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Showing 201 to 220 of 748 Records
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2009 (9) TMI 891
Issues: Appeal against order of Sales Tax Tribunal dismissed as barred by limitation.
Analysis:
The petitioners approached the High Court against an order of the Sales Tax Tribunal dismissing their appeal as time-barred. The petitioners argued that they were served with best judgment orders on April 7, 2003, but due to unforeseen circumstances of being admitted to the hospital and kept in the ICU ward on April 12, 2003, they lost sight of the orders. The business had been closed down in 2000, and the other partner, the son of the petitioner residing in England, had not taken any steps for filing an appeal. The petitioner only became aware of the non-filing of the appeal when informed of an order of attachment by the sales tax authority during a no objection certificate application process. The High Court, after considering the facts and circumstances, found that remanding the matter to the appellate Tribunals would not serve any purpose. The Court held that the petitioner had shown sufficient cause for the delay and decided to set aside the orders of the appellate authorities and assessing officer, restoring the matter to the file of the assessing officer for further proceedings.
The High Court set aside various orders, including those of the Tribunal, rectification orders, first appellate authority, and ex parte assessment orders for certain assessment years. The matter was restored to the assessing officer's file, with the petitioner required to pay costs to the respondent within a specified time frame. The petitioner was directed to appear before the assessing authority on a designated date to proceed with the matter, with a strict timeline for completing the proceedings. The Court clarified that the order of attachment would continue until the final order by the assessing officer and recovery of any dues, if applicable. Additionally, the assessing officer was instructed to proceed with the proceedings without considering any time-limit under the relevant sales tax Acts, as agreed upon by both parties due to the peculiar circumstances of the case. The judgment made the rule absolute accordingly, providing a detailed roadmap for the further handling of the case.
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2009 (9) TMI 890
Whether the respondent-company can be termed to be a "pipeline industry" to derive the advantage of the notification dated July 21, 2000
Held that:- It has not been disputed by the appellant, Government of Pondicherry, that the Commercial Taxes Department, by its letter dated September 19, 2000, held that IMFL units would also be eligible, if they satisfy the other conditions specified in G.O. Ms. No. 36/2000/F2 dated July 21, 2000. It has also been seen that such exemptions having been given to other IMFL companies.
Apart from the fact that the company has been provided with "no objection certificate" for construction of the distillery, registration certificate, etc., it will be also evident that the respondent-company filed its monthly return in form A2 of the Pondicherry General Sales Tax Act before the Deputy Commissioner of Commercial Taxes, Pondicherry, reporting its turnover and claimed exemption on the same. The assessing authority originally issued provisional assessment notice dated December 11, 2000 and February 2, 2001 for the month of September to December, 2000, proposing to disallow the claim of the exemption on the ground that the exemption was made available in view of notification dated March 30, 1999. In response to the said notice, the respondent-company, through their letter dated February 12, 2001, filed its objection and claimed exemption under notification dated July 21, 2000. Thereafter, no order of provisional assessment was made, but, however the assessing authority chose to issue pre-assessment notice dated August 13, 2000 proposing to disallow the claim for exemption for the year 2000-01, which was confirmed by assessment order dated October 1, 2000. Thereby, the authority did not choose to apply its mind with regard to exemption to which one or other industry was entitled under G.O. Ms. No. 36/2000/F2 dated July 21, 2000. Appeal dismissed.
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2009 (9) TMI 889
Levy of penalty imposed under sections 15A(1)(q) and deleted the addition made under section 7(4) of the U.P. Trade Tax Act, 1948 cancelled by Tribunal
Held that:- As the assessee has already furnished sufficient evidence to prove that the goods have crossed the border of the U.P. and were never sold in the U.P. The Tribunal is a final fact finding authority as per the ratio laid down in the case of Kamala Ganapathy Subramaniam v. Controller of Estate Duty 2001 (2) TMI 132 - SUPREME Court] thus find no reason to interfere with the Tribunal's impugned order which is hereby sustained along with the reasons mentioned therein. No question of law emerges from the impugned order of the Tribunal. Appeal dismissed.
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2009 (9) TMI 888
Reassessment proceedings - Held that:- As find from the record that to the show-cause notice issued by respondent No. 2 the petitioner had filed its detailed objection. But the Additional Commissioner, respondent No. 2, had not given any reason whatsoever nor has dealt any of the objections raised by the petitioner in his reply, thus the said order passed by the Additional Commissioner cannot be sustained and is liable to be set aside
The impugned order dated December 18, 2007 (annexure 5) passed by the Additional Commissioner, Grade 1, Trade Tax, Kanpur Zone, Kanpur and the consequential notice dated January 4, 2008 (annexure 6) issued by the assessing authority for initiating reassessment proceedings for the assessment year 2002-03 are set aside. Appeal allowed.
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2009 (9) TMI 887
Rectification application accepted by tribunal - Held that:- In the present case, second application under the caption "misc. application" was filed on December 8, 2001. That clearly after two years of the appellate order and even after two years of the rejection of the first rectification application on October 19, 1998. The second application, assuming second application lay, was clearly barred by limitation. Therefore, the Tribunal had no power to entertain it. The impugned order therefore has to be set aside.
The matter be remanded back to the Tribunal for rehearing rectification application No. 73 of 1997 filed by respondent No. 2 but only regarding the contention of respondent No. 2 that the Commissioner and the Tribunal ought to have given prospective effect to the order of the Commissioner under section 52(2) of the Act. We make it clear that the points already decided in rectification application No. 73 of 1997 shall stand concluded and would not be reopened, but on remand the Tribunal would only consider the issue regarding prospective effect to be given to the order of the Commissioner under section 52(2) of the Act. The Tribunal shall consider the same independently and without being in any way influenced by any of the observations in the impugned order dated February 28, 2002 which is hereby set aside.
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2009 (9) TMI 886
Exemption from payment of purchase tax on purchase of raw materials - Held that:- The notification of the Sales Tax Department cannot act in contravention of the Industrial Policy. Once the policy defines the purpose, aims, objects, and the sweep, the notification of the Sales Tax Department must in a subservient manner ensure effective implementation of the policy. We are in no doubt that in case of any apparent or real conflict between the dominant policy decision and the notification of the Sales Tax Department, the latter shall yield to the former, and will have to be read down in case of doubt or difficulty. The latter can be read only in the manner it advances the aims and objects of the Industrial Policy, and any attempt to reduce its efficacy has to be discouraged, and, if necessary, shall be declared to be repugnant to the policy.
In the result, the writ petition is allowed. The impugned order dated March 7, 2000 (annexure 5), passed by the learned Commercial Tax Tribunal, is set aside. It is held that the petitioner is entitled to the benefit of exemption from payment of purchase tax on purchase of raw materials for manufacture of its products in Bihar, and sold in Bihar or outside Bihar. The petitioner shall be entitled to refund of the amount, if any, deposited by it along with interest at 15 per cent from the date of deposit(s) till the date of payment
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2009 (9) TMI 885
Input tax credit on stocks rejected being timebarred - Held that:-T he dealer-appellant(s) in these appeals have filed their respective statements of claim of input tax credit on May 23, 2005 (in V.A.T. Ap. No. 17 of 2008) and May 20, 2005 (in V.A.T. Ap. No. 5 of 2007), their cases are squarely covered by the judgment rendered in the case of City Petro [2009 (1) TMI 789 - PUNJAB AND HARYANA HIGH COURT] . These appeals are allowed and concerned designated officers are directed to consider the claims of the dealer-appellant(s) for input tax credit afresh in accordance with law within a period of two months from the date of receipt of a certified copy of this order
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2009 (9) TMI 884
Refund application of unadjusted input tax credit under section 58(4) of the OVAT Act, 2004 read with rule 66 of the Orissa Value Added Tax Rules, 2005 rejected
Held that:- While the petitioner's refund application was not processed even after the Assistant Commissioner's request to the Commissioner of Commercial Taxes to withhold the refund was turned down by the Commissioner on December 10, 2008 with a further direction to him to dispose of the refund application after necessary enquiry. This fact clearly indicates mala fide in exercise of quasi-judicial authority.
We allow the writ application and quash the order dated March 9, 2009 (annexure 8) rejecting the petitioner's refund application, and direct the opposite parties to effect the refund amount claimed by the petitioner under annexure 2 within a period of two months from the date of communication of this order along with interest due to the petitioner in terms of section 59 of the OVAT Act, 2004.
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2009 (9) TMI 883
Levy of penalty under section 9B(3)(a)(ii) of the Orissa Sales Tax Act, 1947 for the periods 2000-01, 2001-02 and 2002-03 - Held that:- In the present case, the petitioner has acted clearly in consonance with his lawful obligation both for collection and deposit of sales tax and the allegation that the petitioner had collected excess OST and surcharge over and above his liability under the Sales Tax Act, is preposterous. The OET Act itself permits "set-off of entry tax against the sales tax dues" and such set-off can only be made possible after the petitioner collects the OST from its purchasers and not at any time prior thereto.
Therefore, the Sales Tax Officer's notice for levy of penalty is wholly unfounded both on facts as well as law and is, therefore, without jurisdiction. We, accordingly hold that the petitioner was justified in claiming set-off of entry tax paid by him (at the time of purchase) from the tax payable under the OST Act and such claim of set-off cannot form a lawful basis for issue of a notice for levy of penalty under section 9B(3)(a)(ii) of the OST Act, 1947. Appeal allowed.
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2009 (9) TMI 882
When the revisional authority had already passed, on May 27, 2002, an order holding that since the alleged transportation of taxable consignments had taken place prior to February 28, 2000, was recourse to section 32(1)(a) not permissible in law?
Whether a Superintendent of Tax is empowered to issue a notice of demand for payment of a sum, which has been held, by the revisional authority, to be not recoverable?
Held that:- The revisional authority's order can be challenged, under the scheme of the TST Act and the Rules framed thereunder, before the Tribunal as envisaged under the statute in question. So long as the order, passed by a revisional authority remains in force, this order would be binding both on the assessee as well as the authorities, who are subordinate to the revisional authority. If an order passed by a revisional authority is bad in law the remedy lies either in challenging the order before the Tribunal as aforesaid or by taking recourse to rectification proceeding as envisaged by section 12 of the TST Act.
When one reverts to the case at hand, it becomes clear that even if the conclusion reached by the revisional authority in its order dated May 27, 2002, was illegal or incorrect, the Superintendent of Taxes concerned could not have passed any order and issue notice of demand, such as the one, which stands impugned in this writ petition, and/or pass any such order, which stands impugned in this writ petition. Thus while the notice of demand dated May 12/13, 2004, and also the impugned order dated May 14, 2004, are hereby set aside and quashed, the respondents are left at liberty to take recourse to such provisions of law as may be permissible for the remedy of their grievances.
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2009 (9) TMI 881
When the "transporters", as a class, do not fall within the definition of the term "dealer", in a given fiscal statute, whether it is constitutionally permissible to impose legal obligations on the functioning of the "transporters" so as to ensure that the acts or omissions of transporters" do not help evasion of tax by "dealers"?
Whether contravention of such statutory obligations, imposed on the "transporters" can be made offences?
Whether it is permissible for the Legislature to make such provisions, in such a fiscal statute, as would enable a "transporter" to opt for composition of such offences by making payment of such sum(s), which may be recoverable as the taxable liability of the "dealer", whose taxable consignment had been carried by the "transporter" or whose taxable liability the transporter has helped escaped assessment of?
Whether it would be permissible for the State to recover tax, which is, otherwise, payable by a "dealer", by making payment of such taxable amount as a condition for composition of an offence, which a "transporter" may have committed?
Held that:- In the present cases, apart from the fact that the composition amount could not be shown to be unreasonably high or oppressive, the impugned orders state that the petitioners had opted for composition of the offence under sections 29(4), 29(5), 29(6) and 29(12). The petitioners, as "transporter", contend, at the time of hearing of these writ petitions, that they had not opted for composition. It, thus becomes a disputed question of fact as to whether the petitioners had, or had not, as a matter of fact, opted for composition. Such a disputed question of fact cannot be decided and determined in a writ proceeding, such as, the present one, and the resort, in such a case, must be taken by a person within the scheme of the statute itself. Considered in this light, it becomes clear that if it is the contention of the petitioners that they had not opted for composition, they have to take remedial option provided in the statute itself and not by way of a writ petition under article 226 of the Constitution of India as has been done in the case at hand.
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2009 (9) TMI 880
Legislative competence of the State of Meghalaya to enact section 106 of the Meghalaya Value Added Tax Act, 2003 questioned
Held that:- Legislative competence of the State of Meghalaya to enact section 106 of the Meghalaya Value Added Tax Act, 2003.
Consequently, the State-respondents or the person or persons or body responsible for making tax deduction at source shall hereafter deduct the advance tax at the rate of 12.5 per cent only from the taxable turnover of the value of the works contract of all the petitioners of these 13 (thirteen) writ petitions. Excess payments, if any, on account of the tax deductions at source made by any of the respondents heretofore in terms of the interim orders of this court shall be refunded to all the petitioners at once along with the interest admissible under the law.
Conversely, if there is any deficiency in the collection towards deduction of tax at source in terms of the interim orders, it shall be open to the Staterespondents to recover the same from each of the petitioners in the manner permissible by law. The writ petitions are disposed in the above terms, but without costs.
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2009 (9) TMI 879
Applicability of the DVAT Act to the transaction of hiring of Maruti Omni cabs by the respondent to a company, M/s. New Delhi Power Limited (hereafter "the NDPL")
Held that:- The present appeal is not entitled to succeed because neither the transactions in question are sale of goods as envisaged in article 366(29A)(d) nor can the composite contracts be split up by taking from it the value of the goods for the purposes of taxing the same under the DVAT Act.
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2009 (9) TMI 878
interim injunction - Held that:- Interim orders of this Court dated 08th June, 2009 and 31st August, 2009 are vacated and substituted by the following directions.
The respondent shall be entitled to sell its product but it shall maintain an accurate records/accounts of its all India and export sales.We are appointing a Receiver to whom the records of such sale shall be furnished every fortnight by the respondent and the same shall be signed and authenticated by a responsible officer of the respondent. A copy of the same shall be given to the appellant also. We are requesting the Hon'ble the Chief Justice of the Madras High Court to forthwith nominate a Receiver in the matter to whom the sale records/accounts will be submitted by the respondent fortnightly, and the Receiver will verify the said sale records/accounts and thereafter submit his Report to the learned Bench of Madras High Court where the suit is pending. A copy of the same will be sent to the parties also. This direction will continue till the pendency of the suit. The remuneration of the Receiver will be fixed by the Hon'ble Chief Justice.
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2009 (9) TMI 877
Whether the assessee is entitled to claim deduction of ₹ 67.06 crores incurred in connection with swapping of foreign currency funds in the year under consideration, i.e., the assessment year 1995-96?
Held that:- Normally the ordinary rule is to be applied, namely, revenue expenditure incurred in a particular year is to be allowed in that year. Thus, if the assessee claims that expenditure in that year, the Income-tax department cannot deny the same. However, in those cases where the assessee himself wants to spread the expenditure over a period of ensuing years, it can be allowed only if the principle of matching concept is satisfied, which up to now has been restricted to the cases of debentures.
The upshot of the aforesaid discussion is to answer the question in favour of the assessee and against the revenue
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2009 (9) TMI 876
Issues Involved:
1. Rejection of application for registration under section 12A of the Income Tax Act.
2. Rejection of application for recognition under section 80G of the Income Tax Act.
Issue-wise Detailed Analysis:
1. Rejection of Application for Registration under Section 12A of the Income Tax Act:
The main contention revolves around whether the assessee trust qualifies as a "Public Charitable Trust" eligible for registration under section 12A. The DIT (Exemption) observed that the trust primarily benefits its members and not the general public. The trust's activities and accounts indicated that it works for the welfare of its subscribing members rather than the general public, lacking elements of altruism or philanthropy.
The Tribunal examined the objectives of the trust, which included:
- Construction and maintenance of drinking water projects.
- Construction of dwelling units and school buildings for economically weaker sections.
- Establishment of educational institutions and hospitals.
- Promotion of sports and various other activities aimed at rural development and upliftment of urban slum dwellers.
However, the Tribunal found that these objectives were not genuinely intended for the general public but were primarily for the benefit of the trust's members, milk producers' societies, and their families. The trust's funds were utilized for members' death relief and cattle death relief, further indicating that the benefits were confined to its members.
The Tribunal referenced the Finance Act, 2008, which amended section 2(15) of the Income Tax Act. The amendment clarified that entities engaged in activities in the nature of trade, commerce, or business are not eligible for charitable status under the "advancement of any other object of general public utility."
The Tribunal concluded that the trust's activities were for mutual interests of its members, not for the general public's benefit. Therefore, the trust did not qualify for registration under section 12A.
2. Rejection of Application for Recognition under Section 80G of the Income Tax Act:
Since the trust's application for registration under section 12A was rejected, its application for recognition under section 80G was also rejected. Section 80G provides tax deductions for donations to certain charitable institutions. However, eligibility for this recognition is contingent upon the trust being registered under section 12A.
The Tribunal upheld the DIT (Exemption)'s decision, noting that the trust's primary purpose was to benefit its members rather than the general public. The trust's activities did not align with the legislative intent to provide relief in education, health, and other charitable purposes to the economically weaker sections of society.
Conclusion:
The Tribunal unanimously held that the DIT (Exemption) was justified in rejecting the assessee's application for registration under section 12A and, consequently, the application for recognition under section 80G. The trust's activities were primarily for the benefit of its members and not for the general public, disqualifying it from the claimed exemptions.
Result:
The assessee's appeals were dismissed, and the decisions of the DIT (Exemption) were upheld.
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2009 (9) TMI 875
Whether the commodities dealt with by the petitioner are electronic equipments which are classified under entry 50 of Part B of First Schedule to the Tamil Nadu General Sales Tax Act and the correct assessable rate is only 3%?
Whether the penalty levied under 12 (3)(b) is maintainable?
Held that:- The Tribunal has rightly held that a mere addition of memory card or software will not in any way alter the character of the goods which is intrinsically survey instruments only and therefore, the commodity would clearly fall under Part F 14 and assessed to tax at 16% and not at 3% as claimed by the petitioner under the head of electronic goods. Therefore, the findings given by the Tribunal is clear and correct. Therefore, the two cases in respect of the assement years 1993-1994 and 1994-1995 fails and the question of law is answered against the assessee.
As rightly pointed out by the Tribunal inasmuch as there is a total variation in paying the tax levy at 3% to 16% the penalty is warranted and penalty is leviable and finding of the Tribunal is in order and does not call for any interference. Hence this question is also answered against the assessee.
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2009 (9) TMI 874
Whether, notwithstanding the mutual agreement to make the High Seas Sale Agreement subject to Kolkata jurisdiction, it would be open to the Respondent-Company to contend that since a part of the cause of action purportedly arose within the jurisdiction of the Bhavnagar Court, the application filed under Section 9 of the Arbitration and Conciliation Act, 1996, before the Principal Civil Judge (Senior Division), Bhavnagar (Gujarat), would still be maintainable?
Held that:- In the instant case, the parties had knowingly and voluntarily agreed that the contract arising out of the High Seas Sale Agreement would be subject to Kolkata jurisdiction and even if the courts in Gujarat also had jurisdiction to entertain any action arising out of the agreement, it has to be held that the agreement to have the disputes decided in Kolkata by an Arbitrator in Kolkata, West Bengal, was valid and the Respondent- Company had wrongly chosen to file its application under Section 9 of the Arbitration and Conciliation Act before the Bhavnagar Court (Gujarat) in violation of such agreement. Thus transfer petition should be allowed.
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2009 (9) TMI 873
Issues: Classification of various products for differential duty payment
Classification Dispute:
The judgment revolves around the classification dispute of various products leading to a differential duty of Rs. 1,53,02,678. The importers accepted the Revenue's classification for some products but disputed the classification of the remaining items. The classification of goods at Serial Numbers 2 and 15 was taken as an example to analyze the dispute further.
Analysis of Classification Dispute:
For the product at Serial Number 2, the importers claimed classification under CTH 020200, related to tea. However, the tribunal found that the claimed heading did not cover nutritional drinks made from herbal infusions or teas offering health benefits. The alternate classification under CTH 2202 was also not accepted as it pertained to waters and beverages, not nutritional health drinks. The importers' claim under CTH 30.04 for medicaments was also dismissed as the product literature disclaimed any medicinal intent. Thus, the tribunal classified the product under CTH 21.06 and CET 21.08 as edible food preparation.
Prima Facie Case:
Regarding the product at Serial Number 15, the importers' claim for classification as medicaments under Heading 30.04 was rejected due to the disclaimer in the product literature. The tribunal emphasized that the final classification should be determined during the appeal's final hearing, as the current stage did not warrant interference with the adjudicating authority's classification. The classification of the remaining disputed products was deemed debatable, and it was not prima facie evident that they fell under the importers' claimed headings.
Decision and Predeposit:
Considering the discussions, the tribunal directed a predeposit of Rs. 50,00,000 within eight weeks, with a waiver of the balance amounts upon this initial deposit. Recovery of the waived amount was stayed during the appeal's pendency, subject to compliance by a specified date. Failure to adhere to the directive would result in the vacation of stay and dismissal of the appeal without prior notice.
Conclusion:
The judgment underscores the importance of accurate classification of products for duty payment, highlighting the need for a detailed analysis of product characteristics and intended use. It emphasizes the significance of supporting documentation and disclaimers in determining the appropriate classification under the relevant tariff headings.
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2009 (9) TMI 872
The Appellate Tribunal CESTAT CHENNAI, presided over by Ms. Jyoti Balasundaram, heard an appeal involving M/s. Sulochana Cotton Spinning Mills Ltd., a company engaged in the manufacture of cotton yarn. The company was accused of removing excisable goods for export without payment of duty. Investigations revealed that the consignments needed for export had not actually been exported to Bangladesh, and the documents provided to obtain proof of export were deemed false. A show-cause notice was issued for duty recovery and penalties against both the manufacturer and the merchant exporter. The notice was adjudicated with the demand and penalty confirmed. However, the Commissioner (Appeals) later set aside the demand and penalty. The Revenue appealed this decision, but the Tribunal upheld the Commissioner's ruling, stating that there was no evidence to prove the documents were fake. Therefore, the case of the Department failed, and the appeals were dismissed. The judgment focused on the authenticity of export documents and the lack of evidence to support the claims made by the Revenue. The decision emphasized the importance of establishing proof of export in excise duty cases. The case serves as a reminder of the need for concrete evidence to support allegations of duty evasion.
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9911796707
