|
Advanced Search Options
Case Laws
Showing 281 to 300 of 1327 Records
-
2012 (11) TMI 1054
Inter state v/s Intra state sale - challenge to levy of Tamil Nadu value added tax - Held that:-Merely because there is movement of goods from the State of Tamil Nadu to another State at the instance of the buyer, that would not take it out of the purview of the term sale within the State. There are certain rules which provide for transportation of goods in question after the sale. But that does not change the character of the sale within the State consequent to tender-cum-auction sale. The benefit which the petitioners may get out of the provisions of the Income-tax Act is totally alien to the payment of tax under the TNVAT Act, 2006, as the two enactments operated in different fields.
There is no scope or provision for reading one Act into the other, unless there is an express provision. Since the sale in this case was effected within the State of Tamil Nadu on the basis of the tender-cum-auction sale and the petitioners in all these cases have agreed to abide by the terms and conditions unconditionally, there cannot be any manner of doubt that the case squarely falls within the mischief of section 3 of the TNVAT Act, 2006. Therefore, the demand for payment of value added tax under the TNVAT Act, 2006 is justified. There is no basis to justify the claim as inter-State sale. The said plea is specious and not as per law. The petitioners have not made out a case for the relief sought for both in law and on facts. W.P. dismissed.
-
2012 (11) TMI 1053
Non speaking order - service of penalty notice on the friend of the appellant - Held that:- It is not disputed that the notice bears the signatures of the friend of the appellant. This certainly does not fall within the array of the persons specified under rule 79(1)(a) of the Rules. Further the report of the process server dated November 7, 2010, about seven months after the alleged service of notice, on which reliance had been placed by the appellate authorities also could not have formed the basis for rejecting the plea of the appellant. The notice had, thus, not been validly served upon the appellant.
Thus the order dated April 20, 2010 passed by the Assessing Authority imposing penalty under section 38 of the Act was without affording any opportunity of hearing to the appellant.
-
2012 (11) TMI 1052
Issues: Challenge to orders u/s Article 226/227 of the Constitution of India regarding violation of natural justice in commercial tax matter.
Violation of Natural Justice:
The petitioner challenged the order dated May 24, 2003, passed by the Assistant Commissioner, Commercial Tax, Check-post, Khawasa, Seoni, and the order dated March 22, 2004, passed by the Additional Commissioner, Commercial Tax, Indore, partly setting aside the former. The petitioner contended that the Assistant Commissioner preponed the date of hearing from June 1, 2003, to May 24, 2003, without granting an opportunity to submit the necessary documents. The impugned order imposed a penalty of Rs. 7,10,480 without allowing the submission of the requisite declaration form. The petitioner argued that this violated the principles of natural justice, rendering both orders null and void ab initio. The Deputy Government Advocate, however, supported the impugned orders, stating that the petitioner's representative and driver voluntarily appeared before the authority on May 24, 2003, and requested a decision. The High Court noted that the authority passed the order hastily without waiting for the scheduled hearing date, thereby breaching the principles of natural justice.
Observation on Orders:
Upon reviewing the order dated May 24, 2003, the High Court observed a categorical statement indicating that the petitioner's representative and driver had expressed willingness to produce the declaration form. However, the authority failed to provide them with an opportunity to do so and rushed to pass the order before the scheduled hearing date of June 1, 2003. This hasty decision-making process was deemed to have violated the principles of natural justice, as proper opportunity for submission was not granted to the concerned parties.
-
2012 (11) TMI 1051
Issues involved: Tax case revision u/s 38 of the Tamil Nadu General Sales Tax Act, 1959 challenging the order of the Sales Tax Appellate Tribunal regarding alleged sales suppression by the assessee.
Summary:
The respondent, a small-scale manufacturer of hydraulic press, was assessed for an enhanced turnover and penalty due to discrepancies found during an inspection by the enforcement wing. The Appellate Assistant Commissioner ruled in favor of the assessee, which was upheld by the Tamil Nadu Sales Tax Appellate Tribunal. The Revenue filed a tax case revision, questioning whether the revised return filed by the assessee post-inspection nullified the spirit of inspection and best judgment assessment. The Revenue argued that incriminating documents were found during inspection, justifying the enhanced assessment, while the respondent contended that the addition made was based on valid materials. Both appellate authorities found no suppression/omission in the assessee's accounts. The Tribunal noted that the turnover in question was reported before the inspection and that entries related to alleged suppression were duly accounted for. The first appellate authority accepted the explanations offered by the assessee regarding the slips in question. Given the concurrent findings of the appellate authorities, the High Court held that no legal question warranted its consideration, dismissing the tax case revision for lack of merit.
The judgment emphasizes the importance of valid materials and proper accounting in assessing alleged sales suppression, highlighting the significance of timely reporting and acceptable explanations in tax assessments.
-
2012 (11) TMI 1050
Issues involved: Illegal seizure of goods based on apprehended intention to sell, non-deposit of form 16, reduction of security amount by Deputy Commissioner, Tribunal's decision to uphold seizure
Illegal Seizure based on Apprehended Intention to Sell:
The High Court addressed the case where PVC granules were seized from a truck despite all required documents being available with the driver. The goods were to be delivered at Roorkee but were seized on a different route. The Tribunal upheld the seizure based on the apprehension that the driver intended to sell the goods to industries at a different location. The Court emphasized that mere apprehended intention to sell, without concrete evidence, does not justify seizure when goods are duly accounted for.
Non-Deposit of Form 16 and Seizure:
The Court noted that the goods in question were accompanied by all relevant documents, including form 16. However, the form 16 was not deposited at the nearest office as required. Despite this technical breach, the Court clarified that the mere non-submission of form 16 does not automatically render the goods untraceable to a bona fide dealer or raise doubts about their proper accounting. The Court deemed the seizure in this case as illegal and directed the release of goods without any security requirement.
Reduction of Security Amount by Deputy Commissioner:
After the goods were seized, a substantial security amount was imposed for their release. Subsequently, an application was made to reduce the security, which the Deputy Commissioner (Enforcement) partially granted. However, upon further appeal, the Deputy Commissioner refused to make any further adjustments. The Court ultimately set aside the seizure and directed the release of goods without any security requirement, emphasizing that the seizure itself was unwarranted.
-
2012 (11) TMI 1049
Constitutional validity of sub-section (5) of section 4 of the Karnataka Value Added Tax Act, 2003 - Held that:- Sub-section (5) of section 4 of the KVAT Act, 2003 which provides for levy of tax on the maximum retail price indicated on the label of the container or pack thereof, is declared as unconstitutional on the ground that such a taxing provision is beyond the legislative competence of the State under entry 54 of List II of the Seventh Schedule to the Constitution of India. W.P allowed.
-
2012 (11) TMI 1048
Whether the assessment order passed on February 18, 2008 in respect of the assessment year 2001-02 where the return had been filed on April 30, 2002 was within limitation and further that the Commissioner on January 7, 2009 could validly extend the limitation up to March 31, 2009?
Held that:- Find no merit in the appeal. Section 11(3) of the Punjab General Sales Tax Act provides for a period of limitation for framing of assessment whereby the assessing authority can pass an order of assessment within a period of three years from the last date prescribed for furnishing the last return in respect of any period. Thus, under the circumstances valid assessment could be framed up to April 30, 2005 as the last date for filing the return in the present case was April 30, 2002. The assessment having been framed on February 18, 2008 was, therefore, clearly beyond limitation as no order extending the limitation had been passed by any competent authority before the expiry of period of limitation. Any subsequent order extending the period of limitation passed by the Commissioner would not clothe the assessing officer with jurisdiction to frame assessment which could be held to be within limitation.
The issue stands settled by the decision of this court in Shreyans Industries Limited's case [2008 (8) TMI 806 - PUNJAB AND HARYANA HIGH COURT] wherein held that there is no express mention of any power to grant extension after the assessment has become time-barred.
-
2012 (11) TMI 1047
Stop delivery orders - Held that:- The goods are not kept in any vessel, vehicle or place by a carrier or bailee or any person to whom the goods were delivered for transport. Further, the Commissioner cannot be stated to have reason to believe that the tax on such goods is or is likely to be evaded. Even if the stand of the respondents that the petitioner was not entitled to take tax credit on the purchases made from M/s Surya Vinayak Industries Ltd. was valid, failure to see how the authority can hold a belief that the goods which are detained, are such on which the petitioner was likely to evade tax payment. Even if both these conditions were satisfied, the power with the Commissioner was only to enter the vehicle, vessel or the place, and inspect the goods and records relating to the goods in question and elicit such information as was relevant. In the present case, the respondent No.2 has acted well beyond such powers. Plainly, the power under section 67(b) of the said Act was simply not available with the respondent No.2 for passing “stop delivery” order.
Thus the action of the respondents in ordering “stop delivery” of the goods of the petitioner communicated through the impugned communication dated 12/15.10.2012 is declared illegal and hereby quashed
-
2012 (11) TMI 1046
Refund claim along with interest - Held that:- In the light of the provision of sub-sections (9) and (10) of section 20, the petitioner was entitled to interest at one per cent per month after 60 days from the said order, i.e., from November 2, 2011 and the interest could not be denied on the ground that notice had been issued under section 34 of the Act.
Writ petition allowed and the respondents are directed to calculate the amount of interest at one per cent per month from November 2, 2011 on the sum of ₹ 43,84,385 till the date of payment.
-
2012 (11) TMI 1045
Revision - Penalty - Declaration to import - It is an undisputed fact that from August 1, 2008, the check-post in U.P. was abolished - Held that: - There was no concealment of the sale or goods. The blank form was available with the truck driver, but due to change circumstances, which were beyond his control, neither there was any mala fide intention nor any concealment on the part of the assessee. Therefore, by keeping in mind the ratio laid down in the case of Price Waterhouse Coopers Pvt. Ltd. v. Commissioner of Income-tax [2012 (9) TMI 775 - SUPREME COURT], there was no justification for levy of the penalty - Decided in favor of the assessee.
-
2012 (11) TMI 1044
Withholding refund claim with interest - Held that:- It was noticed that the order giving rise to refund was subject-matter of further proceedings and it had been certified that the recovery of the amount ultimately found due would be adversely affected later on, if the refund is allowed and the refund was directed to be withheld. Section 21 of the Act provides that the taxing authority itself is to record reasons in writing and if the authority is below the rank of the Commissioner, he is to refer the case within 30 days of the application for refund to the Commissioner. Thus, withholding order of refund is held to be legally unsustainable, the order dated September 27, 2012 (annexure P5 in CWP No. 20823 of 2012) is hereby quashed.
A perusal of section 20(4) to 20(11) goes on to show that where the excess amount has been paid, refund will be allowed by the Assessing Authority and shall carry interest at one per cent per month
Present petition is allowed and the respondents are directed to refund sum of ₹ 21,88,947 along with interest at one per cent per month from the date after expiry of 60 days after passing of the assessment order, i.e., April 8, 2012 till payment. The said amount be paid to the petitioner within a period of one month from the date of receipt of certified copy of the order.
-
2012 (11) TMI 1043
Entry tax - purchase and import of certain items such as scratch cards, telecom parts, CDot, telephone material, S.M.P.S., S.B.M., tower parts, antenna, B.T.S., etc., - Held that:- As per the Notification No. KA-NI-22283/XI-9(81)/ 91-U.P. Ord.-21-99-Order-99, it is mentioned that the entry tax on goods is leviable on "Machinery and spare parts of machinery valuing ten lacs or more". In the instant case, the value of the telephone exchange and other equipments is more than a crore, where a individual machinery cannot function independently. So, the value of entire goods will have to be taken for the purpose as all the equipments and machinery will have to work together. Individual item has no separate utility. Hence, the value of the goods during the assessment year under consideration is more than ten lacs and is subject to entry tax. Revision dismissed.
-
2012 (11) TMI 1042
Veena, tamboora, shruthi box and tabala - whether the above instruments are Indian musical instruments and not electronic instruments? - Held that:- Veena and Tamboora have the shape and appearance of traditional Veena and Tamboora but in size they differ besides having electronic gadgets like speaker, amplifier and a mike for the sound quality and efficiency. It is the unanimous opinion of the popular and renowned musicians who assisted the Court say that the skills for playing said instruments manufactured by the assesse is totally similar to the skills required for playing the traditional Veena and Tamboora. Merely because the said instruments are fitted with mike, amplifier and speaker, they do not lose the character of Indian musical instruments. Therefore, the said two instruments definitely come within the purview of Article 15(1) and accordingly, they have to be taxed.
With regard to Shruthi box and Tabala,although they do not bear the appearance and shape of Tabala and traditional Shruthi box but they play the music of traditional Tabala and Shruthi box.It is said that Shruthi box and Tabala manufactured by the assessee are very much necessary for the beginners who practice in music. In fact these instruments would play a tune for the practicing vocalist. Therefore, in order to propagate the object of Entry 15(i) of the Second Schedule of the Karnataka Sales Tax Act, 1957, to promote Indian music and Indian musical instruments, it is just and necessary to hold that all the instruments come under the definition within the purview of Entry 15(i) and should be taxed. Accordingly, the revision is dismissed.
-
2012 (11) TMI 1041
Issues involved: Interpretation of law regarding denial of input tax credit based on retrospective cancellation of registration certificates.
Summary:
The High Court of Madras, in a judgment delivered by Justice Sudhakar, considered the issue of denial of input tax credit due to the retrospective cancellation of registration certificates of selling dealers. The court referred to a previous order in a related case and held that reversing input tax credit based on such cancellations is not permissible. The court emphasized that benefits accrued based on valid documents during the transactions cannot be denied to the petitioners. The judgment highlighted that the transactions conducted when the registration certificates were valid should not be disregarded due to subsequent cancellations. The court set aside notices, revised assessment orders, and provisional assessment orders that sought to deny input tax credit on the grounds of retrospective cancellation of registration certificates. The writ petitions were allowed in favor of the petitioners, following the precedent set in the earlier order. No costs were awarded, and connected miscellaneous petitions were closed accordingly.
-
2012 (11) TMI 1040
Issues Involved: Assessment of tax liability on imported construction material for works contract u/s 2003-04.
Summary:
The High Court of Allahabad heard a revision regarding the assessment year 2003-04 concerning the import of building and construction material for a works contract. The Tribunal did not believe the contention that the cement imported within the State was for use in the works contract. The questions of law referred included the identification of the source of supply, the movement of goods, and the exclusion of goods from gross-turnover. The Court noted that the material on record confirmed the prior contract for bringing construction material, including cement, within the State. The Tribunal's finding that the cement was brought into the State was not disputed, but there was no evidence of misuse by the applicant. Given the absence of misuse and the nature of the works contract, the adverse inference drawn by the Tribunal was deemed unjustified. Citing relevant legal precedents, the Court ruled in favor of the assessee, allowing the revision and ordering no costs to be paid.
This judgment clarifies the tax liability assessment on imported construction material for works contracts u/s 2003-04.
-
2012 (11) TMI 1039
Recall of order - ontravention of Rule 8 read with Section 4(1)(b) of the Central Excise Act, 1944 - Penalty - Held that:- Petitioner has not made out a case for judicial review since we find no error in the exercise of discretion by the CESTAT warranting interference. In the facts and circumstances and after duly considering the earlier and recurrent instances of lack of diligence exhibited by the petitioner, while considering his plea to afford one more opportunity to prosecute the application for recall of the final order dated 5-4-2010 of the CESTAT, we direct that on condition of the petitioner depositing ₹ 10,000/- (Rupees Ten thousand only) to the credit of the Union of India and made over to the first respondent within a period of two weeks from the date of receipt of a copy of this order, the CESTAT shall consider afresh the application of the petitioner - Decided partly in favour of assessee
-
2012 (11) TMI 1038
Denial of Cenvat credit on storage system - storage system is used by appellant for storing various inputs/materials which are used by him for manufacturing final products - Whether storage system can be considered capital goods - Held that:- definition of input in Rule 2(k) of the Cenvat Credit Rules would specifically indicate that all goods which are used for manufacturing of products, whether directly or indirectly and whether contained in the final product or not, if they are within the factory of production, Cenvat credit of the duty paid is eligible. In my view the lower authorities have accepted that the said storage system is used by appellant in their factory and used for storing raw materials.
Appellant has made out a case, inasmuch as Cenvat credit was availed by appellant in the year 2007-08 as per provisions of Cenvat Credit Rules, 2004. In my view the appellant had every reason to entertain a bona fide belief that they are eligible for availment of Cenvat credit, as these storage systems are used within the factory premises. Show-cause notice was issued in the year 2009. In my view the show-cause notice is blatantly time barred as there is no dispute that appellant had filed prescribed returns to the authorities. There cannot be any suppression or wilful misstatement of facts - Decided in favour of assessee.
-
2012 (11) TMI 1037
Waiver of pre-deposit of Cenvat credit - Reversal of CENVAT Credit on the inputs which were used by assessee in the manufacture of final product, as at the stage of semi-finished product itself, the product got destroyed due to fire - Held that:- provisions of Cenvat Credit Rules, 2004 talks about the reversal of Cenvat credit involved on the inputs which are utilised in the manufacture of finished goods which are destroyed in fire on which remission has been claimed. It is also seen that C.B.E. & C.’s Supplementary Manual talks about reversal of Cenvat credit on the inputs which were destroyed without being put to use in the manufacturing process. The entire provisions are silent on the reversal of Cenvat credit on the inputs which were utilised in manufacturing process, but at the stage of semi-finished products were destroyed due to fire. At this juncture, I find that there is no dispute that the appellant had insured this semi-finished product for an amount. The said amount has been claimed from the insurance company and the insurance company has paid the amount to him - Prima facie case not in favour of assessee - Following decision of COMMISSIONER OF C. EX., BANGALORE Versus TATA ADVANCED MATERIALS LTD. [2011 (4) TMI 1124 - KARNATAKA HIGH COURT] - Stay granted.
-
2012 (11) TMI 1036
Duty demand - Shortage of M.S. Ingots - Clandestine removal of goods - Held that:- it is the revenue who is making the allegation of shortages in final product and consequent clandestine removal. As such, the onus to show that such shortages were arrived at after actually weighing the entire stock is on the revenue. No inventories stand produced by the revenue to show the actual weighment. Merely because Shri Tiwari in his on the spot statement has accepted the shortages cannot be, by itself made the sole basis for upholding the charges against the appellant. - there is no other evidence on record to reflect upon the clandestine activity of the appellant. It is well settled that such allegations are required to be proved by positive and sufficient evidence. There is virtually nothing on the record to show procurement of raw- material to manufacture such a huge quantity of final product. Statements of neither the workers, nor the transporters have been recorded. The buyers of the ingots have not been identified and their statements not recorded. As such, I find no justifiable reasons to uphold the demand on shortages of ingots or to impose penalty on the appellant - Decided in favour of assessee.
-
2012 (11) TMI 1035
Payment of SAD - SAD on scoured wool - Availment of Credit - Held that:- appellant has availed the credit in their statutory records maintained by them in the ordinary course of business. Such availment of credit was duly reflected in the returns filed by them. As such the appellant cannot be attributed with any suppression or misstatement of facts especially when the entry against Sl. No. 36 of Notification No. 20/2006 is not covering the goods by clear description. Further, the Customs authorities also accepted SAD paid by the appellant at the time of import of the goods and never questioned the same. In such a scenario, the subsequent issuance of show cause notice proposing to deny the credit without making any reference to the duty admitted paid by the appellant is neither just nor proper - Decided in favour of assessee.
............
|
9911796707
