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Showing 221 to 240 of 872 Records
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2009 (4) TMI 848
Issues:
1. Reassessment orders under section 39 of the Karnataka Value Added Tax Act for the period from April 1, 2005 to March 31, 2006.
2. Lack of jurisdiction of the second respondent to pass the reassessment order.
3. Prima facie examination of the lack of jurisdiction on the part of the second respondent.
Analysis:
The judgment deals with writ petitions filed by an assessee under the Karnataka Value Added Tax Act, challenging reassessment orders passed under section 39 for the period from April 1, 2005, to March 31, 2006. The petitioner contested that the second respondent, who was not the assessing authority, lacked jurisdiction to pass the reassessment order. The petitioner argued that only the prescribed authority with jurisdiction conferred by the Commissioner could issue reassessment orders under section 39. The petitioner contended that since the first respondent had already passed an assessment order, it was not within the second respondent's purview to reopen the assessment. The primary contention was the lack of jurisdiction on the part of the second respondent to pass the reassessment order.
The court considered the arguments regarding the lack of jurisdiction and observed that if both respondent Nos. 1 and 2 were empowered to pass orders under sections 38 and 39 of the Act, then the lack of jurisdiction of the second respondent to pass the order under section 39 was not valid merely because the first respondent had already passed an order under section 38. The court emphasized that the lack of jurisdiction in the second respondent to pass such an order was not established. The judgment highlighted that the primary issue was the lack of jurisdiction of the second respondent to issue the reassessment order under section 39.
The court clarified that the examination of the lack of jurisdiction was only prima facie and not a final determination on the merits of the order passed by the second respondent. It was emphasized that the consequence of the order was the re-determination of the petitioner's liability under the Act. The court directed the petitioner to pursue remedies provided under the statute, including filing appeals, to seek relief. The judgment concluded by dismissing the writ petitions, indicating that the petitioner could raise all contentions before the appellate authority, including the question of jurisdiction. The court's decision was based on the lack of jurisdiction of the second respondent to pass the reassessment order under section 39, emphasizing the importance of following statutory remedies for seeking relief.
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2009 (4) TMI 847
Direction issued by the BIFR - on what basis the financial limit has been fixed and whether it finds place in the original scheme - Held that:- We are of the considered opinion that the direction issued by the BIFR is in conformity with the original scheme and it has not travelled beyond the mandate of the original scheme. Be it placed on record, we have also asked Mr. Shukla as to which stand of the petitioner would dislodge the order. Except stating that they have not entered into production, the learned Deputy Advocate General for the State, could not enlighten us. It is demonstrable from the documents brought on record that the exemption was granted for rolling mill unit but nothing has been mentioned therein that it is for a particular place and correctly so.
The directions issued by the BIFR and affirmed by the AAIFR are in consonance with the original scheme which was accepted by the State Government as a consenting party and, therefore, any deviancy thereof is neither just nor proper. When the original scheme did not fix any financial limit, the same could not have been incorporated in the notification. Thus, the orders passed by the BIFR and AAIFR are just and proper and there is no warrant of interference.
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2009 (4) TMI 846
Withhold of refund due to the petitioner - Held that:- A perusal of impugned order dated April 28, 2006 (P8) shows that it has recorded a finding granting approval to withhold refund of ₹ 4,32,21,206 by observing that recovery of the aforesaid amount would be adversely affected later on if the refund is allowed. The Commissioner has failed to record any reason as to how the recovery is likely to be affected. The order is totally laconic as it does not give any reasons. There is not even a whisper of the material forming basis of aforesaid satisfaction by the Commissioner. The impugned order is wholly unsustainable in the eyes of law and is, thus, liable to be set aside.
Appeal allowed. The impugned order dated April 28, 2006 (P8) is set aside. The respondents are directed to refund a sum of ₹ 4,32,21,206 in respect of assessment year 2002-2003 along with interest to the assessee-Society.
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2009 (4) TMI 845
Whether the provisions of section 15(5)(e) of the Act is only by way of clarification and even as indicated in the budget speech of the Finance Minister and that it does not create an additional liability but only points to an existing liability only reveals half truth?
Held that:- The principle of promissory estoppel having been indicated to be attracted to a situation of the present nature as what the statute provided for earlier is an option and that option after having been exercised the consequence are sought to be changed by subsequent variation of the law is unreasonable, same logic holds good in respect of any liability fastened for the period from April 1, 2005 to March 31, 2007.
However, the position continues to be the same in respect of all dealers other than works contractors and in the case of works contractors from April 1, 2007 onwards the liability as indicated in section 15(5)(e) of the Act though is independently mentioned is to be read as part of composition as offered under section 15(1) of the Act and it has to be worked on such premise for persons who have opted for payment of tax by way of composition and who are dealers, on and after April 1, 2007 onwards.
In this view of the matter, all reassessment orders for levy of additional burden on the premise of the liability under section 3(2) of the Act for the period prior to April 1, 2007 and also any penalties levied under section 72(2) of the Act and the consequential levy of interest and penalty including any prosecution launched covering the period only on the premise that the tax paid by the petitioners by way of composition falls short of the amount indicated in the reassessment order, stands quashed by issue of a writ of certiorari.
In this view of the matter, the show-cause notices issued in the case of petitioners in W.P. No. 2416 of 2008 at annexure D stand quashed by issue of a writ of certiorari. The petitioners having confined their challenge to the assessment orders up to the period March 31, 2007 and with the declaration of law that the provision of section 15(5)(e) of the Act as it operates from April 1, 2007 is a valid provision, other consequences in law follows.
Section 4(3)(d) of Act No. 6 of 2007 is declared unconstitutional in so far as it pertains to the deeming provision of making clause (e) of sub-section (5) of section 15 of the Act operative from April 1, 2006 being an unreasonable provision having deleterious consequences on the petitioners.
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2009 (4) TMI 844
Withhold refunds under section 33C of the Andhra Pradesh General Sales Tax Act, 1957 - Held that:- None of the orders impugned in this batch of writ petitions recorded any reasons whatsoever nor set out any facts or circumstances for recording that the grant of refund is likely to adversely affect the Revenue. These orders cannot therefore be sustained. Consequently the several orders of the first respondent, dated November 1, 2008, impugned in this batch of writ petitions, are set aside.
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2009 (4) TMI 843
Complaint of violation of principles of natural justice - Held that:- Even according to the first respondent, there was a possibility, even if remote, that he could have come to a different conclusion, if the petitioner had explained the modus operandi of the transactions, in the manner in which they have done in the affidavit in support of the writ petitions. This statement substantiates the claim of the petitioner that if an enquiry had been held, under section 6A(2), the result could have been different.
Therefore, the impugned orders are liable to be set aside, though not on the ground of violation of principles of natural justice, but on account of the failure of the first respondent to hold an inquiry and pass orders in terms of section 6A of the Central Sales Tax Act, 1956. Thus the writ petitions are allowed, the impugned orders of assessment are set aside and the matters remitted back to the first respondent for an enquiry under section 6A(2) of the CST Act.
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2009 (4) TMI 842
Issues Involved:
1. Nature of sales (inter-State vs. intra-State)
2. Double taxation
3. Legislative provisions and amendments
4. Contractual obligations and movement of goods
5. Determination of sale price and turnover
Issue-wise Detailed Analysis:
1. Nature of Sales (Inter-State vs. Intra-State):
The primary issue was whether the transactions in question constituted inter-State sales or intra-State sales. The assessee, a contractor, argued that the transactions were local sales in Delhi, while the assessing authority in Gurgaon treated them as inter-State sales. The Tribunal concluded that the movement of goods from Haryana to Delhi was in pursuance and incidental to the contract of sale, thus qualifying as inter-State sales under Section 3(a) of the CST Act. The Tribunal stated, "The applicant has not been able to prove that the sale has taken place within the State of Delhi."
2. Double Taxation:
The assessee faced multiple tax demands from both Delhi and Haryana for the same transactions, leading to a writ petition in the Delhi High Court. The High Court directed the assessee to file an appeal against the Haryana assessment and involve the Delhi administration to resolve the issue of double taxation. The appellate authority in Faridabad acknowledged the double taxation but upheld the inter-State nature of the sales, advising the assessee to seek cancellation of the Delhi assessment or a refund.
3. Legislative Provisions and Amendments:
The judgment discussed the legislative history and amendments to the CST Act, particularly the inclusion of works contracts under the definition of "sale" following the 46th Constitutional Amendment and subsequent amendments in 2002 and 2005. The Supreme Court's decisions in various cases, such as Builders Association of India v. Union of India and Gannon Dunkerley & Co. v. State of Rajasthan, were cited to explain the implications of these amendments. The Tribunal noted, "The charging section, i.e., section 6 has to be read with section 8, which prescribes the rate of tax and both are integrally connected."
4. Contractual Obligations and Movement of Goods:
The Tribunal examined the contractual obligations and the movement of goods from Haryana to Delhi. The contracts required the use of bituminous mixture prepared at the assessee's hot-mix plant in Haryana, which was then transported to Delhi. The Tribunal found that the inter-State movement of goods was a necessary consequence of the contracts, stating, "The inter-State movement of goods (bituminous mixture) was a necessary consequence of and incidental to the relevant contracts and such movement cannot be dissociated from the contract."
5. Determination of Sale Price and Turnover:
The appellant argued that the turnover attributable to works contracts could not be taxed under the CST Act prior to the 2005 amendment. However, the Tribunal, relying on the Supreme Court's decision in Mahim Patram Private Ltd. v. Union of India, rejected this contention. The Tribunal explained that the provisions in the Haryana Value Added Tax Act, 2003, and the Haryana Value Added Tax Rules, 2003, provided a mechanism for determining the sale price and turnover for works contracts. The Tribunal stated, "Provisions in the State Sales Tax Act/VAT Act can be referred to for the purpose of ascertaining the sale price/turnover relating to the transfer of property in goods involved in the execution of works contract."
Conclusion:
The appeal was dismissed, and the Tribunal upheld the Haryana Tax Tribunal's decision that the transactions were inter-State sales. The appellant was directed to ensure the transfer of the balance tax due to the Haryana Government. The judgment emphasized the importance of legislative provisions and contractual obligations in determining the nature of sales and addressed the issue of double taxation by advising the assessee on appropriate remedies.
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2009 (4) TMI 841
Whether it would be for this Court to appoint the arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996?
Held that:- The application must succeed. Accordingly, appoint Hon'ble Mr. Justice R.C.Lahoti (Ex.CJI) as the sole Arbitrator to arbitrate upon the disputes which have arisen between the parties hereto as set out in the present application. The sole Arbitrator would be entitled to decide upon the procedure to be followed in the arbitration proceedings, sittings of the proceedings as also to settle his fees in respect thereof. However, the law governing the contract would be the Californian Law.
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2009 (4) TMI 840
Whether the amount received by the assessee, which is termed as "demurrage or cylinder holding charges" is exigible to tax under Section 3-A of the TNGST Act?
Held that:- The so called cylinder holding charges collected by the assessee are exigible to tax under Section 3-A of the TNGST Act, which is a charging provision for levy of tax for the transfer of right to use the goods for consideration. Therefore, the revisions are dismissed.
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2009 (4) TMI 839
Penalty levied under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 for the assessment year 1992-93 deleted by Tribunal
Held that:- As it was observed by the Assessing Officer that all along the assessee has considered bonafide that the sale proceeds of REP licences cannot be regarded as turnover liable to tax, so as to offer the sales turn over for taxation, which factum has also been accepted by the Tribunal itself in the earlier assessment order by following earlier order. Hence, we conclude that non-offering of the sale turnover of REP licence is a bonafide act. We do not find any illegality or irregularity in the deletion of the penalty by the Tribunal and we are not able to approve the way in which the learned Special Government Pleader projected the summary of the conclusion for levy of penalty. Revision dismissed.
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2009 (4) TMI 838
Whether the facts and circumstances of the case, the Tribunal is legally right in affirming the order of the First Appellate Authority in respect of allowance of the claim of second sale exemption even when the registration number of the socalled seller belonged to some other dealer ?
Held that:- Tribunal has come to the correct conclusion, which leaves no room for interference from this Court as the assessee has discharged the burden of proof by showing that the earlier sale was a taxable sale and the tax is really payable by the seller.
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2009 (4) TMI 837
Reopening of assessment - Held that:- The only reason for the revenue to reopen the assessment was that there was a huge purchase of oil. This has been explained by the assessee, that those oils were manufactured out of the groundnut purchased from the agriculturists and the bought vouchers were also produced while framing the original accounts and they were accepted. The reason now stated for reopening the assessment is the bought vouchers did not contain the complete details of the persons from whom the assessee purchased the groundnut. When the assessee is purchasing a small quantity of groundnut from the agriculturists it may not be possible for them to record the entire details as to the name, address and the village from which the agriculturists hail and the extent of the land he is owning or the source of purchase such as whether the groundnut has been acquired by him as a cooly for working in the groundnut field or he is owning a land in wahich groundnut is cultivated. In addition to that, the idea conceived by the revenue that all these purchases were crushed by the sister concern, which was also laid in the very same campus is also defeated by the meter reading of the sister concern, which is owning a crushing unit. There is virtually no electrical consumption. In addition to that it is also on record that the said sister concern has stopped its activities several years ago and that stoppage of the activities has also been informed to the Department. Revision dismissed.
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2009 (4) TMI 836
Whether the Tribunal is justified in allowing the S.T.A. without giving any reasons ?
Held that:- It is manifestly clear that the movement of the goods as alleged by the assessee, from Tamil Nadu to other States has not been established. In the absence of any materials to establish the movement of goods from Tamil Nadu to other States, the one and only recourse available to the assessing officer is to treat those quantity of the goods as sales within the State of Tamil Nadu but failed to bring it on account by the assessee bring the same on account. Hence, the turn over for ₹ 33,95,980/- was brought to tax with other components of tax and for the action of the respondent to filing an incomplete and incorrect return, penalty provision has been invoked under Section 12(3)(b) of the Tamil Nadu General Sales Tax Act and penalty has been levied by the assessing officer which has been restored by the Tribunal. Hence, we find no merit in the revision.
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2009 (4) TMI 835
Bringing the value of the lorry sold by the assessee for taxation and the imposition of penalty under Section 12(5)(iii) of the T.N.G.S.T.Act questioned
Held that:- As all the authorities have admitted that the entire turnover has been reflected in the books of accounts and also stated in the returns filed by the assessee. Hence, for the invocation of sub-clause (iii) of Section 12(5), the pre-condition is that the return submitted is found to be incorrect and incomplete as per Section 12(4)(iii). None of the authorities below including the Tribunal have given a finding that the return submitted by the assessee is found to be incorrect and incomplete. Hence, in the absence of such a finding, the levy of penalty under Section 12(5)(iii) is not in consonance with the penal provision provided. Hence, the penalty imposed has to be deleted and the same is deleted. To that extent, the appellant succeeds
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2009 (4) TMI 834
Whether the prosecution story is worth credence?
Whether the prosecution has sufficiently proved its case against the accused beyond reasonable doubt?
Held that:- Appeal allowed. Unfortunately in the instant case, the High Court did not keep the well settled principles in mind and reversed the judgment of acquittal recorded by the trial court when the view taken by the trial court was possible as well as plausible. The High Court, thus, seriously erred in disturbing the judgment of acquittal and recording the finding of guilt against the accused.
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2009 (4) TMI 833
What is the nature of rights of a bidder participating in the tender process?
What is the scope of judicial review in contractual matters?
Whether the decision of the Authority is vitiated by any arbitrariness and therefore hit by Article 14 of the Constitution of India?
Whether the decision is not in public interest?
Held that:- Appeal allowed. It is needless to observe that the MDA shall be at liberty to call for fresh tenders in accordance with law but duly notifying the land use for both `educational' and ‘residential' and invite bids accordingly. It shall permit AMS and other educational institutions intending to participate in the auction. In view of the undertaking given by MDA to this Court it shall not raise any objection for the use of the land for educational purposes in case if any educational institution is found to be the successful bidder. The bids shall obviously be invited from the intending bidders duly notifying the `residential' and `educational' use.
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2009 (4) TMI 832
Whether the condition precedent to pass an order under section 47 A of the Stamp Act, as amended by the State of Uttar Pradesh (in short U.P.), was present in the instant case?
Whether the said documents were deeds of assignment falling under Article 63 of the Schedule 1-B of the Stamp Act, as applicable to the State of UP or they were deeds of conveyance, as defined in section 2(10) of the Stamp Act to which Article 23 would be applicable?
Whether the document dated 22nd of November, 1997, is a deed of assignment or it is a conveyance to which Article 23 applies and if so,whether the order dated 22nd of November, 1997, passed by the Sub-Registrar purporting to make areference under Section 47 A of the Stamp Act, as applicable to the State ofUP is not legal and without jurisdiction?
Whether the relevant date for determining the consideration entered in the document would be the market value of the property on the day of entering into the agreement for sale and not the date of presentation of the documents for registration?
Held that:- Appeal allowed. Setting aside the judgment of the High court we hold that in the instant case Article 63 of Schedule 1-B of the Stamp Act, as applicable to the State of U.P., which deals with transfer of lease by way of assignment will apply to the documents in question. We also hold that the consideration to be mentioned in the document would be the market value of the property on the date when the agreement was entered into and not when it was presented for registration, considering the peculiar facts of this case.
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2009 (4) TMI 831
Issues involved: Refund of Cenvat credit on inputs for export, dispute over excess use of inputs beyond SION norms, recovery of erroneous refund.
Refund of Cenvat credit on inputs for export: The applicants used cold rolled steel strips as raw materials to manufacture hot rolled steel strips for export. The Original Authority allowed the entire claim of refund of Cenvat credit. However, the Department contended that the refund should be limited to the Cenvat credit attributable to inputs as per SION norms. The Commissioner (Appeals) ruled in favor of the Department, leading to the initiation of proceedings for recovery of excess refund paid erroneously. The Original Authority confirmed a demand of Rs. 12,21,097/- as erroneous refund, which was upheld by the Commissioner (Appeals).
Dispute over excess use of inputs beyond SION norms: The applicant claimed to have used 2291 M.T. of inputs, while the Department asserted that they were entitled to use only 2028 M.T. as per SION norms, resulting in a dispute over the excess use of 263 M.T. of inputs. The applicant argued that SION norms are prescribed on an average basis and actual usage can vary, with a variation of only 10%. The Tribunal noted that SION norms are guidelines and found no evidence of diversion of raw materials to contradict the applicant's claim of actual excess use of inputs beyond SION norms. It was observed that there is no provision restricting the quantum of refund as per SION norms, leading the Tribunal to hold that the applicant had made a case for waiver of pre-deposit of dues as per the impugned order.
Recovery of erroneous refund: The Tribunal, after considering submissions from both sides, waived the pre-deposit of dues and stayed the recovery thereof until the disposal of the appeals, concluding the matter related to the refund of Cenvat credit on inputs for export and the dispute over excess use of inputs beyond SION norms.
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2009 (4) TMI 830
Issues:
- Time bar in filing the appeal and the application for condonation of delay.
Analysis:
The dispute in this case revolves around a demand of duty for the period 1995-96 to 1998-99, initiated by a show cause notice in 2000. The appellant claimed to have informed the range Superintendent about shifting their factory in 2001. The impugned adjudication order was passed in 2006, but the appellant alleged they were unaware of it until 2007. The Department contended that the order was sent in 2006 itself. The appellant filed the appeal in 2008, arguing it was within the time limit. The Department raised a preliminary objection that the appeal was time-barred due to delay, for which no application for condonation was filed by the appellant.
The Tribunal considered the submissions from both sides. If the Department's claim of sending the order in 2006 is accepted, there would be significant unexplained delay. However, if the appellant's submissions are considered, there would be no delay. The Tribunal noted discrepancies in the addresses used for communication and the weight of the order sent by the Department. The appellant argued that the weight of the order sent in 2006 was insufficient, raising doubts about its timely receipt. The Tribunal found merit in the appellant's argument, giving them the benefit of the doubt. Consequently, the Tribunal rejected the Department's preliminary objection, ruling that there was no delay in filing the appeal. The miscellaneous applications were disposed of accordingly.
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2009 (4) TMI 829
Issues involved: Determination of duty liability on bonus received by the appellant in connection with the sale of fire bricks to M/s. VSP.
Facts and Considerations:
- Appellants received a "Performance Guarantee Bonus" from M/s. VSP for refractories withstanding specified heats.
- Appellants contended that they are not liable to pay duty on the bonus based on a specific decision of Hon'ble CEGAT.
- Show cause notice issued for short payment of duty on the bonus received.
- Adjudicating authority confirmed the demand, penalties, and interest, leading to the appeal.
Appellant's Argument:
- Appellant argued that the bonus amount should not be included in the sale consideration of refractory bricks.
- Contended that bonus is related to ladle management, a separate activity from the sale of bricks.
- Cited various judgments supporting their position.
Revenue's Argument:
- Revenue emphasized the inclusion of bonus amount in the transaction value based on the payment for performance of the bricks.
- Stated that the transaction value was brought into effect from 1-7-2000, making prior decisions cited by the appellant inapplicable.
Judgment:
- Issue: Whether bonus received for ladle management should be included in the value of bricks sold.
- Tribunal found that the bonus received post-clearance does not alter the value of goods already cleared and duty paid.
- Relying on previous decisions, the Tribunal ruled in favor of the appellant, setting aside the impugned order and allowing the appeal with consequential relief.
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