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Showing 181 to 200 of 872 Records
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2009 (4) TMI 888
Issues:
Levy of tax and penalty on premium received for transfer of REP licences.
Analysis:
The revision filed by the assessee challenges the order of the Tamil Nadu Sales Tax Appellate Tribunal regarding the levy of tax and penalty on the premium received for the transfer of REP licences. The court refers to a previous judgment in the case of P.S. Apparels v. Deputy Commercial Tax Officer, where it was established that REP licences/exim scrips are considered "goods" for taxation purposes. The Division Bench clarified that penalties could only be levied from the assessment years 1992-93 onwards, depending on individual cases and circumstances. This decision was upheld by the Supreme Court in the case of Vikas Sales Corporation v. Commissioner of Commercial Taxes.
In the present case, the Tribunal found that the assessment order was passed after the decision in P.S. Apparels case, indicating that the assessee should have paid the relevant tax before the final assessment. However, the assessee failed to do so despite having ample opportunity. The penalty provision under section 12(3)(b) of the Act during the relevant period did not provide the assessing officer with discretion for willful non-disclosure, unlike the previous provision. The amended penalty provision removed the element of willful non-disclosure and the assessing officer's discretion, instituting a slab rate of penalty effective from July 1, 2002.
The court emphasized that if there is a discrepancy between the tax paid and assessed, penalty under section 12(3)(b) must be imposed. The taxability of income from the transfer of REP licences was reaffirmed in the case of Yasha Overseas v. Commissioner of Sales Tax. Additionally, the scope of statutory penal provisions was clarified in Union of India v. Dharamendra Textiles Processors by a three-judge apex court judgment.
Ultimately, the court found no valid reason or material to support a different view on the taxability of turnover or the non-payment of tax by the assessee before assessment. Consequently, the court dismissed the tax case revision, upholding the levy of tax and penalty on the premium received for the transfer of REP licences.
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2009 (4) TMI 887
Issues Involved:
1. Upholding the revision of assessment regarding the exemption granted for sales of mixies.
2. Claim for exemption in the sale of meenu mix to a union-run canteen and heavy vehicles factory under a government order.
3. Justification of the Appellate Tribunal's order negating the exemption claim.
4. Compliance with the terms of the Government order for entitlement to exemption benefits.
Analysis:
1. The primary issue in this case pertains to the correctness of the Sales Tax Appellate Tribunal's order regarding the revision of assessment on the exemption originally granted for sales of mixies. The Revenue challenged the Tribunal's decision, leading to a review by the High Court.
2. The assessee's claim for exemption in the sale of meenu mix to a union-run canteen and heavy vehicles factory under a specific government order was rejected by the Tribunal. The Tribunal based its decision on the grounds that the ultimate beneficiaries were members of a separate women's welfare association, not directly linked to the factory.
3. The Appellate Tribunal's order negating the claim for exemption was questioned on the basis of violating the principles of natural justice and being arbitrary. The Tribunal's decision was deemed unjustified as it failed to consider the compliance of the assessee with the terms of the relevant Government order.
4. Upon reviewing the facts and the Government order in question, the High Court found that the assessee had complied with the terms stipulated in the order. The Court emphasized that the sales were made to the canteen stores as per the order's requirements, entitling the assessee to the benefit of the exemption. The Court highlighted that the Tribunal's reasoning did not align with the purpose of the Government order and set aside the Tribunal's decision, ruling in favor of the assessee.
In conclusion, the High Court allowed the appeal, holding that the assessee was entitled to the benefit of the Government order, and set aside the Tribunal's decision. No costs were awarded in this matter.
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2009 (4) TMI 886
Whether, in the facts and circumstances of the case, the Tribunal being the final fact-finding authority has failed to appreciate the material facts by application of independent mind?
Whether the Tribunal is correct in law in having deleted actual suppression with equal addition made on the exhibition sales which were not accounted for by the assessee till the date of inspection carried out on October 27, 1998?
Whether the order of the Tribunal in having deleted the consequent penalty is legally sustainable?
Held that:- When the entire amount of exhibition sale has been reflected in the books of accounts and offered for taxation, we are of the view that the Tribunal has correctly come to the conclusion that there is absolutely no necessity to warrant making equal addition in a sum of ₹ 4,00,973 towards exhibition sale, which otherwise would amount to penalising the dealer who offered the entire sale for taxation by maintaining books and other accounts, however belatedly incorporated the sales for valid reason. Revision dismissed.
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2009 (4) TMI 885
"Ujala Supreme" and "Ujala Stiff and Shine" - Whether both the items fall under residuary entry 103 of S.R.O. No. 82 of 2006 which provides for rate of tax on items not covered by any of the entries in the list provided in the notification or by any entry of any of the Schedules to the Act?
Held that:- Even though classification of items under VAT regime is also based on HSN numbers, the same does not mean that the products made out of items with HSN numbers should be classified as the original items with same HSN number. When the products made from industrial raw material are commercially different with distinct use and purpose, it cannot be treated as the raw material from which it is made. Our findings above rendered with regard to Ujala Supreme squarely apply to Ujala Stiff and Shine also. We are therefore of the view that the Commissioner of Commercial Taxes is perfectly justified in classifying the two items under residuary entry 103 of S.R.O. No. 82 of 2006. Appeal dismissed.
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2009 (4) TMI 884
Refund application rejected - whether the purchase made by the petitioner from M/s. Tata Iron and Steel Company Ltd. on payment of tax cannot be treated as sale in the course of export and as such it is not exempted from tax?
Held that:- n the facts of the present case, it is clear that while M/s. Rajarishi Exports Ltd., may have purchased the chrome ore for meeting its export obligation to its foreign buyer, the same is not an export transaction and therefore the said transaction, cannot be treated as a transaction exempted rom tax under section 5 of the CST Act, as it then was. It is also important to note here that, sub-section (3) of section 5 of the CST Act covering a penultimate transaction prior to export, came to the statute book by way of amendment with effect from April 1, 1976, while the transaction on the basis of which refund is claimed is for the transactions effected for the period from December 31, 1972 to March 31, 1973, 1973-74 and 1974-75.
Therefore clearly since the period of such transaction being prior to the insertion of sub-section (3) of section 5 of the CST Act, neither benefit thereunder can be claimed nor granted to the petitioner since the amendment was not retrospective but prospective in its application. Thus no merit in the claim of the petitioner. Appeal dismissed.
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2009 (4) TMI 883
Violation of the provisions of section 78(2) of the Rajasthan Sales Tax Act, 1994 - penalty imposed - Held that:- As admittedly on January 4, 2000 no declaration form ST-18AA was in existence in favour of the consignee. Admittedly, as per respondent itself, after making all efforts the declaration form ST-18AA was issued on January 7, 2000; meaning thereby, the goods was consigned without any declaration form ST-18AA. The said form was produced along with the reply which is issued on January 7, 2000. In this view of the matter, in my opinion, both the authorities below have committed error while disturbing the finding of the petitioner-assessing authority because neither the declaration form was produced at the time of checking nor it was in possession of the consignee on the said date because admittedly the said form was issued on January 7, 2000, subsequent to the date of inspection. Therefore, if the declaration form ST-18AA was not in existence on the date of inspection, then, there was no question of sending goods to the consignee without declaration form. In this view of the matter, therefore, the Deputy Commissioner (Appeals) as well as learned Tax Board committed error while quashing the order passed by the petitioner-authority in consonance with the provisions of the Act. Revision allowed.
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2009 (4) TMI 882
Issues:
Challenge to assessment order based on limitation under section 11(3) of the Punjab General Sales Tax Act, 1948.
Analysis:
The petitioner sought to quash the assessment order dated April 29, 2005, and the consequential demand raised by the respondents, arguing that the assessment was framed beyond the three-year period stipulated by section 11(3) of the Act. The petitioner's claim was supported by averments, although these were disputed in the written statement. The court declined to determine the limitation issue, stating it involved a mixed question of fact and law. The petitioner was directed to pursue the remedy of filing an appeal under section 20(1) of the Act or approaching the Tribunal with a second appeal. If an appeal was filed within two weeks, it was to be expedited and decided within three months without requiring payment of 25% of the demand under section 20(5) of the Act. The court clarified that if the appeal was unsuccessful, further appeal options were available, and the petitioner could explore other remedies, including challenging the order extending the limitation period before the appropriate authority.
This judgment highlights the importance of adhering to statutory timelines for assessments under the Punjab General Sales Tax Act, 1948. The court emphasized the availability of appeal mechanisms for aggrieved parties, directing the petitioner to pursue the prescribed remedies rather than addressing the limitation issue directly. By reiterating the petitioner's entitlement to various legal remedies, including challenging the extension of the limitation period, the court ensured that due process and avenues for redressal were upheld. The judgment underscores the significance of procedural compliance and the hierarchical nature of legal recourse in tax matters, guiding the petitioner on the appropriate course of action to address their grievances effectively within the framework of the law.
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2009 (4) TMI 881
The Karnataka High Court, in the case of Gopala Gowda v. Arali Nagaraj, J., addressed several key issues in a revision petition. The court examined whether the questions raised were valid on legal grounds. The court ruled against the petitioner on multiple questions, including the assessment of escaped turnover, the hearing of the assessee, and the imposition of penalties. The court justified its decisions based on compliance with the principles of natural justice and statutory rights under the KST Act. The court also upheld the levy of penalties and taxes on the petitioner/assessee. Ultimately, the court found the revision petitions to be lacking in merit and dismissed them accordingly.
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2009 (4) TMI 880
Issues:
1. Taxability of supply of bitumen for construction of road by the contractor.
2. Validity of exemption certificate granted to the contractor.
3. Imposition of tax on the value of bitumen supplied by the contractor.
4. Remand of the matter to the assessing authority for fresh assessment.
Analysis:
1. The revision petition challenged the order of the Tax Board, which upheld the Deputy Commissioner's decision regarding the taxability of the supply of bitumen for road construction by the contractor. The appellate authorities concluded that the supply of bitumen was not taxable in the hands of the contractor. However, the Supreme Court's judgments clarified that material supplied by the contractor for works contract amounts to supply or sale to the Department, making it taxable under the Rajasthan Sales Tax Act, 1994.
2. The contractor had obtained an exemption certificate for the entire works contract, subject to the payment of a fixed exemption fee. The assessing authority imposed tax on the value of bitumen supplied by the contractor, despite the exemption certificate. This action was deemed impermissible as the contractor availed the exemption certificate to cover the entire tax liability under the works contract, including the value of bitumen supplied.
3. The revision petition resulted in setting aside all previous orders and remanding the matter to the assessing authority for a fresh assessment. The assessing authority was instructed to impose tax on the value of bitumen supplied by the contractor to the Department, limited to the exemption fee leviable for that specific works contract. No interest or penalty could be charged from the contractor in this regard, and only an exemption fee of 1.5% on the value of bitumen supplied was permissible.
4. The decision concluded by disposing of the revision petition without any costs, emphasizing the proper application of tax laws and exemption provisions in works contracts. The assessing authority was directed to follow the guidelines provided in the judgment for a fair and accurate assessment of tax liability related to the supply of bitumen for road construction.
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2009 (4) TMI 879
Penalty imposed under section 51(7)(c) of the Punjab Value Added Tax Act - Held that:- In the absence of any evidence with regard to evasion of tax it cannot be concluded that mere change of route would lead to an inference that there was an attempt to evade tax. We are further of the view that the route has not necessarily been altered because if the goods vehicle had commenced its journey from Mandi Gobindgarh it was bound to cross LudhianaPhagwara-Nawanshahar-Balachaur. There was no necessity for the goods vehicle to reach Ropar. Therefore, in the face of the aforesaid findings of fact no substantial question of law would emerge from the order of the Tribunal under section 68(1) of the Act warranting admission of the appeal. Accordingly the appeal fails and the same is dismissed.
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2009 (4) TMI 878
Issues:
Challenge to show-cause notice for revocation of settlement certificate under the West Bengal Sales Tax Act, 1994; Jurisdiction of designated authority; Validity of notice based on alleged suppression of information; Payment of tax under compulsion; Interpretation of section 12 of the West Bengal Sales Tax (Settlement of Dispute) Act, 1999.
Analysis:
The applicant challenged a show-cause notice proposing to revoke a settlement certificate issued under the West Bengal Sales Tax Act, 1994. The notice alleged suppression of information and incorrect details. The applicant contended that the Senior Joint Commissioner lacked jurisdiction to issue the notice, as no notification appointed him as the designated authority. The applicant argued against the claim that he voluntarily paid Rs. 20 lakhs as tax on suppressed sales, stating it was under compulsion and not an admission of liability.
The State Representative asserted that the Senior Joint Commissioner had the jurisdiction to issue the notice and claimed that the applicant willfully suppressed sales information. The Tribunal examined the jurisdictional issue and the nature of the tax payment. It noted an amendment allowing the Senior Joint Commissioner to issue such notices. The Tribunal found no evidence that the applicant voluntarily paid the tax without a formal assessment or demand notice, questioning the basis of the alleged suppression.
Section 12 of the West Bengal Sales Tax (Settlement of Dispute) Act, 1999 allows revocation of settlement certificates for suppression of material information or furnishing incorrect details. The Tribunal observed that the notice lacked substantial evidence of suppression or false information by the applicant. The mere filing of a cross-revision did not disqualify the applicant from seeking settlement under the Act. Consequently, the Tribunal set aside the notice, ruling in favor of the applicant.
In conclusion, the Tribunal allowed the petition challenging the show-cause notice for revocation of the settlement certificate. It found no valid reason for the notice, as the allegations of suppression or incorrect information were not substantiated. The Tribunal emphasized the importance of evidence and compliance with legal provisions in such matters, ultimately ruling in favor of the applicant.
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2009 (4) TMI 877
Issues:
1. Assessment order passed under the Central Sales Tax Act, 1956 for the year 2005-06.
2. Demand notice issued without specification of payment date and reference to an unserved order.
3. Recovery of disputed tax amount before the conclusion of the appeal process.
4. Lack of breathing time given to the petitioner during the recovery process.
5. Directions to the appellate authority for a prompt disposal of the matter.
Analysis:
1. The petitioner, a registered dealer under the Bihar Value Added Tax Act, 2005 and the Central Sales Tax Act, 1956, challenged the assessment order for the year 2005-06. Initially, a writ petition was filed, but the court directed the petitioner to exhaust the statutory appeal process. The appeal was pending for hearing, and the petitioner had paid 25% of the demanded tax amount.
2. The petitioner raised concerns regarding a demand notice issued without specifying the payment date and referencing an order not served to them. The petitioner had to wait until February 2009 to receive a certified copy of the order mentioned in the demand notice. This discrepancy was highlighted in the writ petition.
3. The petitioner objected to the hurried recovery of the disputed tax amount before the appeal process concluded. The taxing authorities collected the amount without allowing the petitioner a breathing time, despite the appeal being pending. The court acknowledged the rushed collection and directed the appellate authority to ensure a prompt disposal of the matter on the next hearing date.
4. Emphasizing the lack of breathing time given to the petitioner during the recovery process, the court ordered that if the appellate authority adjourned the case without the appellant's request, the collected amount should be refunded immediately. The refund was contingent upon the outcome of the appeal. If the appeal succeeded, the amount recovered should be refunded within one month of the appeal's disposal.
5. The judgment concluded by disposing of the writ petition, directing the State counsel to ensure the timely transfer of files to the appellate authority for a prompt hearing and decision on April 28, 2009. The court's order aimed to address the procedural irregularities and ensure a fair resolution of the tax dispute in line with the legal provisions.
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2009 (4) TMI 876
Penalty of ₹ 3,16,63,140 imposed under section 79 of the West Bengal Value Added Tax Act, 2003 - Held that:- The facts revealed that the applicant was thoroughly negligent in the matter of compliance with statutory obligations. We, therefore, do not find any reason to interfere with regard to the initiation of penalty proceedings. Though admittedly goods were received by Bokaro Steel Plant, unexplained violation of the statutory provision cannot be totally ignored. Recurring incidence of such negligence and unexplained violation should be discouraged. However, considering the facts and circumstances, we are of the view that the quantum of penalty should be kept at minimum. We reduce the quantum of penalty to ₹ 63,32,625 being five per cent of the value estimated by STO/CS.
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2009 (4) TMI 875
Penalty proceedings initiated against the assessee under section 15A(1)(a) of the U.P. Trade Tax Act, 1948
Held that:- In the instant case, the explanation of the assessee-company is a plausible one. The assessee has been suffering financial losses continuously for the period of more than five years and hence the company could not pay tax on time. But when the assessee-company paid the tax, it had not paid the interest, which is badly exorbitant. In such circumstances, it cannot be said that the assessee-company has failed to show reasonable cause for the delay in deposit of due tax.
In the facts and circumstances of the case, the imposition of penalty under the provisions of section 15A(1)(a) of the Act was not justified. The penalty is, therefore, set aside. Appeal allowed.
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2009 (4) TMI 874
Issues:
Appeal against order of Joint Commissioner under Tamil Nadu General Sales Tax Act, 1959 restoring revision of assessment and penalty set aside by first appellate authority.
Analysis:
The judgment pertains to an appeal filed under section 37 of the Tamil Nadu General Sales Tax Act, 1959 against the order of the Joint Commissioner made in suo motu revision dated October 1, 1996. The Joint Commissioner had restored the revision of assessment made by the assessing officer along with penalty, which were earlier set aside by the first appellate authority. The case involved an assessee who dealt in groundnut kernel and reported a total and taxable turnover for the assessment year 1990-91. The assessing officer rejected the claim of exemption on a turnover related to the purchase of groundnut kernel from a specific trader who was declared as a bill trader in various other cases. The Appellate Assistant Commissioner had initially deleted the tax on the said turnover and the penalty, citing reasons such as the trader renewing registration certificate and goods passing through a check-post. However, the Joint Commissioner, through suo motu revision, found the order of the first appellate authority prejudicial to the Revenue's interest and erroneous. The Joint Commissioner restored the tax on the turnover and the penalty. The appeal was filed against this decision.
The court considered the facts that the trader in question had been declared as a bill trader by the Department in various cases, including for other dealers. It was noted that the trader admitted to issuing bills for commission only and receiving cash payments. Additionally, other dealers claiming similar exemptions were held not entitled to second sale exemption based on the trader's status as a bill trader. The court found that the voluminous materials available with the Department indicated that the trader was indeed a bill trader who never dealt with goods directly. Therefore, the court concluded that the claim of second sale exemption by the assessee based on transactions with this trader was not valid. The court upheld the Joint Commissioner's decision to restore the taxable turnover and levy tax on it, along with the penalty under section 12(3) of the Act, as the claim made by the assessee was deemed false to avoid local tax payment. The court found no grounds to take a different view and dismissed the appeal, ruling in favor of the Department. No costs were awarded in this matter.
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2009 (4) TMI 873
Issues involved: Interpretation of exemption notification for vegetable seeds and classification of groundnut kernel.
Interpretation of exemption notification:
The appellant, a registered dealer in groundnut kernel, challenged the tax assessment for the year 1988-89, claiming exemption as a vegetable seed. The Joint Commissioner revised the order of the first appellate authority, leading to the appeal. The notification exempted vegetable seeds, fruit plants, flower seeds, and flower plants from taxation, with the condition that the seeds sold should be for cultivation purposes. The appellant failed to prove that the groundnut kernel was sold for cultivation. The Joint Commissioner, after considering various dictionaries and legal precedents, concluded that groundnut kernel is classified as an oil-seed, not a vegetable seed suitable for reproduction. Therefore, the exemption notification for vegetable seeds does not apply to transactions involving groundnut kernel.
Classification of groundnut kernel:
The appellant argued that groundnut kernel should be considered a vegetable seed to qualify for the exemption. However, the Joint Commissioner determined that groundnut is commonly known as an oil-seed used for manufacturing groundnut oil, not as a vegetable seed. The definition of "vegetable" from dictionaries and legal judgments supported this classification. Despite being edible, groundnut kernel does not fit the popular understanding of a vegetable grown in a kitchen garden or farm for dining purposes. Consequently, the groundnut kernel was deemed an oil-seed, not a vegetable seed, and the appeal was dismissed for lack of merit.
This judgment clarifies the interpretation of exemption notifications for vegetable seeds and the classification of groundnut kernel as an oil-seed rather than a vegetable seed, based on legal principles and common understanding.
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2009 (4) TMI 872
Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in upholding the levy of penalty of ₹ 17,108 under section 22(2) of the Tamil Nadu General Sales Tax Act, 1959?
Held that:- As per the records, it is manifest that the appellant collected excess sum of ₹ 11,345.57 towards tax, which is over and above the permissible limit.
On a thorough perusal of the records, it is evident that the Tribunal has recorded a finding that the credit notes were created for the purpose of the case and on after-thought. Even the total amount as per the credit notes was only for ₹ 6,516 and for the remaining amount there was no credit note. The Tribunal has recorded a finding that the credit notes produced at the appellate stage were not genuine, but were created for the purpose of avoiding penalty. Before us nothing has been made out to repudiate that factual finding. The assessee has not produced any supporting materials from the ultimate consumers, who are stated to have received the excess payment of tax. In the absence of any such materials, we do not find any irregularity in the order of the Tribunal.
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2009 (4) TMI 871
The High Court of Madras dismissed the tax case revision filed by the Sales Tax Department against the deletion of a penalty of Rs. 33,315 by the Sales Tax Appellate Tribunal. The court found that the penalty was not justified as the assessee had claimed second sales exemption based on available materials, and there was no suppression in the books of account.
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2009 (4) TMI 870
Interpretation of the notifications dated May 6, 1986 and January 21, 2000 - Held that:- This court is of the opinion that the present revision petition of the petitioner-assessee deserves to be dismissed and the assessee cannot be held entitled to the benefit of partial exemption under the notification dated May 6, 1986 for the assessment year 2001-02 in question.
Even though the assessee's assessments might have been completed in accordance with the circular dated April 15, 1994 issued by the Commissioner and even the assessment of preceding year 2000-01 in terms of the order passed by this court in earlier writ petition filed by the assessee, the same does not furnish a valid ground to allow the petitioner-assessee to avail of benefit of partial exemption contrary to the condition No. 3 of the notification dated January 21, 2000 for the assessment year 2001-02, involved in the present case.
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2009 (4) TMI 869
Properties put to auction sale for non-payment of loan borrowed - Held that:- Petitioner, is justified in contending that bona fide auction purchaser like the petitioner who has purchased the property sold by the first respondent-Karnataka State Financial Corporation is not a person who is taking over a running concern or who is taking over the business of an assessee in default which alone can attract the provisions of section 15 of the KST Act; that, the petitioner having merely purchased the property does not step into the shoes of the assessee in default and even on the findings by this court earlier if at all the property can be charged with the liability notwithstanding the purchase and therefore the other actions of respondents Nos. 3 and 4, particularly, for attaching the bank account exercising the powers under section 14 of the KST Act which is available only against the assessee in default and not against others is still bad in law is an argument which merits acceptance.
The present is clearly a case to which section 15 of the KST Act is not attracted and if at all it can be said the provisions of section 13 of the KST Act are attracted.
In this view of the matter, annexure B garnishee notice is definitely not supported by law. Respondents Nos. 3 and 4 are not entitled to attach the bank accounts of the petitioner which has nothing to do with the property in question and cannot enforce the notices to compel respondents Nos. 8 to 11 to make over the amount at the credit of the petitioner to the State Government, thus annexure B notice dated March 4, 2009 is quashed by issue of a writ of certiorari.
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