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Showing 141 to 160 of 658 Records
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2007 (9) TMI 585
Best judgment assessment - enhancement of turnover - rejection of books of accounts - Held that:- Admittedly, as per books of account, higher turnover had been shown than the turnover disclosed in the return both gross as well as net turnover.There appears to be no reason to disbelieve the explanation that by the mistake of accountant, lesser turnover had been disclosed in the return. In any view of the matter, above facts does not lead to the inference of suppression of the turnover. The assessing authority had not pointed out any defect in the books of account.
In view of the above, do not find any justification for the rejection of books of account and for estimating the suppressed sales at ₹ 35 lacs.In the result, revision is allowed. Order of the Tribunal is set aside so far as the rejection of books of account and the estimate of suppressed sales at ₹ 35 lacs is concerned. The Tribunal is directed to pass appropriate order under section 11(8) of the Act.
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2007 (9) TMI 584
Issues involved: Interpretation of section 3F of the U.P. Trade Tax Act, 1948 regarding tax on the right to use goods, transfer of possession under an agreement, applicability of case law.
Summary:
The case involved a revision under section 11 of the U.P. Trade Tax Act, 1948, challenging an order of the Tribunal related to the assessment year 1999-2000. The dispute arose from the tax levied on hire charges received for providing a bus under section 3F of the Act. The Tribunal allowed the appeal and deleted the tax, leading to the present revision.
The key argument was whether there was a transfer of the right to use the bus under an agreement with UPSRTC. The agreement stated that the possession and control of the vehicle remained with UPSRTC during the contract period, indicating a transfer of possession. Citing the case of Bharat Sanchar Nigam Ltd. v. Union of India, it was contended that in cases of transfer of the right to use, the goods should be in a deliverable stage and actually delivered. As the possession was with UPSRTC as per the agreement, the provision of section 3F applied.
After considering the arguments and reviewing the relevant provisions and authorities, the court held that the possession transfer to UPSRTC fell within the scope of section 3F of the Act. The Tribunal's decision to delete the tax was deemed incorrect as it did not appreciate the legal provision. Consequently, the court allowed the revision, setting aside the Tribunal's order.
In conclusion, the judgment clarified the application of section 3F in cases of transfer of the right to use goods under agreements, emphasizing the importance of possession transfer and delivery in determining tax liability.
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2007 (9) TMI 583
Whether it is necessary that a demand for collection of arrears of sales tax be made to attract section 26A of the Kerala General Sales Tax Act, 1963 ?
Whether the assignees of an assessee under the Kerala General Sales Tax Act, 1963 which transaction is hit by section 26A, could claim that they are bona fide transferees so as to avoid the rigour of section 26A?
Whether before revenue recovery sale, the person in possession could be directed to vacate the house in the property sought to be sold?
Held that:- In the present case, the transfers were effected after proceedings were initiated against the assessee under the Act. Therefore, the assignment deeds executed by the partners of the assessee-firm in favour of the petitioners are void under section 26A. Exhibit P 2 order is valid and the learned single judge has rightly rejected the contentions raised by the petitioners.
In the instant case, powers under sections 37 and 38 were not invoked. On the other hand, respondents 5 and 6 were directed to vacate the houses. We hold that exhibits P3 and P4 notices cannot be implemented against the petitioners. However, it is made clear that this will not preclude the respondent concerned from initiating steps under sections 37 and 38 of the Revenue Recovery Act after notice to the petitioners. Therefore, exhibits P3 and P4 notices, as against the petitioners, shall be kept in abeyance till appropriate proceedings under section 37 of the Kerala Revenue Recovery Act are initiated or until the sale is finalised as per the Act, whichever event occurs earlier. Writ appeal partly allowed
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2007 (9) TMI 582
Penalty under section 10A of the U.P. Trade Tax Act, 1948 for the alleged default of section 10(b) of the Act - Held that:- In the present case, it was not pleaded that spring leaves were purchased individually in the form of iron strips. Before the assessing authority, before the first appellate authority and before the Tribunal the applicant had pleaded that it had moved an application on January 18, 2000 for the addition of spring leaves in the registration certificate by UPC which had not been accepted by all the authorities. Admittedly, in the registration certificate, spring leaves was added with effect from October 30, 2001. Prior to this date, the dealer was not registered for the spring leaves (motor parts). Thus, knowing that it was not registered for spring leaves (motor parts) it had issued form C in respect thereof which amounts to violation of clause (b) of section 10 of the Act.
In the facts and circumstances of the case, no interference is called for in the order of the Tribunal.
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2007 (9) TMI 581
Statutory revision - Held that:- In the instant case, as already observed the statutory revision filed by the petitioner was heard by one officer, but for various reasons he could not pronounce his decision and his successor, without hearing the parties to the lis, has passed the impugned order. The order so passed, is not only arbitrary but also illegal and in total violation of one of the facets of the principles of natural justice. Therefore, the said order cannot be sustained. Accordingly, the writ petition deserves to be allowed and it is allowed.
In view of the findings and conclusions reached, for the present, need not have to consider the merits or demerits of the case pleaded by the appellant in the writ appeals. The result of those appeals would now depend on the orders that may be passed by the State Government in the revision petition filed by the petitioner under section 83(2) of the Revenue Recovery Act against the order passed by the Board of Revenue. The matter is remitted back to the State Government to restore the revision petition filed by the petitioner on its file and consider the same in accordance with law after affording a reasonable opportunity of hearing to the petitioner and the contesting respondent.
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2007 (9) TMI 580
Issues involved: Notice requirement for enhancement of assessment by Tribunal without giving opportunity to assessee.
Summary:
The High Court of Orissa examined the records and noted that the Tribunal had not issued any notice to the assessee before enhancing the assessment order. The Tribunal's order indicated a lack of notice to the assessee regarding the appeal of the previous order. The Court observed that no opportunity was given to the assessee to show cause against the enhancement. The petitioner argued that the Tribunal lacked the power to enhance the assessment without an appeal from the Revenue. The Court referred to a previous judgment and set aside the Tribunal's order, directing the Tribunal to provide notice to the petitioner on any enhancement and grant an opportunity for a hearing before passing a fresh order. The writ petition was successful, and no costs were awarded. An urgent certified copy of the order was to be provided upon application.
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2007 (9) TMI 579
Issues: Revisions under section 11 of the U.P. Trade Tax Act, 1948 against the Tribunal's order for assessment years 1990-91 to 1996-97; Trade Tax Revision No. 1221 of 2007 for the assessment year 1993-94 under section 22 of the Act.
Analysis:
- The applicant, a limited company, engaged in manufacturing and sales of lubricants and grease, allowed amounts towards sale promotion to customers which were deducted from taxable turnover. The assessing authority disallowed the claim, but the Deputy Commissioner (Appeals) Trade Tax, Agra accepted it.
- The Commissioner of Trade Tax appealed to the Tribunal, which remanded the matter for fresh assessment. The applicant argued that no further investigation was needed as the issue was a pure question of law regarding deduction under the U.P. Trade Tax Act.
- The High Court found the Tribunal's remand order illegal, stating that no dispute of fact existed, and the issue of deduction was a pure question of law. Each assessment year is independent, and the Tribunal's remand was unjustified.
- Citing the case of Bharat Sanchar Nigam Ltd. v. Union of India, the High Court emphasized the need to decide the issue independently for each year. Consequently, the High Court set aside the Tribunal's order and remanded the matter back to decide the appeals afresh in accordance with the law.
Conclusion: All revisions were allowed, the Tribunal's order was set aside, and the matter was remanded back to the Tribunal for fresh adjudication of the appeals.
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2007 (9) TMI 578
Pre deposit - Held that:- The affidavit filed in support of the writ petition discloses that the petitioner had already availed the alternative remedy of filing an appeal before the appellate authority, which has rejected the appeal on the ground that the petitioner has failed to comply with the statutory obligation of paying 25 per cent of the disputed tax for entertaining the appeal. Having availed the alternative remedy and failed to fulfil the statutory obligation by paying 25 per cent of the disputed tax, it is not open to the petitioner to short-circuit and circumvent the alternative remedy and file the writ petition before this court. The impugned order cannot be termed as highhanded or palpably illegal warranting interference under article 226 of the Constitution of India. W.P. dismissed.
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2007 (9) TMI 577
Handset and the substituted SIM card - whether issued to the subscribers are not exigible to commercial tax?
Held that:- From the orders passed by the sales tax authorities we find that the authorities have been discerning enough between the SIM card supplied free of charge and the SIM card substituted on payment of charges. It is only the SIM card which is substituted on account of damage, etc., and for which extra charge is made that the authorities are charging commercial tax. However, the situation with regard to the supply of handset is entirely different from the one present before their Lordships and, therefore, we do not find that the contention of the appellant is substantiated by the ratio of the said decision. Reference has also been made to State of Tamil Nadu v. Board of Trustees of the Port of Madras [1999 (3) TMI 500 - SUPREME COURT OF INDIA]. The said case was dealing with the incidental transaction of unserviceable goods.
Thus do not find that these appeals give rise to any question of law, much less substantial, for a decision in the appeal under section 53(2) of the VAT Act.
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2007 (9) TMI 576
Deferral of interest-free sales tax - Held that:- As already come to the conclusion that the deferral granted is nothing but postponing the payment of sales tax liable to be paid for the current period to a future period. Unless the petitioner is generating the sales tax for the current period, the petitioner is not entitled to have tax benefit under the IFST deferral. Hence, we do not find any illegality or irregularity in the order passed by the Tamil Nadu Taxation Special Tribunal. Accordingly, the writ petition fails and the same is dismissed.
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2007 (9) TMI 575
Right to payment of refund as well as payment of interest on delayed refund - Held that:- In light of the above mentioned, we allow these petitions being squarely covered by the judgments of this court in the cases of Ratti Woollen Mills [2007 (2) TMI 587 - PUNJAB AND HARYANA HIGH COURT] and Escotel Mobile Communication Ltd. [2007 (7) TMI 581 - PUNJAB AND HARYANA HIGH COURT] . The impugned order dated June 7, 2007, passed by the Excise and Taxation Commissioner, Haryana, is set aside. The respondents are directed to refund ₹ 5,38,802 in respect of assessment year 1999-2000 along with interest to the assessee-petitioner.
The assessee-petitioner is further held entitled to interest on delayed payment of refund of ₹ 2,54,782 in respect of assessment year 1998-99. The interest shall be calculated at the rate of 12 per cent per annum in respect of delay for the first month of delay and at the rate of 18 per cent per annum in respect of delay caused for the subsequent months. The needful shall be done within a period of one month from the date of receipt of a certified copy of this order. The assessee-petitioner is also held entitled to payment of costs of Rs. ten thousand in each of the petition
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2007 (9) TMI 574
Compounded rate of tax demanded - Held that:- Sub-section (ii) of section 8(f) read with Explanation applies to a dealer who commenced business in the previous year relevant to the year for which tax at compounded rate is to be computed where such dealer had not carried out business for the full period of the said previous year. In the circumstances, the Compounded tax computed under impugned order namely, exhibit P2 under section 8(f)(i) read with Explanation I thereto is perfectly in order and the writ petition is therefore rejected.
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2007 (9) TMI 573
Whether the order under challenge passed by the courts below is incorrect and illegal?
Whether it calls for interference?
Held that:- Considering the relationship of the director of the petitioner-company as well as the managing director of respondent No. 2-company and also that he had given a consent letter to the ICICI bank to purchase the assets, i.e., land and machinery, then he is equally liable. That apart, he being one of the directors of the said firm-respondent No. 2, he is liable along with the transferor. Therefore, in view of the admitted fact that he is in charge of land, plant and machinery of respondent No. 2 and he becomes one of the assessee, respondent No. 1-State is entitled to recover from the petitioner the security deposit due by respondent No. 2. Therefore, the initiation of proceedings by respondent No. 1 for recovery of ₹ 20 lakhs from respondent No. 2 is maintainable as there is no incorrect or illegal findings to upset the order under challenge.
Accordingly, the revision petition is dismissed. The authorities can recover the amount due under the KST Act either from the transferor or from the transferee and the recovery of the sales tax dues shall have priority over the right of the ICICI bank to proceed against the property of the borrowers which has been mortgaged in favour of the bank. The dues of the Government, if any, has a prerogative over any other dues and charges.
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2007 (9) TMI 572
Delay in filing Appeal - Held that:- It is no doubt true that the appeals preferred were beyond the condonation period. Yet, considering the fact that the dispute involved in these writ petitions is with reference to claim on concessional levy of tax, this court feels that in the interest of justice, the petitioner be given an opportunity to agitate the assessments before the assessing authority. Hence, the impugned orders of the Tribunal are set aside on condition that the tax disputed in the writ petitions shall be paid by the assessee within a period of two weeks from the date of receipt of a copy of this order. The records pertaining to the claim of concessional levy of tax should be produced by the petitioner before the assessing authority thereafter within a period of two weeks. On such production of records, the assessing officer is directed to proceed further and complete the assessment in accordance with law.
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2007 (9) TMI 571
Levy of penalty - Held that:- In view of the submissions made by the learned counsel appearing for the petitioner and taking note of the decisions referred to in support of his contentions, the impugned order of the respondent, dated June 29, 2007, made in CST. No. 819523/2003-04, is set aside insofar as it relates to the levying of penalty of ₹ 75,600 on the petitioner, under section 12(3) of the Tamil Nadu General Sales Tax Act, 1959.
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2007 (9) TMI 570
Conversion of raw bones into crushed bones - Whether manufacturing activity? - claim of exemption under S.R.O. No. 1729 of 1993 - Held that:- In the present case we are concerned with conversion of raw bones into crushed bones and in view of what has been said by the apex court in A.A. Sulaiman's case [1997 (3) TMI 494 - SUPREME COURT OF INDIA] we cannot hold that such conversion would amount to a manufacturing activity. In view of the above, the appellant is not entitled to claim any exemption under S.R.O. No. 1729 of 1993. Writ appeal filed by the appellant requires to be rejected
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2007 (9) TMI 569
Whether the Tribunal was right in holding that the subject tools were in the nature of accessories to machinery and therefore liable to entry tax, Differing from its previous order rendered in the petitioner's case for the earlier assessment years on 'ex facie' wrong premise and in any case, in violation of regulation 54 of the regulations and Altogether ignoring the settled position of law that if a particular practice or position had been accepted by the Revenue for a long number of years, the same cannot be departed from—more so when there is no change in the legal position or classification of goods and the Tribunal's later order for 1997-98 and 1998-99 has been accepted by the Revenue?
Held that:- In the backdrop of the observations made by this court in the order referred to supra passed in the writ petitions filed by the assessee, the assessing officer should have recorded a finding whether the accessories are goods manufactured by the assessee and would fall within entry No. 52 machinery of the KTEG Act and that has not been done by the assessing officer. Therefore, the orders passed by the assessing officers for the years 1982-83 to 1996-97 is not only erroneous but the same are prejudicial to the Revenue as held by the Supreme Court in a catena of cases. Reliance placed by the learned Senior Counsel upon the decision of the Supreme Court with reference to the earlier assessment orders and the order of the KAT had not been followed by the Revenue. Therefore questions at "1" and "3" do not arise to answer the same in favour of the assessee. In view of the aforesaid reasons recorded in this judgment, on the basis of the decisions of the Supreme Court and two decisions of this court referred to supra, we answer the questions referred to supra against the assessee. Revision dismissed.
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2007 (9) TMI 568
Penalty imposed under section 10(d) of the Central Act - Held that:- Having regard to the finding there was no reason to levy the penalty. Applicant was able to make out a case that there was a reasonable excuse in selling the raw materials after purchasing the same from outside the State of U.P. against form C. In view of the above, the Tribunal is not justified in restoring the order of the assessing authority. Revision allowed.
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2007 (9) TMI 567
Revision under section 11 of the U.P. Trade Tax Act, 1948 - Held that:- The Tribunal correctly held that though the machinery was purchased prior to September 13, 1985 but used after September 13, 1985 in the generation of the electricity therefore, in view of section 3G(2) as amended by Amending Act No. 25 of 1985 with effect from September 13, 1985 the provisions of section 3G(1) of the Act were applicable in case of generation of the electricity. The Tribunal further held that section 3G(2) of the Act is not applicable to the plant and machinery and is applicable to raw material as plant and machinery cannot be said to be the goods used in the manufacturing. Revision dismissed.
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2007 (9) TMI 566
Payment through draft - ex-U.P. principals - Held that:- It is open to the applicant to adduce evidences to prove the existence of the ex-U.P. principals which may be in the form of filling affidavits or producing those parties. Since the dealer has claimed that the payments were made through draft, therefore, the Tribunal's direction to make the inquiry with regard to the draft cannot be said to be unjustified.
In view of the above, no interference is called for. Revision fails and is accordingly dismissed.
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