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Showing 301 to 320 of 628 Records
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2011 (12) TMI 493
Issues:
Challenge to order of Customs, Excise and Service Tax Appellate Tribunal regarding pre-deposit amount in a writ petition.
Analysis:
In this case, the petitioner challenged the order of the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata, which directed the petitioner to deposit a sum of Rs. 50 lakhs as a pre-deposit without properly considering whether the project in question was a turnkey project or not. The petitioner, a government undertaking and a sick company, argued that the period of limitation under Section 73 of the Finance Act, 1994 cannot be extended. The Tribunal, however, in paragraph 5 of the impugned order, concluded that the petitioner is liable to pay service tax based on the nature of the contracts. The petitioner contended that the Tribunal should have considered whether a prima facie case for waiver of pre-deposit was made out or not. The respondent, representing the service tax authorities, argued in favor of the order, claiming it to be just and proper.
The High Court observed that the Tribunal prematurely concluded that the petitioner was liable to pay service tax without properly assessing the nature of the project contracts. Consequently, the High Court set aside and quashed the order of the Tribunal dated 25th April, 2011, along with the order on the application for modification dated 29th July, 2011. The Court directed the Tribunal to hear the appeal within four months from the date of presenting a certified copy of the order. It was emphasized that the observations made in the order were tentative and should not be relied upon by the Tribunal during the adjudication of the appeal.
In conclusion, the High Court allowed the writ petition, highlighting the need for a proper assessment of the petitioner's liability to pay service tax and directing the Tribunal to reconsider the matter within a specified timeframe. The Court also clarified that the observations made in the order were not binding during the appeal process. An urgent certified copy of the order was directed to be furnished to the concerned parties promptly.
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2011 (12) TMI 492
Penalty under section 69 of the Madhya Pradesh Vanijya Kar Adhiniyam, 1994 - consequential recovery notice - Held that:- While passing the impugned orders, the Assistant Commissioner has not assigned any reason for imposing the penalty except observing that the explanation of the dealer is not in accordance with law. The impugned orders indicate that the reply to the show-cause notice which was filed by the petitioner and the explanation submitted by him has not been considered by the Assistant Commissioner in proper perspective. The impugned orders suffer from the vice of non-application of mind, non-assigning of reasons and appears to have been passed in a mechanical manner. Appeal allowed. Penalty order set aside.
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2011 (12) TMI 491
Issues involved: Interpretation of section 2(26) of the Bombay Sales Tax Rules, 1959 regarding entitlement to drawback under rule 42H based on holding a trade mark.
Analysis:
The High Court of Bombay heard a sales tax application related to the assessment year 1991-92, where the Sales Tax Tribunal had refused to make a reference to the court. The core issue revolved around the interpretation of section 2(26) of the Act in conjunction with the Explanation, specifically concerning the term "holding a trade mark." The Tribunal's stance was that this phrase should be limited to "holding a registered trade mark." However, the applicant's mark was registered in 1996 with retroactive effect from 1988. The court disagreed with the Tribunal's narrow interpretation and found that the application raised a significant legal question deserving the court's attention. Consequently, the court directed the Tribunal to refer the question for consideration: "Whether on a proper interpretation of section 2(26) read with the Explanation thereto, the Tribunal was justified in holding that the phrase 'trade mark' refers to a 'registered trade mark' and not to an 'unregistered trade mark'?" This decision marked the disposal of the sales tax application in favor of the applicant.
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2011 (12) TMI 490
Issues: Jurisdiction of assessing authority in issuing show-cause notice, validity of show-cause notice based on survey discrepancies
In this case, the petitioner, an assessee, challenged a show-cause notice issued by the Assistant Commissioner of Commercial Taxes, Anti Evasion, alleging tax evasion based on discrepancies in the purchases of zinc sulphate and zinc dross. The petitioner contended that the Anti Evasion Wing lacked jurisdiction to issue such notices, as only the regular assessing authority could do so. The petitioner also argued that there was no tax evasion and returns were filed before the regular authority, making the notices invalid. On the other hand, the Revenue justified the notice issuance citing discrepancies found during a survey at the petitioner's business place. The court held that it was premature to decide the notice's validity in a writ petition, emphasizing the assessee's duty to explain discrepancies in imports. The court ruled that anti-evasion authorities have the right to issue show-cause notices to prevent tax evasion based on survey findings. Consequently, the court dismissed the writ petition, stating it lacked merit and did not order costs.
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2011 (12) TMI 489
State Development Tax - Whether in view of the Notification No.1307 dated 28.4.2005 since full rebate was allowed by the Assessing Authority in the assessment order dated 6.10.2007 of trade tax on account of entry tax having been paid at the full rate of 5%, hence no State Development Tax can be legally levied in view of clause (iii) of Notification No.1307 dated 28.4.2005?
Held that:- The conclusion drawn by the Tribunal is completely misplaced. Each and every clause of the notification refers to a separate category of commodity and can stand on its own. The Tribunal has wrongly come to the conclusion that one condition is connected to the other, that cannot be the case because every clause refers to specify benefits under specific sections and gives specific relief. The case of the assessee is covered under clause (iii) of the said notification, as his case was a payment of rebate being allowed to the full extent at the rate of 5%. This was allowed to him for having paid entry tax at the rate of 5%. Because the assessee had paid entry tax at the rate of 5% he was given the benefit of not having to pay the State Development Tax. The other clauses are not connected with the rebate factor at all.
Thus claim made by the assessee under Section 3-H (4) (d) should have been allowed. The order of the Tribunal is,therefore, set aside. In favour of the assessee.
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2011 (12) TMI 488
Tax evasion - penalty imposed - Held that:- By order, annexure P2, the assessing officer found that the assessee furnished incorrect return of the sales tax, evaded the tax on the basis of which assessing officer assessed for the additional tax and on this ground the penalty was imposed, and except this, no finding was recorded even by the revisional authority that there was deliberate concealment of sale or the assessees were guilty of contumacious or dishonest conduct, or acted in conscious disregard of its obligation, failing which the aforesaid order imposing penalty cannot be sustained.
Thus the orders passed by the authorities imposing penalty on the petitioners are not in accordance with the law laid down by the apex court in Hindustan Steel Ltd. [1969 (8) TMI 31 - SUPREME Court] and Anantharam [1980 (4) TMI 2 - SUPREME Court] and accordingly both the orders are not sustainable under the law and are quashed.
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2011 (12) TMI 487
Issues:
1. Tribunal setting aside the order of assessing authority and first appellate authority.
2. Determination of whether the transaction is a consignment sale or an inter-State sale.
3. Justification of remanding the matter to the assessing authority.
Analysis:
1. The revision petition was filed by the State challenging the order of the Karnataka Appellate Tribunal setting aside the order of the assessing authority and the first appellate authority. The Tribunal remitted the matter to the assessing authority for fresh adjudication to determine whether the transaction in question is a consignment sale or an inter-State sale.
2. The case involved an assessment under the Karnataka Sales Tax Act and the Central Sales Tax Act for the year 2003-04. The assessing officer reopened the assessment based on an investigation report questioning the genuineness of a consignment sale made against Form F. The assessing authority levied taxes and penalty, which was upheld by the first appellate authority. However, the Tribunal found that the authorities did not determine whether the transaction was a consignment sale or an inter-State sale, which led to the order being set aside.
3. The State argued that since the form F was held to be not genuine by the assessing authority and the first appellate authority, the Tribunal was not justified in remitting the matter for fresh adjudication. However, the Court held that the authorities did not conduct the necessary analysis to determine the nature of the transaction. Therefore, the Tribunal's decision to remand the matter for proper examination was deemed justified, allowing all contentions to be raised before the assessing officer.
4. Ultimately, the Court found no legal question requiring determination in the revision petition and dismissed it, affirming the Tribunal's decision to remit the matter to the assessing authority for a fresh determination in accordance with the law. The revision petition was deemed devoid of merits, and the original order of the Tribunal was upheld, leading to the dismissal of the revision petition.
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2011 (12) TMI 486
Issues involved: Classification of toffees, candies, and lollypops for tax purposes under the VAT Act.
Summary:
The High Court of Allahabad addressed the controversy regarding the classification of toffees, candies, and lollypops for tax purposes under the VAT Act. The Court consolidated four revisions into a common judgment, with Commercial Tax Revision no.830 of 2010 as the leading case. The assessee challenged the Tribunal's order classifying the items as unclassified and subject to 12.5% tax instead of the claimed 4% tax under Part A, Schedule II of the VAT Act. The revisionist argued that the products should be covered under entry 137 of Schedule II as sugar products, citing circulars defining sugar products as those containing 70% sugar, 25% liquid glucose, and 5% other materials. The revisionist claimed their products contained over 90% sugar, supported by a chemical analysis report disregarded by the assessing authority. The State's standing counsel acknowledged the binding nature of decisions made under section 59 of the VAT Act but proposed a chemical analysis test by a government-approved laboratory to determine the sugar percentage in the products. The Court directed the assessment authority to conduct the analysis within two months and issue fresh orders within three months, setting aside the Tribunal's order and disposing of all revisions.
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2011 (12) TMI 485
Denial of the claim for refund, in respect of exemption from the liability to pay purchase tax with retrospective effect - Held that:- The purchase tax paid by the petitioner has already been passed on to the customers, not as purchase tax, collection of which is prohibited under section 22(2)(b), but by including the same in the cost price and then fixing the appropriate "sale price". This is not a case where the liability to pay purchase tax is disputed by the petitioner. The purpose of granting retrospective exemption is stated as in tune with public interest. However, on comparison with the other limb of the "public interest", i.e., the State exchequer who had already obtained the tax paid and had provided necessary budget allocation shall not be let to be dried up, this court has necessarily to adopt a purposive interpretation.
In the above circumstances, this court finds that the claim for refund put forth by the petitioner, challenging the correctness and sustainability of exhibit P1 assessment order, is quite wrong and misconceived. The writ petition is devoid of any merit and the same is dismissed accordingly.
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2011 (12) TMI 484
Condonation of delay - Held that:- We are afraid, we cannot countenance any of the submissions made by him. We may reiterate that, even the explanation offered is contrary to the orders dated December 2, 1997 of the CCT, and therefore, delay cannot be said to be reasonable. In a case of this nature, if the delay is condoned, it would certainly occasion injustice to the other party.
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2011 (12) TMI 483
Whether the order dated March 10, 2010 passed by the first respondent, Commercial Tax Officer, in form VAT-124 cancelling the registration of the firm, M/s. Santosh Dhaba Exclusive, under the provisions of the Andhra Pradesh Value Added Tax Act, 2005 is illegal on the ground that it was passed without notice to the petitioner?
Held that:- It should be noted that rule 14(12) of the Rules says that whenever any order of cancellation is made the VAT dealer shall be given an opportunity of being heard. Further rule 63 of the Rules deals with nomination of responsible person by a VAT dealer in form 560 authorising him/her to sign any returns or any documents or to sign any statements and also to receive any notices and rule 63(2) says that every VAT dealer being a partnership firm, among other entities, shall nominate a person for the purposes of receiving orders and notices. The first respondent or the third respondent are not able to file any document to show that the firm in question nominated the managing partner as person responsible to receive notices on behalf of it.
It is true that rule 14(12) does not in so many words indicate anywhere that in the case of a firm, with which we are now concerned, notice to the managing partner of the firm in question is sufficient notice even in the absence of himself being nominated as the person responsible under rule 63(2). It is the contention of Smt Anjali Agarwal that in view of the above situation non-issuance of notice to her vitiates the impugned order. The jurisdiction of this court under article 226 of the Constitution is a discretionary one and in a given case the court can refuse to interfere if interference is not warranted even if there is violation of rules of natural justice.
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2011 (12) TMI 482
Seizure of goods - penalty orders - Held that:- The Tribunal in the appeal preferred by the petitioner against the penalty order has granted partial stay of the order passed by the first appellant authority by directing the petitioner to deposit 15 per cent of amount of penalty in cash and furnish the security for the remaining amount which the petitioner had complied with. Thus, the interest of the Revenue has been amply safeguarded as in the event the appellate authority upholds the order of penalty then the amount of penalty can very well be realised from the security furnished by the petitioner. That being the position, we are of the considered opinion that respondent No. 2 ought to have released the goods seized by him on April 4, 2009. We, therefore, allow the writ petition and direct respondent No. 2 to release the seized goods belonging to the petitioner which have been seized on April 4, 2009 forthwith. However, we may make it clear that the security furnished by the petitioner should be to the satisfaction of the assessing authority and if he has accepted the security so furnished only then the goods should be released.
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2011 (12) TMI 481
Constitutional validity of section 17B of the Kerala General Sales Tax Act, 1963 challenged - Held that:- Levy under section 17B for a specific period is to get over difficulties for assessment of dealers, who have followed the Finance Bill, 2004 for purchase and sale of goods. Thus those who have complied with the provisions of the Finance Bill, 2004, have not suffered any additional tax liability. Therefore, there is no retrospectivity as such for the above provision which was introduced only to provide levy and collection of tax during the period the Finance Bill, 2004 was operational, but not ultimately given effect while passing the Finance Act.
Do not find any grievance or bona fides for the appellant to challenge the statutory provision. Further it is seen that even though the above provision is applicable to hundreds of cement dealers in the State no other person has approached this court challenging the statutory provision which only means that the provision was smoothly implemented in the State for all other dealers. Further along with cement all other 20 items are covered by section 17B and no other dealer has approached this court with any writ petition expressing any difficulty in the implementation of section 17B. Appeal dismissed.
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2011 (12) TMI 480
Exemption as per the Government order dated January 6, 1969 denied - printed materials v/s reading books - Held that:- Inasmuch as the notification issued in G.O.P. No. 40, Revenue, dated January 6, 1969 is very clear that it grants exemption to a dealer selling reading books, on the factual finding of the Appellate Assistant Commissioner (Commercial Taxes), there is no difficulty to conclude that the notification applies to the case of the petitioner.
Be that as it may, on the factual finding by the Appellate Assistant Commissioner (Commercial Taxes) in this case, the finding under the impugned order by the first respondent is totally uncalled-for and the reliance placed by the first respondent under the impugned order on the judgment in Papco Offset Printing Works [1998 (1) TMI 508 - MADRAS HIGH COURT] has no relevance at all. W.P. allowed.
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2011 (12) TMI 479
Whether the petitioner is entitled to be taxed in accordance with section 5(3) read with second proviso to Explanation II of the Sixth Schedule?
Held that:- For the purpose of allowing rebate in such a case, the burden is certainly on the dealer to satisfy the revisional authority as well as the second appellate authority. They failed to do so. The Tribunal observed that the appellate authority found that the petitioner did not produce any credible evidence for discharging the burden. Having not produced any evidence before the revisional authority as well as Tribunal, we are afraid the petitioner cannot sustain these revisions under section 22(1) of the Act. The order of the Tribunal does not suffer from any error of law.
One cannot ignore the fact that the Sixth Schedule was substituted with effect from April 1, 1995 by reason of A. P. Act No. 22 of 1995. Therefore, unless and until the opening stock on which the tax was paid at the first point of sale is available and the closing stock is entered correctly, it is not possible to allow the rebate under the second proviso to the Sixth Schedule. In so far as adding of the impugned turnover of ₹ 5,57,623 it was found that even according to the dealer, the disclosed sales stood at ₹ 67,56,133 as against the assessed turnover of ₹ 61,98,510. Hence, when the revisional authority added back the turnover which was not subjected to tax, we do not find any error therein. Appeal dismissed.
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2011 (12) TMI 478
Stock transfers - whether be treated as inter-State sales - refund of sales tax - Held that:- Writ petitions are thoroughly misconceived and blatant attempt to invite the jurisdiction of this Court, it lacks both in terms of territorial jurisdiction as well as presidential allocation of work. No worthwhile explanation was forthcoming in not availing the Appellate remedy even before the Tribunal. Even in two cases, the appeals have been withdrawn from the Tribunal without therebeing any justification. Having availed such a remedy before the Tribunal, the reasons for coming to this Court is also not satisfactorily explained. Hence, all the writ petitions stand dismissed with a cost of ₹ 50,000/(Rupees Fifty Thousand Only) payable to the Commercial Tax Department.
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2011 (12) TMI 477
Whether the Sales Tax Appellate Tribunal was justified in holding that the hydraulic tipping system sold by the petitioner attracts sales tax as an accessory of motor vehicle at the rate of eight per cent under entry 135 of the First Schedule to the Kerala General Sales Tax Act?
Held that:- As from the leaflet produced in court, the manufacturer whose agent/dealer petitioner is, is Wipro, manufacturing and selling hydraulic tipping system for use only in trucks. So much so, we do not find any merit in the contention of the petitioner that the item falls within the description of components under entry 157(ii) abovestated. In fact, the type of hydraulic system used in trucks and in cranes or other earth moving equipments are different types. If any hydraulic lifting and downing system is used in any crane or earth moving machinery, certainly it can be treated as a component of such item. However, in this case we do not find any scope for considering this issue because the petitioner is an exclusive dealer only in hydraulic tipping system manufactured by Wipro which is engaged in manufacture of the system only for use in truck. Consequently we see no merit in the revision cases and the same are accordingly dismissed.
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2011 (12) TMI 476
Refund claim along with interest claim - penalty order passed under section 15A(1)(c) of the U.P. Trade Tax Act, 1948 seeked to be quashed - Held that:- Learned counsel for the petitioner did confined his submissions on the question of penalty order under section 15(1)(c) of the Act for which he submits that he shall pursue the statutory remedy
Amount which the petitioner had deposited as security was not the amount towards compounding but was for obtaining declaration form XXXI in terms of the circular issued by respondent No. 2 under section 8C(3A) of the Act. This amount of security was to be adjusted at the time of final assessment which, in fact, has been done by the assessing authority. That being the position, the Department cannot take shelter under the plea that amount of security represented the amount deposited towards compounding. The Department is liable to pay the interest under section 29(2) of the Act on the delayed payment of refund of the excess amount. W.P. allowed in part.
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2011 (12) TMI 475
Recovery proceedings - whether be declared as illegal, void and bad in law? - Held that:- The petitioner has already approached to the settlement authority under section 24B and as per the procedure prescribed under section 24C, the authority has to decide the matter in accordance with law. Thus, the settlement authority shall expedite the matter and make an endeavour to decide/settle all the matters expeditiously as far as possible within a period of six months from the date of this order but not later than June 30, 2012.
Till the matters are settled by the authority, no coercive action shall be taken against the petitioner in respect of dues for the assessment years 2003-04 to 2006-07 .
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2011 (12) TMI 474
Registration fee - import of coal - Held that:- In the present case the petitioners are bringing coal from the collieries of Coal India Limited purchased by e-auction. They also purchase coal from the traders of Jharkhand, Bihar and Assam. There is no provision under the Indian Forest Act, 1927, and the Rules of 1978 for registration of any dealer. There is only a provision of registration of marks for issuance of foreign passes. The petitioners are not the importer of coal from outside the India nor exports the coal within the country to outside India.
Thus the insistence for registration and for charging the registration fees is beyond the authority conferred upon the respondents under the Indian Forest Act, 1927 and the Rules of 1978. W.P. allowed.
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