|
Advanced Search Options
Case Laws
Showing 161 to 180 of 703 Records
-
2009 (10) TMI 844
Notification dated March 4, 2008 issued by the State Government - whether unconstitutional and ultra vires to the U.P. Value Added Tax Act, 2008 ?
Held that:- In view of sub-sections (2), (4), (5) and (14) of section 34, the notification in question is a valid piece of subordinate legislation. It does not transgress the limit of section 34(1) of the Act and safeguard has been provided by enacting subsections (2), (4), (5) and (14) of section 34. The assessing authority concerned shall when approached by the contractor issue necessary direction to the contractee with regard to his claim that he is either not liable to pay tax on such sale or is liable to pay tax on amount lesser than the amount of deduction.
In the present case, the assessing authority when approached, dismissed the application of the petitioner on the erroneous assumption that no such notification has been issued under section 34 of the Act. Evidently, the assessing officer, was not justified in rejecting the application on the ground as has been set down in the order. The impugned order dated February 12, 2009 thus, cannot be allowed to stand. The assessing authority is required to reconsider the application of the petitioner afresh in the light of the observations made above in accordance with law. In the result, the writ petition is allowed to the extent stated above but no order as to costs.
-
2009 (10) TMI 843
Issues:
1. Validity of rejection of application for composition under section 7D of U.P. Trade Tax Act.
2. Condonation of delay in filing application under the compounding scheme.
3. Applicability of section 5 of the Limitation Act in extending the prescribed period.
Analysis:
1. The petitioner, a brick-kiln owner, challenged the Trade Tax Officer's order rejecting the application for composition under section 7D of the U.P. Trade Tax Act and imposing tax under section 7(3) read with section 18. The dispute pertained to the period from October 1, 1995, to September 30, 1996, and October 1, 1994, to September 30, 1995. The compounding scheme by the State Government aimed to benefit brick-kiln owners, with a prescribed application deadline and late fee provisions.
2. The petitioner's application was dismissed as time-barred for filing after September 30, 1995, missing the extended deadline of April 30, 1995, with late fee payment. The petitioner sought condonation of the delay in filing under the composition scheme by applying the principle of section 5 of the Limitation Act. The key contention revolved around extending the limitation period for filing the application under section 7D of the Act, as per the precedent set in Saket Bricks Traders case.
3. The court held that the Trade Tax Act did not incorporate the provisions of the Limitation Act, thus precluding the application of the principle of condonation of delay in filing. Citing the Saket Bricks Traders case, the court emphasized that the legislature did not include the Limitation Act's provisions in the Trade Tax Act. Consequently, the court dismissed both writ petitions, as the issue of extending the prescribed period was conclusively settled by the previous decision, leading to the rejection of the petitioner's plea for condonation of delay.
-
2009 (10) TMI 842
Calling upon the petitioner to arrange payment of the wrong adjustments of tax due, under tax deferment, for ₹ 7,90,64,705
Held that:- The respondent should have undertaken the exercise of extending tax deferment benefit under the scheme apportioning the production relatable to the original unit and the expanded unit notionally or proportionately, whichever he considered appropriate or relevant. The respondent shall put the petitioner on notice regarding the notional basis which it proposes to adopt for bifurcating production between the original and the expanded unit, and thereafter make the assessment de novo after giving the petitioner an opportunity of being heard. W.P. allowed.
-
2009 (10) TMI 841
Liability of entry tax and commercial tax - Whether wrongly been fixed on the petitioner since, there was no sufficient material to connect the petitioner with the alleged import of vanaspati ghee from Nepal?
Held that:- In the case on hand the assessing authority on the basis of the material collected by the Revenue has fixed the liability of commercial tax and entry tax on the petitioner by reaching to the conclusion that the entry and sale was effected by the petitioner and such a finding does not appear to be perverse or unsupported by material, therefore, it is not required to be interfered with.
That in view of the above analysis, we do not find any merit in the writ petition and the same is accordingly dismissed.
-
2009 (10) TMI 840
Whether the second respondent had acted beyond his jurisdiction in revising the order of the Appellate Deputy Commissioner pending adjudication of the appeal filed by the petitioner before the STAT, Visakhapatnam?
Held that:- The assessment order passed by the fourth respondent related mainly to the turnover of paper of ₹ 33,70,435 which, to the extent of ₹ 24,07,454, was confirmed in appeal by the third respondent-Appellate Deputy Commissioner. It is only for the remaining turnover of ₹ 9,62,981 was the order of the fourth respondent-assessing authority set aside and remanded for consideration afresh. The petitioner preferred an appeal thereagainst to the STAT restricting the turnover under dispute in the appeal only to ₹ 24,07,454. The second respondent revised the order of the third respondent only on the turnover of ₹ 9,62,981 and not the turnover of ₹ 24,07,454 which is the subject-matter of appeal pending adjudication before the STAT. Let alone issues of law, even on issues of fact the appeal pending before the STAT has nothing in common with the order of the second respondent dated April 28, 2008. Appeal dismissed.
-
2009 (10) TMI 839
Issues involved: Whether acceptance of old gold ornaments as deposit and later return of the same in new ornament form can be treated as purchase of old gold ornaments and sale of new ornaments, respectively, attracting liability to tax on both purchase and sale.
Purchase of old gold ornaments: The Tribunal found that old gold ornaments taken as deposit are melted and converted into new gold ornaments by the petitioner, which are then sold as stock-in-trade. The petitioner is liable to pay interest or profit share for the gold deposit. The court referred to a previous decision where it was held that acceptance of gold deposit amounts to purchase for the purpose of liability for purchase tax. The court determined that the acceptance of deposit amounts to purchase of the old jewelry by the petitioner, as the petitioner gets absolute right over the gold jewelry deposited. The value of the old gold ornaments at the time of taking the gold under the deposit scheme is considered as the purchase price for payment of purchase tax.
Sale of new gold ornaments: When the deposit is returned in the form of new gold ornaments from the stock-in-trade, it is considered a sale. The new ornaments returned are not the old ornaments deposited or new ornaments made therefrom, but the equivalent quantity from the stock-in-trade. Even though the accounting pattern is not explicitly stated, it is clear that when the deposit is returned, depositors' account gets debited, and since the return of gold is from new ornaments held as stock-in-trade, the transaction is deemed a sale on which tax is payable by the petitioner.
Conclusion: The court did not find any merit in the revision, and the sales tax revision was dismissed accordingly.
-
2009 (10) TMI 838
Registration of the petitioner granted under the KVAT Act and the CST Act cancelled - whether the ingredients of section 16(10) read with rule 17(18)(vii) was established, justifying cancellation of registration?
Held that:- Since no action as enumerated in rule 28 was resorted to in any of these cases on the dishonour of any one of the cheques, on any earlier occasion, and also because of the fact that the action is initiated specifically on the basis of reasons contemplated under section 16(10), and not under section 16(9).
There was no independent application of mind rendered by the competent authority while issuing the proposals and while finalizing the proceedings. It is evident that the entire proceedings were pursued in an attempt to give effect to the instructions issued by the Commissioner of Commercial Taxes. The cryptic nature of the conclusions narrated in the impugned orders, itself reveals non-application of mind and non-advertence to the objections.
Writ petitions are allowed quashing the impugned orders in all the three cases, wherein registration of the petitioners under KVAT Act and CST Act is cancelled.
-
2009 (10) TMI 837
Work awarded to the respondent by the oil companies in Kerala - whether did not provide for any interState sale of goods?
Held that:- As found by all the authorities, the work executed by the respondent was with materials purchased in Kerala and from outside Kerala and the sale for these items took place from the respondent to the awarders only in the course of execution of the works contract in terms of the contracts and not at any time anterior to that. The awarding companies have no case that they made any inter-State purchase of any equipment and issued the same to the respondent-contractor for incorporation in the works. On the other hand, the scope of the work covered procurement of the entire materials at the site and setting up of the system by the contractor. We, therefore, allow the revision petitions filed by the State by reversing the order of the Tribunal and by restoring the assessment confirmed in the first appeals.
-
2009 (10) TMI 836
Arrest made by the respondent No. 3 in purported exercise of power conferred under Section 13 of the Central Excise Act, 1944 whether unconstitutional and unlawful?
Held that:- Respondent No. 3 never appears to have acted without jurisdiction in the matter of arrest of the petitioner nor the proceeding pending before the Special Judge (Economic Offences), Dhanbad including the order dated 18-5-2009 is bad except that part of the order wherein it has been stated that bail bond of the petitioner shall be cancelled on account of non-observance of direction contained therein which part of the order stands quashed.
-
2009 (10) TMI 835
Turnover of hard coke - whether non-taxable as held by Tribunal? - Held that:- The process of conversion of coal into hard coke amounts to manufacturing within the ambit of section 2(ee) of the Act. The applicant is liable to tax on the sale of hard coke being the manufacturer. Revision is allowed. The order of the Tribunal is set aside and the order of the assessing authority is restored.
-
2009 (10) TMI 834
Whether the Tribunal was justified in holding that the product sold by the respondent under the name "equal" in tablet and powder form attracts tax only at the rate of eight per cent under the residuary entry of the First Schedule to the Kerala General Sales Tax Act, 1963 as against the rate of 12 per cent applied by the assessing officer treating the assessed item as one falling under entry 62 of the First Schedule to the KGST Act?
Held that:- The contention of the respondent that "equal" is not used for food preparation is unacceptable as the same is contrary to the company's own claim in their website. The fact that it is used as sweetening agent in the preparation of non-alcoholic drinks and other beverages like tea or coffee does not take it outside entry 62 of the First Schedule and it is further accepted by both sides that the product under the provisions of the KVAT Act is taxable at the rate of 12.5 per cent. Even though counsel for the respondent referred to exemption available to sugar produced in India and the low rate of tax at four per cent for the imported sugar and contended that a sugar substitute should not be subjected to tax at a higher rate, we are of the view that it is a matter of legislative policy and the court cannot apply the rate of tax of sugar to sugar substitute.
In view of the finding above, we allow the sales tax revision by reversing the order of the Tribunal and by restoring the assessment of the product under entry 62 confirmed in first appeal.
-
2009 (10) TMI 833
Issues:
Challenge to notice demanding input tax credit on capital goods adjusted by petitioner.
Analysis:
The petitioner, engaged in the manufacture of alcoholic beverages, claimed input tax credit on the purchase of capital goods under the Tamil Nadu Value Added Tax Act, 2006. The first respondent issued a notice stating the petitioner was not entitled to input tax credit as per the Act's proviso to section 3(5) and directed the petitioner to file a different form. The petitioner objected, arguing they were entitled to the benefit of input tax credit based on the specific exclusion of "capital goods" in the proviso. The court directed the respondent to consider the petitioner's claim within four weeks and make a decision in accordance with the law, allowing the petitioner to submit additional material or objections. The court emphasized that the authorities should assess whether the definition of "goods" impacts the proviso to section 3(5) and referred to section 19(3) for guidance.
If the petitioner disagrees with the outcome, they have the option to utilize remedies under the Act. The court declined to interfere with the respondent's decision, stating that the authorities should address the raised issues. Ultimately, the writ petition was disposed of without any costs incurred by either party.
-
2009 (10) TMI 832
Issues Involved:
1. Legality of the suo motu revision proceeding.
2. Validity of the certificate of settlement revocation.
3. Compliance with principles of justice and fair play.
4. Proper service of notice and opportunity of hearing.
5. Authority and jurisdiction of the officers involved.
Analysis:
1. Legality of the suo motu revision proceeding:
The petitioner-company was assessed for tax liability for four quarters ending on March 31, 2000, and the tax, interest, and penalty were paid as demanded. However, the assessment order dated April 3, 2002, was revised suo motu by the Assistant Commissioner of Sales Tax on March 28, 2008, without proper notice to the petitioner. The suo motu revision was initiated based on a Bureau of Investigation report alleging tax evasion due to misclassification of items. The suo motu revision was deemed premature and unauthorized as it was initiated while the certificate of settlement was still in force, violating Section 9 of the SOD Act, which bars reopening settled cases.
2. Validity of the certificate of settlement revocation:
The Deputy Commissioner revoked the certificate of settlement ex parte on March 24, 2008, without recording satisfaction about the service of notice on the petitioner. The revocation was based on vague and indefinite reasons, failing to provide specific details of the alleged tax evasion. The revocation process did not comply with Section 12(1) of the SOD Act, which requires a reasonable opportunity of hearing and recording reasons in writing. The Tribunal set aside the revocation order but allowed the authority to proceed afresh, giving the petitioner an opportunity to be heard.
3. Compliance with principles of justice and fair play:
The Tribunal emphasized that the proceedings for revocation of the certificate of settlement and the suo motu revision must adhere to principles of justice and fair play. The designated authority failed to provide reasonable opportunity of hearing to the petitioner, and the suo motu revision was initiated without proper consideration and independent opinion by the revisional authority. The Tribunal highlighted that mechanical initiation of proceedings without due process is impermissible.
4. Proper service of notice and opportunity of hearing:
The Tribunal found that the notice for the revocation proceeding was not properly served on the petitioner, and the ex parte order was passed on the very first day of hearing. The petitioner was not given a reasonable opportunity to present their case, and the notice lacked specific details, making it impossible for the petitioner to understand the basis of the accusations. The Tribunal quashed the proceedings due to the denial of a reasonable opportunity of hearing.
5. Authority and jurisdiction of the officers involved:
The Assistant Commissioner, who conducted the suo motu revision, was not authorized to do so. The initiation and disposal of the suo motu revision by an unauthorized officer rendered the proceedings invalid. The Tribunal noted that the Assistant Commissioner acted under the direction of the Deputy Commissioner due to the impending bar on suo motu revision but emphasized that compliance with procedural rules is essential, regardless of time constraints.
Judgment:
(a) The order revoking the certificate of settlement dated March 24, 2008, was set aside, with liberty to proceed afresh after giving the petitioner a reasonable opportunity of hearing.
(b) The suo motu revisional proceeding was quashed as premature and unauthorized, and all related orders, including the final order dated March 28, 2008, were set aside.
(c) The impugned tax recovery proceeding was quashed and set aside.
The application was allowed with no order as to costs.
-
2009 (10) TMI 831
Input tax credit in respect of the stock held by the dealer-respondent - Held that:- The instant appeal is squarely covered by the Division Bench judgment rendered in the case of City Petro [2009 (1) TMI 789 - PUNJAB AND HARYANA HIGH COURT]. Therefore, following the same reasoning the appeal is dismissed.
-
2009 (10) TMI 830
Whether a registration under KVAT Act can be issued with a previous date than the date of application as date of commencement of business?
Held that:- The rejection of the application for correction of the date of commencement of business, is unsustainable and unjustifiable in the given set of facts and circumstances. Therefore we are inclined to set aside exhibit P9 order and to direct the respondent to allow exhibit P8 application for effecting correction of the date of commencement of business. At the same time it is made clear that such correction of date of commencement of business will be without prejudice to any of the proceedings now initiated against the petitioner with respect to the period prior to the date of submission of the application for registration, subject to various provisions contained in the KVAT Act, including section 16(2).
In the result exhibit P9 is quashed. The respondent is directed to consider exhibit P8 afresh and to allow date of correction with respect to the date of commencement of business as requested therein, subject to the observations made above.
-
2009 (10) TMI 829
Order of assessment challenged - Whether order having been passed beyond the period of limitation is illegal and not sustainable in the eye of law ?
Held that:- There is lack of regularity in maintaining the order-sheets, as the same have not been maintained in the prescribed form of the Government. The order-sheets maintained in plain papers can be easily replaced. In this case, if we look at the averments made in paragraphs 2 and 3 of the affidavit filed by Sri Murmu as well as the records of the Revenue and accept the statement of Sri Murmu, then we have to believe that the order-sheets might have been replaced. Taking into account the entire factual matrix of the case, as there are disputed questions of fact, we are of the considered opinion that the petitioner should approach the first appellate authority.
-
2009 (10) TMI 828
Whether a dealer under the Bihar Value Added Tax Act, 2005 against whom neither any tax is found payable nor is due, could be subjected to the penal provisions of section 54(4) of the Act for reasons of non-submission of a report of audit in the prescribed form duly signed and verified by an accountant within the meaning of the Chartered Accountant Act, 1949 or by a person entitled to act as an auditor of companies by virtue of the provisions of section 226(2) of the Companies Act, 1956?
Held that:- As the respondents have not disputed the fact that there is no tax payable against the petitioner for the period in question, the case of the petitioner would not be covered by the penal provisions of section 54(4) of the Act and he orders imposing penalty impugned in the writ petition and affirmed by the appellant authority cannot be sustained and have to be set aside. Appeal allowed.
-
2009 (10) TMI 827
Issues:
1. Jurisdiction of the AO to pass the order u/s 154 of the IT Act.
2. Bar on limitation for rectification proceedings.
3. Disallowance of 90% of miscellaneous income and its impact on deduction u/s 80HHC.
Analysis:
1. Jurisdiction of the AO:
The appeal was filed by the revenue against the order of CIT(A) opposing the order passed u/s 154 of the IT Act. The AO issued a notice u/s 154 seeking rectification of the order giving effect to the CIT(A) passed on 12-07-2001. The AO proposed to exclude 90% of certain receipts from business profits while working out relief u/s 80HHC. The assessee objected to the proposed rectification, and after a delay, the AO passed the order u/s 154. The assessee argued that the AO erred in assuming jurisdiction u/s 154 to disallow 90% of miscellaneous income and disturb the deduction allowed u/s 80HHC. The Tribunal held that the rectification sought by the AO was barred by limitation, as the original assessment order was passed on 24-03-1998, and the notice for rectification was issued on 18-08-2003. Citing legal precedents, the Tribunal concluded that the rectification proceedings should have been initiated within four years from the date of the original order, thus quashing the proceedings.
2. Bar on Limitation for Rectification:
The Tribunal referred to legal precedents, including judgments by the Hon'ble Karnataka High Court and the Hon'ble Allahabad High Court, establishing that the period of limitation for rectification proceedings is calculated from the date of the original order. As the notice for rectification was issued beyond the four-year limit from the original assessment order, the Tribunal held that the rectification sought by the AO was barred by limitation. Consequently, the proceedings arising from the rectification notice were deemed liable to be quashed.
3. Disallowance of 90% of Miscellaneous Income and Impact on Deduction u/s 80HHC:
The Tribunal's decision to allow the appeal filed by the assessee was primarily based on the finding that the rectification sought by the AO was barred by limitation. As a result, the Tribunal did not delve into the merits of other arguments raised by the parties, rendering them academic. The issue of disallowance of 90% of miscellaneous income and its impact on the deduction u/s 80HHC was not further discussed due to the primary finding on the jurisdiction and limitation aspects of the case.
In conclusion, the Tribunal allowed the appeal filed by the assessee, emphasizing the bar on limitation for rectification proceedings and holding that the AO's attempt to rectify the order u/s 154 was beyond the permissible time limit, thereby quashing the proceedings initiated by the AO.
-
2009 (10) TMI 826
Whether the impugned order passed by the second respondent is liable to be set aside on the ground that the second respondent has considered the documents which ought not to have been taken into consideration in law or not?
Held that:- The second respondent while contesting the correctness or otherwise of the order passed by the Appellate Assistant Commissioner has considered the documents filed by the first respondent and confirmed the order of the first appellate authority. Therefore the second respondent has exercised the power under regulation 12 and passed the order in favour of the second respondent. Hence we are of the considered view that in view of the availability of the power under regulation 12 of the Tamil Nadu Sales Tax Appellate Tribunal Regulations, 1959 the contention of the learned Special Government Pleader is liable to be rejected.
The law lay down by the honourable Division Bench in New Ajantha Wines case [1978 (10) TMI 135 - MADRAS HIGH COURT] is applicable to the present case on hand, in which, the second respondent found it proper to consider the evidence produced by the first respondent while coming to the conclusion. Appeal dismissed.
-
2009 (10) TMI 825
Whether the sugar bags pledged by Kannad Sahakari Sakhar Karkhana Ltd. and Gangapur Sahakari Sakhar Karkhana Ltd. in favour of the appellant-bank as security for repayment of the loan together with interest could be attached and sold for realization of the dues of provident funds etc. payable by the employer i.e., the management of the Sugar Mills under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952?
Held that:- If interest payable by the employer under Section 7Q and damages leviable under Section 14 are excluded from the ambit of expression “any amount due from an employer”, every employer will conveniently refrain from paying contribution to the Fund and other dues and resist the efforts of the concerned authorities to recover the dues as arrears of land revenue by contending that the movable or immovable property of the establishment is subject to other debts. Any such interpretation would frustrate the object of introducing the deeming provision and non obstante clause in Section 11(2). Therefore, it is not possible to agree with the learned senior counsel for the appellant bank that the amount of interest payable under Section 7Q and damages leviable under Section 14B do not form part of the amount due from an employer for the purpose of Section 11(2) of the Act. Appeal dismissed.
............
|
9911796707
