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Showing 241 to 260 of 1046 Records
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2008 (7) TMI 889
Recovery - demand notice - orders of assessment - whether the petitioner cannot be made liable on the basis of section 26 of the KVAT Act?
Held that:- Having given our anxious consideration to the case pleaded by the appellant, we are of the firm opinion that the order passed by the assessing authority is contrary to statutory provisions. Therefore, learned Single Judge was not justified in relegating the petitioner to prefer an appeal, if she is aggrieved by the orders passed by the assessing authority in exercise of his powers under section 26 of the Act.
Since we have come to the conclusion that the order passed by the assessing authority is contrary to the provisions of the Act, the impugned order requires to be set aside. Accordingly, we allow the appeal. The impugned order passed by the assessing authority is set aside.
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2008 (7) TMI 888
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified in knocking off the State revision and allowing fully dealer's revision without considering the fully adverse facts which were available on the records?
Whether, on the facts and in the circumstances of the case, the Trade Tax Tribunal was legally justified to quash the assessment order by accepting the dealer's version despite the fact that purchases of oil at ₹ 26,36,523 were not verifiable and most sellers of these purchases were found not in existence?
Held that:- The fact that all the account books have been reduced to ashes in fire on July 31, 1985 was not disclosed to the Surveying Officer, who visited the place immediately after two days, i.e., on August 2, 1985. The assessing officer opined that theory of fire is nothing but a cock and bull story and has been set up purposely. The said finding has not been reversed or ever touched by the Tribunal. The Tribunal was under legal obligation to have taken into consideration those aspects of the case also which were considered by the authorities below in negating the case of the dealeropposite party, more so while reversing the order of the authority below to it.
Viewed as above, the order of the Tribunal is unsustainable and indefensible. The said order is hereby set aside and it is held that the Tribunal was not justified in allowing the appeal filed by the dealer-opposite party. The Tribunal has committed error while dismissing the appeal filed by the Department. It is further held that the Tribunal was not justified in accepting the dealer's version that on the purchase of oil amounting to ₹ 26,36,523 no tax could be levied.In the result, the revision succeeds and is allowed. The order of the first appellate authority is restored.
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2008 (7) TMI 887
Eligibility certificate denied - Held that:- The application was sent under a registered cover. There is a presumption regarding the service of documents sent by a registered letter to the addressee if it is correctly addressed. The said presumption is provided for under section 114 of the Evidence Act, 1872 read with section 27 of the Post Office Act, 1898. Apart from the above, the applicant has done what it could do in the facts and circumstances of the case. It is also well-settled that no person can be compelled to do an impossible act. On the face of a strike nobody could serve or file the application before the authority concerned. No person was there to receive the same. The view taken by the Tribunal that the applicant did not "apply" within the prescribed period is not legally correct. On the facts of the present case, the applicant did what it could do in the facts and circumstances of the case and as such the finding recorded by the Tribunal that the applicant did not apply within the statutory period cannot be sustained. The said issue is therefore, decided in favour of the applicant and against the Department.
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2008 (7) TMI 886
Whether, on the facts and in the circumstances of the case, Commercial Tax Tribunal is legally justified in holding that maize flakes are covered under the term "kachri" which is an exempted item under Schedule I of the Value Added Tax Act and hence exempted from tax?
Whether, on the facts and in the circumstances of the case, Commercial Tax Tribunal is legally justified in giving direction for release of the goods without any demand of security whereas the imported goods are liable to tax and not exempted under Schedule I of the Value Added Tax Act?
Held that:- The question whether "maize flakes" is "kachri" and, therefore, exempt or is an unclassified item shall obviously be gone into by the assessing authority while framing the assessment order. The Tribunal, to safeguard the interest of the Department, has provided in its order that sample of the goods in question be preserved for the purposes of final assessment. The Tribunal has refrained itself, and rightly so, from making any comment about the taxability of the goods in question. The Tribunal has rightly observed that a dispute about the rate of tax can be properly adjudicated in a regular assessment proceeding and not in an ancillary or incidental proceeding such as under section 48(7) of the U.P. Value Added Tax Act. There appears to be no legal infirmity in the order of the Tribunal on this score.
By way of clarification it is added that release of the goods and setting aside of the seizure order will not in any manner be construed as an order holding that "maize flakes" is a non-taxable item and is included in "kachri". The said point shall be open for adjudication by the authority concerned in appropriate proceeding. Revision dismissed.
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2008 (7) TMI 885
Reopen the assessment proceedings - cross-examination - witnesses could not be presented for cross-examination - Held that:- At this stage, it may be noticed that an attempt was made by the revisional authority to offer an opportunity of cross-examination to the assessee-firm by issuing summons to the witnesses and by supplying the material documents to the assessee-firm. In these circumstances, deem it appropriate that rather than remitting the matter to the assessing authority, it would be just and proper, if the matter is remanded to the revisional authority, so that revision petition filed by the assessee-firm can be re-adjudicated, in the light of the observations made by this court.
The revision petition filed by the assessee-firm is restored to its original number. The revisional authority shall re-decide the aforesaid revision petition, in accordance with law, and by keeping in view the observations made by this court in the above discussion.
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2008 (7) TMI 884
Issues:
Exemption from payment of commercial tax denied by competent authority, rejection of appeals by State Level Committee and State Appellate Forum, challenge to assessment order through revision petition, challenge to revisional order dated March 31, 2008, setting aside of State Appellate Forum's order dated May 3, 2005, remittance of matter to State Appellate Forum for a fresh decision, setting aside of revisional authority's order dated March 31, 2008, remittance of matter to revisional authority for a fresh decision, direction to keep the matter pending till a final decision by State Appellate Forum.
Analysis:
The judgment by the High Court of Madhya Pradesh addressed three writ petitions with identical controversies. The petitioner-company had sought exemption from commercial tax, which was initially denied by the competent authority. Subsequent appeals to the State Level Committee and State Appellate Forum were also unsuccessful. The company challenged the assessment order through a revision petition, which was rejected by the Additional Commissioner of Commercial Tax in March 2008.
One of the key points in the judgment was the setting aside of the State Appellate Forum's order dated May 3, 2005, in a previous case. The High Court had remitted the matter back to the State Appellate Forum for a fresh decision following a hearing on July 8, 2008. As a result, the basis for the revisional order against the petitioner-company was no longer valid, as it was solely reliant on the now-overturned State Appellate Forum's decision.
Consequently, the High Court allowed the present petitions, setting aside the revisional authority's order dated March 31, 2008, specifically regarding the exemption claimed by the petitioner-company. Other aspects of the order were upheld as they were not under challenge. The matter was remitted back to the revisional authority for a fresh decision on the exemption question, pending the final decision by the State Appellate Forum.
The judgment also directed the revisional authority to keep the matter pending until the State Appellate Forum's decision and to make an appropriate decision in the revision petition thereafter. The parties were instructed to appear before the Additional Commissioner of Commercial Tax in Indore on a specified date, following the rules.
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2008 (7) TMI 883
Grant of eligibility certificate to claim exemption denied - Held that:- Whether or not the activities of the petitioner-company are entitled to exemption or not is a matter which is to be left to the technical experts and it is not for this court to opine in the matter, but the fact cannot be lost sight of that the petitioner-company had relied upon certain technical reports to support its claim. In these circumstances, the Appellate Forum could have examined the aforesaid technical reports, and if so required, the departmental authority could have submitted any counter-technical report in the matter. This has not been done. In fact, the technical reports had not at all been adverted to. There appears to be a non-application of mind in this regard.
Consequently, the present petition is allowed to the extent that the order dated May 3, 2005, annexure P10, passed by the State Appellate Forum is set aside. The appeal filed by the petitioner-company before the State Appellate Forum is restored to its original number and shall be decided afresh by the State Appellate Forum, in accordance with law, by passing a detailed and speaking order, within a period of six months from the date parties put in their appearance.
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2008 (7) TMI 882
Orders of assessment - time limit - Held that:- In view of the unambiguous language employed by the Legislature in sub-sections (8) and (9) of section 17 of the Act, the learned single judge was not justified in directing the assessing authority to complete the assessments as directed by the first appellate authority in spite of clear prohibition envisaged under section 17(8) of the Act.
In view of the above discussion, we cannot sustain the order passed by the learned single judge. Accordingly, we allow the writ appeal and set aside the order passed by the learned single judge.
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2008 (7) TMI 881
Section 45A of the M. P. Commercial Tax Act, 1994 - petition to declare as ultra vires and quash notice (P4) issued in form No. 76 dated December 9, 2003 and the penalty imposed as per order under section 45A(12) of the Commercial Tax Act dated December 10, 2003
Held that:- The provision of section 45A is held to be intra vires.
No case is made out to make interference in the show-cause notice and the penalty order (P9) dated December 10, 2003. The petitioner is given 30 days' time to prefer an appeal which is also the prescribed period of limitation. In case the petitioner prefers an appeal within 30 days, the same shall be treated within limitation by the appropriate authority as agreed to by Shri V.K. Shukla, Deputy Advocate-General. The petitioner is free to raise all objections in the reply/additional reply to the show-cause notice to be filed in 30 days with respect to tenability of the show-cause and a considered and reasoned decision will be rendered by the concerned authority. Appeal dismissed.
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2008 (7) TMI 880
Issues:
1. Seizure of consignment under the West Bengal Value Added Tax Act, 2003 for transporting "coir fibre" instead of "coconut fibre."
2. Imposition of penalty under section 77 of the VAT Act for violation of provisions of section 73.
3. Challenge of orders by the applicant before various revisional authorities.
4. Interpretation of Schedule "A" and Schedule "C" to the VAT Act regarding tax exemptions.
5. Discrepancy in the classification of "coconut fibre" and "coir fibre" by the authorities.
6. Legal implications of the distinction between "coconut fibre" and "coir fibre" in commercial parlance.
Detailed Analysis:
1. The applicant challenged the seizure of a consignment of "coconut fibre" under the VAT Act, which was wrongly classified as "coir fibre" by the authorities. The seizure was made under section 76(1) for violating section 73 of the Act.
2. A penalty of Rs. 17,615 was imposed on the applicant for the alleged violation. The penalty was based on an estimated value of the consignment at Rs. 58,711, higher than the declared value of Rs. 37,053.20.
3. The applicant filed revisions before the Assistant Commissioner of Commercial Taxes and the Deputy Commissioner of Sales Tax, challenging the seizure and penalty orders. Both revisional authorities upheld the initial orders.
4. The applicant contended that the consignment fell under Schedule "A" of the VAT Act, exempting it from tax payment. The authorities, however, relied on Schedule "C," listing "coir and coir products," leading to the seizure.
5. The distinction between "coconut fibre" and "coir fibre" was a central issue. The applicant argued that both terms referred to the same item, supported by certificates from relevant authorities confirming their equivalence.
6. The State Representative argued that "coconut fibre" and "coir" were distinct commodities, citing a court decision. However, the Tribunal found that both terms referred to the same item based on dictionary definitions and technical certificates.
In the final judgment, the Tribunal set aside all challenged orders and directed the authorities to refund the penalty amount of Rs. 17,615 to the applicant within three months. The decision was based on the conclusion that "coconut fibre" and "coir fibre" were synonymous, overturning the authorities' classification and seizure of the consignment.
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2008 (7) TMI 879
Levy of penalty under section 29A(4) of the Kerala General Sales Tax Act, 1963 - Held that:- The Enquiry Officer on mere assumptions and presumptions has once again rejected the explanation offered by the petitioner and has converted the security deposit offered towards the penalty imposed by him. While imposing the penalty under section 29A(4) of the Act, the authority under the Act must have a reasonable suspicion that the person in charge of the goods vehicle or the owner of the goods vehicle is trying to evade payment of tax due to the State. When the vehicle was checked at the check-post, the person in charge of the goods vehicle had produced the photostat copy of the delivery note and the original of which was later produced along with the reply to the show-cause notice within the time specified in the notice itself. In view of this, no mala fide intention or mens rea on the part of the petitioner for avoidance or evasion of payment of tax could be inferred or gathered. In our view, if there is any contravention, that contravention is merely technical and that cannot be the basis for imposition of penalty under the Act. In favour of assessee.
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2008 (7) TMI 878
Issues: Petitioner's entitlement to further exemption under a state government notification for subsequent investments.
Analysis:
The petitioner, a company operating an LPG bottling plant, received an exemption under a state government notification for up to 250% of the capital investment in fixed assets for nine years. The petitioner claimed to have made subsequent investments and applied for further exemption. However, the State Level Committee rejected the request without providing detailed reasons or considering the petitioner's submissions. The petitioner then appealed to the State Appellate Forum, which also rejected the appeal without adequate explanation. The High Court noted that both the orders from the Committee and the Forum were non-speaking orders, lacking essential details and legal reasoning. Therefore, the High Court set aside the previous orders and remitted the matter back to the State Level Committee for a fresh consideration in accordance with the law. The Court directed the parties to appear before the Committee and allowed the petitioner to submit written submissions within two weeks of the appearance.
This judgment emphasizes the importance of providing detailed and reasoned decisions by administrative bodies like the State Level Committee and the Appellate Forum. The Court highlighted that decisions must meet the required standards of passing a speaking order, which includes addressing factual submissions and legal arguments raised by the parties. By setting aside the previous orders and remitting the matter for a fresh consideration, the Court ensures that the petitioner's claim for further exemption is reviewed in a fair and transparent manner. The judgment underscores the principles of natural justice and the right of parties to receive a reasoned decision when their rights and entitlements are at stake in administrative proceedings.
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2008 (7) TMI 877
Period of limitation - Held that:- The fact that the show-cause notice and personal hearing were given at the fag end of the expiry of the period of four years may not be much in dispute, but, however the orders passed on July 20, 1996 give rise to several doubts, especially, when it has taken two months for the parties to send the said orders to be served on the appellant and for actual service to be effected four months thereafter. When in all such hurriedness show-cause notice and the personal-hearing notice can be served on the same day, why have the parties taken such a leisure manner to take steps to serve the orders? Therefore, it does not create any confidence that the order could have been passed on the same day in which it was stated to be passed. Therefore, we are of the view that the very action on the part of the revisional authority in disposing the matter in such a late hour is wholly misconceived and unsustainable. Appeal allowed.
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2008 (7) TMI 876
Whether coal ash is a part of cinder and covered by the term 'coal' in entry No. 22 in Part V of Schedule II of the Commercial Tax Act or the said commodity would be taxable under entry 39 in Part IV"?
Held that:- The "coal ash" is "cinder" and covered by the term "coal" in entry No. 22 in Part V of Schedule II of the Commercial Tax Act and, therefore, it is not exigible to tax under entry No. 39 in Part IV. The corresponding entry in the repealed Act shall be construed accordingly in relation to the matters pending under the said Act.
We are of the considered view that the decision rendered by the Full Bench of this High Court in Hukumchand Mills [1987 (8) TMI 414 - MADHYA PRADESH HIGH COURT] is de hors the earlier decisions and the finding has been arrived at without the cogent and relevant material being on record of that case. Under these circumstances, we find ourselves unable to subscribe to the view expressed therein with regard to cinder (coal ash) being a different commodity from its parent coal. The said decision is accordingly overruled only insofar as it holds that cinder is not coal.
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2008 (7) TMI 875
Cartons - whether are mono-cartons (primary packing material) or secondary packing material?
Held that:- The assessing authority shall, in view of the law laid down by the Division Bench of this court in Sri Satya Winery & Distillery Pvt. Ltd. [2005 (9) TMI 599 - ANDHRA PRADESH HIGH COURT] examine the records of the appellant and verify whether the cartons used are mono-cartons (primary packing material) or secondary packing material. It needs no emphasis that it is only if they are held to be mono-cartons (primary packing material) would they attract tax at the same rate as that of its contents. If, however, they are found to be secondary packing material then they are liable to be taxed independently under entry 19 of the First Schedule to the APGST Act. Subject to the observations aforementioned, the appeals fail and are accordingly, dismissed.
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2008 (7) TMI 874
Whether "Deluxe Janatha Cem" sold by the assessee is a lime product classifiable as an item falling under entry 74 of the First Schedule to the Kerala General Sales Tax Act, 1963, as claimed by the Revenue or under entry 28 of the Second Schedule of Notification SRO No. 1728/93 dated November 3, 1993, issued by the State Government in exercise of its powers under section 10 of the KGST Act, which speaks of lime and dehydrated lime as claimed by the assessee?
Held that:- The assessee in the present case effects purchase of "Janatha Cem" and effects the sale of the said commodity within the State. The commodity dealt with by the assessee under the brand name "Janatha Cem" is lime powder packed in gunny bags, mainly and primarily used for coating surfaces, walls and structures. Janatha Cem or Snow Cem which is the normal usage in the trade circle, is a product having major ingredient of lime.
Alternatively, Janatha Cem is a product with a lime base. Therefore, it requires to be treated as dehydrated lime and the benefit of the notification requires to be extended to the assessee and requires to be taxed at the lesser rate of tax at 2.5 per cent and not at the higher rate of 10 per cent under entry 74 of the First Schedule to the KGST Act. Revision allowed.
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2008 (7) TMI 873
Exemption denied - turnover relating to bones, bone sinews and bone meal was brought to tax under section 6A of the Andhra Pradesh General Sales Tax Act, 1957 on the ground that the aforesaid commodities, including crushed bones, were different from raw bones and that such purchases made from unregistered dealers were liable to tax - Held that:- On the application the doctrine of merger, the judgment of the Supreme Court in A.A. Sulaiman [1997 (3) TMI 494 - SUPREME COURT OF INDIA] approving the reasoning of the Madras High Court, in Subbaraj and Co. [1980 (9) TMI 253 - MADRAS HIGH COURT] would bind this court and it must be held that Raw bones are neither consumed nor is any process of manufacture involved in conversion of raw bones into crushed bones, bone meal, bone sinews, horns and hooves. Consequently purchase tax, under section 6A of the APGST Act, cannot be levied on the purchase of raw bones by the assessee. In favour of assessee.
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2008 (7) TMI 872
Enforcement of charge - Held that:- If the facts of the present case are analysed, admittedly there was no notice issued to the petitioners regarding the charge. There are also no materials available to infer constructive notice. In the counter filed by the respondents, it is nowhere stated that there is either actual notice or constructive notice to the petitioners. In view of the same, as provided under section 100 of the Transfer of Property Act, and as held by the Division Bench of this court, the charge cannot be enforced against the petitioners. So the impugned order is liable to be quashed and the encumbrance entries made in the records are liable to be removed. W.P. allowed.
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2008 (7) TMI 871
Net tax payable on revision - Held that:- Since the Government has no power to declare that the judgment of the Supreme Court in Mohd. Ekram Khan & Sons [2004 (7) TMI 341 - SUPREME COURT OF INDIA] would only operate from the date of its judgment, i.e., July 21, 2004, that portion of G. O. Ms. No. 144 dated February 11, 2008 wherein it was so declared must be held to be void and unenforceable. The action of the respondents in issuing the endorsement dated May 21, 2008, directing the petitioner to pay tax of ₹ 72,394, is in accordance with law and must, therefore, be upheld.
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2008 (7) TMI 870
Whether 'Chlormint candy', 'Chlormint gum', 'Chlormint ice', 'Chlormint ice gum', 'Chlormint with herbasole', 'Happydent', 'Gum draggy', 'chewable gum draggy', and 'Chatar patar', are, wrongly held to be ayurvedic medicine by the Trade Tax Tribunal?
Held that:- Items—"Chlormint with herbasole" and "Happydent" manufactured by the assessee under valid drug licence are ayurvedic medicines and trade tax payable on said items is four per cent as provided in clause (b) of sub-section (2) of section 4 of the Uttaranchal Value Added Tax Act, 2005.
However, applying the same principles as discussed above, we hold that other items, i.e., "Chlormint candy", "Chlormint ice", "Chlormint gum", "Gum draggy", "chewable gum draggy" and "Chatar patar", manufactured and sold by the assessee/respondent, cannot be said to be ayurvedic preparations as in respect of these items it is not shown that the same are according to formulations prescribed by authoritative books of ayurvedic medicines. Therefore, charging of 12.5 per cent trade tax in respect of these items cannot be said to be wrong.
Accordingly, the question of law stands answered. And the four revisions are partly allowed.
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