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Showing 341 to 360 of 920 Records
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2010 (7) TMI 896
Whether any illegality was committed in referring the matter to the Full Bench?
Held that:- The orders dated July 17, 2008 and July 31, 2008 were duly circulated amongst members and were issued by the Chairman after due consultations with all members to reduce the pendency of appeal and tone up system for the quick disposal of appeals within three months from the date of hearing of final arguments otherwise he could transfer the appeal to other Bench or Full Bench in terms of sub-rule (8) of rule 4 of the 1995 Rules. There was nothing wrong in the course of action adopted in the facts and circumstances of case as revealed by the record.
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2010 (7) TMI 895
Issues: Challenge to notices under section 45 of the Karnataka Value Added Tax Act, 2003; Interpretation of sections 39(1)(b) and 62(2)(a) of the VAT Act; Petitioner's request to de-freeze accounts for depositing amount with appellate authority; Requirement of depositing 50% of demanded amount for stay of reassessment order; Direction to appellate authority for timely disposal of stay application.
The judgment addresses the challenge raised by the petitioner against the notices issued under section 45 of the Karnataka Value Added Tax Act, 2003. The petitioner contests the hurried initiation of recovery proceedings by the respondent before the expiry of the appeal filing period. The petitioner's counsel argues that the respondent should wait for the appeal period to lapse before taking action. On the other hand, the Government Pleader asserts that under section 39(1)(b) of the VAT Act, the assessee must pay the demanded amount within ten days of reassessment, without waiting for the appeal period. The petitioner seeks a harmonious interpretation of sections 39(1)(b) and 62(2)(a) of the VAT Act, emphasizing that all provisions should be considered together.
The court declines to entertain the challenge to the notices under section 45, stating that they are consequential to the reassessment order, and the petitioner can appeal the reassessment order under section 62 of the VAT Act. The petitioner requests the de-freezing of accounts with HDFC Bank and Army Welfare Housing Organisation to deposit the amount with the appellate authority. The Government Pleader informs the court that HDFC Bank has already remitted a portion of the demanded sum to the respondent, while the total liability under the reassessment order is around Rs. 81,00,000. To seek a stay of the reassessment order, the petitioner must pay 50% of the demanded amount as per section 62(4)(c) of the VAT Act.
The court directs the appellate authority to promptly decide on the petitioner's stay application in the anticipated appeal if the remaining Rs. 25,91,000 is deposited by the petitioner or received from the third parties. The Government Pleader assures that the authority will consider the amount already received and require only the balance for the stay application to be processed. If the petitioner fails to file the appeal or deposit the required amount, the respondent is permitted to recover the demanded sum in accordance with the law. The petitions are disposed of with no costs imposed.
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2010 (7) TMI 894
Whether after the pre-assessment notice was issued, the petitioner had submitted their objections and requested time for production of form F from the Mumbai office in respect of the branch transfer?
Held that:- The impugned order to that extent, disallowing the exemption for an amount of ₹ 40,47,000 has to be held to be vitiated. The Division Bench has held that when a request for extension is either granted or rejected, intimation thereon should be given to the assessee then and there. Therefore, the explanation sought to be given by the respondent in the counter-affidavit that the order of assessment was passed much after the period is no ground to justify their action. Thus, the order of the Division Bench fully supports the case of the petitioner and they are entitled to succeed
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2010 (7) TMI 893
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the machinery sold by the applicant was not agricultural machinery covered by entry 1, Part I of Schedule C but it was covered by entry 135, Part II of Schedule C to the BST Act as held by the Commissioner of Sales Tax, Maharashtra State, Mumbai?
Held that:- A reading of the Schedule entry 1, Part I of Schedule C makes it clear that tractors, trailers, semitrailers are excluded from the purview of the agricultural machine and implements. If that be so, then one thing is clear that the tractor, trailer, etc., are directly used in agricultural operations. If these types of machineries are excluded from the purview of the Schedule entry 1, Part I of Schedule C then the bio-fertilizer producing machine by no stretch of imagination can be said to be a machine falling under Schedule entry 1, Part I of Schedule C. The Tribunal has rightly observed that the purchaser was interested in purchase of composting machine and not soil treatment machine as now claimed by the applicant-assessee. What is sold is composting machine. It is, thus, nothing but a machine falling under the Schedule entry 135, Part II Schedule C attracting 13 per cent sales tax. The view taken by the Tribunal cannot be faulted. Against assessee.
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2010 (7) TMI 892
Whether the Tribunal was correct in holding that the process carried on by the applicant for converting raw tobacco into chewing tobacco does not amount to manufacture within the meaning of section 2(17) of the Bombay Sales Tax Act?
Held that:- The Tribunal has erred in arriving at the conclusion that the process carried on by the applicant for converting raw tobacco into chewing tobacco (jarda) does not amount to manufacture within the meaning of section 2(17) of the Bombay Sales Tax Act. We therefore answer the question set out in paragraph 2 of this judgment in the negative, i.e., in favour of the applicant.
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2010 (7) TMI 891
Whether, on facts and circumstances of the case and on a true and correct interpretation of Schedule A, entry 36 appended to the Bombay Sales Tax Act, 1959, the Tribunal was legally justified in holding that the "bouquet of fresh flowers" is not covered by the said Schedule A, entry 36 pertaining to "natural flowers" but it is covered by the residuary Schedule C, Part II, entry 152 and hence liable to tax at 13 per cent?
Whether, on facts and circumstances of the case and on a true and correct interpretation of section 2(17) of the Bombay Sales Tax Act, 1959, the Tribunal was legally justified in holding that the activity of preparing bouquets from the natural flowers brings into existence commercially a different product and hence is a "manufacture"?
Held that:- If the "flower bouquet" as submitted by the learned advocate for the respondent is an arrangement of cut flowers, such arrangement of cut flowers by itself would not convert the said flowers into a different commercial commodity nor will it amount to an activity which would have an impact on the nature of the goods and will therefore not fall within the definition of the word "manufacture". Since bouquet of fresh flowers prepared using golden grass, earthen pot or basket, silver foil, chamki, ribbons and other decorative material, not being a subject-matter of dispute involved herein, we do not propose to go into the question whether such change or transformation in substance qua the fresh flowers would fall within the definition of the term "manufacture". Each product will have to be examined on its own facts and determined for the purpose of its taxability.
In the instant case the invoice submitted by the applicant and on the basis of which, the decision has been given by the Tribunal shows description of the goods as "fresh flowers bouquet". We, considering the simple arrangement of fresh flowers, answer both the questions set out in paragraph 2 of this judgment in the negative, i.e., in favour of the applicant and against the Revenue.
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2010 (7) TMI 890
Levy of purchase tax under section 15B of the Gujarat Sales Tax Act on the purchases from a new industry
Held that:- The goods purchased by the appellants from a new industry having sales tax exemption vide notification issued under section 49 of the Gujarat Sales Tax Act, 1969 are not "taxable goods" within the meaning of section 2(33) of the Act and as such are not liable to purchase tax under section 15B of the Act. The Tribunal was, therefore, not justified in confirming the levy of purchase tax under section 15B of the Gujarat Sales Tax Act, 1969 on the purchases from a new industry, which had been granted exemption by notification issued under section 49(2) of the Act. The questions stand answered accordingly.
The impugned orders made by the Tribunal are hereby quashed and set aside. The appeals are accordingly allowed with no order as to costs.
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2010 (7) TMI 889
Issues:
1. Writ of mandamus to direct the second respondent to defer proceedings based on a notice.
2. Consideration of objections to the proposition notice.
3. Prematurity of the petitions filed.
4. Jurisdiction to defer the consideration of the proposition notice.
5. Granting of mandamus for prohibitory/injunctive relief.
Analysis:
The petitioner sought a writ of mandamus to prevent the second respondent from proceeding based on a notice until the final disposal of pending appeals before the Karnataka Appellate Tribunal. The counsel for the petitioner argued that since the matter before the Tribunal and the subject of the notice are similar, it is advisable for the second respondent to postpone the consideration of the notice. Reference was made to section 40(1) of the Karnataka Value Added Tax Act, 2003, which allows five years for assessment/reassessment after the tax period ends. The notice in question pertained to the year 2007-08. The Government Pleader mentioned that the petitioner had already submitted objections to the notice, and further time was granted for additional objections. The court noted that the petitions were premature as no firm cause of action had arisen, and the petitioner should await the outcome of the notice after filing objections.
The court emphasized that the Deputy Commissioner cannot be compelled to delay the consideration of the notice simply because a similar matter is pending before the Karnataka Appellate Tribunal. It was clarified that unless the notice was delayed or lacked jurisdiction, the petitioner's prayer for mandamus was not feasible. The court concluded by rejecting the petitions without expressing any opinion on the petitioner's tax liability and decided not to award costs. The judgment highlighted the importance of following due process and waiting for the outcome of objections before seeking extraordinary relief like mandamus for prohibitory or injunctive purposes.
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2010 (7) TMI 888
Validity of the notice under section 21 of the U.P. Trade Tax Act, dated March 20, 2010 issued by the Deputy Commissioner, Commercial Tax, sector 12, Meerut Zone, Meerut challenged
Held that:- Initiation of the proceedings under section 21 of the Act under the Central Sales Tax Act cannot be said to be without any basis and merely on account of change of opinion. We decline to interfere in the matter under article 226 of the Constitution of India and to quash the proceeding at this stage. However, it will be open to the petitioner to participate in the proceedings under section 21 of the Act and file the necessary reply. Writ failed.
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2010 (7) TMI 887
Rate of tax on "whip topping" which was sold by the revisionist in Uttarakhand - Held that:- Admittedly, "whipping top" is not an item mentioned exclusively as such in the Schedule. Therefore, it being an unclassified item has to be charged tax at the rate of 12.5 per cent. Moreover, fiscal matter has to be strictly interpreted, if the Legislature of the State in its wisdom has decided that the "whip topping" has to be treated as unclassified item, then it has to be treated as such. The court cannot impose either its opinion or wisdom on this aspect.
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2010 (7) TMI 886
Whether, interest under section 8(1) can be demanded from the due date of the return in which turnover was disclosed and exemption/concession has been claimed and tax at the normal rate has not been paid or from the date of assessment order or under section 8(1B) in case of non-payment even after the assessment order?
Whether in case of non-furnishing of requisite form by the time of assessment proceeding, the tax assessed at a normal rate can be said to be tax admittedly payable under section 8(1) of the Act?
Whether there is any scope for the consideration of legitimate expectation or hope or bona fide belief under section 8(1) of the Act and what is the stage of determination of liability of tax whether return or assessment?
Held that:- Even though declaration form for claiming exemption/concession may be required to be filed during the course of assessment proceedings but, in cases of non-furnishing of declaration forms during the assessment proceedings or subsequent thereto in appeal, tax has to be levied at the normal rate which would become the admitted tax and interest under section 8(1) of the Act would be leviable from the due date of the return in which turnover was disclosed and exemption/concession has been claimed and tax at the normal rate has not been paid. The provisions of section 8(1B) of the Act would not be applicable.
Non-furnishing of requisite form by the time of assessment proceedings or in appellate proceedings, the tax assessed at the normal rate would be treated as the tax admittedly payable under section 8(1) of the Act.
There is no scope for consideration of legitimate expectation or hope or bonafide plea under section 8(1) of the Act and the stage of determination of liability of tax for the purposes of section 8(1) would be the date for filing the return.
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2010 (7) TMI 885
Whether, on true and correct interpretation of rule 42-I of the Bombay Sales Tax Rules, 1959, the Tribunal is justified in refusing to grant set-off on purchase tax levied under the Bombay Sales Tax Act, 1959 in respect of purchases of gold which was used in the manufacture of mangalsutra, when the mangalsutra is covered by Schedule entry A30 appended to the Bombay Sales Tax Act, 1959 for the assessment period April 1, 1990 to March 31, 1991, though subsequently referred in rule 42-I with notification dated May 1, 1992?
Held that:- The words "for any period" will bring within itself the period prior to the date of insertion of entry relevant to mangalsutra. The entry relating to mangalsutra was, no doubt, inserted with effect from May 1, 1992 but manufacture thereof and use of gold therein could be prior to the amendment. In order to cover such cases of manufacture, the words "for any period" appear to have been used in the subject rule and were retained even after amendment. Therefore, in our considered view, the gold used in manufacture of mangalsutra prior to the date of amendment will also be entitled for set-off.
In the above view of the matter, the question referred is answered in the negative, i.e., in favour of the assessee and against the Revenue.
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2010 (7) TMI 884
Whether the assessing authority was justified in imposing the tax on the air-conditioning and cold storage plant for the assessment years 1995-96, 1996-97, 1997-98 and 1998-99 under section 3F of the U.P. Trade Tax Act, 1948 by holding that air-conditioning and cold storage plant is a movable property?
Whether the learned Tax Tribunal was justified in equating the air-conditioning plant and cold storage plant of the hotel with the water pump by holding that plant is fixed only for the purpose of operational efficiency?
Held that:- Even from the MOU and agreement executed by the revisionist themselves their intention is indicated that the air-conditioning plant is one of the movable assets, which was leased out by the revisionist by a separate agreement to the Jaypee Hotel. Accordingly, we answer the question No. 1 in the affirmative holding that air-conditioning and cold storage plant is a movable property.
The test as to whether the machine or article is immovable or movable property, is that the machine or article could be sold in the market and could be removed for installation at other place. Therefore, the question No. (ii) does not survive at all. Appeal dismissed.
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2010 (7) TMI 883
Whether "10 gram gold rectangular bars" marketed by that bank and classifiable under HSN Code 7108.13.00 falls under entry 4(4) of the Third Schedule to the Act and is taxable at four per cent?
Held that:- We are of the view that the impugned clarification by the Commissioner under section 94 clarifying that 10 gm. gold rectangular bar marketed by SBI falls under HSN Code 7108 13 00 applies to the appellant's case also in respect of gold coins of similar size, i.e., 5 gm., 8 gm., 10 gm., etc., marketed by them. Appeal dismissed.
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2010 (7) TMI 882
Whether the sale could be said to be inter-State sale?
Held that:- The transactions of sale of bamboos and tendupatta not to be in the inter-State trade or commerce as contemplated under section 3(a) of the Central Sales Tax Act. Thus, the commercial tax/ VAT was payable in accordance with law on the transactions in question.
The writ petitions being devoid of merits, deserve dismissal, they are hereby dismissed
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2010 (7) TMI 881
Whether a director of a company would be deemed to be in charge of, and responsible to the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary?
Held that:- It is the admitted case of the petitioner that he is the General Manager, West Bengal of Indian Oil Corporation Limited. He being the General Manager of the company by very nature of his duty it can always be prima facie inferred that being the General Manager he is in charge and responsible to the accused company for carrying on its day to day business. Therefore, there is a prima facie case so far as the petitioner no. 2 is concerned that he is vicariously liable for the offences committed by the accused company of which he is the General Manager. Hence, even in absence of requisite averment in the petition of complaints, the question of quashing of the case against him does not at all arise. In the result, while both the criminal revisions so far as the petitioner no. 1 is concerned succeeds and the criminal case against him stands quashed, but both the aforesaid criminal revisions so far as the petitioner no. 2 is concerned stands dismissed for the reasons stated hereinabove.
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2010 (7) TMI 880
Issues involved: Excess stock of copper rods found during physical verification, imposition of penalties on appellants, redemption fine in lieu of confiscation.
Excess Stock Issue: The officers found 3,505 kgs of excess copper rods during physical verification, leading to penalties imposed on the first appellant and the partners. The appellants claimed that the excess was due to accounting copper rods as copper bars in the RG-1 Register. The partner admitted to the shortage but explained that it was cleared illicitly. The appellants maintained consistency in their statements, denying the existence of excess stock.
Parties' Arguments: The appellants argued that the excess was a result of accounting copper rods as copper bars, which was supported by the partner's statement and the authorized signatory's lack of knowledge during the search. The Revenue contended that the excess stock was intended for illicit removal, based on the partner's admission of illicit removal of goods found short.
Judgment: The Tribunal considered the consistency in the appellants' statements and the lack of evidence from the Revenue to refute the claim of accounting copper rods as copper bars. The Commissioner's observation regarding the authorized signatory's agreement with the stock-taking method was found to be not based on facts. As no excess was conclusively found during the officers' visit, the impugned order was set aside, and all appeals were allowed.
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2010 (7) TMI 879
Whether "dyes" used for leather finishing falls under entry 49 of Part C or entry 16(iii) of Part E?
Held that:- while "pigments" would straightaway fall under entry 16(iii). "pigments or water pigments" when used for leather finishing works would also fall under the said entry 16(iii. Certainly "dyes" which are classified as such under entry 49 of part C can be taxed only at the rate it is specified for that entry and the said classification cannot be clubbed with entry 16(iii) even if such "dyes" were used for the purpose of leather finishing works and thereby brought under entry 16(iii) of Part E. To put it differently, the "dyes" which squarely falls under entry 49 of Part C can never be classified as "pigments" and brought under entry 16(iii) merely because such "dyes" are used the process of leather finishing works.
Once we come to such a definite conclusion, we have no hesitation in answering the question in favour of the assessee and consequently, the order impugned in these revision petitions cannot be sustained. The impugned orders are set aside. The tax levied initially at the rate of 5% alone would survive. Any levy of tax over and above 5% is hereby set aside.
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2010 (7) TMI 878
Whether the purchase made by the assessee being an oil miller is liable for purchase tax or not?
Held that:- On consideration of the facts available on record, we are of the considered view that the Tribunal has made a total error in setting aside the assessment order as confirmed by the First Appellate Authority by relying upon the judgment of the Apex Court in SHANMUGA TRADERS v. STATE OF TAMIL NADU [1998 (4) TMI 484 - SUPREME COURT OF INDIA] without appreciating the scope of Section 7-A of the Act as well as the entry 6(viii) of the II Schedule to the Act and the notification passed in G.O.Ms.No.976, Revenue, dated 28th March, 1959. Revision allowed.
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2010 (7) TMI 877
Whether appellant has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of?
Whether writ will lie against a private person?
Held that:- Appeal dismissed. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly.
The High Court committed an error in entertaining the writ petition in a dispute between landlord and tenant and where the only respondent is a private landlord. The course adopted by the High Court cannot be approved. Of course, High Court's order of non- interference in view of concurrent findings of facts is unexceptionable.
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