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Showing 221 to 240 of 931 Records
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2008 (8) TMI 827
Penalty orders - revisional orders - Held that:- As noticed it is apparent that as of date, the assessment order passed against the petitioner, though upheld by the appellate authority the revision petition against the same is yet pending. In these circumstances, it cannot be suggested, as sought to be maintained by the Department, that the assessment order has attained finality. In fact, if the suggestion offered by the respondents qua the finality of the assessment order was to be accepted, then it would mean that the revision petition filed by the assessee-firm is wholly redundant and without any meaning. The aforesaid view cannot be taken by this court. The revisional powers available to a revisional authority authorize the authority to set aside the appellate as well as the revisional order, if a case for that course is made out by the assessee.
Quash the revisional order, annexure P1, passed in penalty proceedings. The revision petition filed by the petitioner-firm is revived to its original number and it is directed that the aforesaid revision petition shall be heard by the same authority, where the revision petition filed by the petitioner against the assessment proceedings is stated to be pending.
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2008 (8) TMI 826
Refund of sales tax - Held that:- A very clear finding of fact has been recorded by the assessing authority that petitioner passed on the tax liability to the consumers.
There is nothing on record to show that the aforesaid findings of fact recorded by the assessing authority are factually incorrect. There is nothing on record to show that the petitioner-assessee has not passed on the liability on the incident of sale to any other person. In such a fact-situation there can be no justification for the petitioner-assessee to claim refund as it would amount to unjust enrichment. Petition, therefore, lacks merit and is dismissed.
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2008 (8) TMI 825
Whether the statutory remedy against the impugned assessment orders is available to the petitioner under the Value Added Tax Act, 2005?
Held that:- Having already noticed that the alternative remedy provided in the statute is not unduly onerous and that neither the assessing officer lacked jurisdiction in passing the impugned assessment orders nor these orders have been passed in breach of principles of natural justice, we find no justification in invoking high prerogative jurisdiction under article 226 bypassing the statutory remedy of appeal and revision.
Unable to accept the submission of the counsel for the petitioner that since error of law has been committed by the assessing officer in holding that the soaps sold by the petitioner are registered under the Trade Marks Act, the orders of assessment are rendered without jurisdiction. As to whether the view of the assessing officer is right or wrong has to be examined and considered by the statutory appellate authority or the revisional authority, as the case may be. Even if we assume that a wrong view has been taken by the assessing officer, that does not render the order without jurisdiction. Unless a case falls under the exceptions highlighted by the Supreme Court in the case of A.V. Venkateswaran [1961 (4) TMI 83 - SUPREME COURT OF INDIA] which the present case does not, we are afraid there may not be any justification in bypassing alternative remedy provided in statute.
In this view of the matter, the decision relied upon by the counsel for petitioner in the case of Mafatlal Industries Ltd. [1996 (12) TMI 50 - SUPREME COURT OF INDIA] has no application to the present fact-situation. We refrain from making any observation about the correctness of the view taken by the assessing officer in the matter and the dismissal of these writ petitions by us must not be taken as an expression of opinion by us on the merits of the assessment orders as in our view, the correctness of the orders has to be examined and considered in the statutory remedy provided under the Act, 2005. W.P. dismissed.
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2008 (8) TMI 824
Section 10C of the Punjab General Sales Tax Act, 1948 questioned - Held that:- If the enunciation of law as referred to above is considered in the facts and circumstances of the present case, the inescapable conclusion is that the provisions of section 10C of the Act which are pari materia to the provisions, which were struck down by the honourable Supreme Court and various High Courts, have to be declared ultra vires to the Constitution of India as the same is clearly beyond the competence of the State Legislature.
Accordingly, section 10C of the Punjab General Sales Tax Act, 1948 is declared to be ultra vires. The amount of tax deducted in the account of the petitioners is directed to be refunded forthwith.
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2008 (8) TMI 823
Whether, in the facts and circumstances of the case, surcharge is leviable on compounding of tax on outstill liquor under rule 90AA of the Orissa Sales Tax Rules, 1947 read with first proviso to section 5 of the Orissa Sales Tax Act, 1947.
Whether, in the facts and circumstances of the case, the findings of the learned Sales Tax Tribunal can be sustained in law?
Held that:- We are of the considered opinion that it is not permissible for the court to add or subtract any word from the statute while interpreting, as it may amount to legislation which is not permissible for the court.
In view of the above, the arguments advanced on behalf of the assessee are not acceptable. The words "in addition to the tax payable" contained in section 5A make it crystal clear that surcharge is leviable under a different provision altogether as an additional/extra/superadded tax over and above the tax payable under section 5 of the Act. Rule 90AA makes it evident that the payment of composite tax is only in lieu of tax assessable on the taxable turnover under the provisions of the Act. Therefore, rule 90AA has an application only to the extent of the tax payable under section 5 of the Act. Section 5A was added by amendment with effect from July 1, 1990. The Legislature has not given any indication that such payment will not be made where agreement for compounding exists. Therefore, we hold that surcharge under section 5A is to be paid in addition to tax payable under section 5 of the Act. Thus, the questions are answered in favour of the Revenue and against the assessee.
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2008 (8) TMI 822
Assessments being time barred - Held that:- The true purport of section 17A is to treat the assessments or reassessments as pending completion in respect of any period prior to April 1, 1993. Section 17A, as already noticed does not provide for any period of limitation. It is inconceivable that the Legislature which has inserted sub-sections (6) to (9) of section 17 would have taken out the cases covered by section 17A as beyond the purview of section 17(6) to (9) and providing the assessing authority the power to assess tax without any period of limitation.
This is a clear case where the impugned assessment orders are passed far beyond the period of limitation and thus constrained to quash the same.
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2008 (8) TMI 821
Violation of the provisions of the KGST Act and Rules - Non registration and filing of monthly returns - Held that:- Rule 9(h) applies to unregistered dealers also and therefore such dealers are entitled to exemption on export sales, whether it be covered under section 5(1) or under section 5(3) of the CST Act. Sales evidenced either by sales bill or purchase bill are sufficient requirement of form 18A. So much so, we hold that form 18A obtained and produced by the petitioners are valid and are sufficient for granting sales tax exemption.
We therefore allow the revision petitions by vacating the order of the Tribunal pertaining to disallowance of sales exemption under section 5(3) and directing the assessing officer to grant exemption based on form 18A produced by petitioners, if the same is supported by documents prescribed under section 5(3) of the CST Act
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2008 (8) TMI 820
Whether the Appellate Tribunal is right in law in annulling the well considered order of the appellate authority which has sustained the demand of the Assessing Authority to collect and forfeit the admitted tax collections of the assessee for the month of August 2004, especially when the assessee has admittedly not reimbursed the amount to the buyers from whom they have collected tax?
Held that:- The assessee cannot retain the tax collected by it from its customers, and the same requires to be remitted to the State Government within the time prescribed under the Act, along with its monthly returns. In the instant case, as we have already stated in detail, the assessee, in fact, had collected tax for the month of August, 2004, but failed to remit the same with the Sales Tax Department and it is only as an afterthought it has issued the so-called credit notes and debit notes to its customers. This colourable device adopted by the assessee, in our view, is only a sham transaction and the same cannot be sustained. In that view of the matter, the Tribunal was wholly unjustified in merely relying on the so-called credit notes and debit notes to grant relief to the assessee. In that view of the matter the revision petition requires to be allowed and the orders passed by the Tribunal requires to be set aside. Decided against the assessee
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2008 (8) TMI 819
Issues Involved:
1. Classification of transactions as inter-State sales or consignment transfers.
2. Validity of documentary evidence submitted by the appellant.
3. Imposition and quantum of penalty under section 9(2) of the CST Act read with section 7A(2) of the APGST Act.
Detailed Analysis:
1. Classification of Transactions:
The primary issue was whether the transactions claimed by the appellant as consignment transfers to agents in other States were in fact inter-State sales. The assessing authority disallowed the appellant's claim for exclusion of consignment transfers amounting to Rs. 5.84 crores, treating them as inter-State sales and subjecting them to tax at 10 percent due to the absence of "C" forms. The Appellate Tribunal partially allowed, dismissed, and remanded parts of the appeal.
The appellant submitted "F" forms and sale pattis to support its claim, but the assessing authority, based on reports from sales tax officials of other States, concluded that the consignment transfers were in reality inter-State sales. The reports revealed discrepancies such as incorrect RC numbers, non-existent agents, and denial of transactions by alleged agents.
The Tribunal's failure to record definite findings after referring to inquiry reports was noted. Instead, the Tribunal made an omnibus observation that the appeal on the turnover of Rs. 2,60,13,401 was dismissed due to conclusive departmental inquiries and insufficient documentary evidence by the appellant.
2. Validity of Documentary Evidence:
The Tribunal discussed item-wise the contents of inquiry reports and remarks made by the assessing authority. However, it did not record definite findings for each item. The Tribunal's order was criticized for its lack of detailed discussion and reasoned findings.
For example, in Item No. 10 (Swastik Traders, Kolhapur), the assessing officer found that no dealer by the name was doing business in oils, and the F form and other documents were deemed bogus. The appellant did not challenge this finding, and the Tribunal confirmed the order.
In some cases, such as Item No. 11 (Sri Jayashakti Rice & Oil Mill, Salem), the appeal was allowed to the extent of Rs. 2.50 lakhs as the agent received 22 out of 23 consignments. In other cases, such as Item No. 12 (Gauri Shankar Oil Mills, Salem), the rejection of the appellant's claim was justified due to the agent's denial of transactions.
In several instances, the reports from sales tax officials were found to be insufficient to conclusively negate the appellant's claim. For example, in Item No. 17 (Kamachi & Co., Erode), the appeal was allowed due to the lack of verification of records of the dealers at the other end.
3. Imposition and Quantum of Penalty:
Penalty was levied under section 9(2) of the CST Act read with section 7A(2)(i) of the APGST Act for furnishing false declarations/certificates. The Tribunal confirmed the levy of penalty at three times the tax due on the disallowed turnover.
The appellant's counsel cited the Supreme Court judgment in State of Madhya Pradesh v. Bharat Heavy Electricals to argue that the assessing authority has discretion to levy lesser penalty. However, the Tribunal held that the production of false documents justified the imposition of penalty of three times the tax due, even if construed as a discretionary maximum.
The penalty of Rs. 78,04,020 was demanded by the second respondent based on the Tribunal's order. However, due to a totalling mistake, the disallowed turnover was actually Rs. 2,55,57,389. The penalty was recalculated accordingly, and the relief granted in the appeal against assessment resulted in the deletion of Rs. 37,46,079 from the penalty due.
Conclusion:
The appeals were partly allowed, with the appellant receiving relief of Rs. 1,24,86,934 over and above what the Tribunal allowed/remanded. The penalty was adjusted based on the corrected turnover figures. The judgment emphasized the need for detailed findings and reasoned conclusions in tax assessment appeals.
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2008 (8) TMI 818
Recovery the tax - Held that:- In the facts of the present case, admittedly the petitioner herein has recommissioned its wind farm within a period of 24 months from the date of cyclone and hence, respondent-State shall not be entitled to effect any recovery on the ground of breach of condition No. 7(b) and the petitioner would be simultaneously required to discharge its liability in accordance with what is stated hereinbefore. The petition is allowed accordingly.
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2008 (8) TMI 817
Constitutional validity of section 22 of the Karnataka Sales Tax Act, 1957 challenged - Held that:- In so far as the argument that the provision is violative of article 14 of the Constitution of India as it treats such assessees against whom the order might have been passed bona fide and other assessees who might have suffered an arbitrary order, is concerned, it is not an argument which can be entertained as a right of appeal can be availed of by all assessees in the manner provided for by the statute and not otherwise.In so far as the argument that the provision is violative of article 14 of the Constitution of India as it treats such assessees against whom the order might have been passed bona fide and other assessees who might have suffered an arbitrary order, is concerned, it is not an argument which can be entertained as a right of appeal can be availed of by all assessees in the manner provided for by the statute and not otherwise.
No merit at all in the challenge to the Constitutional validity of section 22 of the Act. The manner in which the petitioner has been prosecuting this petition even without complying with the conditional order passed by this court also disentitles the petitioner from seeking relief before this court and rendering the petition liable for dismissal.
In the result, interim orders granted earlier in the writ petition are all vacated and the writ petition is dismissed.
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2008 (8) TMI 816
Whether the provisions of section 14B(7)(ii) and (iii) of the Punjab General Sales Tax Act, 1948 providing that proceedings shall be decided within a period of 14 days from the commencement of enquiry proceedings are directory or mandatory?
Held that:- Adjudication process is a public duty cast on a public officer for a public good. The purpose is to check evasion of tax. Failure to complete the adjudication process within 14 days will only give premium to the action of the tax evader. Thus Provisions of section 14B(7)(ii) and (iii) of the State Act are directory in nature and consequently failure to decide such proceedings within the time prescribed will not result into abatement of proceedings. W.P. dismissed.
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2008 (8) TMI 815
Issues:
Challenging final assessment orders under the Tamil Nadu General Sales Tax Act and Central Sales Tax Act based on defective form F submissions without prior notice of defects or opportunity to rectify.
Analysis:
The judgment involves challenges to final assessment orders passed under the Tamil Nadu General Sales Tax Act and Central Sales Tax Act due to rejected form F submissions by the respondent, citing defects in the forms. The petitioner argued that the defects were not highlighted in the pre-assessment notice, depriving them of the opportunity to rectify the issues. Reference was made to a previous judgment where a similar situation led to the quashing of the order due to the failure to inform the assessee of the defects and provide a chance for correction. The court found a clear violation of natural justice and statutory provisions, leading to the decision to quash the assessment orders.
The court directed the respondent to return the defective form F submissions to the petitioners within two weeks, allowing them to rectify the defects and resubmit the forms along with necessary documents and explanations within a further two weeks. The respondent was instructed to conduct a proper inquiry and pass final orders within four weeks independently, without influence from the court's observations. The judgment emphasized the importance of affording fair opportunities to rectify defects in form submissions and upheld the principles of natural justice in assessment proceedings.
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2008 (8) TMI 814
Whether order of learned Tribunal upholding the levy of penalty under section 56 of the Punjab VAT Act, 2005 is sustainable in the eyes of law, when the assessee has not actually availed of the said benefit, no demand is due from assessee on that account and there can be no mens rea in the circumstances of the case?
Held that:- There was no element of deliberateness in claiming of the aforementioned credit of ₹ 55,368. Consequently, the question of law, which arises in this case, is decided in favour of the appellant. The appeal is, therefore, allowed and the orders, dated July 4, 2006, September 25, 2006 and January 29, 2007 are set aside. In the result, the penalty imposed under section 56 of the Punjab VAT Act and the additional demand are set aside.
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2008 (8) TMI 813
Refusal to issue declaration forms "C" - dealer failed to pay entry tax on the goods purchased from outside State - Held that:- The action of the authority should be fair and transparent. Needless to say that action of the authority should not be such that it will hamper the free-flow of the inter-State trade. When exercising power under rule 6 of the CST (O) Rules in the matter of issuing "C" form it would not be appropriate for the authority to delve into the aspect whether entry tax is payable on the goods brought from outside the State.
The authorities are not competent to cancel the registration certificate of the petitioner. However, order-sheet entry dated May 21, 2008 reveals that the STO has made enquiry into the business premises of the petitioner and noted that the major goods dealt with by the dealer are manufactured inside the State of Orissa whereas the dealer's stand is that the goods dealt with by it are neither produced nor manufactured inside the State. These are purely disputed questions of fact. Such factual disputed questions cannot be adjudicated by this court in exercise of its writ jurisdiction. Hence, the Revenue authorities may proceed with the assessment after affording reasonable opportunity of hearing to the petitioner and confronting it with the materials collected against it that the goods dealt with by it are manufactured in the State of Orissa. The petitioner shall also have right to adduce evidence in support of its contention that goods dealt with by him are neither produced nor manufactured inside the State of Orissa. However, it is made clear that the Revenue authorities, in the circumstances of the case, cannot suspend the registration certificate of the petitioner. Applications of the petitioner for supply of declaration in forms "C" be considered and dispose of in accordance with law without any delay.
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2008 (8) TMI 812
Notification No. S.O. 52/P. A. 8/2005/S. 8/2007 dated November 5, 2007 carrying out amendment in Schedule "A ", whereby entry "49" has been substituted and Notification No. S.O. 53/P. A. 8/2005/S.8/2007 dated November 5, 2007 (annexure P-2), whereby new entry "152" has been added in Schedule "B" to the Punjab Value Added Tax Act, 2005 challenged
Held that:- The action on the part of the respondents in levying sales tax on sale of sugar imported from outside the State of Punjab except levy sugar is clearly violative of articles 301 and 304(a) of the Constitution of India. In fact, up to November 5, 2007 there was no discrimination as such in the levy of tax on the sugar manufactured in the State of Punjab or imported from outside the State of Punjab as single entry No. 49 existed in Schedule "A" to the VAT Act providing for tax-free goods. The levy of discriminatory tax came into force with the issuance of impugned notifications, whereby entry 49 in Schedule "A" was substituted, thereby providing for no tax on the sale of sugar manufactured in the State of Punjab and entry 152 was added in Schedule "B" providing for tax on the sale of sugar imported from outside the State of Punjab. From a plain reading of the two notifications, it is clearly made out that discriminatory tax was imposed on the imported sugar as against the sugar manufactured in the State of Punjab, which cannot stand scrutiny in the light of the provisions contained in articles 301 and 304(a) of the Constitution of India.
Thus no hesitation in striking down Notification No. S.O. 53/P. A. 8/2005/S.8/2007 dated November 5, 2007 (annexure P-2) adding entry 152 in Schedule "B" to the VAT Act, whereby tax is sought to be levied on sale of sugar imported from outside the State of Punjab. As a necessary consequence and to correct the mischief created with the issuance of Notification No. S.O. 52/P. A. 8/2005/S.8/2007 dated November 5, 2007 (annexure P-1), we further hold that the words "manufactured in the State of Punjab" used in entry 49 in Schedule "A" as substituted vide notification (annexure P-1), to be violative of articles 301 and 304(a) of the Constitution of India, as the same create discrimination in the levy of tax on the sale of sugar brought from outside the State as against manufactured within the State of Punjab.
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2008 (8) TMI 811
Whether the STO, Cuttack-1 Circle, Cuttack has jurisdiction to assess the petitioner for the impugned tax period?
Held that:- Since in the present case the petitioner is liable to pay tax under clause (a) of section 9, certificate of registration in his case is to be in form VAT-103, which can be issued provided the petitioner furnishes information and declaration in form VAT-1 to the appropriate registering authority as required under rule 15(8) of the Rules.
Learned counsel appearing for the petitioner and Revenue are not in a position to say whether the petitioner has filed any information and declaration in form VAT-1 to the appropriate registering authority as provided under rule 15(8) of the Rules. Therefore, unless the petitioner furnishes the required information as required under the statutory provisions, the certificate in form VAT-103 cannot be issued even if there is a deeming provision and issuance of the certificate is automatic. Thus the impugned assessment order (annexure 1) and the notice of demand (annexure 2) are set aside with a request to the assessing authority of Cuttack I Range, Cuttack, to serve a fresh statutory notice on the petitioner and proceed with the matter for fresh assessment in accordance with law.
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2008 (8) TMI 810
Whether the supply of electric meter by the appellant-Board to the consumer on payment of periodical hire charges to the appellantBoard under a duly executed agreement for such supply of meter amounts to 'sale' within the meaning of section 2(j)(iv) of the H.P. General Sales Tax Act, 1968 read with other relevant provisions thereof, is allowed to be referred to the honourable High Court as it is arising from the order of this Tribunal?
Held that:- As no right in the meter has been transferred to the consumer. We, therefore, hold that the hiring of the meter does not amount to a sale. Appeal dismissed.The substantial question of law is answered against the Revenue and in favour of the assessee.
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2008 (8) TMI 809
Denial of exemption on purchase tax on the turnover of rubber wood used for manufacturing - levy of tax under section 5A - Held that:- In the instant case, the question is whether the assessee is entitled for exemption from payment of purchase tax. In fact, in the certificate issued, the General Manager of District Industries Centre has specifically stated that the petitioner is entitled for exemption only on goods manufactured and sold and no exemption is granted from payment of purchase tax.
In that view of the matter, it is difficult to accept the submissions made by Sri Muraleedharan Nair, learned counsel appearing for the assessee. Therefore, we are of the opinion that the Tribunal, rightly understanding the scope of the exemption certificate issued by the General Manger of the District Industries Centre and also relying upon the observations made by the apex court in the case of State of Kerala v. Vattukalam Chemicals Industries [2001 (8) TMI 1143 - SUPREME COURT OF INDIA] has rightly rejected the appeals filed by the assessee. We do not see any error of law in the orders passed by the Tribunal which would call for our interference. In that view of the matter, the revision petitions require to be rejected and accordingly they are rejected.
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2008 (8) TMI 808
Whether the composition of offence by the Collector under section 80(1) of the Punjab Excise Act, 1914 on request of party concerned does not bind him to pay the sales tax and penalty under HPGST Act also?
Held that:- In a case of illegal activity where the liquor has been smuggled the assessee is not going to keep any records of the same. Therefore, the Tribunal erred in holding that without proving the sales, the sales tax could not have been levied. No law can be construed or interpreted in a manner which would give a premium or fillip to illegal activities. Once it is proved and accepted that liquor was smuggled into Himachal Pradesh the burden shifted upon the assessee and the department was absolutely right in observing that the liquor must have been sold and was therefore entitled to levy sales tax on the same.
The question is answered in favour of the Revenue and against the assessee. The order of the Sales Tax Tribunal is set aside and the orders of the assessing officer and Commissioner are restored.
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9911796707
