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Case Laws
Showing 181 to 200 of 862 Records
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2009 (3) TMI 931
What is the compounded rate of tax applicable to primary crushers in terms of the similarly worded Explanations occurring at the foot of section 7(1)(b) of the Kerala General Sales Tax Act, 1963, hereinafter, "the KGST Act", and section 8(b) of the Kerala Value Added Tax Act, 2003, for short, "the KVAT Act"?
Held that:- Writ petitions allowed, quashing Circular No. 11/ 07 dated February 28, 2007 issued by the Commissioner of Commercial Taxes and it is declared that the compounded rate of tax on primary crusher is 50 per cent of the respective rates mentioned in clauses (i), (ii) and (iii), respectively of section 7(1)(b) of the KGST Act and section 8(b) of the KVAT Act, depending upon the size of the primary crusher in each case. It is also declared that the clarification issued by the Commissioner of Commercial Taxes as per order No. C3.44514/04/CT dated April 2, 2005 is in terms of the declaration made herein. All impugned proceedings contrary to the declaration in this judgment are quashed. Any payments made by the dealers contrary to the declaration of law as contained in this judgment will be refunded in accordance with law.
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2009 (3) TMI 930
20 per cent tax and interest in dispute - stay petition rejected - Held that:- Admittedly, in the case at hand, the petitioner was directed by the DCST to deposit 20 per cent of the tax and interest in dispute raised for the period from April 1, 2005 to July 31, 2007 to entertain the first appeal filed before him, which is not permissible. The petitioner's admitted tax during the period being nil he is required to pay only 20 per cent of the tax and interest levied by the assessing officer on the transactions effected during the period from July 6, 2006 to July 31, 2007.
In view of the above, the order passed by the DCST under annexure 3 is hereby quashed. The DCST is directed to recompute 20 per cent of the tax and interest levied by the assessing officer for the period from July 6, 2006 to July 31, 2007 and intimate the same to the petitioner within a period of four weeks from today. If the petitioner pays the said amount within two weeks thereafter, the DCST is directed to entertain the appeal filed against the assessment order passed for the period from April 1, 2005 to March 31, 2007, if the appeal is otherwise maintainable. Writ petition allowed.
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2009 (3) TMI 929
Revenue recovery - whether notice of demand did not accompany exhibit P3? - Held that:- Learned counsel for the petitioner is right when she submits that recovery proceedings ought not to have been initiated till a notice of demand is served and time was granted to the assessee to pay the same.
In the result, after hearing counsel on both sides, the writ petition is disposed of directing the first respondent to serve on the petitioner a notice of demand pursuant to exhibit P3, within a period of two weeks from the date of receipt of a copy of this judgment. Thereupon, it is open to the petitioner to move an application for stay before the appellate authority.
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2009 (3) TMI 928
Period of limitation - appeal dismissed as one barred by limitation - Held that:- In view of the undisputed position, the impugned order at annexure C is quashed by issue of a writ of certiorari and the matter is remanded to the appellate authority to examine the appeal on merits, treating the appeal as one presented within the period of limitation with directions, to dispose of the appeal on merits and as per law.Writ petitions are allowed.
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2009 (3) TMI 927
Refund claim - Held that:- The instructions dated November 20, 2008 [ stating that the refund has been made to the petitioner and the Chief Secretary had a meeting with Financial Commissioner, Excise and Taxation for evolving a mechanism] and March 19, 2009 (R1 and R2 respectively), [clearing the refund orders from the treasuries within 48 hours without awaiting instructions from headquarter] issued by the respondent-State would produce desirable result, implementing the provisions of the 1948 Act and the Punjab Value Added Tax Act, 2005 in their letter and spirit, which would pave the way for amicable relationship between the entrepreneurs and the establishment. The respondent-State shall remain bound by all the affidavits and instructions. The writ petition stands disposed of.
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2009 (3) TMI 926
Central sales tax (CST) demanded on inter-State sale of waste cotton effected by the members of the association over and above four per cent - Central sales tax was sought to be levied at 10 per cent on the cotton waste not covered by "C" forms - Held that:- In the light of the exemption granted under section 8(5) of the CST Act, which is not conditional, it is not open to the respondents to seek the submission of "C" forms as a condition precedent for availing of payment of CST at the rate of four per cent. Both the writ petitions stand allowed.
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2009 (3) TMI 925
Deduction of tax at source at a uniform or flat rate - Held that:- Since no uniform rate has been prescribed in respect of the goods used in the "works contract", it clearly follows that the deduction of tax, at the rate of 12.5 per cent, in terms of section 47A and the impugned notification issued by the respondents, are contrary to section 4 and, hence, the same are liable to be struck down.
Also when section 4 has not provided for any separate rate of tax in so far as the goods used in the execution of works contract is concerned, the provisions of section 47A of the Act of 2005 providing for deduction at source, at the rate of 12.5 paise in the rupee, are contrary to section 4 of the Arunachal Pradesh Goods Tax Act, 2005, and, therefore, the same are, as rightly contended on behalf of the petitioner, ultra vires and illegal and liable to be struck down.
Writ petitions stand allowed and the impugned provisions of section 47A of the Act, to the extent that the same permit deduction at the flat rate of 12.5 per cent irrespective of the "taxable turnover", are hereby set aside and quashed.
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2009 (3) TMI 924
Issues:
- Obligation of respondent No. 2 to furnish form IX under Bihar Finance Act, 1981
- Sales tax liability of the petitioner in transactions with respondent No. 2
- Legal entitlement of the petitioner to form IX for exemption from sales tax
Analysis:
The petitioner contended that respondent No. 2, a government instrumentality, should have provided form IX under the Bihar Finance Act, 1981, to avoid sales tax liability. The transactions involved the sale of yarns and similar goods in 1996-97 and 1997-98. The court examined section 11 of the Act, emphasizing that if the buying dealer (respondent No. 2) could produce form IX, the sales tax liability would shift to them. The respondents did not file a counter-affidavit, revealing that respondent No. 2 was a sick unit managed by the government.
The court focused on whether respondent No. 2 was legally obligated to provide form IX and if the petitioner was entitled to it for sales tax exemption. It was observed that while form IX could have shifted the liability to respondent No. 2, there was no legal obligation for them to provide it without a contractual agreement. As there was no written agreement governing the transactions, the petitioner failed to establish a legal right for invoking writ jurisdiction in their favor. Consequently, the court dismissed both writ petitions, concluding that the petitioner did not demonstrate a legal basis for relief and declined to address other submissions raised on their behalf.
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2009 (3) TMI 923
Levy, demand or collecting tax on inter-State sales of pulses and grams - Held that:- In the present case, the exemption relied on by the petitioners can never be held to be an exemption which will have a bearing on the Central Sales Tax Act so as to enure the benefit of an exemption. Therefore, the decisions relied on by the petitioners/assessees do not help their case. Appeal dismissed.
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2009 (3) TMI 922
Whether the application filed by the petitioner pursuant to the tender notice dated June 9, 2008 is a valid application?
Whether after the death of the proprietor of proprietorship concern, the registration certificate issued to the proprietorship concern remains in force?
Whether under the provisions of the OVAT Act, the legal heir of a deceased proprietor has any right to ask for amendment for registration certificate granted to the deceased proprietor and the same can be amended?
Whether opposite party No. 1 is legally justified to cancel the agreement/contract entered into with the petitioner because of nonfulfilment of the tender condition and is justified to enter into a fresh contact with opposite party No. 3?
Held that:- The petitioner Sri Koushal Kumar Agarwal is not registered dealer under the OVAT Act having any TIN number and the Commercial Tax Department has not issued any tax clearance certificate to the petitioner, Koushal Kumar Agarwal. This amounts to a fraud. Law is well-settled that fraud vitiates everything. Therefore, the application submitted by the petitioner in response to the tender call notice is not a valid application.
The registering authority itself has cancelled the certificate of registration granted to late Dewaram Agarwal under annexure 11 and rejected the amendment application of the petitioner under annexure 12. Unless these orders are reversed by the competent authority in the hierarchy, the said orders will govern the field. Thus, it can safely be concluded that on the date when the application was filed in response to the tender, call notice, the petitioner had no certificate of registration under the OVAT Act and the tax clearance certificate issued by the STO in the name of M/s. Deepak Trading Co. the proprietorship concern of late Dewaram Agarwal, has no legal force.
No valid tax clearance certificate was furnished along with the application for tender. The petitioner was not a registered dealer under the OVAT Act during the relevant time. He has misrepresented himself as a registered dealer under the OVAT Act bearing TIN No. 21101800603 which in fact was allotted to the late father of the petitioner. In that situation, opposite party No. 1 is further justified to enter into a fresh contract with opposite party No. 3 for supply of soya chunks at the rate quoted by the petitioner keeping in view the immediate necessity of MDM for supply of soya chunks to the school-going children. Appeal dismissed.
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2009 (3) TMI 921
Whether the VAT Tribunal was bound to take into consideration the declarations in form ST XXIIA produced before it, on or before the date of actual hearing of the case before it?
Held that:- When the principles of law are applied to the facts of the instant appeals, it becomes evident that the Tribunal has refused to take into consideration the beneficial documents in form ST-XXII-A. Those documents have been ignored on the ground that the dealer-assessee had failed to produce those documents before the Assessing Authority or the Appellate Authority despite being granted repeated opportunities. The explanation tendered by the dealer-assessee for the delay has also not been considered to record a finding whether such a delay constitutes sufficient cause or it is malicious. The documents in original have been produced before us and photocopies of those documents have been taken on record of this case as Mark "A (Colly)". Moreover, the case of the dealer-assessee right from the day of filing the returns on April 30, 2002 for the last quarter of 2001-02, has consistently been that no tax is imposable upon it as it has sold the goods on which tax had been paid at the stage of first stage of sale.
While answering the question of law in favour of the dealer-assessee, we set aside the impugned orders of the Tribunal, dated November 1, 2007, and all other orders including the assessment orders raising the additional demand.
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2009 (3) TMI 920
Whether this is a fit case for examination in writ jurisdiction? - Held that:- The condition to be imposed on the writ petitioners cannot be uniform in all situations. Even the Supreme Court has observed that the condition should be in the interest of larger public revenue and to safeguard the interest of the petitioners also.
if the petitioner deposits 50 per cent of the demand, if not already deposited, of the disputed amount and furnishes security to the satisfaction of the authority, for the balance, the enforcement of the demand may be stayed pending adjudication of the appeal, which they can now avail of by filing appeals before the appellate authority within four weeks from today. It is open to the petitioner to explain the delay in preferring the appeals by pointing out the pendency of these matters before this court.
It is open to the other petitioners to take benefit of this order or to move the appellate authority for any conditional interim order.If the petitioners file the appeal within four weeks, the authorities may examine the appeal on merits and accept any explanation for condoning the delay, taking note of the pendency of these writ petitions till now before this court.
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2009 (3) TMI 919
Valuation - compounded rate - The appellant's case is that only in the pharma division they have paid tax at compounded rate and so far as other divisions are concerned, drugs and medicines sold cannot be subjected to assessment at compounded rate under section 8(e) of the Act - Held that: - even without a formal application for compounding, the appellant adopted the scheme of compounding for payment of tax in respect of drugs and medicines which is at four per cent on MRP. Proviso (b) to Explanation to section 8(e) makes it clear that when tax is collected at the compounded rate on MRP by the seller, the purchasing dealer is entitled to exemption.
Going by the collection of tax in the pharma division the appellant cannot deny that they have not opted for payment of tax at compounded rate under section 8(e) of the Act. All what the Commissioner has stated is that once the appellant has started billing in accordance with compounding scheme, then the same itself amounts to opting to pay tax under the compounding scheme and the appellant cannot therefore back out of the same.
Appeal dismissed - decided against appellant.
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2009 (3) TMI 918
Constitutionality, legality and validity of the section 3(2)(b) of Arunachal Pradesh Goods Tax Act 2005 challenged which imposes tax on the entry of goods, other than non-taxable import, for consumption, use or sale thereof into the local area of the State of Arunachal Pradesh
Held that:- the impugned levy, on import of goods into the State of Arunachal Pradesh, is violative of article 301 and also article 304 inasmuch as the levy is discriminatory in nature and cannot, under the Constitutional scheme be allowed to survive. Apart from the fact that the impugned Act does not facially indicate the quantifiable benefits provided or to be provided to a tax-payer, the averments, made in paragraphs 5 and 7 of the respondents' affidavit, clearly show that the impugned levy is not compensatory in nature; rather, it aims at raising general revenue collection of the State
Hence, the impugned provisions must be held to be ultra vires. Consequently, the levy must be struck down. Appeal allowed.
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2009 (3) TMI 917
Whether the Labour Court was justified in awarding full back wages, while directing the employer to re-instate the workman in service?
Held that:- Judgment and order of the Labour Court and the High Court are set aside and it is declared that the respondent herein shall be entitled to 50% of the total back wages payable during the aforesaid period in terms of Section 6-N of the U.P. Industrial Disputes Act.
Thus direct the employer to deposit 50% of back wages by way of arrears of back wages, instead of full wages awarded by the Labour Court. Appeal is allowed in part
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2009 (3) TMI 916
Reinstatemen orders - back-wages denial - Held that:- The appellant is entitled to back wages. However, as the Tribunal has not held enquiry into the quantum of back wages to which the appellant would be entitled, the proceedings are remitted back to the Industrial Tribunal for consideration of the quantum of back wages to which the appellant would be entitled. For that purpose the Industrial Tribunal may permit both the parties to lead evidence.
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2009 (3) TMI 915
Issues: Tax assessment, Penalty imposition, Equal addition
Tax Assessment:
The case involves an appeal against the assessment order for the assessment year 1994-95 under the Tamil Nadu General Sales Tax Act, 1959. The Assessing Officer found discrepancies in the accounts of the assessee, including unreported taxable turnover related to silk cotton purchases and lack of proper accounts maintenance. The Assessing Officer rejected the accounts, resorted to best judgment, and determined the taxable turnover at Rs.1,37,777, imposing a penalty under Section 12(3)(b) of the Act. The Appellate Assistant Commissioner modified the assessment order, reducing the addition and deleting the penalty. The Joint Commissioner deemed the Appellate Assistant Commissioner's order as illegal and prejudicial to revenue, initiating a Suo Motu Revision.
Penalty Imposition:
The Joint Commissioner held that penalty under Section 12(3)(b) is warranted as the tax assessed and tax paid had a significant difference, exceeding 75%, leading to a penalty of 150% as per statutory provisions. The Joint Commissioner emphasized that penal interest under Section 24(3) cannot be equated with the penalty under Section 12(3)(b). The appeal argued that the assessee had paid tax before the assessment was completed, but the Joint Commissioner upheld the penalty imposition, stating it was in accordance with the statutory requirement.
Equal Addition:
Regarding the equal addition, the Joint Commissioner upheld the two times addition by the Assessing Officer, emphasizing that the discrepancies in stock and unreported taxable goods justified the addition. The appeal contended that the equal addition cannot be disputed. The court found no illegality in the Joint Commissioner's decision to restore the Assessing Officer's order, as the penalty imposition at 150% was justified by the significant difference between the tax assessed and tax paid, as per statutory provisions.
In conclusion, the appeal was dismissed as lacking merit, with the court upholding the penalty imposition and equal addition based on the statutory requirements and the discrepancies found during the assessment.
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2009 (3) TMI 914
Whether order of acquittal be challenged?
Held that:- The High Court, for good and sufficient reasons, had arrived at findings of fact both with regard to voluntariness of the purported confessions made by the respondents as also compliance of the mandatory statutory provisions vis-ŕvis directions issued by the Central Government in making search, seizure as also taking of samples for the purpose of chemical examination having been doubted, we do not see any reason why we should take a contrary view as it is well-known that the appellate court would not interfere with a judgment of acquittal only because another view is possible. On the other hand, if two views are possible, it is trite, the appellate court shall not interfere. Appeal dismissed.
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2009 (3) TMI 913
Whether an election should be set aside straighway?
Held that:- Election results should not be lightly set aside and the will of the electorate should ordinarily be respected. Setting aside an election is a serious matter, and should not have been done lightly. We regret to say that in this case the election of the returned candidate has been set aside by the High Court, though no doubt by a rather elaborate judgment, by observing, according to us unwarrantedly, that paragraph No. (2) in Ext.P1 amounts to a false statement affecting the personal character and conduct of Shri T.M Jacob. Once it is held that paragraph No.(2) did not contain any statement regarding the personal character and conduct of Shri T.M Jacob it follows that the tail piece of Ext.P1 that is the exhortation to “recognize the shameless hypocrite of development trickery…….. react against the deceiver of the people” will have to be considered as not against the personal character and conduct of Shri T.M Jacob, but as a statement in respect of his public and political character. This, in our opinion, does not attract Section 123(4) of the Act. Appeal allowed.
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2009 (3) TMI 912
Very often it happens when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other count as well.
Reading Section 428 of the Code in the above perspective, the words ‘of the same case’ are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words “of the same case" were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words.”
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