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Showing 141 to 160 of 787 Records
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2007 (8) TMI 692
Whether it is permissible for the sales tax authorities, under the TST Act, to direct deduction, at source, of an amount equivalent to four per cent from each bill of the contractor, who has executed a works contract, without taking into account the fact as to whether all the materials used in the execution of a given works contract were or were not exigible to local sales tax?
Held that:- When rule 3A does not "prescribe" deduction at source at the flat rate of four per cent, a direction to deduct sales tax at the flat rate of four per cent from the bills of the contractors is clearly beyond the scope of section 3AA read with rule 3A, for, deduction, at source, is permissible only as prescribed by the Tripura Sales Tax Rules, 1976.
Thus do not find that the learned single judge has committed any error in interfering with the two memoranda aforementioned and in quashing the same, particularly, when we find that the memoranda, in question, had put on the contractors, who were involved in execution of works contract, a legal obligation far more onerous than the TST Act and the Rules framed thereunder envisaged. In the result and for the reasons discussed above, these appeals fail and the same shall accordingly stand dismissed.
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2007 (8) TMI 691
Alternate remedy - whether the order under challenge can be treated as totally non-speaking order is highly debatable? - Held that:- It is, thus, evident that the officer concerned had considered the objection raised by the petitioner and decided the same by assigning reasons.
The three judgments of this court on which reliance has been placed by Shri E. Manohar do not have any bearing on the petitioner's case because in none of them the issue of alternative remedy was discussed and decided.Therefore, we do not consider it necessary to deal with the same.
In the result, the writ petition is dismissed leaving the petitioner free to avail remedy by filing appeal. Since the petitioner has sought intervention of the court, we give it liberty to file appeal within a period of 15 days along with an application for condonation of delay and direct that the same shall be entertained, considered and decided on merits.
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2007 (8) TMI 690
Issues:
Challenge to imposition of penalty under section 16(9) of Bihar Finance Act, 1981 for delay in payment of admitted tax.
Analysis:
The case involved a writ application challenging the imposition of a penalty under section 16(9) of the Bihar Finance Act, 1981. The petitioner, engaged in distribution and sale of petroleum products, had deposited the admitted tax for a specific quarter after a delay. The assessing officer initiated proceedings for the delay in payment, leading to the imposition of a penalty. The petitioner argued that the penalty was unjust as there was no intentional or mala fide conduct on their part, citing legal principles that penalties should not be imposed unless there is dishonesty or deliberate defiance of the law. The petitioner also highlighted a case precedent to support their argument.
The State, represented by the Advocate-General, contended that the delay in payment amounted to wilful evasion of tax, justifying the imposition of the penalty. However, the court analyzed the facts and found no mens rea or deliberate delay in payment on the part of the petitioner. Considering the absence of intentional conduct and the legal principles discussed, the court concluded that the imposition of the penalty was unjustified and unsustainable in law.
Ultimately, the court allowed the application, setting aside the order imposing the penalty on the petitioner. No costs were awarded in this matter.
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2007 (8) TMI 689
Whether the metallic yarn produced and sold by the assessee during the period in question, namely, 1986-87 to 1988-89, is taxable at the rate of 1.5 per cent as "all kinds of man-made yarn whether synthetic or non-synthetic, cellulosic or non-cellulosic, blended or not and waste thereof", or is taxable at the rate of three per cent as "badla" under notification dated June 19, 1967?
Held that:- The metallic yarn produced by the assessee squarely falls within the definition of "man-made yarn" and is therefore, taxable at the rate of 1.5 per cent only under the relevant notifications.
Consequently, these revision petitions are allowed and the order of the Tax Board dated July 16, 2001 is set aside and it is held that during the relevant period the assessee was liable to pay sales tax at the rate of 1.5 per cent only on sale of metallic yarn as "man-made yarn" under the applicable rate notifications and not at three per cent as "badla", under the notification dated June 19, 1967. Revision petitions are allowed
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2007 (8) TMI 688
Interpretation of the provisions of section 6A of the Central Sales Tax Act, 1956 - Held that:- Under section 6A of the Central Act, the burden would be on the dealer to show that movement of the goods had been occasioned not by reason of any transaction involving sale of goods but by reason of transfer of such goods to any other place of business or to the agent or principal, as the case may be, for which the dealer is required to furnish prescribed declaration form in the absence of which the transfer would be treated as sale.
As the petitioners have claimed that they are not liable to furnish declaration form F in respect of the transaction in question and we have come to the conclusion that they are, in fact, liable. We direct the respective assessing authorities to accept the declaration form F of each of the petitioners if they file it within a period of three months from today and to grant exemption in accordance with law. Appeal dismissed.
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2007 (8) TMI 687
Issues:
1. Interpretation of tax laws regarding inter-State and branch transfer sales.
2. Consideration of form C and form F declarations for tax exemption.
3. Application of court decisions on similar cases to the present matter.
Analysis:
1. The petitioner, a registered dealer under the Tamil Nadu General Sales Tax Act, 1959 and the Central Sales Tax Act, 1956, engaged in inter-State and branch transfer sales. The respondent levied a higher tax rate on certain turnover despite form C declaration for inter-State sales and disallowed exemption claim for branch transfer under form F. The petitioner requested reconsideration based on relevant legal provisions, which the respondent did not act upon.
2. The court considered past decisions, including W.P. No. 2791 of 2005 and W. P. No. 2085 of 2006, along with the order of the Division Bench in W.A. No. 4 of 2003. Relying on these precedents and submissions from both parties, the court allowed the writ petition, setting aside the impugned order. The directions from the Division Bench's order in W.A. No. 4 of 2003 were to be followed, allowing the petitioner to provide necessary documentation for exemption consideration.
3. Paragraph 8 of the Division Bench's order specified the documentation required for satisfying the assessing officer for exemption purposes. The court directed the respondent to permit the petitioner to file applications for obtaining relevant documents from the export house or assessing officer to facilitate assessment proceedings effectively. The writ petition was allowed with these directions, and no costs were awarded, closing the connected M.P. No. 1 of 2007.
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2007 (8) TMI 686
Issues:
1. Tax exemption on sales of footwear below Rs. 100 under TN General Sales Tax Act.
2. Discrepancy in exemption eligibility for inter-State sales under Central Sales Tax Act.
3. Lack of opportunity for representation before passing orders.
Analysis:
1. The petitioners, registered under the Companies Act, 1956, claimed tax exemption for sales of footwear below Rs. 100 under the TN General Sales Tax Act. The exemption was granted in the assessment order for the year 2005-06. However, a subsequent notice imposed conditions for exemption eligibility based on the MRP value, leading to confusion regarding the exemption criteria.
2. The issue arose regarding the eligibility of inter-State sales for tax exemption under the Central Sales Tax Act. The respondent initially granted exemption for inter-State sales of footwear below Rs. 100, subject to producing "C" forms. Subsequently, a notice clarified the exemption criteria based on MRP values, resulting in a change in the tax rates applicable to the petitioners' inter-State sales.
3. The main contention raised was the lack of sufficient opportunity for the petitioners to represent their case before the impugned orders were passed. The learned counsel for the petitioners argued that proper opportunity for representation was not provided, leading to the filing of writ petitions challenging the orders issued by the respondent.
In response to the submissions, the learned Special Government Pleader (Tax) agreed to grant the petitioner-company a 30-day period to make representations before the respondent. It was assured that no action would be taken against the petitioner-company until final orders were passed based on the representations. The court allowed the petitioners to present their case within the stipulated time for the respondent to make appropriate decisions in accordance with the law. Consequently, the writ petitions were disposed of without costs, with directions for the respondent to address the representations within a reasonable timeframe.
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2007 (8) TMI 685
Authority of assessing authority - Held that:- As it is clear the assessing authority is bound by the orders of the appellate authority. The order of the first respondent, viz. The Assistant Commissioner (CT), Fast Track II, Assessment Circle, dated July 30, 2007, setting aside the stay granted by the first appellate authority and declaring the same as illegal is nothing but an arbitrary exercise of power, excess of jurisdiction and it is not sustainable in law. If the assessing authority had any doubts regarding the determination of tax liability and payment of disputed tax, he can always bring it to the notice of the departmental representative to represent on his behalf before the appellate authority and he cannot straight away set aside the order of the first appellate authority. The impugned order of the assessing authority is nothing but a transgression on the powers of the appellate authority and it is liable to be set aside and accordingly, it is set aside.
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2007 (8) TMI 684
Tax levy on Turnover - Whether there could be any subsequent sale effected by the respondent as per Explanation 1 appended to section 3(b) of the CST Act in furtherance to the ultimate buyer—KPTCL before the commencement of the movement of the goods from other State to the State of Karnataka?
Whether the State of Karnataka which has issued "C" forms to the registered dealer is the "appropriate State" to levy CST as per the proviso appended to section 9(1) of the CST Act?
Held that:- Factual aspect is considered by the assessing authority with reference to undisputed fact of delivery of goods of capacitor banks to the KPTCL in the State of Karnataka on the basis of the terms and conditions of the contract entered into with the respondent, a registered dealer, by the above Corporation and delivered goods to the Corporation, which was manufactured as per the specification of the KPTCL at Karnataka State. Therefore, the provisions of section 9(1) proviso of the CST Act are attracted but not section 6(2) of the CST Act, to the case on hand.
Therefore, assessing authority and first appellate authority have rightly held that the Karnataka State is the appropriate State entitled under the provisions of the CST Act for recovery of the sales tax in respect of the goods sold to the KPTCL by the registered dealer.
In view of the finding of fact recorded by the assessing authority which was concurred by the appellate authority and for the reasons stated supra by us and the reliance placed by the learned AGA on the decisions of the Supreme Court, Andhra Pradesh High Court, Gujarat High Court, Calcutta High Court and Madras High Court in the above cases, we answer the questions of law in favour of the Revenue and against the respondent.
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2007 (8) TMI 683
Vires of section 6(4) of 2002 Act challenged - Held that:- While considering the Voluntary Disclosure of Income Scheme, 1988, when it was attacked that the provisions of section 67(2) provided that if the declarant failed to pay tax within a period of three months as specified, the declarant file shall be deemed never to have been made under the Scheme, the Supreme Court rejected the contention by observing that the Scheme has conferred the benefit on those, who had not disclosed their income earlier by affording protection against the possible legal consequences of such non-disclosure under the Income-tax Act. Where the assessees seek to claim the benefit under the statutory scheme, they are bound to comply strictly with the condition under which the benefit was granted. There was no scope for the application of any equitable consideration when the statutory provisions of the Scheme were stated in the plain language. The Supreme Court has further held that the court has no power to act beyond the power of the statutory scheme under which the benefits have been granted to the assessee.
In view of the foregoing reasons the order of the Tribunal declaring section 6(4) of 2002 Act as unconstitutional is not correct. The said order of the Tribunal is liable to be set aside and the same is set aside. The writ petition is allowed as prayed for
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2007 (8) TMI 682
Criminal proceeding - Cognizance of offences under sections 49, 31(2)(A), 33(5)(A), 31(2)(B) and 33 of the Bihar Finance Act, 1981 - Held that:- It is by now well-settled that once the order of adjudication/levy of penalty is set aside or quashed and the assessee's contention is accepted and upheld by the Tribunal, the order of the Tribunal must be taken as the very basis for quashing the proceeding arising from prosecution launched by the Revenue.
Due regard being had to the facts and circumstances of the case and the discussions above the prosecution of the petitioner cannot be sustained in law. Accordingly the order taking cognizance is hereby quashed and the application is allowed.
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2007 (8) TMI 681
Vires of Rule 3A(2) of the Tripura Sales Tax Rules, 1976 challenged - whether mere transportation of goods from one place to another by carrying contractors can be said to be a "deemed sale" within the definition of clause 2(g)(ii) of the Act? - Held that:- There is no transfer of any right to use property in any goods in a pure and simple carrying contract so as to bring the transaction within the purview of section 2(g)(ii) of the Act. In the result, this court directed to refund the amount deducted as sales tax at the rate of four per cent from the bills of the petitioner-contractor along with the statutory interest at the rate of six per cent per annum from the date of reduction of the amount.
The provision of rule 3A(2) of the Rules is ultra vires of the Act. We have only to reiterate that transportation of foodgrains from Gauhati to Agartala or any other place in Tripura is not a "deemed sale" for the purpose of the Act, not because it is an inter-State sale to which State law does not apply, as held by the learned single judge, but because in a mere transportation of goods of another by a carrying contractor there is absolutely no transfer of any right to use goods, no matter whether such transportation is interState or intra-State. Consequently, no tax can be levied on such transactions.
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2007 (8) TMI 680
Whether, on the facts and in the circumstances of the case, has not the Appellate Tribunal gone wrong in holding that the reduction in rate of tax on the sales turnover of the rubber goods by G.O. (Ms) No. 124/88/ID dated August 31, 1988 is not a general reduction within the meaning of section 8(2A) of the CST Act?
Is not the reduction in the rate of tax on the sales turnover of rubber goods provided by annexure A order unconditional, not in specified circumstances, not at specified stages and not with reference to turnover of goods and therefore a general reduction in the rate of tax as provided under section 8(2A) of the CST Act?
Held that:- In the instant case, the order passed by the State Government granting certain exemption is only on finished rubber goods produced/manufactured in factories in Kerala and it is only those industries which will be entitled for reduced rate of tax, in such circumstances, by no stretch of imagination, the said notification can be said to be a notification granting general exemption from payment of sales tax liability. In that view of the matter the assessee cannot press into service the provisions of section 8(2A) of the Act for grant of reduced rate of tax under the CST Act.
Therefore, we are of opinion that assessing authority as well as the Tribunal was fully justified in rejecting the claim of the assessee. In that view of the matter, the sales tax revision petitions require to be rejected and accordingly, it is rejected. The questions of law framed are answered against the assessee.
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2007 (8) TMI 679
Issues involved: Assessment based on self-assessment, reopening of assessment, burden of proof on dealer, furnishing of documents for assessment.
Assessment based on self-assessment: The petitioner was finally assessed for a total and taxable turnover for the year 1999-2000 on self-assessment basis, where an inter-State purchase of chemicals was disclosed.
Reopening of assessment: The second respondent reopened the assessment based on a counter check of transactions mentioned in the "C" form through the inter-State Investigation Cell of Mumbai city, issuing a pre-revision notice. The petitioner requested copies of documents to file a detailed objection, but the second respondent passed an order holding the petitioner purchased chemicals from Mumbai dealers.
Burden of proof on dealer: The impugned order placed the burden of proof on the dealer to show that he did not have the transactions with the Mumbai dealer. The court held that such a stand is not sustainable, stating that the burden of proof cannot be shifted to establish the negative.
Furnishing of documents for assessment: The court emphasized that it is not enough to furnish purchase details in the pre-revision notice; the second respondent must provide copies of documents forming the basis for reopening the assessment. The court directed the second respondent to provide the petitioner with copies of all relevant documents within two weeks and allow the petitioner to challenge those documents before passing fresh assessment orders.
Conclusion: The writ petition was allowed, setting aside the impugned order and directing the second respondent to provide necessary documents to the petitioner for assessment. The court disposed of the petition with the above direction, without imposing any costs.
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2007 (8) TMI 678
Penalty proceedings under section 15A(1)(q) of the U.P. Trade Tax Act, 1948 - Held that:- In the present case, firstly, the Joint Commissioner (Appeals) did not discharge its burden by getting the documents verified and similarly the Tribunal admitted and relied upon the report without confronting the dealer with the same and without giving an opportunity to rebut. This court cannot consider the material and record a finding as to whether the trip sheet was got discharged or not, or that the affidavits were filed by the parties outside the State of U.P. claiming to have taken delivery of goods as this would be appreciation of evidence and moreso where there are conflicting reports on such evidence.
In view of the above discussion it would be appropriate that the matter be remitted to the Joint Commissioner (Appeals) to examine the matter afresh after getting the evidence led by the dealer as also the various reports placed by the department and after due verification and affording due opportunity to the parties to reconsider the evidence led by the either party and pass appropriate orders afresh. Further if the assessment order goes, the penalty order cannot be sustained and will automatically go. Revision allowed.
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2007 (8) TMI 677
Issues:
1. Interpretation of Notification No. 978 dated March 31, 1994 for exemption eligibility.
2. Validity of exemption on sales made through air force canteen under Notification No. 978 dated March 31, 1994.
Analysis:
1. The dispute in this case revolves around the assessment year 1994-95, with the primary issue being the interpretation of Notification No. 978 dated March 31, 1994. The assessing officer initially allowed exemption from trade tax only for sales made through the U.P. State Employees Welfare Corporation to State Government employees, excluding sales made through the air force canteen. This decision was challenged by the dealer, leading to subsequent appeals and the involvement of the Trade Tax Tribunal.
2. The Deputy Commissioner (Appeal) supported the dealer's claim, citing past practices where exemptions were granted for sales made through the air force canteen. The Tribunal also upheld this decision, emphasizing the historical application of exemptions in similar cases. The Standing Counsel, however, argued that the Notification specifically limits exemptions to sales through the U.P. State Employees Welfare Corporation to State Government employees and retirees, excluding sales through other avenues like the air force canteen.
3. In response, the dealer's counsel referenced Government Notification No. S.T.-2-7037/X-7(23)/83-U.P. Act XV/48-Order-85 dated January 31, 1985, particularly focusing on Entry 18 which exempts sales to the Armed Forces and other defense personnel through canteen stores departments. The counsel highlighted the inclusion of motor scooters in the list of exempted goods, reinforcing the dealer's eligibility for tax exemption on sales to defense employees through the U.P. State Employees Welfare Corporation.
4. Ultimately, the Court agreed with the dealer's interpretation, affirming that motor scooters and accessories sold to defense employees are indeed eligible for trade tax exemption under the relevant notifications. Despite differing reasons provided by the Tribunal, the Court found the decision to grant exemption in this case to be legally sound. Consequently, the revision was dismissed, confirming the dealer's entitlement to exemption on sales to defense personnel, including those made through the air force canteen.
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2007 (8) TMI 676
Issues:
1. Claim of exemption from tax on stock transfer and inter-State sales.
2. Assessment order by Commercial Tax Officer.
3. Appeal against the assessment order.
4. Disallowance of petitioner's claim by the third respondent.
5. Petition seeking stay of recovery.
6. Delay in disposal of appeal.
Analysis:
1. The petitioner, engaged in the business of manufacture and sale of lubricating oils and greases, claimed exemption from tax on stock transfer and inter-State sales. The turnover for the assessment year 1995-96 was declared at Rs. 78,98,17,952, with a claim for exemption on stock transfer, sales against credit notes, and concessional rate on inter-State sales.
2. The Commercial Tax Officer, Triplicane-II Assessment Circle, rejected the petitioner's claim and assessed the taxable turnover at Rs. 78,86,82,262 under the Central Sales Tax Act, 1956. This decision led to the petitioner filing an appeal against the assessment order.
3. The appeal filed by the petitioner in A.P. No. CST/39/2002 was considered by the second respondent, who set aside the Commercial Tax Officer's order and remanded the matter for reassessment due to lack of a fair opportunity for the petitioner to object to the proposed assessment.
4. Despite a fresh hearing granted to the petitioner, the third respondent, by an order dated April 30, 2007, disallowed the petitioner's claim. This decision prompted the petitioner to file an appeal in Appeal No. 20/2007, seeking redressal for the disallowance of their claim.
5. The petitioner also filed a petition seeking a stay of recovery of the amount due from them, indicating their intent to challenge the adverse decision and the need for a temporary halt on the recovery process.
6. The writ petition primarily sought a direction for the second respondent to expedite the consideration and disposal of the appeal in Appeal No. 20/2007 within a specific timeframe. The court, without delving into the merits of the case, directed the second respondent to decide on the appeal within two weeks from the date of receipt of the court's order, thereby addressing the delay in the disposal of the appeal.
This comprehensive analysis outlines the key issues, legal proceedings, and the court's directive in response to the petitioner's grievances regarding the tax assessment and appeal process.
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2007 (8) TMI 675
Whether the assessing officer is justified in levying tax at 16 per cent on the turnover of ₹ 16,14,79,635 representing the sales of tetra plain milk?
Held that:- In view of the latest clarification issued in D. Dis/Acts.Cell.II/24252/2007 dated July 30, 2007 (Clarification No. 73 of 2007) that the raw milk made bacteria-free by pasteurisation method/treatment and sold as plain milk in tetra pack, is similar to milk packed in polythene film sachet, and is eligible for exemption under entry No. 27(i) of Part B of the Third Schedule to the TNGST Act, 1959 and the said clarification would have retrospective effect from the years 1997-98 to 2000-01, the orders of the second respondent for the assessment years referred to above are liable to be set aside and accordingly, set aside and the matter is remitted back to the Appellate Assistant Commissioner (CT), the second respondent, with a direction to take note of the latest clarification and pass appropriate orders.
In respect of levy of 12 per cent tax on the turnover of ₹ 1,88,739, not supported by C forms, which is under challenge in W.P. No. 25039 of 2007, it is open to the petitioner to represent his appeal before the second respondent and on receipt of the same, he is directed to consider the appeal independently, within a period of four weeks thereafter. The time spent in prosecuting the writ petitions is excluded.
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2007 (8) TMI 674
Issues:
1. Proper execution of remand order by assessing officer.
2. Interpretation of entry No. 6 of the Third Schedule to the TNGST Act, 1959 for exemption from sales tax.
3. Bypassing statutory remedies and approaching court directly.
4. Time limit for filing appeal.
Analysis:
1. The petitioner's grievance was that the assessing officer did not properly carry out the remand order's directions by passing the impugned orders based on his own understanding of the law. The court emphasized that statutory remedies like appeal, second appeal, and revision are available against assessment orders. The petitioner was advised to establish before the authorities that the goods sold fall within the purview of entry No. 6 of the Third Schedule to the TNGST Act for exemption from sales tax.
2. The crucial question in these cases was whether the sale of the petitioner's product qualified for exemption from sales tax under entry No. 6 of the Third Schedule to the TNGST Act. The court clarified that the petitioner needed to provide necessary materials to demonstrate that the goods were exempted. It was highlighted that the court cannot determine exemption without the required evidence, and the petitioner should pursue the matter before the appellate authority to obtain a decision.
3. The court referenced judgments emphasizing the importance of not bypassing statutory remedies. It cited a Supreme Court case where it was held that questions of fact should be raised before the statutory appellate authority rather than approaching the court directly. The court stressed that the petitioner should exhaust statutory remedies for proper adjudication of the matter.
4. Regarding the time limit for filing an appeal, the petitioner requested an extension beyond the 30-day period, which the statute allowed for reasonable cause. The court granted an additional 10 days for filing the appeal, considering the petitioner's genuine efforts in pursuing the matter. Ultimately, the writ petitions were dismissed with no costs, and connected miscellaneous petitions were also dismissed.
This detailed analysis of the judgment highlights the issues related to the proper execution of remand orders, interpretation of statutory provisions for exemption from sales tax, the importance of exhausting statutory remedies before approaching the court directly, and the extension of time limits for filing appeals under the relevant statute.
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2007 (8) TMI 673
Suo motu revisional powers under section 34 of the Tamil Nadu General Sales Tax Act, 1959 - writ appeal against the order of the learned single judge rejecting the writ petition filed to quash the order of the Joint Commissioner (CT) passed in exercise of the suo motu revisional powers
Held that:- Do not find any justification to accept the plea of the learned counsel for the appellant. A reading of the order dismissing the writ petition shows that the learned single judge had rightly pointed out that the partner had suffered the accident long after the issuance of the notice for production of the accounts before the assessing authority, for which there was no reply from the assessee, and even after the photocopies of the documents were seized, the assessee failed to appear before the assessing authority on the issuance of pre-assessment notice. In the circumstances, pointing out to the lack of relevancy of the materials produced in the appeal to the statement of the partner before the inspecting officials, the respondent rightly rejected the plea of the assessee. In the light of the facts found, we find no infirmity in the order of the learned single judge to allow this appeal. Appeal dismissed.
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