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Showing 301 to 320 of 1052 Records
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2011 (4) TMI 1256
Whether the appeal preferred by the assessee under section 63 of the Karnataka Value Added Tax Act, 2003 is not maintainable?
Held that:- In view of the amendment to section 63 incorporating a provision to make the order passed under section 63A as appealable under section 63 and the fact that the right of the assessee to challenge the order under section 63A before this court cannot be disputed, in the facts of the case, we are of the view that the justice of the case would be met by remanding the matter back to the Karnataka Appellate Tribunal which has the jurisdiction to entertain an appeal under section 63 even against an order passed under section 63A subsequent to August 1, 2008. Revision petition is allowed.
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2011 (4) TMI 1255
Portion of the order passed by the revisional authority under section 15(2) of the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979 taking the benefit of exemption of entry tax on diesel generator set purchased by the assessee challenged
Held that:- As the appellate authority has carefully considered the matter, looked into the notification, relied on a judgment of this court and has correctly held that the assessee is entitled to exemption. The view taken by the revisional authority is too technical, contrary to the material on record and defeats the very purpose behind the issue of the notification. The benefit granted by the State to a new entrepreneur by way of exemption from payment of entry tax cannot be denied by placing such literal interpretation in so far as the procedure prescribed, ignoring the main notification which grants such exemption. In that view of the matter, the order passed by the revisional authority is illegal and cannot be sustained and is liable to be set aside. Hence,
Appeal is allowed. The impugned order is hereby set aside. The order of the appellate authority is restored
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2011 (4) TMI 1254
Whether there is no illegality or infirmity in the impugned order, as the revisionist has not submitted the required forms well within the time?
Held that:- Considering the peculiar facts and circumstances of the case, the impugned order passed by the Tribunal dated April 19, 2011 is modified to the extent that if the revisionist deposits 10 per cent of the total demanded tax for the assessment year 2005-06 latest by May 15, 2011, 90 per cent of the demanded tax shall be kept in abeyance till disposal of appeal. The revisionist shall furnish security of the stayed amount within 30 days to the satisfaction of the assessing authority. It is further provided that in case demanded amount as per assessment orders has been deposited by the revisionists, the same shall not be adjusted against any other outstanding dues/demand, if any. Trade tax revisions are partly allowed
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2011 (4) TMI 1253
Whether the petitioner has committed breach of sub-section (1) of section 50 of the Act and is, there fore, liable to pay tax on its purchases of naphtha to the extent the same has been used for generating electricity which was sold to GEB/UPL?
Held that:- Petition partly allowed. The impugned order to the extent the same holds that that the petitioner has committed breach of section 50(1) and is, therefore, liable to pay tax on its purchases of naphtha to the extent the same has been used for generating electricity which was sold to GEB/UPL is confirmed. However, to the extent the same reduces the ceiling of tax exemption considering the sale price of sales effected at Vapi unit is hereby quashed and set aside. The matter is remitted to the first respondent to decide the second issue afresh after giving an opportunity to the petitioner to produce evidence in support of its case and after affording an opportunity of hearing as stated hereinabove
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2011 (4) TMI 1252
Whether in the facts, figures and circumstances of the case, the Tribunal is justified in law, sustaining the finding of the first appellate authority that sole distributor does not mean one person in the State and there may be several number of sole distributors for the same company and all such distributors are coming under the purview of the sixth proviso to section 5(3)(a) of the said Act?
Held that:- the sale transactions which are carried on under a product name, exclusively by a certain dealer are covered, does not contemplate that exclusive right to deal with the said goods should be given to a particular dealer or sole dealer. The contention of the learned advocate for the petitioner that one more dealer is also dealing, the proviso is not attracted is an incorrect approach. In view of the section covering the specified class of the transactions, the material particulars of the transactions of the petitioner, fall within the ambit of the section as the petitioner is dealing with the RAJPHOS, as an agent of the manufacturer M/s. Rajasthan State Mines and Minerals Limited. "Exclusively used" cannot be given a meaning according to geographical boundaries. Exclusively has to be understood authorising the one, excluding other or a group. Court holds that there is no merit in the submission of the learned advocate for the petitioner, so it is rejected. Appeal dismissed.
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2011 (4) TMI 1251
Present revision has been filed under section 11 of the U.P. Trade Tax Act, 1948 against the order dated December 19, 2006 passed by the Trade Tax Tribunal, Lucknow
Held that:- In the instant case, there is no finding by the Tribunal that the assesse failed to show the cash book at the time of survey with mala fide intention. On these facts, the Tribunal was in error in affirming the finding of the authority below rejecting the books only on the ground that the cash book could not be shown at the time of survey.
Therefore, I hold that the books version of the assessee on the facts and circumstances of the case should have been accepted. Hence, I direct the assessing officer to accept the books of account maintained by the assesse and make de novo assessment accordingly. For the purpose, all the orders passed by the authorities below as well as the Tribunal are set aside. Revision allowed.
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2011 (4) TMI 1250
Exhibit P4 order issued by the second respondent imposing penalty under section 47(6) of the Kerala Value Added Tax Act, 2003 challenged
Held that:- on the facts of the case at hand, it is evident that no materials were available to prove that the petitioner was attempting to bring the goods to the State of Kerala, either for sale within the territory or for usage of the same within the territory of the State, or to prove that the transport was made with an attempt to evade payment of tax. Therefore it is of the view that a direction for conduct of a further enquiry will only be a futile exercise. Hence inclined to permit request of the petitioner to take back the goods to the State of Tamil Nadu.
In the result, the writ petition is allowed and exhibit P4 order is hereby quashed. The respondents are directed to release the excavator loader (JCB) to the petitioner for the purpose of taking back the same to the State of Tamil Nadu, on production of a copy of this judgment, without any further delay.
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2011 (4) TMI 1249
Issues involved:
- Appeal by Revenue under section 68 of the Punjab Value Added Tax Act, 2005 against the order of the Punjab VAT Tribunal.
- Substantial questions of law regarding intention to evade or avoid tax, failure to report documents, and adoption of an escape route.
- Legality of the Tribunal's order in failing to appreciate the circumstances of the case.
- Perversity of the Tribunal's findings and order.
Analysis:
1. The appeal was filed by the Revenue under section 68 of the Punjab Value Added Tax Act, 2005, challenging the order of the Punjab VAT Tribunal. The substantial questions of law raised included whether the respondent's actions, such as non-reporting of documents and adoption of an escape route, indicated an intention to evade or avoid tax, thus justifying the penalty under section 51(7)(b) of the Act. The Tribunal's order was crucial in determining the legality of the penalty imposed.
2. The case revolved around an incident where the assessee's vehicle was intercepted at a check-post on suspicion of tax evasion. Subsequently, documents were found to be ingenuine, leading to the issuance of a show-cause notice and the imposition of a penalty under section 51(7)(c) of the Act. While the appellate authority upheld the penalty, the Tribunal, upon further appeal, set it aside after examining the account books and relevant documents produced by the appellant.
3. The Tribunal's decision to overturn the penalty was based on a thorough review of the evidence presented. It noted that the account books and documents appeared to be maintained in the normal course of business, with no defects identified during examination. Additionally, the detaining officer's jurisdiction to intercept the vehicle at a specific location was questioned, further supporting the Tribunal's ruling.
4. The Tribunal's findings were deemed reasonable and not perverse, as there was no evidence of an attempt to evade tax. Consequently, the order setting aside the penalty was considered legal and justified. The absence of any substantial question of law arising from the case led to the dismissal of the appeal by the High Court, affirming the Tribunal's decision.
In conclusion, the judgment highlights the importance of thorough examination of evidence and adherence to legal procedures in tax evasion cases. The Tribunal's decision to set aside the penalty was upheld by the High Court, emphasizing the need for clear evidence of intent to evade tax before imposing penalties under tax laws.
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2011 (4) TMI 1248
Whether the explanation offered by the assessee for noninclusion of the four sales in question in the stock registers/documents of the assessee have been found to be unacceptable?
Held that:- We uphold the preliminary objection raised by the learned counsel for the respondents that the present appeal does not raise any question of law, let alone a substantial question of law. The learned counsel for the assessee has raised only issues of facts which are concluded by concurrent findings of facts consistently recorded by the three quasi-judicial authorities. We do not find any merit in this appeal. Appeal dismissed.
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2011 (4) TMI 1247
Whether the mafron gas is liable to tax under the entry of "all kinds of chemicals" at 10 per cent or liable to tax as a refrigeration material at the higher rate of tax?
Held that:- No error in the order of the Tribunal classifying the mafron gas as a "refrigeration material". Appeal dismissed.
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2011 (4) TMI 1246
Whether, in the facts and circumstances of the case, the respondent is legally justified in considering that the order dated September 13, 2007, passed by the appellate authority as in annexure E is erroneous and prejudicial to the interest of the Revenue and warranting revision under section 22A(1) of the Act?
Whether the appellant that has purchased machinery spares from outside the State and used the same in the execution of works contract of asphalting of road is eligible or otherwise for composition assessment under section 17(6) of the Act?
Held that:- It is not the requirement of law that in the course of using such goods, the title to the goods should be transferred to the customer. In the nature of things, when machinery is purchased or received from outside the State for the purpose of using them in the execution of the works contract, neither title in the machinery will pass on to the customer nor that machinery will be used as raw material in the works to be carried out. It is a tool which is used to execute the contract. Therefore, the intention of the Legislature is very clear, unambiguous and it does not require any interpretation at all. In that view of the matter, the order passed by the revisional authority is patently erroneous, contrary to the statutory provisions and cannot be substained. Therefore the substantial questions of law is answered in favour of the assessee and against the Revenue. Appeals are allowed.
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2011 (4) TMI 1245
Whether the petitioners have not effected the sale of raw rubber to 100 per cent export oriented unit and hence the exemption is not admissible?
Held that:- It is not disputed even by the respondent that the purchase was made for the manufacture. It is seen that the petitioners involved in the purchase of raw rubber for manufacturing activity. The petitioners are entitled to exemption being an export oriented unit. It is not necessary that the petitioners should involve in the sale of raw material to another export oriented unit to claim the benefit of exemption. They are entitled to exemption at the last purchase, being the manufacturer. Hence, the impugned order is liable to be quashed. Accordingly, the impugned order is quashed. Appeal allowed.
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2011 (4) TMI 1244
Whether the appeals are filed against the orders passed under section 9(2) of the CST Act for which section 18A(1) of the CST Act has no application therefore, the impugned order is illegal and requires to be set aside?
Held that:- If the appellate authority is not willing to adopt, either of these two methods it is open to them to dispose of the appeal on merits. However the impugned order saying that the appeal which is validly preferred against an order under section 9(2) of the Act as not maintainable in view of insertion of section 18A(1) of the Act is not proper. Therefore, the entire approach of the appellate authority is erroneous, contrary to statutory provisions and liable to be set aside. Accordingly, the impugned order is hereby set aside. Matter is remitted back to the appellate authority to follow any of the modes that is set out above in this order and then pass appropriate orders.
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2011 (4) TMI 1243
Issues:
Assessment based on estimate | Capacity of brick kiln | Maintenance of proper books of accounts | Rejection of books of accounts | Addition made by assessing officer | Legal errors in determining firing period | Excessive estimation of brick production | Request to set aside impugned order |
Assessment based on estimate:
The assessee, a proprietorship firm operating a brick kiln, faced discrepancies during a survey leading to the rejection of books of accounts by the assessing officer. The additions made on an estimate basis were upheld by the first appellate authority and the Tribunal. The counsel for the assessee argued that the impugned order was illegal and against the material on record, emphasizing that no firing was done during a specific period. Reference was made to a previous court ruling to support the argument that the firing period could not have been enhanced without evidence of the kiln running. The capacity of the brick kiln and the production estimates were disputed as being excessive and arbitrary. The request was made to set aside the impugned order.
Capacity of brick kiln and maintenance of proper books of accounts:
The standing counsel contended that the assessee had disclosed the capacity of the brick kiln during the survey, which was accepted by the lower authorities. It was highlighted that the assessee failed to maintain proper books of accounts, including records of coal consumption and labor registers. The assessing officer estimated the burning period based on earlier data due to the lack of proper documentation.
Rejection of books of accounts and legal errors in determining firing period:
The court observed that the assessee did not maintain books of accounts or labor registers to validate the capacity of the brick kiln. The rejection of books and subsequent additions were deemed appropriate in the absence of supporting documentation. The legal errors in determining the firing period were acknowledged, and it was noted that the assessing officer's actions were justified based on the available information.
Excessive estimation of brick production and request to set aside impugned order:
The counsel for the assessee argued against the excessive estimation of brick production and highlighted discrepancies in the lower authorities' findings. However, the court upheld the impugned order, citing established legal principles related to estimation as per previous judgments. No substantial question of law emerged from the case, leading to the dismissal of the revisions filed by the assessee.
Conclusion:
The revisions filed by the assessee were dismissed as lacking merit, and the impugned order was sustained. The court rejected the interim order passed earlier, affirming the decision based on the assessment made on an estimate and the failure to maintain proper books of accounts.
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2011 (4) TMI 1242
Whether the date of commencement of commercial production under the Incentive Scheme of 2001 be extended?
Held that:- It is by now well-settled that to issue a writ of mandamus, there must be existence of a legal right in the petitioner and corresponding legal duty on the respondent. It is also well-settled that writ of mandamus is not a writ of course, or a writ of right, but is, as a rule, a discretionary remedy. Existence of a legal right in the petitioner and corresponding legal duty on the respondent are the conditions precedent for issuing mandamus. In other words, it is often stated that mandamus is employed to enforce a duty, the performance of which is mandatory or imperative and not optional or discretionary with the authority concerned.
We also find that previously, the scheme was extended twice. The same was general and not in individual cases. Under the circumstances, when we find that the Government refused to extend the benefits of the scheme in favour of the petitioner, being an individual case, we do not see any reason to grant any mandamus. It is not even the case of the petitioner that any individual extensions were granted by the State. Petition dismissed.
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2011 (4) TMI 1241
Whether the Tribunal is right in holding that in view of omission of rule 6(d) of the Tamil Nadu General Sales Tax Rules, 1959, the petitioner is not entitled to the relief on the ground of the sale of business as a whole, despite the fact that Explanation 3 appended to section 2(r) of the Tamil Nadu General Sales Tax Act, 1959 expressly provides for relief?
Whether the Tribunal is justified in holding that notwithstanding the sale of three lorries resulting in winding up of its business of lorry transport division as a whole, because other divisions of businesses were carried on, relief cannot be granted to the petitioner?
Held that:- Going by the findings of the Tribunal that the lorry business continued even after the sale of the lorries, we do not find any justification to accept the plea of the assessee that the claim of the assessee falls under Explanation to section 2(r) of the Tamil Nadu General Sales Tax Act.
On the alternative plea taken by the assessee, going by the relevant entry in Part D, entry 36 of the Schedule during the relevant time and on the admitted fact that the assessee had built the body on the chassis purchased and that the body had not suffered tax at any time before, we do not find that the assessee can be granted second sales exemption. In the circumstances, the revision stands dismissed
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2011 (4) TMI 1240
Issues:
Challenging order of revisional authority setting aside appellate authority's decision due to lack of opportunity for the assessee to contest the case made out.
Analysis:
The judgment pertains to an appeal challenging the revisional authority's decision that set aside the appellate authority's order and reinstated the original authority's order due to the alleged lack of sufficient opportunity for the assessee to contest the case made out. The period in question was 2001-02, and a common assessment order was issued under both the Karnataka Sales Tax Act, 1957, and the Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979, imposing taxes under both Acts. The assessee appealed this order and presented documents during the appeal proceedings. The appellate authority, based on these documents, accepted the assessee's case and modified the assessment order, granting the benefit. Subsequently, the revisional authority initiated proceedings under both Acts.
The assessee filed written objections under the Karnataka Tax on Entry of Goods Act but did not do so under the Karnataka Sales Tax Act. The revisional authority, however, assumed objections were filed under both Acts and set aside the appellate authority's decision on the grounds that it was prejudicial to revenue and the benefit was granted without sufficient supporting documents. The High Court noted the confusion and lack of application of mind by the revisional authority regarding the proceedings under the Sales Tax Act. The assessee claimed they were denied the opportunity to produce documents, which they had submitted before the appellate authority. In light of these circumstances, the court held that justice would be served by setting aside the revisional authority's order and remitting the matter back to provide the assessee with an opportunity to file objections and produce documents. The court set aside the revisional authority's order under the Sales Tax Act and directed a reconsideration of the assessee's case on its merits after affording sufficient opportunity for objections and document submission. The parties were to bear their own costs as per the order.
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2011 (4) TMI 1239
Issues involved: Assessment based on inspection, equal time addition, penalty under section 12(3)(b) of Tamil Nadu General Sales Tax Act, appeal before Sales Tax Appellate Tribunal.
Assessment Year 1996-97:
The assessing officer passed a best of judgment assessment on the assessee after an inspection on March 6, 1997. The Appellate Assistant Commissioner deleted the equal time addition due to lack of materials justifying it, especially considering the inspection was at the end of the year. The penalty under section 12(3)(b) of the Tamil Nadu General Sales Tax Act was also cancelled. The Revenue appealed before the Sales Tax Appellate Tribunal.
Sales Tax Appellate Tribunal's Decision:
The Tribunal restored the equal time addition based on the results of an inspection during the subsequent assessment year 1997-98, conducted on February 18, 1999. However, apart from this inspection, there were no other materials to support the equal time addition for the assessment year 1996-97. The first appellate authority rightly cancelled the equal time addition for the lack of justification. The Tribunal's decision to restore the equal time addition solely based on the subsequent year's inspection was deemed insufficient. The materials available should be relevant to the transaction of the assessment year under consideration alone. Therefore, the Tribunal's order restoring the equal time addition and the corresponding penalty were set aside, and the appeal was allowed with no costs.
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2011 (4) TMI 1238
Petition seeking to quash section 2(gg) and 2(j) read with note 4 of the Haryana General Sales Tax Act, 1973 as amended
Held that:- After consideration of rival submissions, we are of the view that this petition is to be allowed. The deeming provision enacted by the State Legislature is in conflict with section 4(2)(a) of the Central Sales Tax Act, 1956.
Note 4 cannot be held to be applicable to transfer of right of use of goods outside the State of Haryana merely because the goods are within the State at the time of use when such goods are not in the State at the time of transaction. Accordingly, the writ petition is allowed and the impugned order dated April 23, 1993, annexure P4, to the extent of including in turnover transaction taking place outside the State of Haryana is quashed.
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2011 (4) TMI 1237
Issues:
Claim of exemption as "sales for export" under section 5(3) of the Central Sales Tax Act, 1956 based on submission of H forms for entire year vs. quarterly periods.
Analysis:
The petitioner, a firm engaged in mining and selling iron ore, claimed exemption as "sales for export" under section 5(3) of the Central Sales Tax Act, 1956. They supplied iron ore to an exporter and submitted H forms, as required under section 5(4) of the Act, covering the entire year. The assessing officer treated the sales as local due to the H form being for the entire year. The second respondent initiated revisional proceedings, proposing to withdraw the exemption as quarterly H forms were not submitted. The petitioner submitted their explanation and quarterly H forms, but the second respondent declined to accept the quarterly forms. The petitioner appealed under section 33 of the Andhra Pradesh Value Added Tax Act, 2005, which were dismissed by the Sales Tax Appellate Tribunal as not maintainable, leading to the petition before the High Court.
The crux of the issue lies in interpreting Rule 12(10)(a) of the Central Sales Tax (Registration and Turnover) Rules, 1957. This rule mandates a dealer to file a declaration in form H signed by the exporter up to the time of assessment. The question arises whether the rule requires declarations in form H for each transaction or quarterly periods. The High Court held that the rule does not explicitly require quarterly filings and must be read in a workable manner. Requiring quarterly filings could potentially disrupt contracts between dealers and exporters. Thus, the court set aside the second respondent's decision and directed a reconsideration, taking into account all materials filed by the petitioner, including declarations in H forms for quarterly periods.
In conclusion, the High Court set aside the impugned endorsements, directing the second respondent to reconsider the revision with all materials, including quarterly H forms. The petitioner's writ petitions were disposed of accordingly, with no order as to costs.
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