is made earlier to the enforcement of section 55C by itself would not result in any shield against recomputation. It further requires the actual appropriation by an officer towards the principal amount. By necessary implication it means that even prior to section 55C if payment is made it was certainly open to the officer to adjust it against interest. In fact, the petitioner may not have the right to contend that even prior to section 55C there was a legal right to have the amount appropriated on a mere request to demand for tax. In fact, the language used in section 55C as already noted embraces the word "principal". Appeal dismissed.
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2009 (3) TMI 969
Whether, in the facts and circumstances of the case, a second/ separate show-cause notice is mandatory for the levy of purchase tax under section 28(5) of the Haryana General Sales Tax Act, 1973?
Held that:- Non-issuance of notice or mistake in the issuance of notice or defective service of notice does not affect the jurisdiction of the Assessing Officer to frame a valid assessment if otherwise reasonable opportunity of being heard has been afforded. In the present case we are satisfied that neither any prejudice has been caused nor the provisions of section 28(5) of the Act have been violated. Therefore, the answer to the question is liable to be given against the assessee and in favour of the Revenue
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2009 (3) TMI 968
Is the Additional Commissioner justified in invoking section 22A(1) of the Act in view of the fact that the order under section 20 is subject-matter of appeal under section 22 filed before the Karnataka Appellate Tribunal?
Held that:- So far as the Karnataka Sales Tax Act, the appellant preferred second appeals against section 20 order under section 22 for all the three assessment orders. By virtue of the impugned order, the appeals filed under section 22 to the Tribunal by the appellants are jeopardised and the matters are made complicated. When there is a right to file cross-objections to an appeal filed by an assessee, if the Department has not preferred any appeal, there was no occasion for the revisional authority to invoke suo motu revisional power since the Tribunal can adjudicate all the issue involved. Section 22A(3) specifically bares exercise of SMR jurisdiction.
The impugned order of the Additional Commissioner of Commercial Taxes, Zone I, Bangalore, in S.T.A. Nos. 851, 852 and 853 of 2008 under section 22A(1) of the Karnataka Sales Tax Act, 1957 dated January 29, 2009, is set aside. Appeal allowed.
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2009 (3) TMI 967
Issues Involved:
1. Denial of effective opportunity to be heard.
2. Non-disclosure of the basis for estimation of Gross Turnover (GT) and Taxable Sales and Purchases (TSPP).
3. Violation of the principle of natural justice in passing the best judgment assessment.
4. Refusal to admit additional evidence at the revisional stage.
Detailed Analysis:
1. Denial of Effective Opportunity to be Heard:
The petitioner argued that he was denied a reasonable opportunity to present his case and produce books of accounts. The initial assessment was made ex parte due to the petitioner's non-appearance on the seventh adjourned date. The appellate authority confirmed this assessment, noting that the petitioner failed to appear despite six adjournments. The tribunal found that the petitioner was given reasonable opportunities but failed to avail them, leading to an ex parte decision.
2. Non-Disclosure of Basis for Estimation of GT and TSPP:
The petitioner contended that the estimation of GT and TSPP was arbitrary and lacked a disclosed basis. Rule 180 of the WBST Rules, 1995 mandates that the assessing authority record reasons for the best judgment assessment. The tribunal observed that the assessing authority failed to disclose the basis for determining the GT of sales and TSPP, thereby not adhering to the requirement of a reasoned judgment.
3. Violation of Principle of Natural Justice:
The petitioner claimed that the principle of natural justice was violated as the best judgment assessment was passed without proper reasoning. The tribunal agreed, stating that both the assessing and appellate authorities did not provide a reasoned basis for their judgments, which is essential under Rule 180 and Rule 242 of the WBST Rules, 1995.
4. Refusal to Admit Additional Evidence at the Revisional Stage:
The revisional authority dismissed the petitioner's application, refusing to admit additional evidence on the grounds that the petitioner failed to show cause for non-production at earlier stages. The tribunal highlighted that Rule 247 of the WBST Rules, 1995, which governs revisional proceedings, mandates the revisional authority to examine books of account, documents, and evidence produced by the petitioner. The tribunal found that the revisional authority erred in refusing to admit evidence, as Rule 247 allows for the consideration of additional evidence to ensure a fair decision.
Conclusion:
The tribunal concluded that the revisional authority committed an error in law by refusing to admit additional evidence and failing to provide a reasoned judgment. Consequently, the impugned revisional order was set aside, and the case was remanded to the revisional authority for fresh proceedings, allowing the petitioner to produce relevant books of account, documents, and evidence. The petitioner was directed to appear before the revisional authority on April 17, 2009, to obtain a new hearing date.
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2009 (3) TMI 966
Whether the assessing officer has no jurisdiction to revise the rate of tax on pipe fittings used for sanitary work from four per cent to 10 per cent because the Deputy Commissioner in his orders issued under section 35 had not considered such an issue?
Held that:- The items sold by the petitioner are not covered by entry 2(k) of the Second Schedule. There is no dispute that the items are used as water supply and sanitary equipment and so much so the rate of tax applied at 10 per cent during the year 1995-96 under entry 149 of the First Schedule is correct.
Considering the open remand made by the Deputy Commissioner, the assessing officer was free to apply the actual rate of tax applicable for the commodity sold by the petitioner. In fact, even if the rate applied in the original assessment was higher than the actual rate it would have been open to the petitioner to get the rate re-assessed in his favour pursuant to the order of remand by the Deputy Commissioner. Appeal dismissed.
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2009 (3) TMI 965
Sales tax on the face value of the lottery tickets - Held that:- Set aside the orders of assessment made by the Assessing Authority, the appellate authority as also the Tribunal and to remand the case back to the Assessing Authority with the direction that it shall make a fresh assessment of the liability of the petitioner-dealers, having regard to the observations made by the Supreme Court in H. Anraj's case [1985 (10) TMI 258 - SUPREME COURT OF INDIA] implying thereby that the face value of the lottery tickets shall no longer constitute the basis of assessment of the tax liability.
While doing so, the Assessing Authority shall be free to examine whether the petitioners are entitled to any refund subject to their producing evidence to the satisfaction of the Assessing Authority to the effect that they had not passed on the tax to the purchasers of the lottery tickets. The needful shall be done by the Assessing Authority expeditiously, but not later than six months from the date a copy of the order is received by it.
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2009 (3) TMI 964
Whether the appellant is entitled to ask for remand of the matter to the assessing authority by setting aside the orders under annexure A and all other previous orders of the authorities under the Sales Tax Act?
Held that:- As already stated when appellant/assessee did not choose to file the appeal under section 22 of the Act challenging annexure B, he could not have come before this court challenging the same. The remedy open to him was before the Karnataka Appellate Tribunal. Now we have to consider and restrict our order to annexures A and C where there was a fair opportunity available to the appellant/assessee and the reduction of 20 per cent from 30 per cent was in accordance with the Rules contemplated under the Karnataka Sales Tax Rules.
As stated above, the Additional Commissioner of Commercial Tax in his orders at annexure A has referred to all the provisions of law, both the sections and the Rules as referred to above and, has clearly stated how the deduction of labour and other like charges have to be deducted from the turnover. Viewed from any angle, we are unable to accept the contentions raised by the appellant/assessee seeking for remand of the matter to the assessing authority for fresh assessment. The order at annexure A is in total conformity with the provisions of law. There is no scope for any interference. Appeal dismissed.
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2009 (3) TMI 963
Penalty upon the assessee for violation of the provisions of section 4B(5) of the U.P. Trade Tax Act - Held that:- The contentions as raised by the learned counsel for the revisionist have substance on account of the fact the assessee actually was able to establish before the first appellate authority that the stock transfers were only 39 per cent of the production and this figure was not disputed.The other fact, which is firmly established, is that the total packing material imported from outside the State of U.P. was to the extent of 57 per cent.
Since balance remained of the packing material obtained from outside U.P., the conclusion reached by the first appellate authority was correct, i.e., to say that no evasion of packets had been made by the assessee and in fact, he could have made further stock transfers outside the State of U.P. to the extent of the balance of 57 per cent.If the assessee had exceeded the use of packing material for making stock transfer beyond 57 per cent, then alone, tax may have been imposed and also penalty to the same extent should have been imposed on the assessee.
In favour of the assessee.The impositions of penalty in the present case is not justified.
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2009 (3) TMI 962
Jurisdiction of Commissioner to interfere with a remand order issued by the Deputy Commissioner in exercise of revisional power under section 45A(3) of the Kerala General Sales Tax Act questioned
Held that:- In this case as already found that the alleged violation of natural justice has not caused prejudice to the assessee which is the view taken by the Commissioner as well, in his order issued under section 37 of the Act. We therefore uphold the order issued by the Commissioner rejecting the revision filed by the assessee and restoring the penalty order under section 37 after setting aside the order of the first revisional authority.
Find some force in contention of counsel for the assessee that the Commissioner has not considered the assessee's request for reduction of penalty because for both the years, maximum penalty is imposed and there is nothing to indicate that the assessee was involved in any offences previously. Besides this it is seen that at least in respect of one truck load of rubber transported outside Kerala, the assessee had to pay penalty in the State of Karnataka, thus taking all these into account, we reduce the penalty to equal amount of tax for both the years.
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2009 (3) TMI 961
Issues: Classification of broken wheat for tax assessment under Kerala General Sales Tax Act, 1963. Entitlement to concessional rate of tax on inter-State sale for broken wheat.
Classification of Broken Wheat:
The key issue in this case was the classification of broken wheat for tax assessment under the Kerala General Sales Tax Act, 1963. The court deliberated on whether broken wheat falls under entry 172 of the First Schedule as a wheat product or is considered wheat itself covered by the Second Schedule entry. The Tribunal, relying on a Supreme Court decision, determined that broken wheat is a wheat product liable for assessment under entry 172 at four per cent. The court analyzed that broken wheat, being a processed form of wheat where the husk is removed and broken into pieces, is distinct from wheat as such. It was noted that broken wheat is a value-added product and cannot be equated with wheat itself. The court rejected the petitioner's argument comparing broken wheat with broken rice, emphasizing that broken wheat is a separate category of wheat products like maida, atta, sooji, and rava listed under entry 172. Consequently, the court concluded that broken wheat is rightly classifiable under entry 172 and subject to tax at four per cent.
Entitlement to Concessional Rate of Tax on Inter-State Sale:
Another significant issue addressed in the judgment was the entitlement of the petitioner, a small-scale industrial unit, to a concessional rate of tax on inter-State sale of broken wheat. The court observed that the Department could not take contradictory stands regarding the identity of the product. Since broken wheat was classified as a wheat product for tax assessment, the petitioner should be entitled to the concessional rate on inter-State sales as well. Therefore, the court directed the assessment of inter-State sales turnover of broken wheat at four per cent, provided the assessee qualified for the benefit of the notification for inter-State sale of products. The judgment upheld the classification of broken wheat by the Tribunal but mandated the grant of a concessional rate at four per cent on inter-State sale of broken wheat without a C form.
In conclusion, the Kerala High Court's judgment clarified the classification of broken wheat under the Kerala General Sales Tax Act, 1963, emphasizing its distinction from wheat as such and its categorization as a wheat product under entry 172. Additionally, the court addressed the entitlement of the petitioner to a concessional rate of tax on inter-State sale of broken wheat, ensuring consistency in the treatment of the product for tax purposes.
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2009 (3) TMI 960
Issues:
- Revision filed under section 41(1) of the Kerala General Sales Tax Act, 1963 against the Tribunal's order rejecting the appeal due to non-remittance of admitted tax before filing the appeal before the first appellate authority.
Analysis:
The High Court of Kerala considered a revision filed under section 41(1) of the Kerala General Sales Tax Act, 1963 against the order of the Tribunal. The Tribunal had rejected the appeal on the grounds that the petitioner had not remitted the admitted tax before filing the appeal before the first appellate authority. The court highlighted that a revision is provided under section 41(1) of the KGST Act only against orders of the Sales Tax Tribunal passed under section 39(4) or (7) of the Act. An order under section 39(4) is one issued on the merits disposing of the appeal by the Tribunal, while an order under sub-section (7) of section 39 is an order in a review application filed before the Tribunal by either party to review their appeal order. In this case, the petitioner had filed an appeal before the first appellate authority without paying the admitted tax, leading to the rejection of the appeal by the first appellate authority as not maintainable under the third proviso of section 34(1) of the Act.
The court emphasized that when an appeal is filed before the appellate authority, it is the duty of the appellate authority to verify the payment of admitted tax by the appellant to determine the maintainability of the appeal. The absence of an appeal provision to challenge an appellate authority's decision to not entertain an appeal due to non-payment of admitted tax was noted. The petitioner argued that there was a bona fide dispute about the payment of admitted tax since a revised return disputing the originally admitted tax was filed after admitting tax in the original return. However, the court highlighted that if a revised return is filed without bona fides to avoid paying admitted tax for the purpose of appealing, the appellate authority should decide the admitted tax and allow the assessee to pay it for genuine disputes to be entertained.
The court pointed out that since the appellate authority refused to pass an adjudication order on the payment dispute raised by the petitioner, the petitioner opted to file an appeal before the Tribunal, which was deemed not maintainable. The court clarified that when the appellate authority rejects an appeal as not maintainable due to non-payment of admitted tax, it does not constitute an order in appeal, and therefore, no further appeal lies to the Tribunal under section 39(1) of the Act. Consequently, the order of the Tribunal rejecting the appeal on the grounds of non-payment of admitted tax was not an order under section 39(4) or (7) of the Act, making it not subject to revision before the High Court under section 41(1) of the Act.
The court concluded by stating that the appropriate remedy for the petitioner in such a situation would have been to file a writ petition challenging the appellate authority's decision to reject the appeal. Consequently, the court rejected the revision as not maintainable under section 41(1) of the Act.
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2009 (3) TMI 959
Whether the court within whose territorial jurisdiction the consequence ensued from the wrong done to movables beyond its territorial jurisdiction entertain a suit for compensation for the wrong done?
Held that:- In view of the interpretation given to the phrase "wrong done" occurring in section 19 of the Code and the factual situation of the case the Sub-court, Ernakulam has jurisdiction to try the suit. This appeal succeeds. The order under challenge is set aside. The learned Sub-judge is directed to proceed with the trial and dispose of the case as expeditiously as possible.
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2009 (3) TMI 958
Issues involved:
1. Rate of tax on sambar powder, meat masala powder, rasam mix, and pickle mix powder under entry 32 of the Kerala General Sales Tax Act, 1963.
2. Rate of tax on turmeric powder under entry 138 and the impact of the Explanation introduced by the Finance Act, 2000.
Analysis:
Issue 1: Rate of tax on sambar powder, meat masala powder, rasam mix, and pickle mix powder under entry 32:
The revision filed by the assessee pertains to the rate of tax on these items. The assessee claimed that they should be taxed at four per cent under entry 32 of the Act, which covers chillies, coriander seeds, curry powder, spices powder, and garlic. The first appellate authority allowed the claim, but the Tribunal reversed the decision. The High Court analyzed the nature of the items and found that sambar powder, meat masala powder, and rasam mix powder are used for making curries, falling under the definition of "curry powder" in entry 32. Regarding pickle mix powder, the court held that even though pickle may not be commonly referred to as curry, it is consumed as a curry accompaniment, making the powder used for making pickle classifiable as curry powder. Additionally, since pickle mix contains various spices, it can also be classified as spice powder under entry 32. Therefore, the court ruled in favor of the assessee, directing assessment at a rate of four per cent under entry 32.
Issue 2: Rate of tax on turmeric powder under entry 138 and the impact of the Explanation introduced by the Finance Act, 2000:
The next question raised was the tax rate on turmeric powder. Turmeric was initially covered under entry 138 taxable at four per cent. The Finance Act, 2000 introduced an Explanation bringing turmeric powder under the renumbered entry 159. The petitioner argued that the Explanation was clarificatory, and turmeric powder should be considered part of the original entry covering turmeric. The court agreed, stating that since different forms of turmeric were not specified, it could be inferred that all forms of turmeric, including powder, were included. The court emphasized that turmeric powder, being a form of spice, should not be assessed under the residuary entry but rather under entry 32 as a spice powder. Considering entry 32 as generally exhaustive for spice powders, the court held that turmeric powder should be taxed at four per cent under entry 32. Therefore, the court ruled in favor of the assessee, directing assessment of turmeric powder at a rate of four per cent under entry 32.
In conclusion, the High Court allowed the revision filed by the petitioner, overturning the Tribunal's decision and instructing the assessing officer to tax the mentioned products at a rate of four per cent under the relevant entries of the Kerala General Sales Tax Act, 1963.
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2009 (3) TMI 957
Issuance of notice - escapement of assessment - section 21(2) of the U.P. Trade Tax Act, 1948 - Held that: - no reason is available, even the reply of the petitioner has not been referred to and considered. Therefore, we are of the view that the order impugned is to be set aside and accordingly set aside and the matter is remanded back to the Additional Commissioner to pass the order afresh within a period of two weeks from this date - appeal allowed by way of remand.
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2009 (3) TMI 956
Whether the assessing authority could impose tax on the assessee, a dealer of Tata vehicles, on the value of credit notes issued by the manufacturer, M/s. Tata Motors, for defective parts of cars and other vehicles supplied by the assessee, a dealer of the manufacturer under a warranty agreement between the manufacturer and the ultimate customer to whom such vehicles are sold by the assessee?
Held that:- Credit notes received from manufacturer by the assessee-dealer could not be taxed as sale value of spare parts replaced for defective parts under warranty by the manufacturer to the customer, in the present case.
Consequently, the Tax Board cannot be said to have committed any error in distinguishing the judgment of Supreme Court in Mohd. Ekram's case [2004 (7) TMI 341 - SUPREME COURT OF INDIA] and finding that in the facts and circumstances of the case, the assessing authority was not justified in imposing tax in the hands of the respondent-assessee. The Tax Board is also justified in upholding the setting aside of interest and penalty because as far as interest is concerned the same is consequential to levy of tax which falls to the ground for the aforesaid reasons and penalty also because same in any case could not have been imposed as all the transactions were duly recorded in the regular books of account and, therefore, the same do not attract any penalty under section 65 of the Act. The question relating to power of assessing authority to invoke section 30 of the Act for reassessment as there was no escapement of turnover is also thus answered in favour of the respondent-assessee and against the Revenue.
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2009 (3) TMI 955
Entitlement for tax exemption under the Industrial Policy Resolution, 1986 - Whether writ petition has been filed without exhausting the statutory remedy of appeal as provided under the Orissa Sales Tax Act, 1947? - Whether in law, this court in writ jurisdiction can pass any order in contravention of the statute and further whether this kind of order amounts to amending the legislation itself only for giving benefit to an individual person?
Held that:- In the instant case a special status seems to have been conferred upon the petitioner-assessee by a judicial order of this court dated September 13, 2001 in O.J.C. No. 11672 of 2001, whereby the present petitioner was granted liberty to approach this court directly, if the assessment order raised any demand against the petitioner. No reason has been noted in the order as to why the court conferred such "special status" on a particular assessee, as it clearly exhibits hostile discrimination to similarly situated assessees who had not-been given similar opportunity to approach this court directly against the assessment order without approaching the appellate forum provided under the statute.
No cogent reason could be given by Mr. Sahoo, learned counsel for the petitioner, as to under what circumstances such special status has been conferred on the petitioner-assessee by this court. It seems to be an inadvertent mistake committed by this court. Petition dismissed. The petitioner is given liberty to approach the appellate forum within a period of three weeks from today
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2009 (3) TMI 954
LPG pressure regulators - whether inseparable from LPG cylinders and, as such, they are part and parcel of cylinders?
Held that:- Pressure regulators cannot form part of the utensils to which the notification dated May 25, 2006 is applicable. That being so, no error of law committed either by the Full Bench of the Commercial Tax Tribunal or by the Additional Commissioner, Commercial Tax in holding that LPG pressure regulators are not containers and as such the tax payable on LPG pressure regulators is 12.5 per cent applicable to unclassified items and not four per cent which is applicable to the utensils.
Revision dismissed.
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2009 (3) TMI 953
Acceptance of books of account for sales tax assessments challenged - Held that:- Agreeing with the contention of the assessee that if the transactions can be co-related from the seized records and if it is proved that entire business carried on in the clandestine manner are covered by entries in the seized records, then there is no scope for further addition. However, it is for the assessee to establish and co-relate entries in the business slips, bill books, note books, purchase bills, sales bills, etc., and in the absence of any co-relation it is for the officer to reject books of accounts as incomplete and estimate turnover based on relevant materials.
Therefore set aside the orders of the Tribunal and that of the first appellate authority and remand the matter back to the assessing officer for giving opportunity to produce the books including the seized records if released to the assessee and to make fresh assessment based on the above observations. However, since the assessee has closed the business and since the Department has not filed second appeal against the orders of the first appellate authority we give an option to the assessee to accept the first appellate authority's order and on the assessee's acceptance the assessing officer shall complete the assessment by making an addition equal to the turnover in terms of the first appellate authority's order.
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2009 (3) TMI 952
Issues:
Challenging ex parte dismissal order of the Maharashtra Sales Tax Tribunal, challenge of ex parte order in Miscellaneous Application, rejection of restoration application, challenge of rule 61(2) as ultra vires, prayer for setting aside orders of the Tribunal, deposition of sales tax liability, acceptance of undertaking, setting aside ex parte orders, remanding appeals to the Tribunal, lifting of attachment on bank accounts, consequences of default in payment.
Analysis:
The petitioners contested the ex parte dismissal order by the Maharashtra Sales Tax Tribunal for the financial year 1994-95 under the Bombay Sales Tax Act, 1959 and Central Sales Tax Act, 1956. They also challenged an ex parte order in a Miscellaneous Application along with the dismissal of Second Appeal No. 832 of 2003 for the period 1995-96. A restoration application was filed against all the mentioned orders, which was rejected by the Tribunal due to being beyond the permissible time limit. The petitioners raised objections against rule 61(2) for allowing ex parte dismissal without considering merits, citing a Supreme Court judgment for support.
The petitioners sought the setting aside of the Tribunal's orders and requested a fresh hearing on the merits for the appeals related to the sales tax acts. During the hearing, the petitioners expressed willingness to deposit Rs. 10 lakhs towards the tax liability, with an initial payment of Rs. 4 lakhs followed by monthly instalments. An undertaking was presented in court regarding the payment schedule, which was accepted by the court. Consequently, the court agreed to set aside the ex parte orders in the interest of justice, remanding the appeals back to the Tribunal for a fresh consideration based on the law and merits.
In light of the accepted undertaking, the court decided to lift the attachment on the petitioners' bank accounts. However, a condition was imposed that any two defaults in the payment of instalments would lead to the revival of the original orders and reattachment of the bank accounts. The petition was disposed of with these directions and conditions, emphasizing the importance of adhering to the payment schedule to avoid adverse consequences.
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