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Case Laws
Showing 261 to 280 of 1046 Records
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2008 (7) TMI 869
Seizures of the books of account and goods - Held that:- In the present case, the conditions precedent for assumption of jurisdiction to issue show-cause notice under clause (b) of section 74(5) being non-existent, the impugned notice cannot be sustained. It is hereby held and clarified that the seizure of the goods, in question, was without jurisdiction and must be set aside and, in consequence thereof, the notice to show cause, which stands impugned in the present writ petition, cannot survive and must fail.
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2008 (7) TMI 868
Whether "craft paper" falls under entry 94(i) or 94(ii) of the First Schedule to the Kerala General Sales Tax Act, 1963 and the rate of tax payable thereon?
Held that:- The test laid down by the Appellate Tribunal in understanding the meaning of the word "craft paper" with reference to purchaser of the commodity is not a correct test. In our view, the correct test would be to apply common parlance test, and if that test is applied, in our considered view, the craft paper produced and sold by the assessee would not fit into any of the items enumerated in sub-entry (ii) of item 94 of the First Schedule to the KGST Act. Therefore, keeping in view the wider definition that is provided by the apex court in Khatema Fibres Ltd.'s case [2000 (12) TMI 796 - SUPREME COURT OF INDIA], while explaining the meaning of the expression "paper", thus hold, in the facts and circumstances of this case, that, "craft paper" would fit into the description of paper and falls under sub-entry (i) of item 94 of the First Schedule to the KGST Act, taxable only at four per cent. Issue is answered in favour of the assessee and against the Revenue.
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2008 (7) TMI 867
Condonation of Delay - Whether there is no provision under the Punjab Value Added Tax Act, 2005 to file any supplementary appeal or a second appeal against the same order?
Held that:- Earlier, the appeals were filed within limitation and fresh appeals were also filed just within 30 days of the withdrawal of the earlier appeals. Therefore, while filing the fresh appeals, applications for condonation of delay were filed and the Tribunal, by taking into consideration the facts and circumstances of the case, condoned the delay and entertained those appeals. No illegality in entertaining those appeals. The contention of learned counsel for the appellant that since the earlier appeals were filed without sanction order, therefore, the second appeals should not have been entertained, cannot be accepted, because if there was no-sanction, then there was no appeal and the subsequent appeals were rightly entertained by the Tribunal, after condoning the delay.
Regarding the contention of the appellant that the Tribunal had no jurisdiction to permit the appellant to withdraw the earlier appeals with liberty to file fresh appeals and the earlier appeals will be deemed to be dismissed on merits, section 63(4)(b) of the Act clearly provides that the Tribunal after affording an opportunity of hearing to the parties, may pass such order, as it deems to be just and proper. As under this clause, the Tribunal is empowered to permit an appellant to withdraw the appeal and file fresh one after removing the defects, pointed out by the other side. Appeal dismissed.
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2008 (7) TMI 866
Exemption from tax granted - Held that:- Having considered the provisions of the VAT Act with the provisions of Notification dated December 26, 2000 it is crystal clear that the respondents could not have denied the exemption simply on the strength of sub-section (13) of section 80 of the said Act, particularly ignoring the provisions of sub-section (15) and section 76(6)(b)(i) and (ii) thereof. The petitioners are fully entitled to the exemption from tax granted to them under the eligibility certificate by the erstwhile Government of State of Uttar Pradesh and vide notification dated December 26, 2000 issued by the Uttaranchal Government for the period remaining on the date of commencement of VAT Act, i.e. October 1, 2005. From a perusal of record, it does not come out that petitioners had exercised option under clause (ii) of section 76(6)(b) of the VAT Act, within the stipulated period. Therefore, it shall be presumed that the petitioners desire to continue as per provision of (i).
Therefore, in view of the transitional provisions of sub-section (3) of section 80 of the VAT Act, the rebate granted to the petitioners vide Government notification dated December 26, 2000 under section 5 of the Act shall be deemed to be continuing even after enforcement of the VAT Act till the date of publication of notification dated October 12, 2006.For the reasons and discussion aforesaid, all the three writ petitions deserve to be partly allowed. Respondent No. 3 is restrained by a writ of mandamus from imposing any tax upon the petitioners in pursuance of the circular dated January 13, 2006 issued by respondent No. 2 acting upon the circular dated January 4, 2006 issued by
respondent No. 1.
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2008 (7) TMI 865
Issues:
1. Imposition of penalty under section 45A of the KGST Act for not surrendering transit pass.
2. Interpretation of section 30B of the Act regarding transit of goods through the State and issue of transit pass.
3. Judicial review of concurrent findings of fact by fact-finding authorities under a fiscal statute.
Analysis:
The judgment of the Kerala High Court involved a case where a dealer in ghee and food products, registered under the Kerala General Sales Tax Act and the Central Sales Tax Act, faced a penalty under section 45A of the KGST Act for not surrendering a transit pass at the last check-post. The petitioner had purchased goods from Tamil Nadu and was transporting them to Pondicherry through Kerala. The Intelligence Officer imposed a penalty of Rs. 2,54,000 after the driver failed to deliver the transit pass at the last check-post. The petitioner challenged this penalty through revision petitions, which were unsuccessful, leading to the original petition before the High Court.
Regarding the interpretation of section 30B of the Act, the court explained the provisions related to the transit of goods through the State and the issuance of transit passes. It was highlighted that failing to deliver the transit pass at the last check-post could lead to the presumption that the goods were sold within the State, evading tax liability. These provisions aimed to prevent goods in transit from being sold within the State to avoid tax obligations.
In the judicial review of the case, the court emphasized that it would not interfere with the factual findings of the fact-finding authorities unless those findings were wholly perverse, arbitrary, or contrary to statutory provisions or established legal principles. In this instance, the court found that the authorities had correctly determined that the transit pass was not surrendered at the last check-post, leading to the conclusion that the goods were sold within the State to evade tax liability. The court noted that the petitioner did not provide sufficient evidence to dispute these findings, and therefore, upheld the penalty imposed under section 45A of the KGST Act.
Ultimately, the High Court rejected the original petition and dismissed all pending applications accordingly, affirming the decision based on the factual findings and conclusions reached by the authorities under the Act.
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2008 (7) TMI 864
Whether the learned AETC was within its power to assume jurisdiction of revision, after the expiry of five years from the date of assessment period or from the passing of the original order of the Assessing Authority?
Held that:- In the facts and circumstances of the case, the revising authority was not justified in exercising the revisional power after the expiry of more than six years, particularly when the revising authority was aware of the said judgment of Veerumal Monga's case [2000 (7) TMI 939 - PUNJAB AND HARYANA HIGH COURT] in the year 2000 itself.
The revising authority neither in its notice nor in its order nor the counsel for the State before this court assigned any reason as to why such notice was being issued after a period of six years. There was no reason or justification with the department to explain this delay of six years, therefore, in this case the revisional authority has not exercised the revisional jurisdiction under section 21(1) of the Act within a reasonable period. Thus, the orders passed by the revising authority as well as the VAT Tribunal are liable to be quashed.
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2008 (7) TMI 863
Whether the Tribunal correct in holding that the subsequent production of document in the case would not absolve the assessee from the liability?
Whether the Tribunal is justified in restoring the penalty which is solely based on certain technical omissions in preparing the invoices?
Whether the Tribunal is justified in cancelling the first appellate order when there is no valid reason to deviate from the findings of the first appellate authority?
Whether the Tribunal is justified in restoring the penalty imposed by the Intelligence Officer on the basis of mere presumptions?
Whether the penalty under section 21A of the KGST Act can be imposed for the technical omissions such as minor variation in the address, absence of RC No. the invoice, etc., particularly when the consignee has properly accounted the transaction and there is no scope for evasion of tax?
Held that:- Having gone through the notices issued by the Intelligence Officer of the department and orders passed by him under section 29A(2) of the KGST Act and the orders passed by the Appellate Tribunal, we are of the opinion that the authorities are trying to levy penalty only on a technical breach said to have been committed by the petitioner. In our opinion, these orders cannot be sustained by us.
Accordingly, this revision petition requires to be allowed and it is allowed and the questions of law framed by the assessee are answered against the Revenue and in favour of the assessee.
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2008 (7) TMI 862
Proviso to rule 3(2)(c) of the KVAT Rules - whether is a provision which is discriminatory and also ultra vires of section 30(1) of the KVAT Act?
Held that:- Submission proceeds on a very fallacious ground that the rule particularly proviso to rule 3(2)(c) of the KVAT Rules, is either discriminatory or ultra vires of section 30. In fact, the rule mandates the applicability of the procedure to all assessees. There is no question of discrimination under this rule. As to how the rule may affect different assessees or different dealers is not the criteria for holding that the rule is a discriminatory provision and discriminates from dealer to dealer.
the benefit envisaged under section 30 of the Act is only to make a correction within six months from the date of the sale transaction on finding the tax charged/collected is more or less, by issuing a credit note or debit note and in case goods are returned within the prescribed period, to issue a credit note forthwith and claim the value to be excluded from the taxable turnover. The value of the sale transaction is as fixed at the time of sale and even in terms of the charging section. There is no scope for fixing the price later. If under the rule, the benefit is made available subject to the condition that the discounted price should have been so indicated in the invoice value of the goods, the condition is neither ultra vires section 30 of the Act nor is discriminatory. Appeal dismissed.
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2008 (7) TMI 861
Collection of tax and penalty - Whether there can be any levy of tax and penalty on the goods which are in transit without any way-bill and entered inside the State avoiding the border check gate?
Whether the STO (V) who collected tax and penalty from the petitioner under receipt No. 83753 dated November 27, 1998 is competent to collect such tax and penalty?
Held that:- STO(V) is fully justified in imposing penalty as provided under section 16C of the OST Act in respect of the goods carried in the vehicle without being covered by the way-bill and entered inside the State avoiding border check gate. It is found that the STO besides levying penalty of ₹ 19,200 has also levied tax of ₹ 9,600. The revisional authority has rightly allowed adjustment of such tax in the quarterly return, the appellant being a registered dealer under the OST Act. Further since the goods in question were not covered by way-bill, there was no occasion for the STO(V) to allow opportunity to rectify the defect. W.P. dismissed.
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2008 (7) TMI 860
Whether the respondents are entitled to proceed to recover the amounts from the assets of the company without resorting to the provisions of the SICA, namely, by obtaining necessary permission from the BIFR, wherein the matter is pending?
Held that:- The respondents cannot proceed with either distress action as it is seen in respect of the Commercial Tax Department or for recovery of amount by the Public Works Department unless consent is obtained from the BIFR. It is always open to the respondents in these cases to take necessary steps to implead themselves before the BIFR and seek permission for the purpose of recovery of the amount from the assets of the petitioner's-company, which has been declared as "sick company", in which event, it is for the BIFR to decide on merit and based on the scheme that may be formulated as per the provisions of the SICA. W.P. allowed.
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2008 (7) TMI 859
Filing of this "nil" return - Compounding offences - show-cause notice [annexure E] to the petitioner giving an opportunity to show cause as to why charge sheet should not be filed against the petitioner, instead of showing cause the petitioner has approached this court raising various legal contentions
Held that:- In the present set of facts and circumstances,it of the view that annexure E proposition notice is definitely not tenable in law for the reason that in the guise of a proposition notice which in fact is not warranted in terms of section 79 of the Act, the so-called notice seeks to plant information with regard to the liability of the petitioner though such liability is not actually determined by the competent authority in terms of the statutory provisions under the Act. Though it is contended by Smt Niloufer Akbar, learned Additional Government Advocate that it is only a tentative determination or proposal for launch of prosecution, even that is not permitted in law as the determination can only be made by the competent authority and in terms of section 39 of the Act and not by any other mode or means.
In such circumstances, it is obvious that the issue of the so-called notice under section 79 read with section 82 of the Act is not proper use of the power under the Act . Thus the proposition notice bearing No. JCCT/INT/Assistant Commissioner-XII/INS-49/06-07 dated April 9, 2007 (copy at annexure E) issued by the third respondent alone is quashed by issue of a writ of certiorari. Writ petition allowed in part.
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2008 (7) TMI 858
Whether on the facts and circumstances of the case, the opposite parties are justified in retaining the books of account seized from the petitioner on October 19, 1995 till date without following the procedure contained in section 16(3) of the OST Act read with rule 46 of the OST Rules on the ground that they form part of the assessment record?
Held that:- In the case at hand, the Revenue fails to satisfy that the conditions stipulated in section 16(3) read with rule 46 have been complied with. Nothing regarding retention of books of account has been communicated to the petitioner till date even though books of account have been retained from December 29, 1997. Admittedly, the books of account of the petitioner were seized by the STO Vigilance on October 19, 1995, but those books of account have not so far been returned to it even though more than 12 years have passed. The Revenue also could not satisfy the court that the books of account seized on October 19, 1995 have been retained by them following the due procedure of law. In the circumstances, the books of account seized from the petitioner's premises on October 19, 1995 shall be returned to the petitioner within a period of 30 days from the date of production of certified copy of this order by the petitioner. If the sales tax authorities think that the books of account or any portions thereof are relevant for their purpose, they are entitled to take photocopy of such documents or portions of such books of account and return them thereafter.
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2008 (7) TMI 857
Issues involved:
The issue involved in this case is the correctness of the judgment in T.A. No. 526 of 1996 on the file of the Sales Tax Appellate Tribunal, A.P., regarding the levy of sales tax on the turnover of a dealer in leasing out advertisement boards.
Judgment Summary:
Levy of Sales Tax on Turnover:
The State filed a revision u/s 22(1) of the Andhra Pradesh General Sales Tax Act challenging the judgment of the Sales Tax Appellate Tribunal regarding the disputed turnover of a dealer in leasing out advertisement boards. The respondent claimed exemption on the ground that the hoardings were immovable property and not liable for tax. The Deputy Commissioner later proposed to revise the assessments for the years 1992-93 and 1993-94, holding that the turnover should be taxed. The Tribunal, after detailed consideration, held that the transaction amounts to immovable property and is not liable for tax. The court, following precedent, dismissed the revision case, stating that if there is no transfer of right to use and only hire charges are involved, the transaction cannot be taxed.
Nature of Transaction and Tax Liability:
The main contention was whether the leasing out of advertisement hoardings would warrant the levy of tax u/s 5E of the Act. The court referred to the judgment in Rashtriya Ispat case [1990] 77 STC 182, which established that the nature of the transaction must be considered, and if there is no transfer of right to use, only hire charges, then it cannot be taxed. The court found no reason to differ with this conclusion and dismissed the revision case without costs.
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2008 (7) TMI 856
Whether the Appellate Tribunal was justified in directing the assessing authority to allow deductions towards mortality and weight loss during the transportation of chicken, while quantifying the sales tax liability under the provisions of the Kerala General Sales Tax Act, 1963 read with the Kerala General Sales Tax Rules, 1963?
Held that:- Sales tax is payable on the real price received or receivable by the dealer in respect of a sale. A dealer is entitled to frame his price structure in a manner conducive to the type of his business. He may base his price structure so as to take care of weight loss and mortality of chicken. But when it comes to taxation under the KGST Act, whatever amounts agreed to be paid to the seller from the buyer should be considered as consideration for the sale and requires to be subjected to tax, after giving those deductions that are provided under the Act and the Rules framed thereunder and no other deductions can be allowed while computing the sales tax liability.
In view of the above discussion, we cannot sustain the findings and conclusions reached by the appellate authority and the Appellate Tribunal. Accordingly, revision petitions filed by the Revenue require to be allowed and they are allowed. The questions of law framed by the Revenue are answered in favour of the Revenue and against the assessees-dealers.
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2008 (7) TMI 855
Judgment of the acquittal - Held that:- Section 41(2) deals with two situations. One is relatable to Gazetted Officer while in the other case the Gazetted Officer may authorize his subordinate to do the relevant act or may do it himself. Section 41(3) refers to the power under Section 42 which refers to subordinates.
In the confessional statement the accused has clearly stated about the ownership. So, there has been no retraction at considerable length of time.
Above being the position, the High Court was clearly in error by setting aside the judgment of the trial Court. We set aside the judgment of the High Court and restore that of the trial Court. The appeal is allowed to the aforesaid extent.
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2008 (7) TMI 853
Whether the prosecution has been able to discharge its burden hereinafter?
Held that:- The provisions of Sections 35 and 54 are not ultra vires the Constitution of India. However, procedural requirements laid down therein are required to be strictly complied with.
There are a large number of discrepancies in the treatment and disposal of the physical evidence. There are contradictions in the statements of official witnesses. Non-examination of independent witnesses and the nature of confession and the circumstances of the recording of such confession do not lead to the conclusion of the appellant's guilt.
Finding on the discrepancies although if individually examined may not be fatal to the case of the prosecution but if cumulative view of the scenario is taken, the prosecution's case must be held to be lacking in credibility.The fact of recovery has not been proved beyond all reasonable doubt which is required to be established before the doctrine of reverse burden is applied. Recoveries have not been made as per the procedure established by law.
The investigation of the case was not fair. We, therefore, are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. Before, however, parting with this judgment, we would like to place emphasis on the necessity of disposal of such cases as quickly as possible. The High Courts should be well advised to device ways and means for stopping recurrence of such a case where a person undergoes entire sentence before he gets an opportunity of hearing before this Court. Appeal allowed.
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2008 (7) TMI 852
Interpretation and application of Chapter VA of the Narcotic Drugs and Psychotropic Substances Act, 1985 providing for forfeiture of property derived from or used in illicit traffic
Held that:- Dealing in narcotics is a social evil that must be curtailed or prohibited at any cost. Chapter VA seeks to achieve a salutary purpose. But, it must also be borne in mind that right to hold property although no longer a fundamental right is still a constitutional right. It is a human right.
The provisions of the Act must be interpreted in a manner so that its constitutionality is upheld. The validity of the provisions might have received constitutional protection, but when stringent laws become applicable as a result whereof some persons are to be deprived of his/her right in a property, scrupulous compliance of the statutory requirements is imperative.
For the reasons aforementioned, the impugned judgments cannot be sustained. Appeal allowed.
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2008 (7) TMI 851
Whether fraud has been played upon the Court as well as upon the appellant and all orders passed by the High Court deserve to be quashed and set aside?
Held that:- As the appellant has not come forward with all the facts. He has chosen to state facts in the manner suited to him by giving an impression to the Writ Court that an instrumentality of State (SAIL) has not followed doctrine of natural justice and fundamental principles of fair procedure. This is not proper. Hence, on that ground alone, the appellant cannot claim equitable relief. But we have also considered the merits of the case and even on merits, we are convinced that no case has been made out by him to interfere with the action of SAIL, or the order passed by the High Court. Appeal dismissed.
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2008 (7) TMI 850
Issues involved:
The issues involved in this case are the challenge against the Adjudication Order u/s 18(2) and 18(3) of FER Act, 1973 for failure to realize and repatriate outstanding export proceeds.
Details of the Judgment:
Challenge against Adjudication Order:
The appellants challenged the Adjudication Order imposing a penalty of Rs. 2.50 lakhs each for failure to realize and repatriate outstanding export proceeds in contravention of Section 18(2) and 18(3) of FER Act, 1973. Despite multiple adjournments sought by the appellants' counsel, the appellants failed to appear or be represented, leading to the final disposal of the appeals on merit based on available records within the stipulated time frame u/s 19(5) of FEMA, 1999.
Contentions of the Appellants:
The appellants contended that they are partners of the noticee firm, which exported goods to the U.S.A. The appellants claimed to have taken all reasonable steps to realize the outstanding export proceeds, including personal visits and communication with the foreign buyer. They highlighted the bankruptcy of the foreign buyer and subsequent legal proceedings as reasons for non-repatriation of the full export value.
Respondent's Arguments:
The respondent contended that the appellants failed to provide evidence of their efforts to recover the outstanding export proceeds within the prescribed period. They argued that the appellants did not follow RBI's advice to approach for the status of outstanding amounts, and the correspondences provided were not sufficient to absolve the appellants from the contravention of Section 18(2) and 18(3) of FER Act, 1973.
Legal Analysis:
The Tribunal referred to Section 18(2) and 18(3) of FER Act, emphasizing the requirement for RBI permission to secure payment for exported goods and the presumption of non-reasonable steps taken by the exporter in case of non-recovery of payment. The Tribunal noted that the appellants failed to disprove the adverse presumption against them under Section 18(3) due to lack of evidence showing timely efforts to recover the export proceeds.
Decision on Penalty:
The Tribunal found the penalty imposed on the appellants to be appropriate considering the contravention and the amount involved. The Tribunal dismissed the appeals for lacking merit and directed the pre-deposited amount to be appropriated towards the penalty, with the appellants given a deadline to deposit the balance penalty amount, failing which the Enforcement Directorate would recover it in accordance with the law.
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2008 (7) TMI 849
Issues involved: Tax appeal u/s 260A of the Income Tax Act, 1961 for assessment year 2003-04 against the order passed by the tribunal dated 29.6.2007 in Income Tax Appeal No.635/Ahd/2007 regarding addition in closing stock valuation.
Summary:
Issue 1: Valuation of closing stock
The Revenue filed a Tax Appeal against the tribunal's order adding Rs.52,75,902/- in the closing stock of the assessee for assessment year 2003-04. The Appellate Tribunal allowed the issue in favor of the assessee, deleting the addition. The Revenue contended that the method adopted by the Assessing Officer for valuation of closing stock based on average cost was correct, and the Tribunal's reasoning was not convincing. However, the Tribunal held that the assessee valued rough diamonds at cost when market value was less, and at market value when it was lower than cost. The Tribunal referred to the judgment of the Supreme Court in Sanjeev Woolen Mills Vs. CIT, 279 ITR 434 SC, emphasizing the assessee's consistent method of valuation. The Court found that the Tribunal's decision was based on factual findings and no substantial question of law arose.
In conclusion, the High Court dismissed the appeal, upholding the Tribunal's decision on the valuation of closing stock for the assessment year 2003-04.
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