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Showing 321 to 340 of 851 Records
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2011 (6) TMI 723
Whether the petitioners have defrauded the Government by suppressing the total turnover of more than ₹ 3 crores per year and therefore, appropriate action has been taken by the respondent?
Held that:- Initiation of criminal proceedings for a time-barred escaped turnover and invoking penal provisions are nothing but abuse of process of law and no offence could be made out even the entire allegation is taken to be true on its face value.
Section 81 of the Act 9 of 2007 is not applicable as the proceedings were not initiated and pending when the old Act was repealed. The entire complaint is misconceived and such prosecution is nothing but abuse of process of law.
Therefore, the proceedings are liable to be quashed. In the result, the criminal original petition is allowed and the proceedings in C. C. Nos. 21 and 22 of 2009 on the file of the learned Judicial Magistrate, Mahe are hereby quashed.
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2011 (6) TMI 722
Whether the appellant is entitled to the benefit of the exemption from the payment of turnover tax as contemplated under section 16B of the West Bengal Sales Tax Act, 1994 by virtue of the remission granted under the Scheme of 1993 and also with the aid of the order passed by the BIFR notwithstanding the specific bar created by sub-section (2) of section 16B of the Act?
Held that:- The learned Tribunal below erred in law in holding that there was no promise to exempt from the payment of turnover tax and consequently, refused to exercise jurisdiction vested in it by law in refusing the just relief to the petitioner on total misinterpretation of the materials on record.
We, hence, set aside the order impugned and direct the respondent not to realise turnover tax from the petitioner for the sale of the cement in the State of West Bengal for the period of exemption. If the amount has already been realized, the same should be refunded with interest at the rate of 12 per cent per annum from the date of receipt till the date of return. The refund, in that case, be made within two months from today.
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2011 (6) TMI 721
Whether both the assessing officer and also the Joint Commissioner had correctly held that the automobile glasses were only fall under item 11(I)/ Part E of the First Schedule and the same will not come under entry 43(ii)/ Part D of the First Schedule and hence, the order passed by the Joint Commissioner is in accordance with law and the same has to be confirmed?
Held that:- As the assessee deals with automobile accessories and they purchased only automobile glasses and sold them in the State of Tamil Nadu and as there is no dispute regarding the same, we, therefore, hold that the purchase of automobile glasses squarely falls under entry 43/Part D of the First Schedule and shall be subjected to tax at eight per cent and not at 12 per cent and the order passed by the Joint Commissioner taxing at 12 per cent under entry 11/Part E of the First Schedule is set aside and the order of the Appellate Assistant Commissioner is restored. Accordingly, the above appeal is allowed.
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2011 (6) TMI 720
Levy of penalty - Held that:- The Sales Tax Appellate Tribunal as a final fact finding body found that when the assessee had admitted the stock difference and the suppression and that the assessee failed to rewrite the stock difference, rightly the assessing officer treated the turnover as actual suppression. As regards equal addition the Tribunal confirmed the view of the Appellate Assistant Commissioner for equal addition. In the circumstances, the Tribunal confirmed the levy of penalty. As far as the assessment on actual suppression found is concerned, we do not find any good ground to accept the assessee's case.
Merely because the assessee's explanation, as regards the subsequent accounting of the unaccounted purchase had been rejected by the officer, that by itself would not justify the equal time addition towards probable suppression. In the absence of any further material to substantiate that the assessee had been habitually indulging in suppressed transaction, we do not find any ground to substantiate further addition under the head of probable omission. In the circumstances, even though it is a revision, we are constrained to accept the case of the assessee on further addition made on equal time addition for probable omission. Tax case revision is partly allowed deleting the addition made under the head of probable addition which is equal to the actual suppression
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2011 (6) TMI 719
Assessment of turnover tax on the sale of liquor in the appellant's bar hotel at the compounded rate provided under section 7(1)(a) of the Kerala General Sales Tax Act, 1963
Held that:- The compounding application submitted by the appellant and accepted by the officer and payment of tax made by the appellant are perfectly in terms of the statutory provisions.
Once compounding application is filed and tax is paid in terms of the same, the same binds both the assessee and the Department unless assessee recalls application before starring payment of tax in terms of the compounding scheme. In this case the appellant not only applied for compounding, but paid tax in terms of the compounding application and even filed return based on the same. The appellant has, therefore, no right to withdraw from the compounding scheme or opt for regular assessment on the sales turnover.
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2011 (6) TMI 718
Assessment on sale of deep freezers and disallowance of input tax credit claimed under section 11 of the Kerala Value Added Tax Act, 2003 challenged
Held that:- No merit in the contention of the petitioner that there is no sale of deep freezers to the distributors because in fact it is a sale on deferred payment basis and the cost is recovered at 25 per cent each for the four years from the date of delivery. In our view, the transaction is a pure sale but on credit basis payable in four instalments. The lower authorities including the Tribunal rightly found that the agreement does not reflect the nature of transaction which is nothing but outright sale camouflaging the consideration as deposit, which will be adjusted in four equal instalments in the course of four years. We, therefore, reject this contention raised by the petitioner and uphold the order of the Tribunal.
These revision cases are allowed in part by directing the assessing officer to verify the payments received, outright and or deferred by way of deposit or otherwise in respect of the supply of deep freezers by the petitioner, and grant input tax credit subject to the second proviso to section 11(3) of the Act
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2011 (6) TMI 717
Whether the respondent-authority did not take into consideration the aspect that it had no right to go beyond the date of past checking/previous checking and that what the authority was required to do is to check the situation that existed on the date of the visit, that is, on July 15, 2003?
Held that:- As on the last date when the checking took place prior to the checking in question, it appears that nothing wrong was found. However, in relation to the checking carried out on July 15, 2003 the authority has considered a period of more than six months prior to the date of checking, for the purpose of computation of tax, despite the fact that previous checking had taken place in relation to the said period. Thus, in the light of the above referred decisions of this court, it was clearly not permissible for the respondents to work out the entertainment tax and penalty for the period prior to the date of the previous checking.
Thus the petition is partly allowed and the matter is remanded to the revisional authority for consideration of the revision, particularly the aforesaid contention and the principle laid down in the aforesaid orders of this court.
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2011 (6) TMI 716
Whether the commodities being dealt with by the petitioner-assessee fall under entry 2(a)(vi) of the Fourth Schedule to the Act, inasmuch as the commodities such as cold rolled strips in coil form are purchased by the assessee from dealers and are subjected to the process of bending and corrugation?
Held that:- The lower authorities having considered the nature of the raw materials as well as the finished products being dealt with by the assessee, were of the clear view that the same fall under entry 2(a)(v) of the Fourth Schedule to the Act and articles such as lathe channels, bottom and door frame section, cannot fall under entry 2(a)(vi) of the Fourth Schedule to the Act.
We are in complete agreement with the findings recorded by the lower authorities. We do not find any error committed by the lower authorities and the impugned order does not call for interference.
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2011 (6) TMI 715
Whether the activity of the petitioner in printing of packaging materials to the specification of customers amounts to works contract taxable under section 5B of the Act or constitute sales taxable under section 5(1) of the Act?
Whether, in the facts and circumstances of the case, the Appellate Tribunal is legally justified in summarily dismissing the appeal filed by the petitioner, without independent examination and application of mind of the contentions of the petitioner that its activity is one of works contract of printing falling under section 5B read with entry 31 of the Sixth Schedule to the Act and not a sale taxable under section 5(1) of the Act?
Whether the Appellate Tribunal is legally justified in confirming the levy of penalty of ₹ 36,000 under section 12(4) of the Act without appreciating the fact that there was no suppression of turnover detected outside the books of account and that the determination of taxable turnover by the assessing authority was merely based on his best judgment and the opinion expressed by the inspecting authority?
Whether the penalty levied under section 12A(1A) of the Act is legally justified in the facts and circumstances of the case?
Held that:- the Tribunal has erred in passing the order impugned without going through the relevant material on record. It is significant to note that after careful perusal of the order impugned passed by the Tribunal that the first part of the order consists of the facts of the case and the second part does not contain any reasoning or finding as such for passing the said order. Except referring "since the FAA has already considered the amount raised which are perfectly within the framework of law, we do not find sufficient reasons to interfere with the orders of the FAA" nothing worthwhile is forthcoming. The said reasoning given by Tribunal cannot be sustained.
The instant revision petition is allowed in part and the impugned common order passed by the Karnataka Appellate Tribunal, Bangalore on April 29, 2008, in S.T.A.No. 590 of 2007 for the assessment year 2001-02 is hereby set aside and the matter is remitted back to the Karnataka Appellate Tribunal, Bangalore to reconsider the same
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2011 (6) TMI 714
Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining the assessment merely based on the freight receipt alone is correct in law?
Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining further addition when there was no material evidence for such addition as the inspection was conducted only on September 3, 1994?
Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining the penalty when there was no evidence to establish that there was a concluded contract of sale which was suppressed by the petitioner is correct in law?
Held that:- The addition made on actual suppression is confirmed. Further, the assessing officer also made equal amount of probable omission and suppression of ₹ 60,189. It is only probable omission and there is no concrete evidence available to make this addition and also there is no material available except on the basis that there is probable omission and suppression. Therefore, in the absence of evidence, addition cannot be made and the Tribunal is wrong in confirming equal amount of probable omission. Therefore, addition of a sum of ₹ 60,189 made on the basis of the equal amount of probable omission and suppression is deleted and consequently, the penalty levied on the same turnover is also deleted. We also confirm the actual suppression made and delete the equal amount of probable omission and corresponding penalty on the turnover is also deleted and the revision in T.C. (R) No. 940 of 2006 is allowed in part
The authorities have correctly made the actual suppression and also made equal amount for probable omission and the assessee has not filed any document to prove the purchases then accounted for. In such circumstances, the authorities below have correctly made addition and equal addition and also correctly levied penalty, which is based on valid materials and evidence and we do not find any illegality or irregularity in the order passed by the Tribunal for the assessment year 1994-95. In these circumstances, we answer the questions in favour of the Revenue and against the assessee and the revision in T.C. (R) No. 989 of 2006 is dismissed
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2011 (6) TMI 713
Whether, in the facts and circumstances of the case, the Sales Tax Appellate Tribunal was right in law for application of the formula on the ground of non-maintenance of day to day stock book for the purpose of making best judgment assessment under section 12(2) of the Act?
Held that:- The assessing officer is justified in restricting the claim of exemption on second sales and levying tax on the turnover of ₹ 6,97,542 and is based on valid materials and evidence and we do not find any error or illegality in the order of the Tribunal to interfere with the finding restricting the exemption in respect of the turnover by adopting the formula and restricting the claim of second sales.
In respect of penalty, the Tribunal is not correct in levying penalty of ₹ 43,945 for the assessment year 1993-94 because certain discrepancies was found by the assessing officer in adopting the formula and made addition. It is also seen from the records that the figures and other things are taken from the account books only, otherwise the addition is made only on the estimation and therefore, we are of the view that it is not a fit case for levying penalty since the authorities restricted the claim by adopting formula and not as a concrete basis. We answer the question in favour of the assessee and against the Revenue and the appeal is allowed.
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2011 (6) TMI 712
Orders of the VAT Appellate Tribunal confirming penalty levied under section 67 of the Kerala Value Added Tax Act, 2003 for evasion of tax during the year 2005-06 challenged
Held that:- We do not propose to consider the transactions covered by all slips, which were taken as unaccounted sales because the Tribunal has considered entries in large number of slips and found no substance in the petitioner's challenge against the same. Consequently, we do not find any justification to interfere with the order of the Tribunal sustaining penalty.
In view of the contest made by the petitioner in assessment, we do not think there is any scope for reduction of penalty which could have been considered, if the petitioner offered suppressed turnover for assessment and remitted the tax without contest. Consequently, there is no scope for reduction of penalty. Revision dismissed.
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2011 (6) TMI 711
Whether, on the facts and in the circumstances of the case, the Tribunal committed an error of law in disallowing the exemption claimed by the petitioner on high sea sales effected by the petitioners by transfer of document of title to the goods?
Whether, on the facts and in the circumstances of the case, the Tribunal committed an error of law in confirming the levy of penalty under section 12(3) of the Tamil Nadu General Sales Tax Act, when in fact, the turnover was available in the books of accounts of the petitioners?
Held that:- The mere failure on the part of the assessee to produce the endorsed bill of lading or that the buyer's name figured in the bill of entry along with the assessee's name, would not, in any manner, go against the claim of the assessee herein. The learned counsel appearing for the assessee submitted that the originals of the documents are already available with the assessee, which clearly prove the High Sea sales effected. In the background of the decisions of this court and that of the apex court and in the face of the documents produced before the authorities concerned, we feel, the proper course herein would be to set aside the order of the Tribunal and remand the matter back to the assessing authority for a fresh consideration of the materials produced by the assessee in support of its claim for high sea sales. Consequently, the order of the Tribunal stands set aside.
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2011 (6) TMI 710
Assessee being aggrieved by the order dated February 12, 2009 passed by the Additional Commissioner of Commercial Taxes, Zone I, Bangalore wherein the penalty imposed by the appellate authority has been set aside and the order passed by assessing authority imposing penalty at three times the value of tax has been revised and penalty under section 53(12)(a)(ii) of the Karnataka Value Added Tax Act, 2003 has been imposed
Held that:- It is clear from the provisions of section 53(12)(a)(i) and (ii) the penalty leviable should not be less than the rate of tax but subject to maximum of three times the tax and it is the discretion of the original authority or the authority imposing the penalty as to what is the amount of penalty to be imposed and mere fact that the discretion has been exercised to impose penalty at 1½ times in this case would not by itself a ground to exercise revisional jurisdiction and enhance the penalty to three times. However, having set aside the order passed by the appellate authority it is clear that the maximum penalty imposed by the revisional authority at three times the rate of tax is arbitrary. Having regard to the facts and circumstances of the case and it would be just and reasonable to reduce the penalty to 1½ times as proposed by the original authority and imposition of penalty at ₹ 47,926 imposed by the original authority under section 53(12) of the Karnataka Value Added Tax Act is entitled to be restored.
Accordingly, the appeal is allowed in part.
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2011 (6) TMI 709
Issues involved: Challenge to assessment order u/s 25 of the Kerala Value Added Tax Act, 2003 & violation of principles of natural justice.
Summary:
The petitioner challenged the assessment order finalized for the year 2009-10, following a series of assessment orders and appeals. The Appellate Tribunal set aside the assessments and remanded the matter for fresh consideration by the assessing authority, directing specific opportunities for the petitioner to file objections. Despite the petitioner submitting detailed objections, the assessing authority finalized the assessment without affording a personal hearing or considering the objections properly.
The petitioner contended that the assessment order violated the mandatory procedure u/s 25 of the KVAT Act and principles of natural justice, citing a relevant court decision. The assessing authority argued that the petitioner was given sufficient opportunity for a personal hearing through a notice.
The court noted that the notice provided did not specify a date for a personal hearing, emphasizing that such an opportunity is not an empty formality but a crucial step before discarding objections raised by the assessee. Therefore, the court held that the assessment order was not sustainable in law and quashed it. The assessing authority was directed to finalize the matter afresh, providing a reasonable opportunity for a personal hearing and to produce supporting documents within one month from the date of the judgment.
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2011 (6) TMI 708
Whether annexure C order issued by the Tribunal in the appeal filed by the assessee against the KGST assessment is illegal and unauthorised because the Tribunal has no jurisdiction to direct revision of CST assessment which had become final and against which no appeal was filed even before the first appellate authority?
Whether the assessment in this case is tenable?
Held that:- In this case the Tribunal directed revision of CST assessment in the course of disposal of an appeal filed against the KGST assessment, which in our view is impermissible. However, since the earlier order issued by the Tribunal was not challenged and had become final, we cannot interfere with the said order.
he Tribunal could not have directed revision of CST assessment while disposing of an appeal filed against KGST assessment, though for the very same year. Therefore, the observation of the Tribunal on valuation could be considered as a ground for reopening of the CST assessment under rule 6(8) of the CST (Kerala) Rules referred above, by the officer. The time available to the officer for revision of assessment under the above provision is only four years from the expiry of the year to which the tax relates. In this case admittedly the CST assessment for the year 1997-98 was revised only on February 12, 2002 which is clearly outside the period of limitation provided therein. Moreover, on facts also, we do not find any justification for the officer to revise the assessment. We, therefore, allow the revision by vacating the order of the Tribunal and by cancelling the revised CST assessment issued against the assessee for the year 1997-98.
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2011 (6) TMI 707
Whether the petitioner was not personally heard?
Held that:- The writ petitions are dismissed in so far as questioning the revised assessment of tax with liberty to the petitioner to prefer appeal before the appellate authority to question the revised assessment of tax, within a period of two weeks from the date of receipt of a copy of this order and if such an appeal is filed, the appellate authority is directed to consider the appeal and dispose of the same on the merits without reference to delay and without insisting 25 per cent of the amount payable under the impugned orders.
The writ petitions are allowed in so far as levying penalty and the matter is remanded back to the respondent to pass fresh orders after providing personal hearing.The Registry is directed to return the original impugned orders to the petitioner to prefer appeal.
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2011 (6) TMI 706
Issues:
Interpretation of the correct tax entry for vacuum cleaners, sweeping machines, etc. under the West Bengal Value Added Tax Act, 2003. Justification of interest and demand notice issued by the Revenue for unpaid tax.
Issue 1: Tax Entry Interpretation
The petitioner contended that the disputed items fell under item (xxviii) of entry 54B in Part I of Schedule C of the VAT Act, making them taxable at four per cent. The assessing authority, however, taxed the items at 12.5 per cent under the residuary entry of Schedule CA. The petitioner argued that the disputed items were machinery used for cleaning, falling under the broad definition of machinery. Citing various case references, the petitioner emphasized that similar items had been classified as machinery by competent courts. The Tribunal agreed with the petitioner, ruling that the disputed items were covered under item (xxviii) of entry 54B and were taxable at four per cent, precluding the need to invoke the residuary entry.
Issue 2: Interest and Demand Notice
The Revenue issued a demand notice for unpaid tax, including interest under section 33 of the VAT Act. The petitioner argued that interest was unwarranted as they had paid tax at the rate deemed appropriate in their returns. The Tribunal concurred, stating that since the petitioner had paid tax at four per cent as per their returns, there was no basis for levying interest under section 33. The determination of interest and demand notice were deemed unauthorized and unjustified.
Conclusion
The Tribunal ruled in favor of the petitioner, holding that the disputed items were correctly classified under item (xxviii) of entry 54B and were taxable at four per cent. The interest levied by the Revenue was deemed unnecessary as the petitioner had paid tax according to their returns. The application succeeded, with no costs awarded. The judgment was delivered by Pranab Kumar Deb, Chairman, and concurred by Sabyasachi Roy, Technical Member.
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2011 (6) TMI 705
Issues:
1. Imposition of penalty for non-payment of Service Tax.
2. Applicability of exemption notification for service providers in transmission and distribution of electricity.
3. Stay of recovery of penalty amount during pendency of appeal.
Analysis:
1. The appellant appealed against the penalty imposed for non-payment of Service Tax for maintenance work undertaken for a corporation. The consultant argued that the appellant was unaware of the tax liability initially but paid the due amount promptly upon notification by the department. The Commissioner revised the penalty amount, which was already paid by the appellant, leading to the appeal. The consultant cited precedents to support the argument that revision proceedings cannot commence when an appeal is pending. The Tribunal considered the submissions and noted the waiver of Service Tax for service providers in electricity transmission and distribution under a specific notification. The Tribunal found a prima facie case for stay based on the notification and past decisions, granting a stay against the recovery of the penalty amount during the appeal.
2. The Tribunal referred to the decision in the case of SMP Steel Corporation and the exemption notification waiving Service Tax for service providers in electricity transmission and distribution. Despite the Department's argument against the applicability of the exemption, the Tribunal held that a detailed consideration of this issue would be done later. The Tribunal acknowledged the opportunity for the Department to explain why the notification could not be applied. Citing the decision in another case where an assessee was granted unconditional stay based on the same notification, the Tribunal granted a stay against the recovery of the penalty amount during the appeal proceedings.
3. The Tribunal's decision was influenced by the precedent set by the Tribunal in the case of SMP Steel Corporation, emphasizing that revision proceedings cannot be initiated while an appeal is pending. The Tribunal waived the pre-deposit of the demanded amount and granted a stay against the recovery of the penalty during the pendency of the appeal, considering the application of the exemption notification and the principles established in previous cases. The Tribunal's decision favored the appellant's argument and provided relief by allowing the stay against the penalty recovery, pending the appeal process.
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2011 (6) TMI 704
Whether the CESTAT failed to discuss the matter and by way of a brief order rejected the appeal on the sole ground that neither in the grounds of appeal nor in the arguments made by the Department no additional points were raised so as to take a different view?
Held that:- In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “Due Process”.”
The order impugned in this appeal does not contain any reason, much less, justifiable reasons in support of the conclusion. Therefore, we are of the view that the matter requires fresh consideration by the CESTAT. In the result, the order dated 28-10-2009 is set aside and the matter is remitted to the CESTAT for fresh consideration. The CESTAT is directed to decide the matter on merits and as per law, as expeditiously as possible.
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