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Showing 281 to 300 of 558 Records
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2012 (2) TMI 459
Liability to pay any tax on the sale of used equipments, viz., metal detectors, water coolers and lockers - failure to declare the impugned turnover in the return - penalty levy - Held that:- it is very clear that the assessee is in the business of sale of food articles, snacks and beverages. He is registered dealer under the Act. He has opted for composition scheme and he has paid four per cent tax on the total turnover of sale of food articles, snacks and beverages. In November, 2006, he has sold used equipment, viz., metal detectors, water coolers and lockers. The said sale consideration was not reflected in VAT returns filed by the assessee. The aforesaid sale is a onetime sale by which the discarded goods were sold. The assessee is not in the business of the sale of metal detectors, water coolers and lockers. He is not a dealer of those articles. Therefore, the consideration received from the sale of said goods is not leviable to tax under the Act.
Appeal allowed. Levy of tax on the sale of discarded goods totally in a sum of ₹ 1,06,612 is without authority of law.
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2012 (2) TMI 458
Reconveyance of the property - Whether the party has to apply within two years from the date of confirmation of the sale?
Held that:- The legal heirs of the petitioner are entitled to reconveyance of the property, notwithstanding the long delay in approaching the Government for reconveyance, which is in the peculiar facts and circumstances of this case. A democratic Government cannot take a shylockian attitude in such matters, especially when the sales tax authorities have also not done what they ought to have done after the appellate order.
The Government Pleader was not able to satisfy me that the Government has actually taken possession of the property, since no document had been produced in respect of the same. The petitioner has stated in the writ petition that he continued to be in possession of the property even after the sale, about which, he was not aware and had no notice of. Therefore, the legal heirs of the petitioner paying the amounts due as per the appellate order, they are entitled to reconveyance of the property.
Accordingly, this writ petition is disposed of with the directions to first respondent directing to pass fresh orders. If the legal heirs of the petitioner pay the amounts due as per the said assessment with interest at statutory rate till payment and meet the expenses for reconveyance, the property shall be reconveyed to the legal heirs of the original petitioner notwithstanding the fact that the petitioner did not apply within two years.
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2012 (2) TMI 457
Whether in the facts and circumstances, the Tribunal is right in holding that there is no under invoicing under section 12A of the Tamil Nadu General Sales Tax Act in respect of sales made to the sister concern of the assessee?
Held that:- We are not inclined to remit the matters and we hold, on the given facts and circumstances of the case, the application of section 12A read with rule 18C is not justified and the Tribunal is right in setting aside both the orders, accepting the case of the assessee. The substantial question raised in the revisions is answered in the negative, i.e., against the Revenue and in favour of the assessee.
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2012 (2) TMI 456
Issues involved: Registration cancellation u/s 39 of Tamil Nadu Value Added Tax Act, 2006 without reasons and retrospective effect.
Registration Cancellation without Reasons:
The petitioner, a registered dealer u/s 39 of Tamil Nadu Value Added Tax Act, 2006, had their registration certificate cancelled by the respondent without providing any reasons for such cancellation. The respondent's action of cancelling the registration without affording an opportunity of personal hearing to the petitioner was challenged. The impugned order lacked the necessary reasons as required by clause (14) of section 39 of the Act. The court noted that cancellation of registration can only be done based on sufficient reasons and after giving a personal hearing to the dealer as per clause (15) of the Act. The respondent's order was found to be in violation of these provisions and contrary to established legal principles, as highlighted in Indo Germa Products Limited v. Assistant Commissioner (CT) [2011] 45 VST 236 (Mad). Consequently, the High Court set aside the impugned order of registration cancellation.
Retrospective Effect of Registration Cancellation:
The impugned order of the respondent cancelling the petitioner's registration was also found to be improper due to its retrospective effect. The respondent did not have the authority to cancel the registration with retrospective effect, as observed by the court. The cancellation of registration should be done in accordance with the law, after issuing an appropriate notice and providing an opportunity of personal hearing to the dealer. The High Court allowed the writ petition, setting aside the impugned order, and directed the respondent to follow the legal procedures for cancellation of registration in the future. The court emphasized that the respondent must adhere to the principles of natural justice and statutory provisions when taking such actions.
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2012 (2) TMI 455
Natural justice - pre-deposit - order was passed without giving an opportunity of hearing to the writ petitioner and the writ petitioner had no knowledge of the date when this matter was taken for consideration before the Commissioner (Appeals) - Held that: - merely because the petitioner was not given opportunity of being heard, the petition is allowed - decided in favor of petitioner.
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2012 (2) TMI 454
Whether reassessment framed by the assessing authority is within the parameter of limitation provided under section 11A of the Punjab General Sales Tax Act, 1948?
Held that:- The Supreme Court in the case of State of Punjab v. Bhatinda District Coop. Milk P. Union Ltd. [2007 (10) TMI 300 - SUPREME COURT OF INDIA] has engrafted a five years period of limitation in section 21 of the Act holding that if no period of limitation has been prescribed then the statutory authority is obliged to exercise jurisdiction within a reasonable period. Even if we construe the notice issued in December 2008 as a notice under section 21 of the Act for exercise of revisional jurisdiction, it would also be required to be issued within a period of five years from the date when the assessment year comes to an end in respect of which a revisional jurisdiction is sought to be exercised.
As a sequel to the above discussion, the order of reassessment dated March 31, 2009 (P10) is hereby quashed. Consequently, the demand raised in the order of even date (P11) is also quashed.
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2012 (2) TMI 453
Exemption in respect of inter-State sales granted by a notification dated February 19, 1991 - whether the petitioner was entitled to continue to avail of the exemption even after the amendment of 2002 without furnishing form C?
Held that:- There is no good ground for questioning the legislative competence to prescribe conditions subject to which the exemption can be availed for future transactions.
The contention of the learned counsel for the petitioner that the amendment by section 152 of the Finance Act, 2002 has been applied with retrospective effective is not correct. The said Finance Act 2002 casts an obligation of production of form C in respect of transactions which take place subsequent to that amendment.
If a person availed of that exemption without production of form C in respect of transactions after the 2002 Amendment, he is liable for such action as may be permissible by law which includes section 28(1) of the Act. W.P. dismissed
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2012 (2) TMI 452
Input tax credit - disallowance on the ground that the registration of M/s. Karat 24, from whom the petitioner purchased bullion, was cancelled on February 28, 2010 - Held that: - section 13(1) of the 2005 Act entitles input-tax credit to the VAT dealer for the tax charged in respect of all purchases of taxable goods, made by that dealer during the tax period. The failure on the part of M/s. Karat 24 to file returns or remit the tax component of the sales made to the petitioner cannot per se be a ground to deny input-tax credit - the invoices produced by the petitioner are not fraudulent or in dispute that it had been issued by M/s. Karat 24 or that the purchaser did not in fact obtain the invoices from the registered dealer - input tax credit cannot be denied - petition allowed - decided in favor of petitioner.
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2012 (2) TMI 451
Permission to run the business - Cancellation of the registration of the petitioner - Held that:- The respondent had passed the impugned order cancelling the registration of the petitioner, retrospectively, without giving an opportunity of hearing to the petitioner. As such, the impugned order of the respondent, dated January 13, 2012, is liable to be set aside. Hence, it is set aside. The petitioner is directed to appear before the respondent, on February 23, 2012, along with all the relevant documents to substantiate his claims, pursuant to the notice issued by the respondent, on November 11, 2011. Thereafter, the respondent shall consider the objections filed by the petitioner, if any, and pass appropriate orders thereon, on the merits and in accordance with law, with regard to the cancellation of the registration of the petitioner
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2012 (2) TMI 450
Whether the estimation made for possible suppression on mere surmises is not fair and reasonable in the absence of any suppression of turnover?
Held that:- In respect of the addition, there is factual finding given by the authorities below that the assessee had failed to maintain correct accounts and also had purchased groundnut kernel from undisclosed sources and found excess on the date of the inspection. So, addition of ₹ 3,43,400 was made based upon valid material. Even with regard to levy of tax on a turnover of ₹ 2,37,856 was based on valid material. It was also found that there was excess of stock of oil-cakes found by the officers of the enforcement wing. The assessee also unable to give any other material to take a contrary view. Therefore, the order passed by the Tribunal in respect of the addition made based on valid materials and hence, the same is confirmed.
After going through the order, we also feel that equal addition is unwarranted. It is only based on estimate that too probable suppression. It is only a guesswork. There is no material for making equal amount for probable suppression. Therefore, we confirm the order in respect of addition made by the Tribunal. However, equal addition for probable omission alone is deleted. Question of law raised is answered partly in favour of the assessee.
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2012 (2) TMI 449
Issues Involved:
The cancellation of sales tax registrations under the Tamil Nadu Value Added Tax Act, 2006 without providing an opportunity of personal hearing to the petitioners and the retrospective cancellation of registrations.
Summary:
The main contention raised by the petitioners was that their sales tax registrations were cancelled without a personal hearing, which goes against the provisions of clause (15) of section 39 of the Tamil Nadu Value Added Tax Act, 2006. They also argued that the cancellations cannot be done retrospectively. On the other hand, the respondent claimed that the petitioners were not maintaining proper accounts and had not filed monthly returns as required by the law.
Upon reviewing the arguments and records, the court found that the registrations were indeed cancelled without giving the petitioners a chance for a personal hearing, as mandated by the law. Additionally, the respondent failed to demonstrate the authority to cancel registrations retrospectively. Consequently, the court set aside the impugned orders. However, the respondent was given the opportunity to serve notices on the petitioners, allowing them to show cause as to why their registrations should not be cancelled. The petitioners were directed to submit objections and relevant documents, following which the respondent would make a decision after a personal hearing.
In conclusion, the writ petitions were disposed of with no costs, and the connected miscellaneous petitions were closed.
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2012 (2) TMI 448
Declining to entertain appeal filed by the Department against first appellate authority’s order setting aside assessment and remanding the matter for reconsideration by Tribunal - Held that:- The assessment is made strictly in accordance with the compounding application but with the correct percentage of increase under the statute. The only deviation is the increase from 150 per cent to 200 per cent, which in our view, is only a mistake committed by the assessee as a result of failure to take note of amendment to statute. We could have permitted regular assessment on turnover of the assessee, if the assessee did not follow up compounding application and paid tax every month based on the turnover declared. However, the assessee has been paying tax only at compounded rate which cannot be anything other than the tax payable under section 8(f) of the Act. We do not think the assessee can now revert back for turnover based assessment because returns filed every month were not accompanied by payment of tax on the taxable turnover but tax payment was under the compounding scheme, though by mistake at 150 per cent of previous years’ tax as against correct rate of 200 per cent.
We do not find any justification for the Tribunal or the first appellate authority to interfere with the assessment which is made based on application filed by the assessee but by adopting the correct percentage of tax payable under the compounding scheme under the amended provisions of section 8(f) applicable for the year 2007-2008. We, therefore, allow the revision case by setting aside the orders of the Tribunal and that of the first appellate authority and restore the assessment.
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2012 (2) TMI 447
Whether the Appellate Tribunal is correct in sustaining the penalty levied under section 22(2) of the Tamil Nadu General Sales Tax Act and refixed by the Appellate Assistant Commissioner, when there was no excess or illegal collection of tax by the petitioner?
Held that:- The assessee was under the bona fide impression that they could make an application for registration within 30 days or before February 24, 1994. With that belief only, the application was made on February 24, 1994. Even assuming that the date should be calculated from the date of change in the constitution, i.e., on January 23, 1994, the application has been made on February 24, 1994 with a delay of one day. In these circumstances, the explanation offered by the assessee for not applying the registration within a period of 30 days should have been accepted by the assessing officer. If that explanation is accepted, in our opinion, the penalty is not automatic and the assessing authority ought to have exercised its discretion not to levy penalty.
Though the assessee had collected the tax, the amount had been paid. In these circumstances, the imposition of penalty by invoking the provisions of section 22(2)(i) of the Act is unwarranted. Hence, the substantial question of law raised in the revision is answered in favour of the assessee.
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2012 (2) TMI 446
Whether third and the fourth respondents have been stopping the vehicles belonging to the petitioners, which are carrying empty bottles to other States, without the authority of law and are contrary to articles 14, 19(1)(g) and 304(a) of the Constitution of India?
Held that:- This court is of the considered view that a general direction cannot be issued by this court, as prayed for by the petitioners, in the above writ petitions. It is a well-settled position in law that no blanket order can be passed by the courts of law, especially, when the relief sought is vague and general in nature. The petitioners have not been in a position to substantiate their claims that the third and the fourth respondents are interfering with the transportation of the empty beer and brandy bottles, as claimed by the petitioners, arbitrarily, without the authority of law. W.P. dismissed.
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2012 (2) TMI 445
Issues involved:
The issues involved in the judgment include a demand notice for tax payment, rectification application, appeal against demand notice, revenue recovery proceedings, stay petition, conditional order for stay, revision application, and legality of orders u/s assessment.
Demand Notice and Rectification Application:
The petitioner received a demand notice for payment of &8377; 68,00,000 for the year 2007-08. Subsequently, the petitioner filed a rectification application (Exhibit P2) and appealed against the demand notice. The court directed the disposal of the stay petition filed with the appeal, and stay was granted pending further orders.
Stay Order and Revision Application:
Following the court's directions, an order (Exhibit P6) was passed on the rectification application. A stay order (Exhibit P13) was issued, requiring the petitioner to pay &8377; 4,00,000 and provide security for the remaining amount. The petitioner challenged this order by filing a revision application (Exhibit P15) before the same authority.
Challenging the Stay Order:
The writ petition was mainly filed to challenge the conditional stay order (Exhibit P13). The petitioner argued that the orders u/s assessment were illegal, thus the conditions imposed by the appellate authority were unjustifiable. However, the court held that the appellate authority's decision to pass a conditional order was justified. Considering the substantial amount due from the petitioner, the order was deemed valid and not vitiated.
Revision Application Consideration:
The petitioner requested the disposal of the revision application (Exhibit P15). The court noted that no provision of law enabled the petitioner to file such a revision before the same authority who passed the stay order. Therefore, the court declined to direct consideration of the revision application as requested by the petitioner.
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2012 (2) TMI 444
Issues Involved:
1. Interpretation of section 3(2) of the Tamil Nadu General Sales Tax Act, 1959 regarding tax liability on sale of laminated sheet scraps.
2. Applicability of exemption under section 17 of the Act to successive dealers.
On the first issue, the Revenue challenged the order of the Tamil Nadu Sales Tax Appellate Tribunal regarding the tax liability on the sale of laminated sheet scraps purchased from Tamil Nadu Electricity Board (TNEB). The Revenue argued that even though the scraps were exempted under section 17 of the Act, they should be considered taxable as a second sale within the State. The assessing officer and the Additional Appellate Assistant Commissioner supported this view, citing the second proviso to section 3(2) of the Act.
However, the Tribunal disagreed and relied on a previous judgment to rule that if the exemption was allowed for the purchase of iron and steel, it should apply to successive dealers as well. The Tribunal held that taxing the second sale of laminated scraps would be illegal based on this principle, leading to the appeal by the Revenue.
Regarding the interpretation of the second proviso to section 3(2) of the Act, the court examined the provision and clarified that the exemption applies only to the first sale of goods mentioned in the First Schedule, taxable at the point of first sale. The court emphasized that if a sale is not the first sale, the dealer is entitled to claim exemption even if the first sale has not been taxed.
In conclusion, the court dismissed the tax case revision, stating that the assessee is entitled to claim exemption on the grounds that the sale of laminated sheet scraps was not the first sale, thus upholding the decision of the Tribunal.
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2012 (2) TMI 443
Rate of interest - Whether the Tribunal erred in reducing the rate of interest on return of pre-deposit to 6% per annum with effect from 20th October 2005 in terms of Section 35FF of Central Excise Act, 1944 read with Section 11BB of Central Excise Act, 1944 - Held that:- modification of rate of interest under Central Excise Act, 1944 came into force only on 10-5-2008 and hence cannot be made applicable to instant case inasmuch as remand order of Tribunal was passed on 19-7-2005 and was received by Commissioner on 30-8-2005. Hence, rate of interest notified by Central Govt. under Section 11BB ibid @ 6% p/a vide Notification No. 67/2003-C.E. (N.T) applicable - Decided in favour of assessee.
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2012 (2) TMI 442
Maintainability of appeal - remedy open under section 61 of the Bombay Sales Tax Act, 1959 - Alternate remedy - Held that:- challenge in the writ petition under article 226 is to the original order of the Tribunal. Such a challenge clearly would not be maintainable having regard to the fact that the Legislature has created an alternate remedy under section 61 of the Bombay Sales Tax Act, 1959. Having failed to espouse that remedy, it is not open to the State to circumvent the legislative provision by moving this court directly under article 226 of the Constitution - Decided against Revenue.
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2012 (2) TMI 441
Duty demand - Scheme for excise duty liability based on installed Annual Capacity - Appellant opted for duty payment - Held that:- if a manufacturer claims abatement for not working during a short period as provided in Section 3A(3) conditions prescribed have to be followed. Such conditions involve giving advance intimation taking meter reading for electricity supply etc. to make sure that the manufacturer does not actually do manufacturing activity during such period. However there are no such conditions prescribed in sub-section (2). Apparently the appellant has tried to take benefit of this loop-hole by just sending intimation that they were surrendering the certificate. The Authorised Representative for Revenue submits that it is this dubious method that the Appellant has adopted to evade excise duty.
As may be seen the adjudicating authority accepted that the factory was closed during Sep. 1997 and Oct. 1997 and also in March, 1998. The First Appellate authority has not accepted that the factory was closed during the period because intimations regarding last reading for electricity supply was not intimated and has confirmed duty liability for the entire period of Sep. 1997 to March, 1998. The Commissioner (Appeals) has accepted the contention of Revenue that the request for surrender of registration was an eye-wash and they were actually producing goods during the entire period.
Appellants did not do manufacturing activity during the period 2-9-1997 to 28-11-1997 and also from 28-2-1998 to 31-3-1998. So I hold that the duty liability determined in the adjudication order to be proper - However penalty not imposable - Decided partly in favour of assessee.
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2012 (2) TMI 440
Waiver of pre-deposit of duty - Wrong availment of CENVAT Credit - Violation of principle of natural justice - Held that:- as the notices for hearing were not served as per the provisions of Section 37C of the Central Excise Act, therefore we find merit in the contention of the applicants that an opportunity of hearing is to be granted by the adjudicating authority. In view of this, the impugned order qua the applicants is set aside, after waiving pre-deposit of duty, interest and penalties and the matter is remanded to the adjudicating authority for de novo adjudication and to decide afresh after affording an opportunity of hearing to the appellants. The appellants are directed to appear before the adjudicating authority on 9-4-2012 at 10 am and thereafter the adjudicating authority will fix the date of hearing and decide in accordance with law - Decided in favour of assessee.
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9911796707
