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Showing 301 to 320 of 1266 Records
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2012 (10) TMI 976
Penalty and interest - demand notice - Held that:- The conclusion is irresistible that there was a systematic failure on the part of the respondents, in particular, the first respondent, in failing to execute the statutory obligation under the fourth proviso to section 33 of the 2005 Act, in refunding the amount of tax deposited by the petitioner along with the applicable interest.
This failure is compounded by the impugned notice dated December 28, 2009 which discloses the total and fundamental non-application of mind either to the material on record or to the logical and inevitable legal consequence of the order of the Tribunal dated October 9, 2009 in T.A. Nos. 143, 144 and 145 of 2009.
On the analysis above, while quashing the notice dated December 28, 2009.s issued by the first respondent, we direct the first respondent to forthwith and in any event within a period of 10 days from the date of receipt of a copy of this order compute and issue orders of refund of the tax paid/deposited by the petitioner for the assessment years 2005-06, 2006-07 and 2007-08 along with interest as mandated by the provisions of section 33 of the 2005 Act.
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2012 (10) TMI 975
Demand notice for the production of the documents - whether the petitioner's establishment is a hotel or not? - powers conferred on the State Legislature under entry 62 of List II of the Seventh Schedule to the Constitution of India challenged
Held that:- Once the respondents themselves have chosen to initiate proceedings on the basis that it is a hospital, they cannot turn around and contend before this court that establishment of the petitioner is a hotel and not a hospital. Therefore, the first contention raised by the petitioner deserves acceptance. Consequently, the Act cannot have application to the petitioner's hospital for any period prior to April 1, 2008 and hence the demand for production of documents and details for any prior period is illegal.
Legislature is always within its rights to specify the items of luxury. It is accordingly that for using the accommodation for residence and the amenities and services provided in hospitals, which levy gross charges of rupees one thousand or more per day have been defined as "luxury provided in hospitals" for the purpose of the Act and in determining the gross charges, what is charged for food, medicine and professional services is excluded. By this process, the Legislature has kept out of the purview of the Act, hospitals which charge less than rupees one thousand per day. Such provisions of the Act, are within the legislative competence of the State and consequently, there is no basis for the contention that, the Act to the extent it covers hospitals, is ultra vires the Constitution. Therefore, the second contention raised by the petitioners is rejected.
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2012 (10) TMI 974
Whether "inkjet cartridges" and "tonor cartridges" are covered by entry 4 of Part B of the Second Schedule to the Assam Value Added Tax Act, 2003, which lists items attracting lesser rate of tax or covered by residue entry in Schedule V providing higher rate of tax?
Held that:- Question has to be answered in favour of the assessee. The items in question are integral part of printer which undisputedly is covered by entry 3.It is settled that a fiscal entry is to be given a common sense meaning as understood by persons dealing with such goods and not any technical meaning.
Applying this test, ink of the printer has to be held to be its accessory, in absence of any compelling reason. Thus allow the writ petitions in above terms.
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2012 (10) TMI 973
Issues involved:
The issues involved in the judgment are the liability of the assessee to pay purchase tax on jelly and sand, the deduction to be given to the subcontractor, and the levy of resale tax on both the contractor and subcontractor.
Liability of purchase tax on jelly and sand:
The Department contended that the assessee purchased jelly and sand from unregistered dealers, subjecting the items to purchase tax u/s 6(1) of the Karnataka Sales Tax Act, 1957. The assessee argued that they did not purchase jelly from outside but extracted it from their quarry, paying royalty to the Government. The Tribunal found that no purchase tax is leviable on jelly but upheld the levy of tax on the sand component purchased from unregistered dealers.
Deduction to be given to the subcontractor:
The assessing officer did not give deduction to the subcontractor while assessing their turnover, leading to a dispute. The Tribunal found that the sub-contractor had been given due deduction of the resale tax, and there was no double levy of tax on both the contractor and sub-contractor.
Levy of resale tax on contractor and subcontractor:
The Department tried to levy resale tax on both the contractor and sub-contractor. However, the Tribunal held that there was no double levy of tax, citing a previous court decision. The Tribunal concluded that the levy of tax on sand was valid, and the questions of law were partly answered in favor of the Revenue.
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2012 (10) TMI 972
Time limitation - whether the impugned reassessment orders are barred by limitation prescribed under section 19(2) of the Assam General Sales Tax Act, 1993? - Held that: - section 18(1) provides for limitation for initiating the reassessment while section 19(2) prescribes limitation for completing the assessment - In the present case, it is clear that completion of reassessment, i.e., passing of the order of reassessment is beyond the limitation prescribed u/s 19(2) - orders of reassessment quashed - petition allowed - decided in favor of petitioner.
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2012 (10) TMI 971
Whether the finding of the revisional authority is perverse and arbitrary as the registration certificate issued by the competent authority was in force during the relevant period?
Held that:- In view of coming into force of the KVAT Act with effect from April 1, 2005, the appellants are registered under the KVAT Act and opted for composition tax registration certificate. The said certificate has not been cancelled by the competent authority. So long as the composition tax registration certificate stands in the name of the appellants, the revenue cannot levy tax under section 4(1)(b) of the Act. The order of the revisional authority setting aside both the orders passed by the assessing authority as well as the first appellate authority is contrary to law. Apart from that with effect from June 7, 2005, the authorities have amended section 15(1)(c) and brought the ice cream parlour and sweet meat stall under the purview of section 16(1)(c) of the KVAT Act. Hence, for the month of April and May, the revenue cannot levy tax at the rate of 12.5 per cent. Hence, the order passed by the revisional authority cannot be sustained. The substantial question of law framed in these appeals is held in favour of the appellants.
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2012 (10) TMI 970
Issues involved:
The legality and correctness of the order dated May 19, 2009 passed by the Commissioner of Commercial Taxes, Bangalore u/s 64(1) of the Karnataka Value Added Tax Act, 2003.
Issue 1: Claim of refund of input tax
The appellant, a registered dealer under the Act, claimed refund of input tax for work executed on behalf of M/s. Shree Enterprises. The claim was initially allowed but later rejected after audit proceedings were initiated.
Issue 2: Exercise of power by Additional Commissioner of Commercial Taxes
The Additional Commissioner, u/s 64(1) of the Act, suo motu took up the matter after the appeal was allowed by the Joint Commissioner of Commercial Taxes. The revision petition filed by the Additional Commissioner set aside the order of the appellate authority, leading to the appeal in question.
Judgment Details:
The appellant contended that the Additional Commissioner's exercise of power was erroneous as the appellant had not purchased inputs for their benefit but for finishing goods supplied on job-work basis. The appellant argued that the Additional Commissioner did not consider the appellant's role as a non-consumer in the transaction.
The court, however, noted that the appellant failed to provide material showing the terms and conditions of the job-work. It was highlighted that if the appellant had already received payment inclusive of the cost of consumable products for the job-work, claiming a refund would lead to unjust enrichment. The court emphasized that the appellant's work involved not just labor but also the necessary inputs for finishing the product.
The court concluded that since the appellant had received the value of the input for the job-work, no error was committed by the Additional Commissioner. Therefore, the court dismissed the appeal, finding no merit in the appellant's argument.
This judgment clarifies the importance of providing comprehensive documentation to support claims for input tax refunds and highlights the concept of unjust enrichment in tax matters.
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2012 (10) TMI 969
Whether, on the facts of the circumstance of the case, the revisional authority was right in coming to the conclusion that, payment of penalty under section 52 of the KVAT Act, result in estimation of the turnover inspite of the turnover reflected in the books of accounts?
Whether, on the facts of the circumstance of the case, not challenging the order of penalty will result in estimation of the turnover under section 39(1) of the KVAT Act?
Held that:- Against the order of penalty, no appeal is filed. If really, if it is a case of non-possessing the documents by the driver by oversight, the appellant could have summoned the documents from the consignor, who had dispatched the goods from Goa. Even if there was an urgency and that he was compelled to pay the penalty, nothing has been prevented from filing an appeal challenging the order of penalty and no such an attempt is also made. Admittedly, the penalty has not been paid by the driver or carrier. But the penalty is paid by the appellant. If the penalty had been paid by the driver or carrier for their mistake, the matter would have been different. If the appellant for no fault of him was made to pay, the penalty at least, he would have recovered the penalty from the carrier and no such action is taken. Therefore, on the facts and circumstances of the case, the substantial questions of law framed in this appeal do not arise at all.
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2012 (10) TMI 968
Issues involved: Jurisdiction of revisional authority to determine exemption eligibility under notification u/s 22(1) of Karnataka Sales Tax Act.
The appellant, a cement pipe manufacturer, supplied goods to Bagalkot Town Development Authority and collected tax under the Karnataka Sales Tax Act based on a concessional rate notification. The Additional Commissioner initiated suo motu revision, contending that the Authority is not a creation of the State and the concessional rate is invalid. The main issue is whether the Authority should be considered a Department of the State for tax purposes. The Court found that the Authority, created under the Urban Development Authority Act, is a local authority of the State, managed by a Commissioner appointed by the State. The Court held that the concessional rate applicable to the Government should extend to the Authority. Consequently, the appeal was allowed, setting aside the Additional Commissioner's order and confirming the Joint Commissioner's order.
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2012 (10) TMI 967
Maintainability of appeal - non payment of admitted amount of tax liability, along with 25 per cent of the disputed amount of tax, within the period specified - Held that:- From the records available before this court, it is noted that this court, by its order, dated March 1, 2012 had directed the first respondent herein to hear the appeal and to pass orders thereon, on merits and in accordance with law, on the petitioner paying a sum of ₹ 50 lakhs, as part of the tax said to be payable by it, and to furnish a personal bond for the balance amount, within a period of four weeks from the date of receipt of a copy of the said order. It is also noted that the petitioner had complied with the said conditions, on March 28, 2012. As such, the first respondent ought to have heard the appeal filed by the petitioner.
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2012 (10) TMI 966
Composite contract for civil, electricity and sanitary denied - Held that:- In the instant case, the entire works contract was a composite and indivisible one and in fact what was agreed there and intended between the parties was not to supply the materials in the course of contract, but as and when such material (electrical and sanitary) were embedded in contractual work involved, then they became the property of the other party. Hence, there would be no question of sale of such material by the contractor to the other. The entire transaction was a clear works contract and did not involve any sale. The petitioner constructed the entire works according to the specification contained in the agreement and in construction thereof received the payment. In both the agreements there was neither a contract to sell the material used in the construction, nor does the property passed therein as movable property.
After the date of agreement of contract, the petitioner had purchased material for amount of ₹ 2,01,950 to which he placed list which were exempted from tax. In respect of purchase of ₹ 2,73,522 no evidence was placed, therefore, the material of ₹ 2,73,522 was treated as inter-State purchase for using in works contract. Thus, vide order dated January 31, 1993 tax demand of ₹ 36,104 was imposed upon the petitioner. W.P. dismissed.
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2012 (10) TMI 965
Inter state sale - remand back orders by tribunal - Held that:- The revisionist is engaged in the sale and purchase of de-menthalised oil and allied agro product. During the survey, photocopies of few loose papers were recovered, specially regarding the purchase of 100 kg. de-menthalised oil from Dinesh Matti and Shivkumar Kothi and the same are not found clear. For the inter-State sale, a few form F were found not genuine. So, a fresh examination and verification of these facts/documents is required.
In the instant case, when the facts are not clear and documents seized at the time of survey need verification, then there is no reason to interfere with the impugned order passed by the learned Tribunal, who has just remanded the matter back to the assessing officer, to re-examine the issue and pass afresh order. No question of law emerges from the impugned order.
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2012 (10) TMI 964
Non serving of notice - surety bond - jurisdiction of civil court - Held that:- Concurrent finding recorded by the courts below regarding service of the notice by plaintiff on contesting defendants, is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal or based on misreading or misappreciation of the evidence on record. Consequently there is no ground to interfere with the said finding.
It is undisputed that as per terms and conditions of the surety bond furnished by the plaintiff, the plaintiff had right to withdraw its surety bond by serving notice of six months. Consequently after service of aforesaid notice by plaintiff on contesting defendants, the plaintiff no longer remained surety for defendant No. 4 since after June 26, 1992 on expiry of the notice period of six months. The disputed liability admittedly relates to the period thereafter. Consequently the plaintiff is not liable to satisfy the said liability of defendant No. 4.
When the plaintiff is neither dealer nor surety nor assessee, the plaintiff is not amenable to the jurisdiction of defendants Nos. 1 to 3 under the Act. Consequently, entire action of defendants Nos. 1 to 3 is illegal and against statutory provisions and therefore, jurisdiction of civil court to challenge the said action is not barred, notwithstanding the provisions of section 62 of the Act. Appeal dismissed.
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2012 (10) TMI 963
Issues:
The issues involved in the judgment are the rejection of the petitioner's application for exemption from Sales Tax for manufacturing new products, the violation of principles of natural justice in the appellate order, and the eligibility of the petitioner for exemption benefits after obtaining permanent registration.
Rejection of Application for Exemption:
The petitioner, a Small Scale Industrial Unit, obtained Provisional Registration and exemption for manufacturing Calcium Carbide. Subsequently, they started manufacturing Silico Manganese and Ferro Manganese. The petitioner applied for exemption for the new products but was rejected based on the ground that production started after 01.01.2000. However, the court found this reason untenable as the cut-off date for production was extended to 31.12.2001 by an amendment. The rejection was deemed unjust due to the failure to consider the amendment.
Violation of Principles of Natural Justice in Appellate Order:
The appellate authority rejected the petitioner's appeal without addressing the validity of the original rejection ground. This failure to consider the grounds relied upon and not notifying the petitioner of the reasons violated the principles of natural justice. The appellate authority provided its own reasons for rejection, which was deemed improper.
Eligibility for Exemption Benefits After Obtaining Permanent Registration:
The petitioner obtained permanent registration after initially having provisional registration. The court held that obtaining permanent registration and commencing production within the specified time did not render the petitioner ineligible for exemption benefits. The exemption notifications did not prescribe ineligibility based on obtaining permanent registration. The court set aside the original rejection orders and directed the second respondent to reconsider the matter within three months, staying further proceedings in the meantime. If the claim is recognized, consequential relief will be granted.
The judgment highlights the importance of considering legal amendments, upholding principles of natural justice in appellate proceedings, and interpreting eligibility criteria for exemption benefits in a fair and reasonable manner.
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2012 (10) TMI 962
Penalty on non-registration of the business run by the revision petitioner - Held that:- The appellate tribunal has conscientiously examined the case and come to the conclusion that the adoption of turn over by the Intelligence Officer is based on valid documents recovered from the business premises of the revision petitioner and was also based on the Income Tax returns and the profit and loss statement appended to such returns. The alleged suppression has been found to be one eminently emanating from the materials on record. This court does not find any reason to interfere with the factual findings recorded by the Tribunal. The learned counsel makes a passionate plea for reduction of the quantum of penalty imposed. We find that the first revisional authority has modified the penalty imposed considerably, a measure of indulgence which we would say was misplaced. But the State having not challenged it, we are of the opinion that the facts and circumstances does not compel us to make any further modifications. Sales tax revision rejected.
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2012 (10) TMI 961
Issues:
Challenge to the validity of the amendment to sub-section (4) of section 4 of the Karnataka Value Added Tax Act, 2003 on the ground that it should have been given retrospective effect.
Comprehensive details:
The petitioner challenged the validity of the amendment to sub-section (4) of section 4 of the Karnataka Value Added Tax Act, 2003, arguing that it should have been given retrospective effect from October 2, 2006. The amendment Act came into force prospectively from April 1, 2007. The petitioner contended that the definition of "maximum retail price" in the Drugs Control Amendment Order inclusive of all taxes should have been considered. The petitioner relied on judgments of the Supreme Court to support the argument (Nagpur Improvement Trust v. Vasantrao AIR 2002 SC 3499 and State of Kerala v. Attesee (Agro Industrial Trading Corporation) [1989] 72 STC 1 (SC)).
The learned Additional Government Advocate for the respondents argued that the payment of tax as per the amended sub-section (4) of section 4 of the KVAT Act is optional, therefore the amendment cannot be deemed arbitrary. He cited the judgment of the Supreme Court in State of Kerala v. Builders Association of India [1997] 104 STC 134 (SC) to support this argument.
The court held that the contention that the amendment should have been retrospective from October 2, 2006 lacks merit. It emphasized that it is for the Legislature to decide whether a law should be prospective or retrospective, as long as it does not offend any constitutional limitations. The court found no grounds to hold the amendment as arbitrary for not being retrospective. Since the method of taxation under the amended sub-section (4) is optional for dealers, it does not violate any Constitutional limitations. Dealers have the choice to opt for the normal method of taxation under section 4 of the KVAT Act or the alternate method under sub-section (4). The court referenced the Supreme Court judgment in State of Kerala v. Builders Association of India [1997] 104 STC 134 (SC) to support the legality of providing an alternate method of taxation. The court concluded that the writ petition lacked merit and dismissed it.
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2012 (10) TMI 960
Burden of tax - forfeiture of excess amount paid by the assessee to the State Government - whether no materials have been produced before the authorities to show that the assessee has neither collected any amount of tax under the Act nor passed on the burden of tax liability on the consumers and also held that collection of tax is contrary to section 3A of the Act?
Held that:- No finding has been given whether the petitioner has passed on the entry tax burden on the consumers. The specific case of the petitioner is that necessary materials have been produced before the assessing authority, but the same is not considered.
The revision petition is allowed. Without giving any finding on the substantial questions of law, the order passed by the Appellate Tribunal as well as the authorities below are set aside and the matter is remanded to the assessing authority to reconsider the same taking into consideration the materials produced by the petitioner and also taking into consideration the impact of section 3A for the purpose of passing order under section 3BB of the Act and pass orders in accordance with law.
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2012 (10) TMI 959
Issues:
The issues involved in this case are the applicability of the U.P. Trade Tax Act, 1948, specifically in relation to the classification of food items served in a restaurant as a sale or not, and the impact of relevant legal precedents on the assessment of trade tax.
Applicability of Legal Precedents:
The appellant, engaged in the hotel business, contested the addition of service items as sales for the assessment years 1981-82 and 1982-83. The appellant relied on the precedent set by the case of Northern India Caterers (India) Ltd., arguing that food items served in the restaurant do not amount to a sale. The first appellate authority accepted this argument and deleted the additions for both years. However, the Tribunal overturned this decision, reinstating the assessing officer's order. The appellant then filed revisions challenging this decision.
Interpretation of Legal Amendments:
The court considered the impact of an amendment to the Constitution of India and the U.P. Trade Tax Act, 1948, which deemed the supply of goods as part of a service to be a sale. The amendment specified that such transactions, including the supply of food or drink for consideration, would be treated as sales. This amendment, effective from February 2, 1983, was not retrospective but prospective in nature. Therefore, transactions prior to this date were to be governed by the precedent set by the Northern India Caterers case.
Judgment:
The court set aside the Tribunal's order and directed the assessing officer not to charge trade tax on food items served in the restaurant before February 2, 1983. It was clarified that post the amendment date, any items served in a restaurant or hotel would be considered a sale under the Trade Tax Act, 1948. The revisions were disposed of based on these directions and observations.
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2012 (10) TMI 958
Issues involved: Challenge to conditional order of stay u/s Kerala Value Added Tax Act, 2003.
Summary:
Issue 1: Interpretation of tax liability on import transactions
The appellant contested the order of penalty and assessment, arguing that the import of lifts should not be included in the tax return due to being covered by Article 286 of the Constitution of India as an import from outside India. The appellate authority directed the appellant to remit 1/3rd of the penalty and tax assessed. The learned single judge modified the penalty amount to &8377; 10 lakhs. The appellant challenged this modification, claiming no tax liability on imports from outside India.
Issue 2: Modification of penalty and tax amounts
The appellant's counsel argued that the import being from outside India absolves them of tax liability. The Government Pleader suggested that post-import transactions might attract tax liability. The court modified the penalty amount to &8377; 6 lakhs in one appeal and directed the appellant to pay the same in the other appeal, with a provision for furnishing security for the balance amount.
In conclusion, the court modified the penalty and tax amounts, considering the nature of the import transactions and the provisions of Article 286 of the Constitution of India, ensuring a fair resolution in the interest of justice.
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2012 (10) TMI 957
Issues involved: Interpretation of U.P. Trade Tax Act, 1948 regarding eligibility for exemption based on capital investment for expansion and diversification.
Summary:
The case involved a revision under section 11(1) of the U.P. Trade Tax Act, 1948 against a judgment by the U.P. Commercial Tax Tribunal. The assessee established a new unit and made capital investments in various devices/systems related to air conditioning. The assessee claimed exemption from tax based on the additional fixed capital investment made. The review application for eligibility under expansion and diversification schemes was initially rejected, but the Tribunal allowed the claim. The Department filed the revision challenging this decision.
Upon hearing both parties, it was found that the Tribunal had correctly examined the application submitted by the assessee for bifurcation, diversification, and expansion on a 50-50 per cent basis. The Tribunal's finding was not challenged by the Department. The Tribunal, being a final fact-finding authority, had the authority to make such determinations. The Divisional Level Committee/Chief Executive Officer was directed to issue the eligibility certificate based on the bifurcation of capital investment equally for expansion and diversification as opted by the assessee.
Therefore, considering the facts and circumstances of the case, the High Court upheld the Tribunal's order, dismissing the revision. The direction for issuing the eligibility certificate based on the bifurcation of capital investment was confirmed.
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