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Showing 301 to 320 of 920 Records
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2010 (7) TMI 936
Whether, in the facts and circumstances of the case, the Tribunal which is the final fact finding authority is legally correct in having concluded that the assessee after having purchased frames have sold them as such without fitting them into spectacles while the assessing authority has given categorical finding that the frames had not been sold as such without fitting them in spectacles?
Whether the order of the Tribunal in not having restored the penalty levied under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 is legally sustainable?
Held that:- The conduct of the respondent/assessee in having raised two separate bills, one for the frame and other for lens while delivering the spectacles to its customers, cannot be held to be an act of evasion of tax by the respondent/ assessee. It is well known canon of construction in taxation field that avoidance is not evasion. It will also be relevant to state that in a spectacle the lens being detachable, the customer can always use the frame separately by getting a different lens fixed depending upon the need, may be due to any change in the power of the lens. Therefore, treating the frame as a separate article of spectacle cannot be faulted. We therefore, hold that the action of the respondent/assessee in having raised two separate bills, one for the frame and the other for the lens and thereby, there would be collection of tax on sale of lens alone and not on the frame was permissible and cannot be questioned.
No merit in these tax case revision and the questions of law are answered against the Revenue.
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2010 (7) TMI 935
Penalty of ₹ 55,770.30 imposed for the consignment of specified bullions not carrying the proper papers in form 28B as required under rule 42(2) of the Bihar Sales Tax Rules, 1983 framed under the Bihar Finance Act, 1981 contravening section 31(2a) and (3) of the same.
Held that:- We have perused the notice dated 4.1.1992. We hold that the very initiation of the proceedings under section 31 of the Finance Act being not in accordance with the Rule 19 of the Sales Tax Rules without a gist of the accusation, vitiates the entire proceedings including the final order of penalty dated 7.1.1992.
The impugned order dated 7.1.192 is accordingly quashed.The petitioner stands discharged of any security furnished by it in pursuance of the interim order dated 6.2.1992.The writ application stands allowed.
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2010 (7) TMI 934
Whether the Notification No. F.D. 65 CSL 2001 dated July 10, 2001, exempt the payment of cess under section 6D of the Act?
Held that:- From the material on record that the observations of the authorities are not proper. They have over looked the express words contained in section 6D, in particular, opening words and also the concept of word "cess". Cess is payable and is dependent on payment of tax. If tax is exempted, cess automatically stands exempted. Therefore, the impugned orders cannot be sustained. Hence,the revision petition is allowed and the impugned orders are hereby set aside and the assessee is entitled for exemption from payment of cess under section 6D of the Act.
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2010 (7) TMI 933
How to apply section 2(1)(a) of the Tamil Nadu Additional Sales Tax Act, 1970, which existed prior to Act 31 of 1996, since by Act 31 of 1996, the previous section 2(1)(a) came to be amended and after the amendment, section 2(1)(a) and 2(1)(aa) came to be introduced?
Held that:- Since the taxable turnover did not cross ₹ 100 crores during the said financial year, in the case of the assessee, the liability of additional sales tax will have to be calculated only for the period up to July 31, 1996 and not beyond and that too, on the taxable turnover that was available up to that date, viz., July 31, 1996. Having regard to the said position, the impugned order of the Tribunal as well as that of the assessing authority are liable to be set aside. While setting aside the order of the assessing authority, we direct the assessing authority to pass fresh orders by keeping the taxable turnover of the assessee up to July 31, 1996 in a sum of ₹ 31,94,415 and calculate the tax at the rate of 1.5 per cent on the sum of ₹ 21,94,415, (i.e.), after deducting the first ten lakhs as provided under the proviso to sub-clause (i) of section 2(1)(a).
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2010 (7) TMI 932
Input tax credit on the purchase of pesticides, manure, fertilizers and chemicals used for growing the tea claimed
Held that:- The second respondent has proceeded on the fallacy that the petitioner's tea growing is an agricultural activity.
The implications of the petitioner not being an agriculturist and the tea not being agricultural or horticultural produce for the purpose of the said Act are not examined by the second respondent. What is required to be considered by respondent No. 2 is the entitlement or otherwise based on the petitioner's registration as a dealer under the said Act, when the petitioner is not an agriculturist and tea is not an agricultural or horticultural produce. This aspect of the matter has to be examined and thereafter fresh orders are to be passed by respondent No. 2.
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2010 (7) TMI 931
Exemption from the levy of tax in respect of hire-purchase receipts claimed - exemption from the levy of tax in respect of hire-purchase receipts claimed
Held that:- Though the learned counsel for the Revenue contended that the approach of the Tribunal in setting aside the levy of tax on hire-purchase transaction is erroneous, we are of the view that as the entire matter is now remitted back to the assessing officer for a fresh assessment and order, after going through the entire factual aspects as contained in the document relied on by the parties, no case for interference with the said portion of the order is made out.
Explanation 3(d) to section 2(1)(t) of the Karnataka Sales Tax Act, 1957 are held to be not applicable to a transaction of transfer of right to use any goods, if such sale is an outside State sale, or the sale in the course of the import of the goods into or export of goods out of territory of India. In the instant case, it was an inter-State sale as rightly held by the Tribunal. In that view of the matter, we do not see any merit in the appeal.
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2010 (7) TMI 930
Whether the petitioner is liable to pay purchase tax under section 6 of the Karnataka Sales Tax Act, 1957?
Held that:- The Karnataka Sales Tax Act in its definition of "dealer" in section 2(1)(k) of the Act includes a nonresident dealer within the scope of the said definition. The petitioner is in fact a nonresident dealer within the meaning of the said Act and therefore, he is liable to pay tax. It is not a case of solitary transaction as contended by the petitioner. In that view of the matter, all the three authorities on proper appreciation of the factual aspects of the case keeping in mind the legal position, have rightly held tax is payable under section 6(2) of the Act. Therefore, we do not see any infirmity in the order passed by the Appellate Tribunal which calls for interference and therefore, the petition is rejected at the stage of admission itself.
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2010 (7) TMI 929
Whether the petitioner was eligible for sales tax exemption and concession which was made available to "new units" under a Government order dated March 15, 1996?
Held that:- The switch over to the VAT regime and the unfamiliarity with the procedures contemplated which are not in pari materia with the KST Act was also a factor which would have to be taken into consideration. If the benefit due to the petitioner is not in dispute, the manner of claim as prescribed under the Act not having been followed, may be a good ground for the authorities to have denied the benefit. But in the opinion of this court, interest of justice would require that the respondents afford this benefit which has remained unavailed by the petitioner and for a fault not entirely of that of the petitioner. It is necessary that the petitioner be conferred the benefit of this unavailed portion by permitting the petitioner to file revised returns, even at this late point of time in order to enable the petitioner to claim the benefit.
Accordingly, the writ petition is allowed. Annexure Z is quashed. The respondents are directed to permit the petitioner to file revised monthly returns for the relevant period in order to avail of the benefit and the respondents shall make necessary adjustments insofar as the tax liability of the petitioner is concerned. This shall be taken into account in any further proceedings that may be pending insofar as the petitioner is concerned.
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2010 (7) TMI 928
Whether the jurisdiction invoked by the opposite party after coming into force of the amendment, has got to cover a period of limitation up to "five years" preceding next the date of issuance of the impugned notice or the limitation as prescribed in the amended provision is prospective in nature and it would apply only to reassessments onwards from the date of coming into force of the amendment?
Held that:- Admittedly the notice vide annexure 4 in this case has been issued on July 17, 2008 and the alleged "escaped turnover" relates to the period 2003-04. Whatever be the mode of reckoning of the period of limitation, be it "five years" from the end of the period 2003-04 or be it "five years" backward from the date of the issuance of the impugned notice vide annexure 4, the initiation of the reassessment proceeding cannot be held to be barred by limitation. Appeal dismissed.
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2010 (7) TMI 927
Whether the order in revision suffers from an error of fact or law ?
Held that:- The Sales Tax Appellate Tribunal has neither passed any orders on the merits nor has it examined whether or not the petitioner is entitled to have the tax computed at ₹ 2,11,45,852 x 12/112 instead of ₹ 2,11,45,852 x 12/ 100. The Sales Tax Appellate Tribunal has rejected the petitioner's appeal on two grounds. Firstly that the application filed by the petitioner does not fall within the ambit of rule 50 of the Andhra Pradesh General Sales Tax Rules. Secondly that an appeal does not lie to it under section 21(1) of the Act, against the endorsement of the Deputy Commissioner refusing to entertain an application filed under rule 50 of the Andhra Pradesh General Sales Tax Rules for rectification of an alleged mistake in the order under revision. The Sales Tax Appellate Tribunal has not examined the petitioner's appeal on the merits.
Leaving it open to the petitioner to avail of such other remedies as are available to them in law to question the order in revision passed by the Deputy Commissioner dated July 7, 2008, the writ petition fails and is, accordingly, dismissed.
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2010 (7) TMI 926
Penalty of ₹ 80,000 imposed by the assessing authority in exercise of the power under section 13A(4) of the U.P. Trade Tax Act upheld by Tribunal
Held that:- The Tribunal has not recorded any finding of intention to evade tax on the part of the assessee in resorting to the order of penalty and has not even taken into consideration the impact of the subsequent issuance of the transit pass to the assessee which impliedly indicates that the officer-incharge was satisfied that the goods were coming from outside U.P. for being transported through U.P. to a destination outside U.P.
In the above background of facts and circumstances, no presumption can legitimately be drawn that the goods were not actually coming from outside U.P. Thus, the penal provision of section 13A(4) of the Act does not get attracted.
Thus the impugned order of the Tribunal dated August 2, 2006 is unsustainable and is hereby set aside and that of the Joint Commissioner (Appeal), Trade Tax, Ghaziabad dated February 15, 2006 is restored and affirmed.
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2010 (7) TMI 925
Whether the smart card based automatic ticket vending machine,"ATVM", purchased and sold by the petitioner is classifiable under computer systems and peripherals or any of the sub-entries falling under entry 69(22) of the Third Schedule to the Kerala Value Added Tax Act, 2003 or whether it falls under the description "vending machine" falling under entry 32(16) of Notification S.R.O. No. 82 of 2006
Held that:- We feel classification of same goods has to be uniform both at the hands of the manufacturer as well as at the hands of dealers to ensure smooth levy of tax under the VAT Scheme which entitles purchasing dealers for input-tax credit. If the assessing officers take divergent views, clarification on rate of tax by the Commissioner under section 94 of the KVAT Act is the only solution and clarification in this case is not only desirable but is required because, manufacturer is called upon to pay tax at four per cent by the very same Department and at the same time dealer is directed to pay tax at 12.5 per cent. Of course in this case it is stated that the manufacturer and the dealer are related persons. However, in our view, classification of the same goods under the KVAT Act has to be uniform at the hands of all dealers.
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2010 (7) TMI 924
Issues Involved:
Petition seeking quashing of assessment order under Punjab Value Added Tax Act, 2005; Availability of alternative remedy of appeal; Allegations of mala fide; Dispute regarding turnover classification; Requirement of pre-deposit for appeal; Direction for entertaining appeal without pre-deposit; Dismissal of writ petition.
Analysis:
The judgment of the court, delivered by Adarsh Kumar Goel J., pertains to a petition seeking the quashing of an assessment order dated April 12, 2007, under the Punjab Value Added Tax Act, 2005. The petitioner did not avail of the alternative remedy of appeal, citing the substantial tax liability imposed. Allegations of mala fide were raised, contending that despite evidence indicating inter-State sales with tax payment, the Assessing Authority wrongly treated them as intra-State sales, leading to a higher tax demand. The petitioner highlighted the onerous requirement of depositing 25% of the demanded amount for appeal under section 62(5) of the Act, seeking a waiver due to the circumstances.
The court, without expressing a final opinion on the merits, directed that the petitioner's appeal be entertained without the pre-deposit condition, subject to the petitioner providing a personal bond to the satisfaction of the appellate authority. Additionally, the court allowed the appeal to be filed within one month without dismissal due to any delay. Consequently, the court found it unnecessary to delve into the merits of the writ petition and disposed of the same, thereby addressing the concerns raised by the petitioner regarding the tax assessment order and the appeal process under the Act.
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2010 (7) TMI 923
Whether, in the facts and circumstances of the case, the Tribunal was justified in holding that the entry tax was not leviable on the plant and machinery including dumpers, trucks and dozers, etc., as they are not incidental goods?
Held that:- Dumpers, dozer and trucks are necessary "for" (that is "in support of" the plant and machinery) carrying out mining operations in the local area without which the mining operation cannot be said to be complete and therefore, they cannot be termed as incidental goods. However, the air-conditioner and the motor car can be termed as incidental and are liable to entry tax.
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2010 (7) TMI 922
Whether elastic rail clips are in the nature of "forgings"?
Held that:- The elastic rail clips had not only been accepted by the Department to be under the classification of forging but the same classification has also been approved by the honourable apex court in Vee Kay Industries [1997 (7) TMI 121 - SUPREME COURT OF INDIA]. We also come to the conclusion that the elastic rail clips are in the nature of "forgings". Therefore the notices issued under section 21(2) of the U.P. Act for reassessment are not justified as there is no doubt about classification of the item. The authorisation made by the authority concerned for reopening the case is also not justified in the facts and circumstances of the present case and therefore both the notices dated March 17, 2008 as well as the authorisation dated March 28, 2008, i.e., annexures 2, 4 and 5, are set aside by this court.
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2010 (7) TMI 921
Whether the petitioner is entitled to the deferment of payment of tax both under the KST and the CST Acts for the period 2002-14 in respect of phase III of its project?
Held that:- Though there is no promise by the State Government to take any corrective measures, with the reduction in the rate of tax under the CST Act resulting in the complete decimation of the incentive granted to the petitioner. The intention of the State Government to continuously provide relief from the burden of tax during the intended period is no longer in existence and to that extent, the principles can be pressed into service.
Even the decision in the case of Kasinka Trading [1994 (10) TMI 64 - SUPREME COURT OF INDIA] that an exemption notification can be revoked without falling foul of the principle of promissory estoppel, since it was also found that the Government of India had justified the withdrawal of exemption notification on relevant reasons in the public interest, would have no application in the present case as the State Government has not withdrawn exemption nor does it seek to justify the benefit conferred on the petitioner having been rendered illusory, but only assigns a dispassionate reasoning, that it is the misfortune of the petitioner to be faced with the circumstance of the incentive becoming redundant for the reasons stated above. It is therefore necessary for the State Government to reconsider the request made by the petitioner and to evolve measures in order to address the petitioner's plight and to afford such relief as may be warranted. The writ petition is accordingly allowed. The order at annexure M is quashed and the State Government is directed to reconsider the request of the petitioner in the light of the observations made hereinabove
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2010 (7) TMI 920
Whether the value of the goods received by stock transfer by the assessee from its office outside U.P. and used in execution of the works contract is covered by section 3 of the Central Sales Tax Act and is deductable from the net taxable turnover?
Held that:- The goods received by the assessee in U.P. by way of stock transfer from its branch outside U.P. and consumed for execution of a pre-existing works contract amounts to sale or purchase of goods in the course of inter-State trade or commerce which is covered under section 3 of the Central Sales Tax Act.
The value of such goods is therefore liable to be deducted under section 3F(2)(b)(i) of the Act from the net turnover of the assessee. Accordingly, there is no error of law in the impugned order of the Tribunal.
The question raised in these revisions is answered accordingly, in favour of the assessee and against the Revenue.
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2010 (7) TMI 919
Whether the assessing officer is bound to give any personal hearing before passing order?
Held that:- Where there is violation of principles of natural justice, alternative remedy will not be a bar.
As the right of an assessee is protected under the circular, and following the above Division Bench judgment of this court, the impugned order, dated July 30, 2007, is set aside and the matter is remitted back to the Deputy Commercial Tax Officer-3, Virudhunagar District, the second respondent herein, for fresh consideration, in accordance with law. The second respondent is directed to provide an opportunity of personal hearing before passing a final order. The said exercise shall be completed within a period of two months from the date of receipt of a copy of this order
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2010 (7) TMI 918
Grant-in-aid reduced from 100 per cent to 75 per cent - Held that:- The writ petition succeeds and is allowed. It is held that the Government order dated July 14, 1992, would not be applicable to the petitioner. The condition mentioned in the order dated July 16, 1993 (filed as annexure 9 to the petition) in so far as it grants the benefit of grant-in-aid to the extent of 75 per cent of the entertainment tax in the first two years is quashed and we hold that the petitioner is entitled for grant-in-aid of 100 per cent of the amount of entertainment tax in the first two years. The various orders, which are impugned, namely, July 22, 1993, September 13, 1993 and September 22, 1993 cannot be sustained and are hereby quashed.
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2010 (7) TMI 917
Whether the mistake on the part of the petitioner in having paid the entry tax by filling up an incorrect form does not entitle respondent No. 3 to hold that entry tax has not been paid when in fact, the actual tax payable had been paid by the petitioner and had been accepted by the bank as payment of tax under the Entry Tax Act?
Held that:- A bona fide mistake on the part of the petitioner cannot be sought to be taken advantage of by the Revenue merely with a view to extract more money from the petitioner in the form of interest and penalty taking shelter behind a highly-technical objection that the amount payable by way of entry tax, though actually deposited with the Department well within the prescribed time-limit, had been deposited under a wrong form. Thus the petitioner having paid the amount payable towards entry tax within the prescribed period of limitation, albeit under a wrong form, the respondents are not justified in raising demand for payment of interest and penalty against the petitioner
The action of the respondents in attaching the bank account for recovery of the entire amount, including penalty and interest during the pendency of the petition also deserves to be deprecated. Considering the fact that the petitioner having already deposited the amount in question, may be under a wrong form, and the amount was lying with the Department, the circumstances did not justify resorting to such drastic action. Hence, the respondents are not justified in attaching the bank account of the petitioner.Appeal allowed.
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