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Showing 161 to 180 of 781 Records
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2009 (2) TMI 772
Whether the product which is manufactured and sold by the assessee is one which is covered under a stipulated entry in the Schedule to the Karnataka Value Added Tax Act, 2003, which are all taxable at four per cent as per Notification No. FD 197 CSL 2005(6) dated April 30, 2005 and if not covered by this notification it taxable at 12.5 per cent?
Held that:- Just because the assessee feels it has a very good case on the merits, that by itself is not a justification for this court to entertain a writ petition by-passing the appellate remedies. If that were to be so, then all merited matters should be examined under articles 226 and 227 and not by way of appeals and can lead to unnecessary burdening of the High Court.
Thus do not find this is a proper case to entertain the petition under the discretionary writ jurisdiction and to permit the petitioner to by-pass the appeal remedies available under the Act. Appeal dismissed.
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2009 (2) TMI 771
Application for review filed by the Revenue under section 39(7) of the Kerala General Sales Tax Act, 1963 rejected - Held that:- As find nothing irregular in the officer accepting the scheme of payment of tax at compounded rate offered by the assessee in the course of regular assessment, the scope for appeal is only limited to the assessee's challenge against modification of the tax payable for earlier year namely, 1998-99, we direct the assessing officer to reconsider the tax for the year 1998-99 which is one of the basis for determination of tax payable at compounded rate for 2000-01 and then rework interest by excluding liability for the differential amount for the period noted above and issue a revised order to the assessee. Fresh order should be passed after issuing a proposal to the respondent-assessee, calling for their objection and only after hearing the objections. If any issue survives with regard to determination of tax for 1998-99 for the purpose of payment of tax at compounded rate for 2000-01, the assessee is free to file appeal.
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2009 (2) TMI 770
Whether the assessing authority was justified in making an assessment in question solely on the basis of one circular dated August 11, 1993 issued by State (Mining Department) in relation to use of limestone in particular proportion (1-6) in manufacture of cement regardless of case of petitioner?
Held that:- The proper course in the light of facts emerging from the record of the case would be to direct the assessing officer to make assessment in question on the basis of material/documents/ account books relied on by the petitioner for the period in question independent of the circular dated August 11, 1993 and depending upon the final outcome of the cases pending in High Court in relation to circular dated August 11, 1993 and reopen the assessment made by taking recourse to the provisions of section 29 of the Commercial Tax Act. In fact, section 29 in such eventuality is attracted once the decision is rendered in relation to circular. Such course would not cause prejudice to any party and at the same time would safeguard the rights of the parties. It will be in accordance with the scheme of section 29 ibid also.
We, therefore, allow these writs and while setting aside of the impugned orders, remand the case to assessing officer (R 2) for making fresh assessment.
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2009 (2) TMI 769
Whether the Deputy Commissioner had jurisdiction under section 35(1) of the KGST Act to revise the original assessments after the assessing officer issued revised orders under section 19(1) of the KGST Act?
Held that:- The Deputy Commissioner is well within his powers to revise the assessment and Tribunal rightly upheld the validity of the orders. It is also to be mentioned that the writ petition filed by the petitioner has become infructuous because after the declaration of the revised assessment issued under section 19(1) as invalid by the Deputy Commissioner, the order impugned in the writ petition no longer survives. We therefore dismiss the revision petitions with this observation.
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2009 (2) TMI 768
Demanding tax on the sales turnover of ice cream sold under the brand name - Held that:- Party Nos. l and 3 referred to in the agreement are Joy Ice Creams (Bangalore) Pvt. Ltd. and Joy Ice Creams, Bangalore who assigned the franchisee rights in Kerala exclusively to the respondent. Therefore, this contention is an absolutely false claim raised when we were about to reverse the order of the Tribunal. The very purpose of section 5(2) providing for tax at the point of sale by the brand name holder is to ensure that tax is levied on real value of the goods which happens when the brand name or trade mark holder sells the goods irrespective of whether such brand name or trade mark is used by the holder as its owner or as a franchisee or as an assignee. We, therefore, reject this contention raised by the respondent as factually untenable. The sales tax revision cases are therefore allowed reversing the orders of the Tribunal and of the first appellate authority and by restoring the assessments.
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2009 (2) TMI 767
Payment and recovery of tax - Held that:- If the subject-matter of demand is already in issue in a different writ petition, in respect of that amount an independent writ petition does not lie. It is for the petitioner to seek appropriate orders in the very writ petition and not to question the recovery in an independent writ petition. That apart, in the notice under section 13(3)(b), while can be characterised as an innocuous notice or as an unnecessary notice, what is indicated therein is that if the assessee fails to remit the amount as has been assessed within a period of seven days from the date of receipt of the notice, action under section 13(3)(b) of the Act will be resorted to.
This writ petition is, therefore, totally unnecessary and without any justifiable cause of action. In any view of the matter, the writ petition deserves to be dismissed. It is open to the petitioner to pursue his remedies in the writ petition which is already filed.
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2009 (2) TMI 766
Issues involved:
Entertainment of application under section 42(1) of the Haryana General Sales Tax Act, 1973 by the Haryana Tax Tribunal for reference of questions of law, consideration of D.O.R.B. as cattle feed, preliminary objection regarding the emergence of a question of law from the Tribunal's order.
Analysis:
The judgment delivered by the High Court of Punjab and Haryana involved the consideration of an application under section 42(1) of the Haryana General Sales Tax Act, 1973 by the Haryana Tax Tribunal. The Excise and Taxation Commissioner, Haryana, sought reference of questions of law arising from the Tribunal's order dated July 2, 1999, which was reviewed and dismissed on April 2, 2002. The Tribunal referred a question regarding the consideration of D.O.R.B. as cattle feed, which was described in Schedule B as a mixture of various ingredients. The Tribunal's decision to refer this question was challenged based on the argument that the question did not emerge from the order dated April 2, 2002, as it was related to the review of the original order. The preliminary objection raised emphasized the requirement for a question of law to directly arise from the Tribunal's order, citing relevant case law and statutory provisions.
The High Court considered the preliminary objection raised by the counsel for the dealer-assessee and found it to be valid. The court referred to the judgment of the Supreme Court in the case of Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589, which emphasized that the question referred must directly emerge from the Tribunal's order. The court noted that the question regarding the status of D.O.R.B. as cattle feed was not a subject of debate in the order dated April 2, 2002, which was a review of the original order. The court highlighted the importance of the question being rooted in the Tribunal's order to be considered for reference to the High Court. As the question did not directly arise from the Tribunal's order, the court declined the reference and sent it back unanswered, aligning with the principles established in the Scindia Steam Navigation Co. Ltd. case.
In conclusion, the judgment focused on the procedural aspect of referring questions of law to the High Court, emphasizing the necessity for such questions to emerge directly from the Tribunal's order. The court's decision to decline the reference underscored the importance of maintaining a clear connection between the question raised and the content of the Tribunal's decision, as per established legal principles and precedents.
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2009 (2) TMI 765
Issues involved:
The issue involved in this case is whether the sales tax assessment for the year 1998-99 completed on March 22, 2004, is barred by limitation or not.
Judgment Details:
The Tribunal declared the assessment as time-barred based on section 17(6) of the Kerala General Sales Tax Act, 1963, which sets the time limit for completion of assessment as four years from the end of the relevant year.
The Government Pleader argued that the assessment was not barred by limitation as the Deputy Commissioner had issued proceedings extending the assessment period beyond March 31, 2003.
The respondent's counsel contended that the Deputy Commissioner's proceedings were not presented before the first appellate authority or the Tribunal, and thus, they had no opportunity to consider it. Additionally, it was argued that there was no valid reason for the Deputy Commissioner to issue the order.
The first appellate authority upheld the assessment by referring to an amendment to section 17(6) introduced by the Finance Act, 2002, extending the assessment limitation to five years from March 31, 2002, to March 31, 2003.
The court determined that the amendment applied to save the assessment for the year 1998-99, as it was completed within the extended time frame provided by the amendment.
Therefore, the court allowed the revision, vacated the Tribunal's order, and reinstated the first appellate authority's decision.
The court did not delve into the validity of the proceedings issued by the Deputy Commissioner under section 17(7) of the KGST Act, given the above finding.
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2009 (2) TMI 764
Whether section 47(16A) under which circular Nos. 50 and 53 of 2006 are issued, does not authorise collection of advance tax before sale?
Whether section 47(16A) authorises declaration of evasion-prone goods and collection of tax in advance, i.e., prior to sale of goods, then such provision is unconstitutional?
Held that:- What is contemplated in the section is collection of tax for the commodities covered by the notification which are declared evasion-prone, at the earliest opportunity possible, which is on arrival of goods in the State itself, thereby making evasion of tax for the goods impossible. Therefore, we reject the contention of the appellants that section 47(16A) does not authorise collection of tax before sale. Consequently we hold that the impugned circulars authorising collection of tax in advance prior to sale of the commodities referred to therein are in accordance with the statutory provisions.
We are not impressed with the argument of the appellants that their rights under article 19(1)(g) are violated inasmuch as before the incidence of tax falls, they are made to pay the tax because for sale of commodity from the beginning to the end of a month, the dealers are allowed to keep the tax until the 10th of the succeeding month when they are required to remit the monthly tax. Since the statute authorises dealers to retain collected tax for up to 40 days, we see no reason why dealers cannot be called upon to pay tax in advance for the commodity brought for sale in the State. Further, the system of payment of advance tax is working very smoothly for the last three years which only shows that the traders have accepted the same. Appeal dismissed
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2009 (2) TMI 763
Whether any case is made out for quashment of impugned assessment orders (annexure P6) in writ jurisdiction under article 226/227 of the Constitution of India?
Held that:- The assessing officer has discussed and taken into considerations account books, entries, invoices, reports, affidavits and several other material while making additions. A finding of addition is, thus, based on this exercise and hence, it cannot be either upheld or reversed by High Court in its limited writ jurisdiction. If we do it then it would amount to overstepping of our writ jurisdiction.
We, thus, while declining to entertain the writ, grant liberty to the petitioner to file regular appeal before the appellate authority prescribed under the VAT Act. In case if any such appeal is filed by the petitioner as per the provisions applicable to appeals within 30 days from the date of this order then the appellate authority would decide the appeal on merits within a period of one year as an outer-limit strictly in accordance with law.
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2009 (2) TMI 762
Issues involved:
The issues involved in the judgment are the legality and arbitrariness of a notice rejecting a request for deferment of revision proceedings u/s 20(6) of the Andhra Pradesh General Sales Tax Act, 1957, and the consequent restraint from taking any action pending disposal of the writ petition.
Summary:
Deferment of Revision Proceedings:
The petitioner sought to declare a notice rejecting the request for deferment of revision proceedings u/s 20(6) of the Andhra Pradesh General Sales Tax Act, 1957 as illegal and arbitrary. The petitioner had filed appeals against assessment orders for various years, and the second respondent issued revision showcause notices proposing to revise the orders. The petitioner requested deferment of revision proceedings pending adjudication of related matters. The court, without expressing any opinion on the merits, found the petitioner's request for deferment reasonable. The petitioner was directed to file objections to the impugned notice, and the respondents were directed not to pass final orders until disposal of the related writ petition.
Conclusion:
The court, considering the pendency of similar revisions and assessments, disposed of the writ petition with directions for deferment of revision proceedings and filing of objections by the petitioner. No costs were awarded in the judgment.
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2009 (2) TMI 761
Whether the Tribunal was justified in granting exemption on purchase turnover of rubber wood by the respondent for the year 2001-02?
Held that:- The condition of the notification is such that exemption is available to the industry so long as it remains as a 100 per cent EOU and such exemption is only for a period of five years and that it should be reckoned from the date of first approval and the period cannot be extended by renewals of approval. The tax revision petition is consequently allowed, reversing the order of the Tribunal and by restoring the assessment. However, we make it clear that the industrial unit is entitled to claim any other exemption or concession if available under any other notification. The respondent is free to claim the same and while revising the assessment, the assessing officer should consider alternate claims, if any, made.
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2009 (2) TMI 760
Whether, on the facts and circumstances of the case, the officer in-charge of the check barrier was not empowered under section 14B of the Punjab General Sales Tax Act, 1948 read with rule 3A of the Central Sales Tax (Punjab) Rules, 1957, to check and detain the goods and impose penalty on the ground that it was an inter-State sale and not transfer of goods on consignment basis?
Held that:- The order of penalty passed by the Officer in-charge of the check-post, dated July 11, 1991 and consequential order passed by the Appellate Authority as well as by the Tribunal are not sustainable in the eyes of law because the jurisdiction of classifying the nature of transaction has been assumed by the Officer incharge of the check-post. In the regular assessment, as has been noticed in the preceding para, the transaction has been found to be consignment sale by the Assessing Officer. The aforesaid factual position would be clear from the perusal of order of assessment along with the affidavit, which have been taken on record as mark "A". Therefore, the question of law deserves to be answered in favour of the dealer and against the Revenue.
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2009 (2) TMI 759
Reassessment of tax liability of the dealer-petitioner on the basis of audit objection - Held that:- In the present case the dealer-petitioner filed its return on September 17, 1993 as per the law prevailing at that time, thus the change of law subsequent to the finalisation of assessment on September 17, 1993 would not constitute a basis for framing reassessment.
Therefore, if such a course is permitted then every assessment would be liable to be re-opened under section 11A of the Act, whenever new interpretation by higher courts is received. Thus, it is not possible to permit reassessment on that basis. For the aforementioned reasons, this petition succeeds and order of reassessment, dated April 23, 2001 (annexure P6) is set aside.
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2009 (2) TMI 758
Issues involved:
Refund of excess tax paid, finalization of assessments, withholding of refund, best judgment assessment, interest on belated refund, provisions of the Tamil Nadu General Sales Tax Act, 1959.
Analysis:
The petitioner challenged an order regarding the refund of excess tax paid, which was to be considered after finalization of assessments. The Commercial Tax Officer determined the excess tax paid by the petitioner for the year 1996-97. Despite being informed about the refund, it was not processed, leading to the petitioner filing a writ petition. The court directed the respondent to consider the representation, resulting in the issuance of impugned proceedings in November 2008.
The respondent's stand was that refund would only be considered after finalization of assessments for the years 2002-03 and 2003-04, as the petitioner had ceased business operations. The court noted that no assessment had been made by the date of the impugned order and emphasized that withholding the refund without a liability determination was not supported by the Tamil Nadu General Sales Tax Act, 1959. Section 24(4) of the Act mandates interest on belated refund of excess tax.
Considering the circumstances, the court disposed of the writ petition by directing the respondent to refund the excess tax determined earlier within four weeks if no assessment order imposing liability had been passed for the relevant years. The respondent was instructed to adhere to the Act's provisions and pay interest on the refund. The court closed the related motions without costs.
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2009 (2) TMI 757
Whether on the facts and in the circumstances of the case, the purchases of the dealer-applicant are not exempted being not the penultimate purchases within the provisions contained in section 5(3) of the Central Sales Tax Act, 1956?
Held that:- In the present case, the petitioner has purchased goods from the cultivators. The Indian exporters, namely, M/s. Peanut Product, Vijayawada and M/s. Essel International, Vijayawada, have purchased goods from the petitioner and sold those goods to the foreign buyer M/s. Export Khleb, Moscow. Hence, purchase of groundnut by the petitioner from the cultivators is not the last purchase of goods preceding the purchase occasioning export of such goods to the foreign buyers outside the territory of India. It is a purchase removed by one more step.
Thus the purchase of groundnut effected by the petitioner from cultivators is not exempted not being the penultimate purchase within the provisions contained in section 5(3) of the CST Act. Decided in favour of the Revenue and against the petitioner-dealer.
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2009 (2) TMI 756
Levy of sales tax under serial No. 116 of the Third Schedule to the Kerala Value Added Tax Act, 2003 seeked on "silk fabrics and sarees made of natural silk" conforming to HSN code 5007 while excluding all other textile fabrics from levy is arbitrary and discriminatory, violative of articles 14, 19(1)(g) and 301 of the Constitution of India
Held that:- All that the Parliament has said by enacting the ADE Act is that it will levy additional duties of excise and distribute a part of the proceeds among the States provided the States do not levy taxes on sale or purchase of the Scheduled commodities. The Parliament has also provided the consequence that follows if any State levies tax on sale or purchase of Scheduled commodities; all that happens is that the State will be deprived of its share in the proceeds of additional duties of excise for that financial year. Even this is subject to the power of the Central Government to direct otherwise. The Parliament could not, and did not, prohibit any State from making any law or levying any tax which a State can levy by virtue of the entries in List II.
The State also has got a case that goods in question, covered under HSN code 5007, are not directly taxable under the Additional Duties of Excise Act, 1957 and State has not derived any share from it for the relevant financial year. In any event, the State has legislative competence to charge sales tax subject to the restrictions in section 15 of the CST Act. Appeal dismissed.
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2009 (2) TMI 755
Whether the respondent-Corporation is entitled to charge tax on the sale of damaged foodgrains despite the fact that it is a tax-free item falling under Schedule A of the Punjab Value Added Tax Act, 2005?
Held that:- What is exempted under the Schedule is cattle fodder and the definition of "cattle fodder" would also include damaged rice. In the present case, viewing the matter from every angle, it is crystal clear that the petitioner is not liable to incur liability of sale tax and the question posed hereinabove is answered in favour of the petitioner and against the respondents.
Writ petition filed by the petitioner succeeds and is allowed. Accordingly, the respondent-Corporation is directed to deliver the damaged foodgrains to the petitioner without charging any VAT/sales tax since the goods are cattle feed and are exempt from levy of tax under section 16 of the Act.
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2009 (2) TMI 754
Whether, under the facts and circumstances of the case, the Tribunal is correct in law while disposing of the appeal that the transaction of photo-identity card is a transaction in the nature of sale?
Held that:- Supply of photo-identity cards by the petitioner to the CEO is not exigible to sales tax. In the result, the question referred to above is answered in the negative, i.e., against the Revenue and in favour of the petitioner-dealer.
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2009 (2) TMI 753
Whether, on facts and circumstances, the nature of transaction is inter-State sales terminating at the hands of Shri Muni Lal or at the hands of M/s. Dada Motor Garage 'physically in reality' who appropriates the goods and passes the same to the customers after getting the amount, giving the receipts, the statement of collection, keeping watch (responsibility of shortage, damage or any such loss), carrying out sheltering and service at Jalandhar at the hands and premises of Dada Motor Garage?
Whether evidence on the file does not reveal that the contract of appropriation was between M/s. Dada Motor Garage and Lohia Machines Limited, Kanpur and subsequently, M/s. Dada Motor Garage sold/delivered such goods at its premises at Jalandhar?
Whether M/s. Dada Motor Garage is engaged in inter-State transaction, thereby covering the present case under the PGST Act, 1948?
Held that:- If the transaction of sale stands completed within the State and the movement of goods takes place thereafter, it would obviously be independent of contract of sale and necessarily by or on behalf of the purchaser alone, which would not have any inter-State element. Therefore, there is no doubt left that the sale in the present case is inter-State sale within the meaning of section 3 of the CST Act. Thus, the first question of law is answered against the Revenue and in favour of the assessee.
The answer to the second question would also be against the Revenue and in favour of the assessee because there is no evidence on record to prove a contract of appropriation between the company at Kanpur and the assessee, Dada Motors, who might have sold the goods at their premises at Jalandhar.
None of those circumstances are present in the instant case nor there are any such findings available on record for us to conclude that the delivery of goods was given to the Dada Motors in pursuance to the contract of appropriation.Therefore, the third question is also answered against the Revenue and in favour of the assessee.
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