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Showing 201 to 220 of 902 Records

2009 (8) TMI 1103

Emulsified bitumen - whether would not fall under entry No. 16 of Schedule II, Part II appended to the Madhya Pradesh Value Added Tax Act, 2002?
Held that:- It is not in dispute that bitumen in its original form would not absorb or mix with water but after emulsifier is fired upon the raw bitumen, then it is clear that quality of absorbing or mixing in the water would come into being. The quality of a new product is changed and it is commonly and commercially known as a different commodity, then it cannot be said that the new produce would fall in original entry. Undisputedly, bitumen and emulsified bitumen are two different commodities in the commercial world, though use of the said articles some times may be common, but some times, even the cost of the use as would also require to be considered to vary and use of the new product which is commercially different economically to some extent.
Thus the learned Commissioner, Commercial Tax, was justified in holding that "emulsified bitumen" would not fall in entry No. 16. Appeal dismissed.
2009 (8) TMI 1102

Coconut oil - whether liable to be taxed at 12.5 per cent VAT on sale price?
Held that:- The legislative mandate was to treat "coconut oil" differently from edible oil in entry 47 and therefore, the claim of the petitioner that "coconut oil" would come under serial Nos. 124 and 125 cannot be accepted. In the aforesaid premises it is clear that the intent of the legislation was to exclude "coconut oil" from Part II of Schedule B to the OVAT Act and consequently making the same taxable at 12.5 per cent under Part Ill of the Schedule B. Appeal dismissed.
2009 (8) TMI 1101

Realisation of sales tax arrears due - entitlement of the petitioners to claim protection orders under section 32 of the Insolvency Act - Held that:- The assertions so made by the petitioners without furnishing any data on the assets possessed by the petitioners was found unacceptable to both the courts below which cannot be found fault with especially where the petitioners have not produced any materials to show that the firm in which as partners they carried out business has ceased to be in existence and also no particulars towards the debt due to the other respondents impleaded as 4 to 13 in their petitions. There is not even a whisper in their petitions as to what is the debt or liability due from the petitioners to those respondents.
As no interference with the orders passed by the courts below that the petitioners are not entitled to the protection order under section 32 of the Insolvency Act is called for. Writ petitions lack merit, and both of them are dismissed.
2009 (8) TMI 1100

Effective sale - Whether the goods are sent through lorries and the appellant itself had arranged for the transportation and the risk of the goods continued till it was delivered at the place of the dealer?
Held that:- The assessee had failed to prove that there was any independent contract entered into with the dealers to hold that the freight charges were independent of the transaction and could not be included in the total taxable turnover, the contention of the assessee cannot be accepted and the same is liable to be rejected. One another reason as found by the authorities was that the freight charges were not collected on the basis of actuals, but on a assumption depending upon the distance of the local dealers' show-room from the assessee's distribution point and varied from local distributor to distributor and was nevertheless was added in the invoices and the net amount was shown. Appeal dismissed.
2009 (8) TMI 1099

Whether, in the facts and circumstances of the case, the Tribunal is legally correct in treating the turnover representing loading charges, transport charges, unloading charges as not includible in the purchase turnover for the purpose of levy of tax under section 7A of the Tamil Nadu General Sales Tax Act, 1959?
Held that:- We are in full agreement with the decisions rendered in Gwalior Rayon Silk Manufacturing and Weaving Co. Ltd [1980 (9) TMI 262 - MADRAS HIGH COURT] and P.R. Tata & Co. [1970 (4) TMI 149 - ORISSA HIGH COURT] deciding the question of law in favour of the assessee. Thus tax case revision fails and the same is dismissed.
2009 (8) TMI 1098

Issues:
Violation of statutory provisions regarding original documents accompanying goods in transit; Justification of penalty levied under section 28A(4) of the Karnataka Sales Tax Act, 1957; Claim of bona fide dealer regarding compliance with legal requirements.

Violation of Statutory Provisions:
The case involved a check-post officer discovering goods being transported without the required original documents, leading to the detention of the goods. Despite the dealer subsequently producing the original documents, a penalty was levied under section 28A(4) of the Karnataka Sales Tax Act, 1957. The appellate authority and the Karnataka Appellate Tribunal upheld the penalty, citing non-compliance with the statutory provision of original documents accompanying goods in transit. The court emphasized that a xerox copy could not substitute the original document as required by law, stating that the consequences of non-compliance are legally binding.

Justification of Penalty:
The appellate authorities justified the penalty based on the statutory provisions and the lack of compliance with the legal requirement of original documents accompanying the goods. The court noted that the authorities had correctly applied the law in finding the penalty justified. The petitioner's argument that producing xerox copies should suffice was rejected, emphasizing that the law mandates the presence of original documents with the goods. The court upheld the penalty, finding no error or illegality in the decisions of the lower authorities.

Claim of Bona Fide Dealer:
The petitioner, claiming to be a bona fide dealer, argued that they had not avoided scrutiny at the check-post and had produced both xerox and original documents. The court, however, reiterated that the legal requirement was for the original documents to accompany the goods, not copies. Despite the petitioner's assertions, the court found no justification to overturn the penalty imposed, as the statutory provisions had not been complied with. The petition was ultimately dismissed by the court based on the findings of the lower authorities and the legal requirements regarding original documents.
2009 (8) TMI 1097

Issues:
Challenging assessment order for the assessment year 2006-07 due to non-consideration of records produced before assessing officer.

Analysis:
The petitioner reported a total and taxable turnover under the Tamil Nadu General Sales Tax Act for the assessment year 2006-07. The accounts were checked by the assessing officer after an inspection of the place of business by enforcement officials. The assessing officer passed an order dated March 30, 2009, which the petitioner challenged through a writ petition. The impugned order stated that the petitioner had filed objections and produced all records and registers before the assessing officer. However, the assessing officer did not consider these records, citing that they were not produced during the inspection by enforcement officers. The High Court held that the assessing officer's duty is quasi-judicial, requiring a thorough examination of all records and documents to arrive at an independent conclusion. The stand taken by the assessing officer, as reiterated in written instructions, was deemed legally unsustainable. Consequently, the court allowed the writ petitions, set aside the impugned orders, and remitted the matter back to the assessing officer for a fresh consideration.

The High Court emphasized that the assessing officer's duty is distinct from that of enforcement wing officials. The assessing officer is obligated by statute to review all records and documents provided by the dealer before making an assessment. The court rejected the assessing officer's argument that records not produced during the inspection should be disregarded. The second respondent was directed to reexamine the records and registers submitted by the petitioner and complete the assessment within six weeks. The petitioner was instructed to produce the records within two weeks of receiving a copy of the court's order. The judgment concluded by stating that no costs were to be awarded and closed all connected miscellaneous petitions.
2009 (8) TMI 1096

Benefit of subsection (4) of section 18AA - Held that:- It is not open to a dealer to contend that an amount which was shown and declared to have been collected as by way of tax and payment remitted to the Government as by way of tax, was not at all collected earlier, only because it subsequently points out that during the relevant time, there is no tax liability on the product and therefore there was no occasion for the dealer to have collected the amount and the amount was collected is not liable for forfeiture in terms of section 18AA of the KST Act.
Sub-section (4) of section 18AA is a provision applicable only to persons who had in fact paid some amount by way of tax, which has been collected by the registered dealer and ultimately having been found not to be a tax, but anything other than that, and therefore liable for forfeiture in the hands of such a dealer and the buyers to claim refund. Such is not the situation here. Therefore, reference to subsection (4) of section 18AA of the KST Act is of no consequence. Appeal dismissed.
2009 (8) TMI 1095

Whether the Tribunal has totally rejected all the relief granted to the assessee by the Appellate Assistant Commissioner and erroneously confirmed the levy of penalty at 150 per cent?
Held that:- On a careful consideration of the order of the Tribunal, it is clear that but for the inspection conducted by the enforcement wing officials, the suppression could have gone unnoticed and the intention of the assessee to suppress such a huge turnover is clearly established. When such intention is proved beyond reasonable doubt, the findings of the Appellate Assistant Commissioner giving benefit of doubt to the assessee, merely because the opening stocks were not properly taken into account, is unsustainable in law. Per contra, the Tribunal has rightly considered all the relevant materials and set aside the order passed by the Appellate Assistant Commissioner. The Tribunal has also rightly concluded that imposition of 150 per cent of penalty is warranted in the facts and circumstance of the case especially when there is a huge and large scale suppression of the transaction on the part of the assessee.
The order of the Tribunal is therefore fully justified. In such circumstance, the question of law raised by the appellant that incorrect reporting of taxable turnover without equal addition was not applicable for the purpose of levy of maximum penalty has to be answered in favour of the Revenue.
2009 (8) TMI 1094

Issues:
1. Condonation of delay in filing the appeal.
2. Interpretation of exemption benefit under the Karnataka Sales Tax Act, 1957.
3. Reversal of exemption benefit by the Additional Commissioner of Commercial Taxes.

Analysis:
1. Condonation of Delay: The appeal was filed with a delay of 134 days, and an application for condonation of delay was submitted. The court accepted the explanation provided in the affidavit accompanying the application and condoned the delay, allowing the appeal to proceed.

2. Interpretation of Exemption Benefit: The appeal challenged the order of the Additional Commissioner of Commercial Taxes, which reversed the exemption benefit granted to a dealer in relation to the turnover of cotton purchased by a spinning mill. The dealer claimed exemption from purchase tax based on a government order following the Textile Policy. The assessing authority had initially denied the relief, but the dealer succeeded in appeal before the Joint Commissioner of Commercial Taxes.

3. Reversal of Exemption Benefit: The Additional Commissioner of Commercial Taxes reversed the exemption benefit, leading to the appeal. The appellant contended that they were entitled to the exemption, citing a previous court decision in a similar case. However, the Additional Government Advocate argued that the court had already established a legal position in a previous case, stating that a mere government order cannot replace the exemption provision under the Act. Consequently, the court dismissed the appeal based on its previous decision and upheld the reversal of the exemption benefit by the Additional Commissioner of Commercial Taxes.
2009 (8) TMI 1093

Whether the process undertaken by the petitioner for preparing bidi from tobacco amounts to manufacture?
Whether the petitioner is liable to pay market fee in accordance with the provisions of the M.P. Krishi Upaj Mandi Adhiniyam, 1972?
Held that:- The process of utilization of the tobacco by the petitioner for preparing bidi amounts to manufacture and as has been held by the Supreme Court in the case of Orient Paper [2006 (11) TMI 320 - SUPREME COURT OF INDIA] Falls outside the purview of section 19 and cannot be subjected to levy of market fee.
Also the petitioner is neither selling, purchasing nor processing tobacco and has not subjected the tobacco to any of the process mentioned in the definition clause under section 2(1)(mmm) which is a notified agricultural produce within the market area and therefore, is also outside the purview of section 6 of the Act also. In favour of assessee.
2009 (8) TMI 1092

Deduction of sales tax/value added tax from the works contract carried - Held that:- BSNL-respondent No. 1 is not entitled to make any deduction out of the payments to be made to the petitioner(s) under section 27 of the Act without any transfer of property in goods being involved.
The petitioners would be at liberty to take their remedies for refund of the payments already made. If any such application is made, respondent No. 3 shall take a decision thereon within one month from the date of receipt thereof.
2009 (8) TMI 1091

Issues involved:
Entitlement to exemption from payment of additional sales tax under section 5D of the Kerala General Sales Tax Act based on a certificate of exemption issued under Government Notification S.R.O. No. 1729/1993.

Analysis:
The petitioner, a small-scale industrial unit, sought exemption from additional sales tax under section 5D of the Act based on a certificate of exemption issued under a government notification. The assessing officer granted exemption from sales tax for a specific period but demanded additional sales tax separately. The Government Pleader argued that the additional sales tax was a separate levy and not covered by the exemption certificate. However, the petitioner contended that the liability under section 5D was tax on tax payable on the sales turnover and hence should be covered by the exemption. Reference was made to a Supreme Court decision regarding a similar issue, but it was held that the petitioner could claim exemption based on the notification and certificate issued. The notification also granted exemption to new SSI units on surcharge payable by them, and it was noted that the additional sales tax was introduced after the abolition of certain acts. The court held that the petitioner was entitled to exemption under the certificate on the additional tax payable under section 5D, which would be set off against the eligible amount of sales tax exemption granted.

The judgment allowed the original petition, directing the respondents to grant exemption on the additional sales tax payable under section 5D to the petitioner and set off the same against the amount certified for tax exemption. An order on a related matter was dismissed.
2009 (8) TMI 1090

Issues:
1. Challenge to the correctness of the order dated February 9, 2009 passed by the learned single judge in Writ Petition No. 10862 of 2008 under the Karnataka Value Added Tax Act.
2. Interpretation of statutory provisions under section 90 of the KVAT Act and its application to the case.
3. Examination of the concession claimed by the appellant and its alignment with the provisions of the KVAT Act.
4. Evaluation of the order passed by the Principal Secretary to the Finance Department and its legality in granting concessions.

Analysis:
1. The appeal questioned the order passed by the single judge, arguing that it was contrary to law and the material on record. The appellant sought to set aside the order and obtain the reliefs prayed for in the writ petition. The dismissal of the writ petition was contested as it allegedly deprived the appellant of a legitimate right created under the Act.

2. The impugned order was challenged on the grounds that the State Government did not need to provide clarification under section 90 of the KVAT Act, and the order was not tested from the perspective of Article 14 of the Constitution of India. The appellant claimed a substantive statutory right for full tax relief as a second dealer, which was allegedly not considered in the impugned order.

3. The appellant's relief was argued to be a statutory right under the Act, allowing for full tax relief and continuation of the Karnataka Sales Tax Act for the relevant assessment year. The single judge observed that the concession claimed by the appellant was not within the statutory provisions and could not extend beyond the KVAT Act's provisions. The order restricting the concession was deemed lawful and in line with statutory provisions.

4. The single judge examined the order issued by the Principal Secretary to the Finance Department and concluded that if the appellant had incurred a lesser liability, they would not have been eligible for the concession to the extent of the liability under the later enactment. After considering all legal grounds and relevant aspects, the writ petition was rejected, affirming the State Government's order. The appeal was deemed meritless and dismissed accordingly.

In conclusion, the judgment upheld the decision of the single judge, finding no grounds for interference. The appeal was dismissed, and the Government Advocate was permitted to file a memo of appearance within two weeks.
2009 (8) TMI 1089

Whether, on the facts and in the circumstances of the case, the transportation charges, which were separately charged, are liable to be taxed under the Act?
Held that:- We answer the question framed, in favour of the assessee and against the Revenue and hold that the transportation charges charged separately are liable to be deducted from the gross turnover of the assessee as provided under section 5(2)(A)(a)(iii) of the OST Act.
2009 (8) TMI 1088

Impugned circular dated January 20, 2006 issued by the Commissioner of Trade Tax, U.P., Lucknow challenged
Held that:- Rates and security fixed in the circular are not arbitrary.
The plea that it is not a general order, is devoid of any substance in as much as no particular form of issuing an order has been prescribed under the Act or the Rules framed thereunder. The general order relates/applicable to the goods notified and there is no prohibition that valid classification cannot be made with respect to class of dealers engaged in the said business provided that the classification is valid, reasonable and has nexus with the object sought to be achieved.
In view of the aforesaid discussions, it cannot be said that there is no nexus between the object sought to be achieved and the provisions fixing the rate of the notified goods and security as well as the fixing the cut off date, i.e., April 1, 2001. So even testing it on the principles of delegated legislation, the impugned circular cannot be adjudged to be ultra vires. Appeal dismissed.
2009 (8) TMI 1087

Entitlement to the benefit of Explanation II to the notification - Held that:- No benefit as claimed by the appellant can be extended. The assessment order was right and the Additional Commissioner has rightly restored it, set aside the order passed by the appellate authority.
While it is true that Explanation II makes a deviation in so far as the rate of tax leviable on entry of goods covered by that Explanation is caused by a dealer and consequentially the tax liability under the Act, it makes a difference only in the case of such raw material consumed in the manufacture of tobacco products and liquor and not in respect of PCC cement poles. Explanation II does not in any way alter the liability of the dealer in terms of the rate as stipulated in the main Table. Appeal dismissed.
2009 (8) TMI 1086

Reassessment tax liability of the petitioner - Held that:- The result emanating from accepting the Revenue's contention is to make two exemptions "exemption or deferment" operate differently depending on their option. We are of the view that there exists no foundation for different treatment under the scheme itself, i.e., exemption or deferment. Therefore, in the absence of clear provision permitting different treatment to persons who opted for "exemption or deferment" on a fair and harmonious interpretation of statute such dichotomy has to be avoided.
Accordingly, we allow this tax revision in favour of the assessee by holding that the tax liability of the petitioner has to be reassessed and determined afresh in accordance with the provisions of the OST Act, requiring computation of taxable turnover, in accordance with law, without reference to the exemption under the IPR, 1996. The re-computation be done in terms of our directions within a period of three months from the date of receipt of certified copy of this judgment.
2009 (8) TMI 1085

Whether, in the facts and circumstances of the case, the Tribunal was right in having reduced the further addition at ₹ 5,54,800 to ₹ 27,586 on the ground that the assessee had paid huge amount of compounding fee for not carrying the bill is legally sustainable?
Whether the reduction of second penalty by the Tribunal is valid in law?
Held that:- The assessing officer, apart from accepting the turnover as reported by the assessee, proceeded to make an assessment of the suppression by making an estimation. In that process, since the quantity of excess stock was quantified at 4.270 kgs of silver anklets and the transportation of the silver anklets without bills was also available to the exact quantity, namely, 40.140 kgs, the assessing officer was able to value those items which worked out to a sum of ₹ 5,54,800. To that extent, the action of the assessing officer cannot be in any way faulted, but the assessing officer proceeded further and made an equal addition of the suppression and estimated it at ₹ 5,54,800 and the total suppression was thus arrived at ₹ 11,09,600 to which the taxable turnover reported by the assessee was added and the total taxable turnover was estimated at ₹ 15,98,191. When the aid action of the assessing officer was examined by the Tribunal, the Tribunal, at the outset, noted that there was no incident of the assessee carrying goods without any bills in the past.
Thus such an approach made by the Tribunal was perfectly justified and consequently, the scaling down of the amount towards probable omission from ₹ 5,54,800 to ₹ 27,586 by the Tribunal does not call for any interference as we do not find any legal or serious irregularity in the said approach of the Tribunal. The tax case is accordingly dismissed answering the questions of law raised in this case against the State
2009 (8) TMI 1084

Whether there has been proper service of the revised assessment order on the petitioner?
Held that:- The order has not been served in the manner required under the Tamil Nadu General Sales Tax Act and Rules framed thereunder. In that view of the matter, the impugned order dated January 21, 2008 is set aside and the date of receipt of the order shall be taken as June 29, 2007 and the Appellate Assistant Commissioner is directed to take the appeal filed by the petitioner on July 11, 2007 on its file and decide the same on merits and in accordance with law within a period of eights weeks from the date of receipt of a copy of this order. The learned counsel for the petitioner would also submit that the petitioner would co-operate with the appeal proceedings.