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Showing 201 to 220 of 872 Records
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2009 (4) TMI 868
Notice issued by the second respondent dated March 20, 2009 - whether void ab initio, non est, without authority of law, illegal and invalid?
Held that:- It is not even the case of the respondents, in the counter-affidavit filed in the writ petition, that the petitioners have paid the luxury tax pursuant to the revisional order of the Deputy Commissioner or that they have collected tax from their customers. In its affidavit dated March 23, 2009 the petitioner has specifically stated that they have not recovered any amount towards luxury tax from their customers in respect of the disputed turnover involved in the present case and that this fact is admitted both in the assessment order passed by the Commercial Tax Officer as well as the revisional order of the Deputy Commissioner. In view of this assertion by the petitioner, in their affidavit filed before this court, and as the respondents have also not stated anything to the contrary in their counter-affidavit, the impugned notice issued by the second respondent dated March 20, 2009 is set aside. W.P. allowed.
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2009 (4) TMI 867
Reopening of assessment - Held that:- With regard to the assessment the revisional authority was justified in opining that the assessing authority had erred in assessing the assessee at lower turnover and therefore he directed the assessing authority to issue revised demand notice as indicated in the proposition notice of the revisional authority. It is also found that the assessee did not dispute the said proposal except as to the liability in terms of the alleged agency agreement.
The authority was also justified in saying that there is violation of section 12B(1) for having transacted the business in taxable goods without registration and payment of taxes. Imposition of penalty equally applies to deemed registered dealer also. Therefore, the authorities were justified in imposing penalty as well. As a matter of fact, throughout the proceedings, at no point of time the applicability of any of the above provisions was questioned by the assessee. The only dispute was with regard to alleged agency agreement by contending that Prabhath Granite Pvt. Ltd., has transacted the business on behalf of the appellant-assessee. The revisional authority was justified in holding that the so-called agency agreement is a created and got-up document for the purpose of evading payment of tax and penalty. We do not find any good ground to interfere with the orders of the revisional authority. Appeal dismissed.
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2009 (4) TMI 866
Non issuance of notice - interest under section 24(3) called - Held that:- The counter filed by the second respondent clearly shows that no notice was issued to the petitioner before issuing the notice dated December 31, 2007 to pay interest. The respondents sought to justify the order on the ground that the details sought for by the petitioner were given under the Right to Information Act. In fact, the details were furnished only in the impugned order dated March 31, 2008 and not before. The second respondent has taken a definite stand in the counter statement that no notice was required to be issued before passing an order under section 24(3) of the Act for payment of interest and in fact, no such notice was also issued. In such circumstances, there was a clear violation of the principles of natural justice and as such, the petitioner was justified in filing the writ petition without filing the statutory revision.
Accordingly, the impugned order dated March 31, 2008 on the file of the first respondent is quashed and the matter is remitted to the second respondent for fresh consideration.
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2009 (4) TMI 865
Whether the Tribunal was justified in holding that in the absence of prayer for confrontation at the investigation stage, such a prayer could not have been made before the Assistant Commissioner?
Held that:- No doubt, the sales tax authorities under the Sales Tax Act are not precluded from collecting materials behind the back of a dealer and they may not disclose the source to the dealer. However, if they want to utilize any material collected behind the back of the dealer against him they are bound to confront the same to the dealer giving him opportunity to rebut the same. On such confrontation, if the dealer denies the allegation and demands for cross-examination of any witness, he must be afforded opportunity of cross-examination as cross-examination is one of the most effective methods of establishing the truth and exposing falsehood.
In view of the above, learned Tribunal is not justified in holding that there is no justification for the first appellate authority to direct for confrontation to the purchasing dealer-M/s. Radheshyam Satyanarayan of Kantabanji and Sri Mahajan Sahu as no such confrontation was prayed for by the assessee at investigation stage. The question referred answered in negative, i.e., in favour of the dealer and against the Department.
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2009 (4) TMI 864
Issues:
1. Validity of demand notice for payment of sales tax arrears.
2. Crediting of amount paid by petitioner against outstanding tax dues.
3. Allegations of duplicate payment and demand for higher amount.
4. Justification of interest amount demanded under section 13(2) of the Act.
5. Petitioner's awareness of previous demands and contention of illegality in current notice.
6. Bona fide nature of writ petition and justification for seeking a declaration.
Analysis:
1. The writ petition challenges a demand notice for payment of sales tax arrears under the Karnataka Sales Tax Act, 1957. The petitioner argues that the notice overlooks the payment of Rs. 64,27,821 made towards the arrears, seeking to quash the demand notice at annexure E through a writ of certiorari.
2. The petitioner asserts that the amount of Rs. 64,27,821, though remitted through a demand draft, has not been credited by the Department. However, the Government Pleader contends that the current demand is for interest under section 13(2) of the Act, distinct from the arrears paid by the petitioner, supported by a communication detailing the interest payable up to March 31, 2007.
3. The Government Pleader clarifies that the demand for Rs. 80,49,741 is not new but was previously communicated in April 2007, with subsequent recovery notices issued due to non-payment of the interest amount. The petitioner's claim of duplicate payment or non-credit of the amount paid is refuted, emphasizing the distinct nature of the current demand.
4. The interest amount calculated for the years 1996-97 to 2000-01 aligns with the sum demanded in annexure E, reinforcing the legality and justification of the interest component under section 13(2) of the Act.
5. Despite the petitioner's awareness of previous demands and the nature of the current demand, the petition challenges the higher amount without crediting the earlier payment, alleging illegality and surprise at the notice issued in November 2008.
6. The court finds the petitioner's contentions lacking merit and potentially suppressing the truth, deeming the writ petition as not a bona fide exercise of seeking relief. Consequently, the petition is dismissed, and costs of Rs. 50,000 are awarded to the Revenue, with the option for the respondent to claim the amount through a registry application.
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2009 (4) TMI 863
Issues:
Challenging orders under Tamil Nadu General Sales Tax Act, 1959 and Central Sales Tax Act, 1956 for assessment year 2004-05.
Analysis:
The petitioner challenged two orders of the respondent, one under the Tamil Nadu General Sales Tax Act, 1959, and another under the Central Sales Tax Act, 1956, for the assessment year 2004-05. The petitioner's grievance was not about the rate of tax but about the classification of the product as an adhesive instead of a lubricant. The respondent rejected the application for revision under section 55, stating that revision under both Acts is impermissible due to the assessing authority lacking the power to change the tax rate. However, the court noted that the petitioner's prayer was not for a change in the tax rate but for a reconsideration of the product classification, which falls within the respondent's power to review under section 55.
The court held that the respondent had overlooked the nature of the petitioner's prayer, which was related to the product's classification rather than the tax rate. As such, the court set aside the orders passed on revision and remitted the applications under section 55 back to the respondent for a fresh consideration. The respondent was directed to review the petitioner's revision petition in accordance with the law and dispose of it on merits within four weeks from the receipt of the court's order. Additionally, the respondent was prohibited from taking any coercive recovery steps until the revision petitions were resolved. The court concluded by closing the related miscellaneous petitions without imposing any costs.
In conclusion, the court's judgment focused on the misinterpretation of the petitioner's request by the respondent and emphasized the need for a fresh consideration based on the correct understanding of the issue raised by the petitioner. The court's decision aimed to ensure a fair review of the classification matter without any coercive actions by the respondent until a final decision is reached.
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2009 (4) TMI 862
Issues:
1. Correctness of the order of the Sales Tax Appellate Tribunal dated November 12, 1998.
2. Validity of the best judgment assessment and penalty levied under section 12(3)(b)(i) of the Tamil Nadu General Sales Tax Act, 1959.
3. Sustainability of the Appellate Assistant Commissioner's order.
4. Sustainability of the penalty imposed.
Analysis:
The judgment of the court, delivered by K. Raviraja Pandian J., revolves around the correctness of the Sales Tax Appellate Tribunal's order dated November 12, 1998. The case involves an assessee, a dealer in ready-made garments, who reported a total and taxable turnover for the assessment year 1994-95. The assessing officer rejected the accounts of the assessee as incomplete and incorrect due to various defects, leading to a best judgment assessment and penalty under section 12(3)(b)(i) of the Act. The Appellate Assistant Commissioner dismissed the appeal, prompting the assessee to file a further appeal before the Appellate Tribunal. Two main points were raised before the Tribunal: the sustainability of the Appellate Assistant Commissioner's order and the penalty imposed.
The Tribunal sustained an addition of a lump sum amount and reduced the penalty proportionate to the amount sustained. The assessing officer had highlighted certain defects in the accounts, such as a high gross profit percentage and the lack of separate accounts for taxable goods. The Tribunal, however, deemed these defects as minor and unwarranted, especially considering the nature of the ready-made garments business. It was noted that the assessing officer had only pointed out minor defects in maintaining certain registers and lack of supporting documents for inter-State purchases. The Tribunal found the method used by the assessing officer to determine the taxable turnover improper and sustained only a lump sum addition and penalty related to that.
Ultimately, the court upheld the Tribunal's decision, stating that it was in line with statutory provisions. It was concluded that no substantial question of law was involved in the case, leading to the dismissal of the revision without any costs. The judgment highlights the importance of proper record-keeping and the need for a reasonable assessment method in taxation matters.
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2009 (4) TMI 861
Issues:
1. Claim for refund of value-added tax paid on the purchase of capital goods.
2. Request to adjust rebate amount against other tax liabilities.
3. Relief sought through a writ petition for refund and other reliefs.
Analysis:
1. The petitioner, a registered dealer under the Karnataka Value Added Tax Act, filed Form VAT-170 seeking rebate for the value-added tax paid on the purchase of capital goods. The petitioner requested a refund of the amount, claiming that the business turnover was not commensurate to utilize the entire rebate. The petitioner also sought to avail of the rebate against other tax liabilities. However, the authorities did not accede to these requests, leading to the filing of a writ petition for relief.
2. The court noted that unless the petitioner had followed the claim for rebate as permitted by law and demonstrated that the amount was not fully utilized, a refund could not be granted. The lack of quantification of the refund amount and the absence of a definite claim known to law or authority were highlighted. The court emphasized that a writ of mandamus for refund could only be issued after ascertaining the specific amount to which the petitioner was entitled under the law.
3. Consequently, the court declined to issue the writ of mandamus as sought by the petitioner. Instead, it directed the petitioner to pursue the matter before the authorities as permitted by law to seek the reliefs available. The judgment emphasized that the specific amount for refund must be determined before a writ of mandamus for refund could be issued, and such determinations were not within the scope of a petition under articles 226 and 227 of the Constitution. Ultimately, the writ petition was dismissed, allowing the petitioner to seek appropriate reliefs through the prescribed legal channels.
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2009 (4) TMI 860
Stay of collection of the disputed tax seeked - Held that:- The mere fact that the revisional order was passed 3½ years after the show-cause notice was issued is of little consequence. It is not even the case of the petitioner that the revisional order dated January 31, 2005 is barred by limitation. It is evident from the order of the Deputy Commissioner that the delay in passing the final order was due to numerous opportunities being given to the petitioner to produce his books of account.
The petitioner, having failed to produce the books of account despite several opportunities being given to him, cannot now be heard to say that the revisional order should be dismissed for laches. No statutory provision prohibiting a successor-Deputy Commissioner from passing final orders of revision on the basis of a show-cause notice issued by his predecessor in office, has been brought to our notice.
It is not even the case of the petitioner that either the Act or the Rules mandate a personal hearing being given to the dealer by the revisional authority. It is also not his case that he had sought for such an opportunity or that the Deputy Commissioner, who had issued the show-cause notice proposing to revise the assessment order passed by the Commercial Tax Officer, had heard him personally. It is well-settled that in cases where no request is made for personal hearing, the final order passed cannot be held to be vitiated on that account. Thus after taking into consideration the points raised, shall not be held to be invalid merely on the ground that no personal hearing had been afforded. Appeal dismissed.
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2009 (4) TMI 859
Penalty proceedings initiated against the assessee under section 15A(1)(o) - Held that:- As the transactions between the assessee and the U.P. State Sugar Corporation Ltd., were in the nature of inter-State sale and was also recognized as such by way of the order dated July 15, 2002, such being the case, it cannot be said that the provisions of section 28A of the Act were violated or that any penalty could be imposed for violation of the said provision.
Revision allowed. The penalty imposed upon the assessee by the impugned order dated December 23, 1997 is hereby set aside
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2009 (4) TMI 858
Issues Involved:
1. Nature of transactions (Inter-State sales vs. stock transfers/consignment sales).
2. Validity of reassessment proceedings.
3. Applicability of Section 6A of the Central Sales Tax Act.
4. Acceptance and verification of F forms.
5. Jurisdiction and procedural correctness of the assessing authority.
Issue-wise Detailed Analysis:
1. Nature of Transactions (Inter-State Sales vs. Stock Transfers/Consignment Sales):
The appellant, a milk producers' Co-operative Society, claimed that it sent ghee and other milk products to its branches and agents on a stock-transfer and consignment basis. The assessing authority, however, treated these transactions as inter-State sales, arguing that the goods were moved based on prior orders and full payment collected by the Tamil Nadu Milk Producers' Co-operative Federation. The judgment clarified that for transactions to be considered stock transfers, the movement of goods should not be the result of a contract of sale. In cases where the goods are sent to fulfil prior contracts, they are deemed inter-State sales, even if routed through branches or agents.
2. Validity of Reassessment Proceedings:
For the years 1985-86 and 1986-87, reassessment proceedings were initiated based on the inspection by the Enforcement Wing. The judgment emphasized that reassessment could only be justified on grounds such as jurisdictional error, fraud, or misrepresentation. In the absence of such findings, mere change of opinion does not justify reopening assessments. The Supreme Court's decision in Ashok Leyland Ltd. v. State of Tamil Nadu was cited, which held that once F forms are accepted after due inquiry, the transactions are conclusively presumed to be stock transfers.
3. Applicability of Section 6A of the Central Sales Tax Act:
Section 6A(1) allows dealers to claim that the movement of goods was not due to a sale but a stock transfer, by furnishing F forms. Section 6A(2) provides that if the assessing authority is satisfied with the F forms, the movement of goods is conclusively deemed to be otherwise than by sale. The judgment noted that for the relevant assessment years, the filing of F forms was not mandatory but could be used to discharge the burden of proof.
4. Acceptance and Verification of F Forms:
For the year 1985-86, the original assessment excluded the value of stock transfers covered by F forms. However, the reassessment did not accept these forms, treating the transactions as inter-State sales. The judgment found that the assessing authority's rejection of F forms was based on incorrect premises, such as the assumption that full payment was received before dispatch and that the goods were sent based on prior orders. The judgment allowed the appeal for the year 1985-86, setting aside the reassessment.
For 1986-87, the original assessment accepted the F forms, but the reassessment treated the transactions as inter-State sales. The judgment held that the reassessment was not justified as there was no finding of fraud or misrepresentation. The appeal was allowed for the consignment transactions but dismissed for the branch transfers.
5. Jurisdiction and Procedural Correctness of the Assessing Authority:
The judgment critically examined the procedural correctness and jurisdiction of the assessing authority in reopening assessments and rejecting F forms. It emphasized that the assessing authority must provide specific findings and cannot reopen assessments based on mere change of opinion. The judgment also highlighted the need for the assessing authority to verify and accept F forms properly before applying the deeming provision under Section 6A(2).
Separate Judgments Delivered:
The judgment was delivered by a single bench, and no separate judgments were mentioned. The analysis and conclusions were collectively provided for all the appeals.
Conclusion:
The appeals were allowed or dismissed based on the detailed examination of each assessment year. The judgment underscored the importance of proper verification of F forms and adherence to procedural requirements in reassessment proceedings. The reassessment for the years 1985-86 and 1986-87 was set aside for consignment transactions but upheld for branch transfers. The appeals for the years 1987-88 and 1988-89 were dismissed, affirming the assessment as inter-State sales.
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2009 (4) TMI 857
Whether, in the facts and circumstances of the case, the Tribunal is legally correct in having set aside the order of the assessing authority as affirmed by the first appellate authority only on the ground that the Department is in possession of extract sent by the Enforcement Wing Officers and nothing more?
Whether the Tribunal is correct in law in holding that the view that the burden of proving the purchases of groundnut from Karnataka dealers would still lie upon the Department and not upon the assessee?
Whether the Tribunal has legally erred in not holding that the burden of proof had been shifted upon the dealer once it is proved through the extract that they had made purchases of groundnut from Karnataka dealers? and
Whether the order of the Tribunal in having deleted the consequent penalty is legally sustainable?
Held that:- While the business connection of the assessee with the Karnataka commission agent cannot form the basis to show that whatever transactions which were accounted in other States are genuine, unless the purchaser's role has been proved beyond doubt by giving such unassailable reason, the revision of assessment has to be set aside. Consequently the penalty imposed was also set aside.
Not able to see any illegality or irregularity in the order of the Tribunal as the reasoning given by the Tribunal is cogent and also in accordance with the established principle of law. Appeal dismissed.
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2009 (4) TMI 856
The High Court of Karnataka, in a 2009 judgment, addressed a writ petition filed by a dealer assessed under the Karnataka Value Added Tax Act. The petitioner appealed an assessment order to the Joint Commissioner of Commercial Taxes. The Commissioner of Commercial Taxes issued Circular No. 12 of 2008-09, highlighting concerns about dealers producing statutory forms such as C, F, E, and H for the first time during appeals, often leading to claims based on fake or forged documents. The petitioner challenged the circular, arguing that it interfered with the appellate authority's powers. The court noted that the circular aimed to prevent false claims and did not directly impede the appellate authority's quasi-judicial functions. The petitioner was advised to address concerns with the appellate authority, and the petitions were dismissed.
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2009 (4) TMI 855
Reassessment proceedings under the Madhya Pradesh Vanijyik Kar Adhiniyam, 1994 challenged as without serving the order of assessment
Held that:-In view of the aforesaid analysis and the judgment of the Division Bench of this court in the matter of Smt. Jijeebai Shinde [1984 (9) TMI 13 - MADHYA PRADESH High Court], in the facts of the present case, we quash the reassessment initiated by the impugned notice dated December 29, 2000, by giving liberty to issue fresh notice of reassessment in accordance with law.
The writ petition is allowed accordingly
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2009 (4) TMI 854
Deferment of the revision proceedings request rejected - Held that:- In the facts and circumstances of the present case, it cannot be said that exercise of powers by the Joint Commissioner under section 20(2) of the APGST Act is without jurisdiction. It is not even the case of the petitioner that the impugned order is in violation of principles of natural justice nor are the vires of any statutory provision under challenge in this writ petition.
The petitioner has an effective alternative remedy, of an appeal to the Sales Tax Appellate Tribunal under section 21 of the APGST Act, without exhausting which they have invoked the jurisdiction of this court under article 226 of the Constitution of India. In view of the existence of an alternative remedy, we see no reason to express any opinion on the submission made by the learned counsel on the merits of the impugned order.
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2009 (4) TMI 853
Whether "potato chips" manufactured and sold by the petitioner-company under the brand name "Lays" and "Uncle Chips" would be covered by entry 80 of Part A of the Second Schedule to the Assam Value Added Tax Act, 2003 or the said product would fall under the residuary entry covered by the Fifth Schedule to the Act?
Held that:- "Potato chips" manufactured and sold by the petitioner-company would fall under entry 80 of Part A of Schedule II to the Assam Value Added Tax Act, 2003, as contended by the petitioner and that the said item will not fall under the residuary item contained in serial No. 1 of the Fifth Schedule to the Act as claimed by the Revenue. Our above finding, naturally, has to be understood in the context of the provisions of the Act as it stood prior to the amendment to the Schedule to the Act made with effect from October 16, 2008.
The revision petition, therefore, is allowed. The impugned order dated September 10, 2007 passed by the learned Commissioner of Taxes, Government of Assam is set aside and quashed.
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2009 (4) TMI 852
Deduction claimed on the basis of declaration form No. 1D(96) disallowed - Held that:- In case M/s. REPL had availed of the benefit of eligibility certificate exhausting the maximum limit during a particular period as to whether further benefit could have been taken by it after making misrepresentation, it is settled legal proposition that misrepresentation/fraud vitiates every action/order whether the assessment orders made in favour of M/s. REPL which might have attained finality could have any sanctity. All these questions are admittedly questions of fact. Such factually disputed questions cannot be adjudicated by this court in exercise of writ jurisdiction. W.P. dismissed.
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2009 (4) TMI 851
Issues involved:
The correctness of the Tribunal's order in upholding the assessing officer's decision regarding tax recoupment of controlled commodity u/s 22(1) of the Tamil Nadu General Sales Tax Act, 1959, read with section 9(2) of the Central Sales Tax Act, 1956.
Details of the Judgment:
Assessment of Turnover:
The assessee, a registered dealer in pharmaceutical business, reported total and taxable turnover for the assessment year 1997-98. The assessing officer determined the turnover and imposed a penalty under section 22(2) of the TNGST Act. The petitioners argued that the collection amount towards tax already suffered under the Act for goods controlled by law should not be considered as excess collection. However, this explanation was not accepted by any authority, including the Tribunal.
Contention of the Petitioner:
The petitioner's counsel reiterated that excess collection should not be deemed a violation of section 22 of the TNGST Act, and therefore, penalty under section 22(2) should not apply, especially for commodities controlled by separate laws.
Court's Analysis:
The court examined section 22(2) of the TNGST Act, which allows penalties for collecting amounts as tax in contravention of the law. The provision specifies penalties based on whether the excess amount was collected in good faith or willfully. Any unauthorized collection is considered a violation under section 22, and the amount must be recovered as a penalty under the Act, in line with constitutional principles that tax collection must be authorized by law.
Decision:
The court dismissed the revision, emphasizing that unauthorized collections are violations under the TNGST Act, and penalties are applicable for such actions. No costs were awarded in this matter.
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2009 (4) TMI 850
Whether show-cause notices do not mention the basis on which the turnovers mentioned therein were sought to be taxed ?
Whether the petitioner was denied an opportunity of effectively putting forward their defence thereagainst?
Held that:- The show-cause notice should reflect the jurisdictional facts based on which the final order is proposed to be passed. The assessee would then have an opportunity to show cause that the authority had erroneously assumed existence of a jurisdictional fact and, since the essential jurisdictional facts do not exist, the authority does not have jurisdiction to decide the other issues. This requirement is also absent in the show-cause notices issued in the present case.
Viewed from any angle, failure to indicate the basis for levy of tax under the A.P. VAT Act in the show-cause notice on, among others, the turnover of ₹ 815.52 crores falls foul of the audi alteram partem rule necessitating the impugned assessment order being set aside on the ground of violation of the principles of natural justice. W.P. allowed.
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2009 (4) TMI 849
Additional sales tax demanded - Held that:- There is much force in the contention advanced by petitioner to the effect that the petitioner having disputed the computation of taxable turnover which is said to have been exceeded ₹ 40 crores as mentioned in the notice dated March 14, 2000, the respondent ought to have passed an order of provisional assessment or final assessment and without resorting to such course of action, the notices dated March 14, 2000 and March 21, 2000 were issued overlooking the procedure contemplated under the provisions of the local Act and the Central Act. Therefore, this court has no hesitation to hold that the respondent had issued the impugned notices arbitrarily and mechanically without application of mind resulting in grave prejudice and injustice to the petitioner and as such, the impugned notices are liable to be set aside.
Accordingly, the notices issued by the respondent dated March 14, 2000 and March 21, 2000, respectively, are hereby quashed. In view of quashing of the impugned notices, the petitioner is entitled to the refund of the amount of ₹ 15,79,415 paid under protest towards the additional sales tax pursuant to the said notices dated March 14, 2000 and March 21, 2000
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