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Showing 141 to 160 of 740 Records
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2008 (4) TMI 696
Seizure and penalty - two imported consignments OF "refined soya bean oil" - Held that:- According to our interpretation, the main part of the section 77(1) of the VAT Act continues to enable the authorities to impose penalty up to the maximum limit of 50 per cent of the value of the goods in appropriate cases. The violation is not technical in the present case. Rather it appears to be an attempt to avoid recording of importation. The concerned officer accepted the invoice value of the imported goods and imposed penalty on such value. The concerned officer could have enhanced the value by taking into account the expected sale value of the goods in West Bengal. The amount of penalty does not appear to be arbitrary or unreasonable in the facts and circumstances of the present case. Appeal dismissed.
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2008 (4) TMI 695
Non-deposit of the entry tax within the stipulated period - penalty proceedings initiated under section 15A(1)(a) - Held that:- Imposition of penalty under section 15A(1)(a) of the Act was patently erroneous especially where the tax along with interest had been deposited and reasonable cause had been shown for the delay which has not been disputed by the Department. Consequently, initiation of penalty proceeding under section 15A(1)(a) was patently illegal, and therefore, the order of penalty was wholly erroneous.
In view of the aforesaid, the revisions are allowed. The order passed by the Trade Tax Tribunal, Lucknow, the order passed by the Deputy Commissioner (Appeals), Trade Tax and the order passed by the assessing authority under section 15A(1)(a) of the U.P. Trade Tax Act are all quashed.
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2008 (4) TMI 694
What should be the rate of tax applicable on maize powder which has been termed as maize starch and whether maize starch falls under the category of kirana goods or under cereals?
Held that:- Maize powder is not maize starch and maize starch falls under the category of kirana.
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2008 (4) TMI 693
Issues:
1. Validity of initiation of assessment proceedings
2. Validity of revisional and appellate orders
3. Entitlement of the petitioner to reliefs
Validity of initiation of assessment proceedings:
The case involved two assessment periods, one ending on March 31, 1995, and the other from May 1, 1995, to March 31, 1996. The Additional Commissioner held that he lacked authorization for revisional applications under the BF (ST) Act, 1941. The petitioner argued that notices for assessment proceedings were not served, rendering the assessment orders invalid. The contesting respondent claimed that notices were sent via registered post but returned unserved. The appellate authority erred in holding that the opportunity of being heard in the assessment proceedings was not denied, as it is a settled principle of law that in the absence of notice service, no orders affecting the assessee's interest can be passed. The recovery proceedings were also deemed invalid, and the petitioner cited a Supreme Court decision to support the argument that the initiation of assessment proceedings was void due to non-service of notices.
Validity of revisional and appellate orders:
The Additional Commissioner correctly refused the revisional applications due to lack of jurisdiction, but he erred in deeming them not entertainable. The assessment periods ended in 1995 and 1996, making the assessment barred by limitation upon the filing of appeals in 2004. The appellate authority did not follow the rules regarding the service of notices of appeal, rendering the impugned orders liable to be set aside. The appeals should be remanded to examine if notices were sent to the correct addresses of the assessee.
Entitlement of the petitioner to reliefs:
The judgment allowed both applications on contest without costs. The impugned assessment orders, appellate orders, and recovery proceedings were set aside. The assessment periods being barred by limitation, remanding the appeals or excluding time spent in the proceedings would not serve any effective purpose.
In conclusion, the judgment focused on the validity of assessment proceedings, revisional and appellate orders, and the entitlement of the petitioner to reliefs. It highlighted errors in the assessment process due to non-service of notices, lack of jurisdiction for revisional applications, and non-compliance with rules for service of notices of appeal. The decision ultimately set aside the impugned orders and recovery proceedings due to the assessment periods being barred by limitation.
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2008 (4) TMI 692
Issues Involved:
1. Whether the seizure was improper.
2. Whether the imposition of penalty was improper.
Detailed Analysis:
Issue 1: Whether the seizure was improper
The petitioner challenged the legality of the seizure on the grounds that "reasons to believe" were not recorded before the seizure, and there was no contravention of section 73 of the West Bengal Value Added Tax Act, 2003 read with rule 107 of the West Bengal Value Added Tax Rules, 2005. The vehicles carrying taxable goods were intercepted, and the drivers failed to produce tax invoices, leading to the seizure of the goods.
The Tribunal examined the pre-seizure report and noted that the report was written in the past tense, indicating it was prepared after the seizure. The Tribunal agreed with the petitioner that the grounds for seizure were recorded post-seizure. However, the Tribunal observed that section 76(1) of the West Bengal Value Added Tax Act, 2003 does not mandate recording reasons for the seizure beforehand. The Tribunal referred to previous judgments, emphasizing that the "reasons to believe" must preexist before the seizure and should be recorded to allow the affected person to challenge the seizure.
In this case, the grounds of seizure were recorded under the "pre-seizure report," and copies were available to the petitioner. The Tribunal found no error in the seizing officer's refusal to accept unauthenticated fax copies of the tax invoices and upheld the legality of the seizure for non-compliance with rule 107 of the West Bengal Value Added Tax Rules, 2005.
Issue 2: Whether the imposition of penalty was improper
The petitioner argued that no reasons were provided for forming the opinion that the dealer had a mala fide intention, and without such intention, the imposition of penalty was not justified. The Tribunal reviewed various judgments, including those of the Calcutta High Court and the Supreme Court, which established that the formation of opinion must be based on materials on record and not arbitrary.
The Tribunal noted that for imposing a penalty under the taxing statute, it is necessary to establish the mala fide intention of the taxpayer or at least the scope and opportunity leading to evasion of tax. In this case, the driver produced the challan and declaration as required before the rule change on February 20, 2006. The Tribunal found that the dealer had no mala fide intention and no opportunity to evade tax, as the necessary particulars of the consignments were provided.
The Tribunal concluded that the imposition of the penalty was not justified and set aside the orders confirming the penalties. However, the Tribunal imposed a cost of Rs. 10,000 on the petitioner for carelessness regarding the rule requirements.
Conclusion:
- The seizure of the consignments was upheld as legal.
- The imposition of penalties was set aside due to the lack of mala fide intention and improper formation of opinion.
- The petitioner was ordered to pay a cost of Rs. 10,000 within sixty days, failing which the bonds furnished would stand forfeited.
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2008 (4) TMI 691
Whether, in these cases, the petitioner(s) (S.E.C.L.) was liable to pay the entry tax under section 3(1) of the M.P. (C.G) Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (for short, "the Entry Tax Act") or not?
Held that:- Imposition of entry tax by the concerned authority on the coal sold by the petitioner(s) under different agreements and transit orders was not in accordance with law. As such, the coal sold was not liable to entry tax by such authority. Thus the petitions are allowed. It is held that in the facts and circumstances of these cases, the petitioner(s) is not liable to pay entry tax under section 3(1) of the Entry Tax Act.
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2008 (4) TMI 690
Appealable order - Held that:- The appellant was on March 24, 2000 originally assessed for the assessment year 1997-98 on a taxable turnover of ₹ 4,72,07,862.The earlier order dated March 24, 2000 was rectified to that effect. In respect of the other turnover, i.e., inter-State sales covered by "C" form ₹ 11,46,763 at four per cent and consignment sales not covered by form F ₹ 88,25,714 taxable at eight per cent, there was no change. The entire relief sought for by the appellant in respect of the third turnover, i.e., stock transfer to Bangalore branch has been totally granted by accepting the form F produced by the appellant. Thus, the order rectifying the earlier order dated March 24, 2000 is only the rectification order granting the relief as sought for by the assessee. In respect of the rest of the turnover, no dispute was raised by the assessee. The contention of the learned counsel that the order passed under section 55 of the Act granting the relief is an appealable order is not acceptable.
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2008 (4) TMI 689
Whether, on the facts and in the circumstances of the case, the Tribunal is legally justified in reversing the order of the Deputy Commissioner (Appeals) and confirming the demand of additional tax under section 22?
Held that:- It is apparent that the Tribunal committed an error while allowing the second appeal on the ground that the circular was not binding on the authorities as according to it the circular was not in accordance with law. The Tribunal has exercised powers beyond the scope of section 22 of the Act. The view taken by the Tribunal is contrary to the various decisions of this court as also the apex court referred to above and as such the order of the Tribunal cannot be sustained.
It is accordingly set aside and the appellate order is restored.
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2008 (4) TMI 688
Deduction of discount in the determination of taxable turnover - Held that:- Discount to be allowed as deduction in the turnover is only trade discount, which is shown separately in the invoice, whereunder the purchaser pays for the goods, only the amount, reduced by discount, shown in the bill. As under the above provision, discount given through credit notes, periodically, will not be entitled to any deduction from the turnover. Consequently, the suppliers from whom petitioners purchase the goods are not entitled to any deduction of credit note amount in the determination of their taxable turnover either as discount or otherwise and, so much so, the tax charged in the bills raised by them would have been or should have been paid by them entitling the petitioners for credit of full input tax in their assessment based on purchase bills.
The petitioners should be given reasonable time to obtain declaration in terms of circular from suppliers, that the suppliers have not claimed deduction of the credit note amount and that full tax on the sale bills is fully paid. The petitioners are given six weeks time from today to produce declarations and if declarations are produced within six weeks from today, there will be direction to the assessing officer to verify the same and rectify assessments by giving full credit of input tax based on purchase bills. Revenue recovery proceedings and appeals should be kept in abeyance for two months from now. Thereafter, recovery will be based on rectified orders and once rectified orders are issued the petitioners can withdraw the appeals on this issue and pursue appeal on other matters, if any. In view of the above exposition of the provisions on discount, there is no need to consider the validity of the fifth proviso to section 11(3) of the KVAT Act introduced with effect from July 1, 2006 challenged in some writ petitions.
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2008 (4) TMI 687
Seizure of goods in exercise of powers under section 74 Assam Value Added Tax Act, 2003 - Held that:- In the present case, the seizure was, admittedly, made on February 6, 2008. A period of more than two months has already elapsed since then. It is also the respondents' case that they have had been carrying on a process of verification for the purpose of determining as to what, if any, income of the petitioner-company has escaped assessment due to either incorrect accounting of the goods or due to incorrect maintenance of the account books. In either case, therefore, verification process or the enquiry, which was initiated, needs to be brought to an expeditious end, for, this process of verification or enquiry cannot be kept indefinitely pending. Ends of justice, therefore, demand that appropriate directions be issued to the respondents to deal with the matter in such a manner as would uphold the legislative intent embodied in section 74(5).
With the above object in view, the respondents are hereby directed to complete, if they have not already completed, the process of verification or enquiry, within a period of one week from today, and, upon completion of such verification or enquiry, respondents shall permit the petitioner to obtain release of the seized goods in terms of the provisions contained in section 74(5) and other provisions relevant thereto or connected therewith.
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2008 (4) TMI 686
OVAT tax demanded - Penalty imposed - Held that:- The goods in question having come from outside the State of Orissa and the documents establish the fact that the entire consignment also left Orissa, the "presumption of sale," as contemplated under sub-section (10) of section 74 cannot and does not arise. Therefore, looking at the issue of levy of tax under the OVAT Act, there exists no statutory basis for justifying the same. Therefore, in our considered opinion, not only was the demand of "penalty" invalid for the reasons as noted hereinabove, the demand for OVAT and entry tax is also without any statutory basis and, therefore, unlawful.
Accordingly, the writ application is allowed. The amount of OVAT deposited, is directed to be refunded and the bank guarantee of ₹ 25,00,000 issued in favour of the Revenue may also be similarly released in favour of the petitioners within a period of 4 (four) weeks from the date of this judgment. Imposition of penalty has already been quashed.
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2008 (4) TMI 685
Issues:
1. Constitutional validity of Notification No. A3-74-99-ST-V(48) dated June 9, 2000.
2. Reconsideration of judgment in the matter of D.J. Laboratories Private Limited.
3. Interpretation of section 17(2) of the Madhya Pradesh Commercial Tax Act, 1994.
4. Impact of original Notification No. A-3-24-94-STV(108) dated October 6, 1994.
5. Classification of industries and entitlement to benefits.
6. Application of the principle of estoppel by the Government.
Analysis:
1. The court noted that the constitutional validity of Notification No. A3-74-99-ST-V(48) dated June 9, 2000 had been upheld in a previous case, rendering the current petition infructuous.
2. The petitioner sought reconsideration of a previous judgment due to the non-mention of section 17(2) of the Madhya Pradesh Commercial Tax Act, 1994, and the judgment in the case of State of Punjab v. Nestle India Ltd. The court found that the original notification had not been rescinded, allowing benefits to certain industries meeting specific criteria.
3. Section 17(2) allows for the rescission of notifications before their expiry, with prospective effect. The court observed that the original notification had not been rescinded, and certain industries meeting specified conditions were entitled to benefits.
4. The impact of the original Notification No. A-3-24-94-STV(108) dated October 6, 1994 was crucial in determining the entitlement of industries to benefits based on specific criteria outlined in the notification.
5. Industries were classified into two categories based on production status, with the petitioner not meeting the registration deadline, leading to a denial of benefits as per the amended notification.
6. The principle of estoppel by the Government, as discussed in the case of State of Punjab v. Nestle India Ltd., was considered. The court found that the Government's actions were not contrary to the original notification, thus not warranting a reference to a larger bench.
In conclusion, considering the circumstances and previous judgments, the court dismissed the petition, finding no need for a larger bench to reconsider the matter.
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2008 (4) TMI 684
Whether the 'non-stick cookware' is classifiable under entry 5 of the First Schedule to the Kerala General Sales Tax Act, 1963 or whether the item would fall under entry 104 of the First Schedule, which provides for levy of tax on pressure cooker, cook and serveware, casseroles, water filters and similar home appliances not coming under any other entry in this Schedule or in the Fifth Schedule?
Held that:- Until non-stick items were specifically brought under entry 104, those items were covered under the residuary category "similar home appliances" referred to in entry 104.
In the result, we hold that, "non-stick cookware made of aluminium" are home appliances and classifiable under entry 104 of the First Schedule to the KGST Act.
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2008 (4) TMI 683
Whether the Tribunal is legally correct in refusing to accept the declarations in form 'F' and form 'C' and whether such refusal on the part of the Tribunal does not run contrary to the law laid down by the honourable Orissa High Court in Oriental Chemical Industries v. State of Orissa [1978 (3) TMI 201 - ORISSA HIGH COURT] ?
Held that:- Under the provisions of sales tax law a registered dealer is entitled to effect inter-State sale at a concessional rate of tax on the strength of "C" declaration forms and also entitled to transfer goods from its manufacturing unit to its other place of business or agent situated outside the State otherwise than by way of sale on the strength of "F" declaration forms without payment of tax. The dealer cannot be deprived of the above benefit of tax available under the statute merely because the declaration forms are for the first time filed before the second appellate authority, if for some good reasons the same could not be produced before the assessing officer and first appellate authority.
From the order of the learned Tribunal, it is revealed that the reason assigned by the dealer in its petition dated August 7, 2001 was not disputed by the Revenue. In these circumstances, the learned Tribunal is not justified in insisting on production of further documentary evidence in support of the contention of the petitioner that the declaration forms were received by it after the hearing of the first appeal, for the purpose of accepting those declaration forms. Against revenue. Since the Tribunal has not examined the correctness of the declaration forms produced before it, now it shall examine the same and for this purpose the matter is remanded to the Tribunal.
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2008 (4) TMI 682
Limitation period - revised assessment - alternate remedy - Held that:- Limitation period commences from the date of final assessment order. The said provision came into effect prospectively and not retrospectively. There is nothing in the amendment made to section 16(1)(a) that the same was intended to operate retrospectively. There is no dispute regarding the same. Therefore the amended provision is not relevant. There is also no dispute that the revision of assessment is barred by limitation as early as on March 31, 2001, which is much before the introduction of amended provision of section 16(1)(a) by Amendment Act of 22 of 2002, which came into effect from July 1, 2002.
Coming to the next contention regarding alternative remedy, the appellant has established the revision of assessment made under section 16(1)(a) of the Act is statutorily barred by limitation and therefore, it is a fit case for the interference under article 226 of the Constitution of India. Further we are also of the view that the revised assessment made by the respondent is illegal, wrong, without basis and justification.
Thus the revised assessment passed by the appellant is statutorily barred by limitation under section 16(1)(a) of the TNGST Act. Set aside the order of the learned single judge and the writ appeal is allowed.
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2008 (4) TMI 681
Whether, on the facts and circumstances of the case, interest is chargeable under section 23(3) of the Kerala General Sales Tax Act, 1963 from the date of filing of the return admitting the tax liability, but claiming concessional rate of tax or from the date of assessment and issuance of demand notice in pursuance thereof?
Held that:- In the present case, the assessee has filed his return conceding a particular turnover by way of self-assessment and in that had claimed concessional rate of tax. The assessee was fully aware, unless he produces declaration form No. 18 from the purchasing dealer, that he would be disentitled to claim concessional rate of tax, in view of the language employed in the section itself and in spite of it, he had paid lesser rate of tax than what is specified in the Schedule to the Act. Since the assessee had not paid tax on the admitted turnover at the specified rate of tax, this is a case where tax due under the Act is not paid and therefore, the petitioner cannot escape the rigour of the penal provision under the Act. Tax revision petition requires to be rejected and accordingly rejected
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2008 (4) TMI 680
Whether, under the facts and circumstances of the case, the plant and machineries having suffered Orissa sales tax at the time of purchase inside the State of Orissa the lease rental received on leasing out those plant and machineries can be taxed?
Whether, under the facts and circumstances of the case, the transfer of property in goods and the transfer of right to use the goods are two distinctly separate taxable events once as sale and secondly as deemed sale in the face of the legislative intent of single-point taxation as provided under section 8 of the Orissa Sales Tax Act?
Whether, under the facts and circumstances of the case, the imposition of penalty by the Sales Tax Officer and confirmed by the Assistant Commissioner and Sales Tax Tribunal is correct law?
Held that:- This court holds that since no tax can be imposed by way of subsequent lease rent in respect of the same goods on the petitioner, there cannot be any imposition of penalty for non-payment of the same. As such, the penalty imposed on the petitioner is quashed.
All the three questions referred to above on which the matter has been argued are answered in the negative, i.e., in favour of the assessee and against the Revenue.
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2008 (4) TMI 679
Whether, on the facts and in the circumstances of the case, the Tribunal is right to hold that tax is exigible for photographs as execution of works contract?
Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal is perverse due to non-consideration and misconsideration of facts and law and, therefore, it is liable to be set aside for re-hearing?
Held that:- We answer the first question in the negative and the second question in the affirmative. We thus answer both the questions in favour of the assessee and against the Revenue.
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2008 (4) TMI 678
Summary assessment - Revision petition dismissed - Held that:- The dismissal order was passed only on March 11, 1998. There is nothing to show that the petitioner was duly informed about adjourning the date of hearing of the revision petitions till March 11, 1998. Thus the revision petitions were dismissed improperly. In the light of the above considerations, the impugned orders are hereby quashed. In the facts and circumstances of the case, the concerned authority shall take appropriate steps for assessment of the petitioner in respect of the said three assessment years afresh in accordance with law.
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2008 (4) TMI 677
Order of assessment - whether being without jurisdiction and against law - whether single judge, instead of asking the appellant to move in appeal, should have decided the writ petition on merit? -
Held that:- From the impugned order dated June 30, 2003, it will be evident that the assessing authority has not specifically stated that the clarificatory order of Commissioner dated January 11, 2002, is contrary to the law or is not binding. He has given his explanation as to how the Commissioner's order to be read in-between. Whether such finding of the assessing authority is against the spirit of letter dated January 11, 2002, issued by the Commissioner is to be determined either by the appellate authority or by a court of law. In this background, if learned single judge, for deciding the question of legality and propriety of the assessment order, has asked the appellant to move before the appellate authority under section 31A of the TNGST Act, no interference is called for.
Thus in absence of any illegality in the order passed by learned single judge and there being alternative remedy available to the appellant, as observed earlier, no interference is called for with the impugned order passed by learned single judge. Appeal dismissed.
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