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Showing 241 to 260 of 858 Records
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2010 (3) TMI 1050
Issues involved: Appeal against the judgment declining interference with property sale under Securitisation Act.
Issue 1: Fairness of relegating appellant to alternate remedy
The High Court entertained the Writ Petition despite the availability of alternate remedy, as the sale was not conducted fairly. The Court held that it was improper to relegate the party to alternate remedy after keeping the matter pending for a significant period. The Court proceeded to consider the Writ Petition challenging the sale on merits due to the lack of consideration of pleadings by the learned single Judge.
Issue 2: Violation of Ext.P15 judgment in property sale
The appellant contended that the sale violated the Ext.P15 judgment, as the Bank failed to conduct the sale in a fair and proper manner. The Court noted that the sale was not conducted immediately after the granted time and was delayed significantly. The Bank did not renotify the sale or extend the time for receiving tenders, leading to a sale that did not reflect the market price. The Court emphasized the need for fair conduct of sales under the Securitisation Act to ensure maximum value for the property.
Issue 3: Sale based on sole tender and lack of transparency
The appellant argued against the sale being based on a sole tender just above the upset price fixed by the Bank. The Court criticized the lack of transparency in the sale process, noting that the appellant was not informed of the sale until after confirmation. The Court raised concerns about the Bank's actions, including registering the sale deed immediately after dismissing the Writ Petition, potentially denying the appellant the right to appeal. The Court found the sale price inadequate for a prime property, indicating possible lapses in the sale process.
Conclusion:
The Court allowed the Writ Appeal, setting aside the sale of the property to the fifth respondent. The appellant was directed to pay a lump sum amount of Rs. 2 crores to the fifth respondent for cancellation of the sale. The Court considered the amount remitted by the fifth respondent and additional charges paid by him in determining the compensation. The judgment provided detailed directions for the cancellation of the sale, transfer of the sale deed, and handling of excess amounts by the Bank, ensuring fair resolution of the property dispute.
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2010 (3) TMI 1049
Issues:
Interpretation of the concept of 'cinema' in Category 7 of the Sixth Council Directive 77/388/EEC for the application of a reduced rate of VAT on individual cubicles for watching films.
Analysis:
The judgment involves a reference for a preliminary ruling regarding the interpretation of the concept of 'cinema' in Category 7 of the Sixth Directive concerning the application of a reduced rate of VAT on individual cubicles for watching films. The dispute arose between a company and the Belgian State regarding the VAT rate applicable to income received from providing cubicles for film viewing. The key legal context includes Article 12(3)(a) of the Sixth Directive allowing for fixed standard and reduced rates of VAT, along with Annex H specifying categories eligible for reduced rates, which includes 'cinemas.' Additionally, the national legislation in question, Royal Decree No 20, sets out VAT rates for specific services, including those related to culture, sports, and entertainment.
The main issue revolves around whether the cubicles for film viewing qualify as 'cinemas' under the Sixth Directive and the national legislation. The company argued that the cubicles should be classified as an 'establishment for culture, sports or entertainment,' akin to a cinema, thus eligible for the reduced VAT rate. On the other hand, the Belgian Government contended that the services provided in the cubicles fall under 'automated recreation devices' rather than cinemas, justifying the standard VAT rate. The referring court sought clarity on whether the cubicles, where individuals could watch films by inserting coins and choosing from different options, could be considered as 'cinemas' under the Sixth Directive.
The Court's analysis emphasized interpreting the concept of 'cinema' within the context of the Sixth Directive. It highlighted that the reduced VAT rates are exceptions to the standard rate and must be strictly interpreted. The Court concluded that the concept of 'admissions to a cinema' in Category 7 of the Sixth Directive does not encompass payments for private film viewing in individual cubicles. The judgment clarified that the term 'cinema' in this context refers to public spaces where individuals collectively enjoy films upon prior payment of an admission fee, excluding private viewing arrangements. Consequently, the Court ruled that the reduced VAT rate does not apply to payments for private film viewing in the specific cubicles in question.
In conclusion, the judgment provides a detailed analysis of the interpretation of the 'cinema' concept under the Sixth Directive for VAT purposes, clarifying the scope of reduced rates and the specific criteria for categorizing cultural and entertainment services. The ruling offers guidance on distinguishing between public cinema settings and private viewing arrangements, ensuring consistent application of VAT regulations within the EU framework.
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2010 (3) TMI 1048
Whether the sale by the petitioner was not as a holder of trade mark?
Held that:- The discussion in the order of assessment shows that there are no discussion as to why the claim for granting credit to the tune of ₹ 1,88,75,256 being the tax paid to the registered dealer on the sales to the petitioner, was not considered by the assessing authority. The reasons given in the order do not indicate as to whether the provisions of section 3J was considered in the proper perspective at all. The reasons for bringing the turnover under section 3J of the Act rest on grounds which are totally irrelevant.
No hesitation in setting aside the order passed by the first respondent with a direction to the first respondent to consider afresh the representation made and pass orders afresh after giving opportunity to the petitioner as regards the claim as per section 3J with reference to tax paid in respect of the sales effected in favour of the petitioner
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2010 (3) TMI 1047
Issues involved: Challenge to exhibit P5 order imposing penalty, lack of proper opportunity of hearing, failure to submit objections, non-registration as a dealer, non-remittance of tax, previous legal proceedings.
Challenge to exhibit P5 order imposing penalty: The petitioner challenged the exhibit P5 order imposing penalty, alleging lack of proper opportunity of hearing and failure to consider objections submitted. The petitioner's counsel argued that despite submitting objections and requesting an adjournment, the impugned order was passed without due consideration.
Non-registration as a dealer and non-remittance of tax: The Government Pleader contended that the petitioner was not a registered dealer and had not remitted the tax due on the turnover of "medicines" and "intra ocular lenses" supplied, despite crossing the turnover limit. The petitioner's failure to take registration under the Act was highlighted based on verification of bills and related documents.
Previous legal proceedings: It was noted that the petitioner had been involved in previous legal proceedings regarding penalties imposed for the years 2005-06 and 2006-07. Despite filing multiple writ petitions and seeking stay orders, the petitioner had not complied with the directions of the appellate authority and Sales Tax Appellate Tribunal, including non-remittance of the disputed amount and failure to furnish security.
Decision: The court declined interference in the matter, dismissing the writ petition without prejudice to the petitioner's right to pursue statutory remedies. The court emphasized that it was for the petitioner to pursue the statutory remedy if aggrieved, rather than seeking discretionary jurisdiction under Article 226 of the Constitution of India.
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2010 (3) TMI 1046
Whether the Commissioner for Commercial Tax has duly authorised the officer to reassess the tax in terms of section 39(1) of the Act read with rule 46 of the Rules thereunder?
Held that:- Under section 38(7) of the Act, the Commissioner has been conferred with power to authorise an authority to assess the tax. After reading of provision of section 38(7) read with section 39(1) further read with rule 46 and in the light of the decision of the Division Bench, thus it is clear that there is no authorisation as required under section 39(1) of the Act read with rule 46 of the Rules. The e-mail print out produced by the State at annexure R1 does not satisfy the requirements of section 39(1) read with rule 46 of the Rules. If that is so, the writ petition requires to be allowed only on this short question.
Accordingly, the writ petition is allowed. The impugned annexures D and E are quashed.
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2010 (3) TMI 1045
Whether the 'resin coated sand' falls under entry 83 of the Third Schedule or under the residual provision under the Karnataka Value Added Tax Act, 2003?
Whether the order passed by the Commissioner, Commercial Tax, exercising his suo motu powers vested under section 64(2) would be prospective or retrospective?
Held that:- The Advance Rulings Authority without following the judgment of the Tribunal, erroneously has granted an order in favour of the appellant. We are also of the opinion that the Commissioner exercising his power vested under section 64 of the Karnataka Value Added Tax Act having found that, the order of the authority was prejudicial to the interest of the Revenue has rightly exercised his power and ruling of the Commissioner is justified in regard to the classification of the "resin coated sand" under residuary clause. Question No. 1 has to be answered in favour of the Revenue and against the assessee.
Based on the clarification of the Advance Rulings Authority with effect from April 1, 2007, the assessee had collected tax at the rate of four per cent only and not at the rate of 12.5 per cent. In view of the same, we have to answer question No. 2 against the Revenue and in favour of the assessee.
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2010 (3) TMI 1044
When the appellant is the first seller of iron ore to a registered dealer in Karnataka is required to produce form 32, in order to claim exemption under section 5(3)(b) of the KST Act?
Held that:- The production of form 32, would be applicable only to the person if a purchase tax has to be paid by such purchaser being a registered dealer under the KST Act, provided he is seeking exemption to pay the purchase tax and we are also of the opinion if the seller is required to pay the sales tax at the first sale in such circumstances seller is required to obtain form 32 from the purchaser, provided he is seeking any exemption. But in the instant case, the seller is not liable to pay the purchase tax. The purchase tax is always required to be paid by the purchaser and not by the seller. If the seller is not liable to pay the tax, the question of obtaining form 32 from the purchaser does not arise at all. This distinct has not been considered by the Additional Commissioner of Commercial Taxes. In favour of assessee.
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2010 (3) TMI 1043
Issues:
1. Jurisdiction of revising authority under section 40 of the Haryana General Sales Tax Act, 1973.
2. Assessment of turnover of purchase of goods not part of gross turnover or taxable turnover.
3. Levy of interest under section 25(5) of the Haryana General Sales Tax Act.
Jurisdiction of Revising Authority (Section 40):
The judgment addresses the first issue concerning the revising authority's jurisdiction under section 40 of the Haryana General Sales Tax Act, 1973. The court refers to a previous case, State of Haryana v. Swastika Metal Works, Jagadhari, where it was established that the Commissioner has revisional power under this section. The Commissioner can call for the record of any case, pending or disposed of, to ensure a just and fair decision. This clarification from the previous case provides a clear understanding of the revising authority's powers under section 40.
Assessment of Turnover of Purchase of Goods:
Regarding the assessment of turnover of purchase of goods not included in the gross turnover or taxable turnover, the court's judgment in response to the first question provides a significant insight. By relying on the decision in the State of Haryana v. Swastika Metal Works case, the court concludes that the revising authority does have the jurisdiction to tax such turnover. This ruling clarifies that even if the turnover was not part of the initial assessment, the revising authority can still assess it within the limitations specified in section 31 of the Act. Therefore, the revising authority can address such turnovers for taxation purposes.
Levy of Interest under Section 25(5):
The final issue pertains to the revising authority's justification for levying interest under section 25(5) of the Haryana General Sales Tax Act on the tax assessed on a turnover that was not reported in the returns but not disputed by the dealer. However, since the court's response to the first question resolves the matter by affirming the revising authority's jurisdiction to tax such turnovers, the subsequent questions regarding the levy of interest and the limitations under section 31 do not hold relevance. Consequently, the court rules in favor of the dealer, indicating that the reference is answered against the Revenue.
In conclusion, the judgment provides a comprehensive analysis of the revising authority's powers under section 40 of the Haryana General Sales Tax Act, affirming its jurisdiction to assess turnovers not initially included in the assessment. The ruling clarifies the authority's ability to levy taxes on such turnovers within the specified limitations, thereby addressing the issues raised in the reference and guiding future interpretations of the relevant legal provisions.
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2010 (3) TMI 1042
Issues involved: Whether exemption on sales made to an industrial unit in the Special Economic Zone under section 6(7) of the Kerala Value Added Tax Act was rightly disallowed due to lack of registration by the petitioner at the time of sales.
In this tax revision case, the petitioner had started business, including supplying materials to an industrial unit in the Special Economic Zone in 2006, but did not obtain registration under the KVAT Act until January 22, 2009. The industrial unit provided form No. 43 for the petitioner to claim exemption on supplies, but exemption was denied because the petitioner was not a registered dealer at the time of sales. The Tribunal confirmed the assessment, leading to this revision case being filed.
Upon review, the court found that while the form required the supplier to be a registered dealer, the Act did not explicitly state that registration at the time of supply was necessary for granting exemption. The petitioner eventually registered under the KVAT Act in 2009. The court held that since the benefit of exemption goes to the purchasing industrial unit, it should not be denied to the petitioner solely on the grounds of lack of registration at the time of sales. The court allowed the revision case, set aside the Tribunal's order, and remanded the matter to the assessing officer for reconsideration of exemption based on merits.
The court clarified that exemption on sales to the industrial unit in the Special Economic Zone should not be denied solely due to lack of registration at the time of sales. The petitioner was directed to provide necessary documents, evidence, and declarations to the assessing officer for revised assessment, to be completed within two months from the date of the judgment.
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2010 (3) TMI 1041
Issues:
1. Validity of the exercise of powers under section 22A of the Karnataka Sales Tax Act for the period ending March 31, 2002.
2. Sustainability of the revisional order dated December 24, 2008 under section 22A(1) of the Act.
Issue 1: Validity of the exercise of powers under section 22A for the period ending March 31, 2002:
The appellant, a dealer in manufacturing mosaic tiles, had their assessment concluded for the year 2001-02 based on a return filed on March 30, 2005. Subsequently, an inspection by the intelligence wing on February 15, 2005 led to the reopening of the assessment under section 12A of the Act. A penalty was imposed under section 12A(1A) of the Act. An appeal was filed and partially allowed by the Joint Commissioner of Commercial Taxes (Appeals). However, the Additional Commissioner, deeming the appellate order prejudicial to revenue, set aside the Joint Commissioner's decision and reinstated the original authority's order. The court found that the original authority's assessment was a best judgment assessment without proper consideration of the appellant's case. The Additional Commissioner erred in not remanding the matter to the assessing officer for proper consideration. Consequently, the court allowed the appeal, setting aside and modifying the Additional Commissioner's order.
Issue 2: Sustainability of the revisional order dated December 24, 2008 under section 22A(1) of the Act:
The court held that the Additional Commissioner's decision to set aside the Joint Commissioner's order and reinstate the original authority's decision was erroneous. The Additional Commissioner should have remanded the matter to the assessing officer for proper consideration, especially since the appellant's case had not been adequately evaluated. As a result of this error, the court allowed the appeal, setting aside and modifying the Additional Commissioner's order. The matter was remanded to the assessing officer for a fresh consideration, with instructions to hear the appellant and dispose of the case in accordance with the law.
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2010 (3) TMI 1040
If the books were accepted by the authority, it was not open to the authority to charge tax on 7.5 per cent which had been segregated in the books of accounts?
Held that:- The order of the Tribunal records that the agreement dated April 26, 1996 was not binding on the Department. The purpose of examining the agreement was to see whether the agreement was a genuine one and whether the contentions of the assessee that the tax had been collected by the assessee from his purchaser as a composite price in order to determine whether the tax was included in his turnover as composite price or whether it was liable to be taxed separately as having been charged separately. The authorities below have failed to do so. Thus the matter requires reconsideration after examining and investigating all the issues relating to the agreement dated April 26, 1996.
As the question of ground of exemption under section 4AA is concerned, it was not open to the authority to travel beyond the grounds in the appeal or to interfere with that part of the order of assessment, against which no appeal had been preferred. He has therefore argued that the remand made by the first appellate authority with regard to this aspect, is wholly without jurisdiction and authority, thus consequently of the view that the order passed by the Tribunal for examination of this issue is also without any authority. Revision allowed. Case remanded.
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2010 (3) TMI 1039
What is the effect of the order dated November 17, 2008 passed by the honourable Supreme Court in relation to order dated April 10, 2008 passed by this court in W.P. (C) Nos. 2503 to 2510 of 2008?
Held that:- In view of the fact the petitioners by virtue of order of the honourable Supreme Court dated November 17, 2008 has been relegated to a position to post-order dated April 10, 2008. The permission granted in the order means only leave to do some acts which but for the leave will be illegal. The permission so granted by the honourable Supreme Court if understood in the context as aforesaid does not bind this court to act in the manner as wished by the petitioners without being alive to settled position of law, when order dated April 10, 2008 passed by this court stares at the face of the petitioner as well as this Bench of this court.
Even otherwise, the order impugned does not come within the ambit of review inasmuch as the same does not suffer from any error apparent on the face of the record and permitting the order to stand shall not in any way lead to failure of justice. We feel inclined to make it clear that our order impugned in the review petitions does not in any way affect the liberty granted to the petitioners vide order dated April 10, 2008 as it must have been clear by now that we have followed the salutary judicial practice only to upkeep the sanctity of the earlier order passed by another Bench of this court on April 10, 2008.In the result, we are not inclined to admit these review petitions and the same are dismissed in limine.
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2010 (3) TMI 1038
Whether the Sales Tax Appellate Tribunal was correct in holding that the assessment made by the assessing authority was under section 12(2) of the Tamil Nadu General Sales Tax Act, 1959?
Whether the Sales Tax Appellate Tribunal was correct in holding that the statement showing consolidated turnover cannot be taken as a return prescribed?
Held that:- The invocation of section 12(3)(a) of the Act, is not warranted and following the case of State of Tamil Nadu v. P.S. Srinivasa Iyengar & Sons [1989 (4) TMI 317 - MADRAS HIGH COURT] these revisions are allowed and the questions are answered in favour of the assessee and against the Revenue
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2010 (3) TMI 1037
Whether the movement of goods to Pondicherry was an inter-State sale?
Held that:- The AO has relied on the orders placed by Petrogel India Private Limited, Chennai, enclosing the cheque for certain sum towards the supply of cement to their factory at Pondicherry. This is one of the instances for which the records were scrutinised and were relied upon by the assessing officer. This finding, based on the above records, has been confirmed by both the Appellate Assistant Commissioner as well as the Tribunal which, in our considered view, requires no interference. Further, as per section 3(a) of the Central Sales Tax Act, 1956 there is a deeming provision which states that a sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase occasions the movement of goods from one State to another. Accordingly, we reject the first contention of the learned counsel for the petitioner.
A reading of the impugned orders does not indicate the consideration of any individual transaction, barring the transaction relating to the 276 metric tonnes, out of 2,242 metric tonnes. Thus as regards the payment of sales tax in respect of 276 metric tonnes, the orders impugned in the writ petition are confirmed.In respect of the rest of the quantity of cement, i.e., 1,966 metric tonnes, the matter is remitted back to the assessing officer for individual consideration afresh and in accordance with law.
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2010 (3) TMI 1036
Liability of interest - Held that: - unless a finding is recorded that application that was filed by the Petitioner u/s 11B of CEA, 1944 cannot be termed as an application made u/s 11B ibid, liability to pay interest after expiry of period of three months from date of receipt of application cannot be denied - appeal allowed.
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2010 (3) TMI 1035
Repayment of loan by the borrower to the Pradeshiya Industrial and Investment Corporation, Uttar Pradesh ("the PICUP"), as well as auction and sale of the industry on account of default of payment of loan.
Held that:- In the present case, the power to auction the property has been given to Collector or Assistant Collector of First Class. The Sub-Divisional Magistrate, who is Assistant Collector of First Class, authorised the Naib Tahsildar Mohanlalganj, to auction the property. On the date of auction, the Naib Tahsildar Mohanlalganj proceeded on leave and in the present case, the property was auctioned by another Naib Tahsildar who was not authorised by the Collector. Thus, the impugned auction and sale of property seems to have been done by a person who was neither Collector nor Assistant Collector. Moreover, under rule 285A only Collector may appoint an Assistant Collector to conduct the auction and sale of property. SubDivisional Magistrate is not competent to nominate or appoint a person/ Naib Tahsildar to hold auction. Accordingly, auction and sale of the property has been done in violation of Rules by a person who was not competent to do so.
The petitioner UPCL had filed successive writ petitions challenging the auction proceeding and failing to achieve its object, had filed regular suit and obtained ex parte injunction which was later on, vacated. Thus, the petitioner UPCL approached the civil court as well as this court with uncleaned hands concealing the material facts, and has abused the process of law.
The repeated filing of writ petitions in this court against the auction and sale proceeding, the transfer of property in violation of interim order of this court, the concealment of fact with regard to pending of writ petition while filing the R.S. No. 27/2004 and concealment of fact in this court with regard to filing of regular suit, shows a clandestine effort on the part of the UPCL, to abuse of process of law and makes out a case for trial of perjury, contempt of this court as well as imposition of exemplary costs. W.P. dismissed.
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2010 (3) TMI 1034
Whether the State Government is competent to impose tax on the transfer of goods by the petitioner-company to its godown outside the State of Haryana taking recourse to Explanation to rule 28A(2)(n)(i) and 28A(11)(b) of the 1975 Rules?
Held that:- Object of rule 28 of the 1975 Rules, is on what terms and conditions exemption can be availed of. Terms and conditions to avail of exemption does not mean, giving authority to the State Government to recover tax, which the State Government is otherwise not competent to do so. In view of the above, we find the vires of Explanation to rule 28 of the 1975 Rules are not in question and Explanation to rule 28 does not give power to the State to impose tax, which the State Government otherwise is not competent to impose in the normal course.
Undisputedly, the assessing authority has assessed tax considering all the transactions as sale, including the inter-State transfer of the consignment, which is not legal as per the observations made hereinabove. Tax can be only on transactions, which amount to sale, hence assessment orders require reconsideration in the light of the observations made hereinabove. The impugned assessment orders are, therefore, quashed. The assessing authorities are directed to pass assessment orders afresh, in accordance with law. Appeal allowed.
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2010 (3) TMI 1033
Reassessment proceedings initiated for the assessment year 2002-03 under the proceedings of section 21 of the U.P. Trade Tax Act, 1948 read with section 9(2) of the Central Sales Tax Act
Held that:- On facts it is clear that the matter, which had been sent for verification under the remand order dated March 10, 2006, was concerned with stock transfers made to seven depots worth ₹ 63,26,28,594. Upon remand an order was passed on March 12, 2007 in which the assessing authority having verified the form F supplied by the assessee had come to the conclusion that the forms F amounting to 131 numbers were all found to be genuine and correct. The value of these forms added up to the value of ₹ 63,26,28,594. Thus, there is no doubt that the remand order dated March 10, 2006 and the order dated March 22, 2007 relate to the same transactions, which have been duly verified.
Insofar as the question of the initiation of section 21 proceedings is concerned, I am of the view that the proceedings were not justified because during the pendency of the original assessment proceedings under section 7 of the Act it could not be said that any turnover had escaped assessment as contemplated by section 21 of the Act. In favour of assessee.
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2010 (3) TMI 1032
Suppression at four times the stock variation in quantity - Held that:- There is nothing to indicate from the Tribunal's order the basis of their estimation of suppressed turnover at ₹ 3 lakhs. Since we find no basis for the Tribunal to change the pattern of addition, we feel four times the quantity of suppression adopted by the first appellate authority is perfectly in order, and we do not want to disturb the discretionary power exercised by him. However, four times the addition should be on the quantity of suppression and the valuation of the suppressed quantity should be uniformly adopted at the rate of ₹ 59.62 per kg.
We do not think it is a fit case to consider the question raised by the State whether rule 38(5) will apply retrospectively because in this case having regard to the modified additions sustained by us we do not want to disturb the finding of the Tribunal on purchase tax assessment. We direct the assessing officer to follow the Tribunal's order on this issue with the modification of the turnover as fixed above. Tax Revision case filed by the assessee is dismissed and tax revision case filed by the State is partly allowed
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2010 (3) TMI 1031
Whether the uninterrupted power supply (UPS) sold by the appellant does not fall in entry 60 of Schedule B and hence the same would be chargeable at 12.5 per cent and not four per cent which is applicable to the items given in Schedule B?
Held that:- The goods in question sold by the appellant fulfil all the conditions of an UPS and hence they are taxable at the rate of four per cent.
The Tribunal fell in error in brushing aside the reports of the technical experts of the Engineering Department of IIT and the Punjab Engineering College who categorically opined that the goods in question were UPS. Decided in favour of the assessee and against the Revenue.
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