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Case Laws
Showing 361 to 380 of 1051 Records
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2013 (1) TMI 702
Suo motu revision case - modification of assessment orders - Held that:- The order has apparently been passed ex parte. Three F forms have been disallowed on the purported ground that the three F forms bearing Nos. 37514, 37518 and 37521 covered transaction exceeding a period of one month. It appears that the Additional Commissioner, Commercial Taxes, West Bengal has misconstrued rule 12(5) of the Central Sales Tax (Registration and Turnover) Rules, 1957 which provides that the declaration referred to in sub-section (1) of section 6A of the Central Sales Tax Act, 1956 shall be in form F. The proviso to rule 12(5) provides that a single declaration might cover transfer of goods, by a dealer, to any other place of business, or agent, or principal, as the case may be, effected during a period of one calendar month. There is nothing in the rules which can be construed to vitiate a declaration form only on the ground that it covers transactions exceeding a period of over one month. The assessment has apparently been revised suo motu and ex parte on a misconception of rule 12(5) of the Rules. The impugned order is, thus, set aside and quashed.
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2013 (1) TMI 701
Non serving of notice for hearing - Held that:- There is no order of the revisional authority to show that it was satisfied that ordinarily a notice could not have been served by hand or by post and to direct service by affixture of the notice, in absence of which, the contention of the petitioner appears to be correct that no notice was served upon the petitioner and the matter was decided ex parte.
Appeal allowed. Matter remitted back to respondent No. 2 to decide the revision case afresh.
The petitioner herein, if advised so, may file forms C and E1 before respondent No. 2 on or before the aforesaid date and in case of filing such forms before respondent No. 2, along with an application in this regard, respondent No. 2 shall consider the application in accordance with law and shall take cognizance of the aforesaid forms for deciding the matter.
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2013 (1) TMI 700
Issues involved: Interpretation of tax laws u/s 36(1) of the Haryana Value Added Tax Act, 2003 regarding purchase tax on paddy in relation to rice procurement prices for different crop years.
Summary:
The judgment by the High Court of Punjab and Haryana pertains to VAT appeals u/s 36(1) of the Act against the Tribunal's order on purchase tax on paddy in rice procurement prices for specific crop years. The questions of law raised include the interpretation of levy orders and notifications for different crop years regarding the inclusion of purchase tax on paddy in rice prices. The appellant, a rice mill owner, was required to deposit purchase tax collected from the sale of rice to the Government exchequer.
The Tribunal concluded that the procurement price of rice by Government agencies for the 1998-99 and 1999-2000 crop years included payment of purchase tax on paddy. The Tribunal emphasized that retaining such tax amounts would lead to impermissible enrichment. A comparison of the language in the orders for both crop years indicated that the procurement price of rice was exclusive of taxes in one case and inclusive of purchase tax on paddy in the other. The notifications clearly outlined the tax incidences differently for each crop year.
The Court found that the notifications conveyed the same tax incidences in varying language, with one being inclusive of purchase tax on paddy and the other being exclusive of taxes at the rice stage. As no substantial question of law was identified in the appeals, the Court dismissed the case.
Overall, the judgment addresses the proper interpretation of tax laws concerning purchase tax on paddy in the context of rice procurement prices for different crop years, emphasizing consistency in tax treatment and compliance with legal requirements.
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2013 (1) TMI 699
Whether the honourable Tax Tribunal was justified in underreading and ignoring completely the use of the words "mixture of" while interpreting entry No. 53 of Schedule B of the Repealed Act and declaring each of the constituent as mentioned in entry No. 53, as 'poultry feed' within the meaning of entry No. 53 of Schedule B of the Repealed Act?
Whether, in the facts and circumstances of the case, any ingredient of mixture, mentioned under entry No. 53, can by itself be held as 'poultry feed' within the meaning of entry No. 53 of Schedule B of the Repealed Act?
Held that:- The assessee in the present case has been given the benefit of exemption on the ground that the sale of feed supplements such as proteins, salts and minerals, vitamins, antibiotics and coccidiostats would also constitute "poultry feed". The very fact that each of the feed supplements can individually be given to the cattle, shall not exclude such feed from the exemption clause as object of giving exemption to the "poultry feed" under the Act is to promote sale of "poultry feed/supplements".
Consequently, find that no substantial question of law requires consideration by this court in the present appeals. The same are accordingly dismissed.
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2013 (1) TMI 698
Tax audit - Documentary evidence ignored - revision initiated - Held that:- It was the duty of the first respondent to consider all the material adduced by the petitioner in support of its case that it is immune from the exercise of revisional powers. The first respondent had been negligent and failed to properly discharge his duty, in having ignored the material filed on August 17, 2011 by the petitioner along with the letter dated July 27, 2011.
In view of the fact that the impugned orders dated May 31, 2012 relating to the tax periods April, 2009-July, 2009 and August, 2009-March, 2010 were passed by the first respondent without noticing and adverting to the material filed by the petitioner before him on August 17, 2011 vide the letter dated July 27, 2011 with enclosures, both the impugned orders for the above tax periods are set aside. The matter is remitted to the first respondent, who shall now afford a personal hearing to the petitioner/its authorized representative, consider all the material filed by the petitioner in support of its case that it is immune from the exercise of revisional power and thereafter pass orders afresh. The petitioner is also given liberty to file any further material in support of its case. Both the writ petitions are allowed.
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2013 (1) TMI 697
Whether the impugned orders of assessment dated October 17, 2012 of the first respondent are barred by limitation having been initiated by show-cause notices dated August 17, 2012 more than four years (prescribed under section 21(3) of the Act for making assessment) from the due date of return or the date of filing of the return, whichever is later or are within limitation prescribed under section 37 of the Act?
Held that:- Since the first respondent was issued a separate authorization for regular assessment by the Deputy Commissioner (CT), Secunderabad on August 6, 2012 and pursuant to the said authorization, the first respondent issued show-cause notices dated August 17, 2012 and passed the impugned orders of assessment on October 17, 2012, which is within three years from June 13, 2011 (date of passing of orders by the Appellate Deputy Commissioner), we are of the view that the orders of the first respondent are within the time permitted by section 37 of the Act. Therefore the impugned orders of assessment cannot be challenged on the said ground.
We therefore hold that the first respondent had the jurisdiction to pass the impugned orders of assessment dated October 17, 2012 for the assessment years 2006-07 and 2007-08 and the said orders are not barred by limitation. However, on the merits we do not propose to express any opinion. It is open to the petitioner to challenge the impugned assessment orders dated October 17, 2012 for the assessment years 2006-07 and 2007-08 by way of appeal before the competent appellate authority under the Act.
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2013 (1) TMI 696
Taxability on Opium - interest imposed under section 8(1) of the U.P. Trade Tax Act, 1948 - Held that:- Opium grown by the cultivators is taxable item to trade tax. See Vishnu Agencies Pvt. Ltd.[1977 (12) TMI 118 - SUPREME COURT OF INDIA] nd Coffee Board, Karnataka [1988 (5) TMI 338 - SUPREME COURT OF INDIA].
The charging of the interest is mandatory. When it is so, then there is no merit in the revisions filed by the Narcotic Department for the wavier of the interest. So, by upholding the impugned orders passed by the Tribunal, all the revisions in question are hereby dismissed.
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2013 (1) TMI 695
Whether the State Government after having participated in the proceedings before the Board for Industrial and Financial Re-Construction (BIFR), can resile from giving sales tax exemption and concessional Central Sales Tax (CST) for a further period in the light of the sickness of the appellant-company and proceed to act in a manner contrary to the directions contained in the order of BIFR without having preferred an appeal against the said order?
Held that:- Though, it was strenuously argued by the Special Government Pleader (Taxes) that the Board as per exhibit P6 scheme and exhibit P7 order has left the matter to the discretion of the State Government, we are not impressed by the said argument. What was directed by the Board as per exhibit P7 was that the sales tax authorities would consider the reliefs in order to ensure long term viability of the appellant-company and would also not raise any further demand (emphasis added). The discretion whatever left with the respondent-Government as per exhibit P6 scheme and exhibit P7 had to be exercised in a reasonable manner. Thus no hesitation to hold that the refusal of the State Government to exercise its discretion to extend the benefit as envisaged by exhibit P6 scheme and exhibit P7 order to the appellant-company was not reasonably exercised.
The impugned judgment is set aside. Exhibit P9 order as well as exhibits P11 to P16 and subsequent notices issued consequently are quashed. We direct the respondent-State to reconsider the matter and pass fresh orders
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2013 (1) TMI 694
Issues Involved:
The issues involved in this case are the correct rate of VAT applicable to dryer felts, whether the goods were declared goods under the Central Sales Tax Act, and the entitlement of the appellant to avail of the concessional rate of VAT by furnishing form VAT D-1.
Correct Rate of VAT Applicable to Dryer Felts:
The appellant argued that the dryer felts were "declared goods" under the Central Sales Tax Act in preceding and subsequent years, hence liable to pay VAT at four per cent, not at 10 per cent as ordered by the Tribunal. However, the court found that during the relevant assessment years, the goods (dryer felts) were not declared goods under the Central Act. Consequently, the appellant is liable to pay VAT at the higher rate of 10 per cent as per the Act. The court concluded that no substantial question of law arose for consideration in this regard.
Entitlement to Avail Concessional Rate of VAT:
The appellant contended that they were entitled to furnish form VAT D-1 to avail of the concessional rate of VAT. However, the court noted that this argument was not raised before the revisional authority or the Tribunal. The appellant attempted to introduce this argument through a review application, but since it was not raised before the relevant authorities earlier, the court held that the appellant cannot raise this question of fact for the first time in the present appeal. The court found that no question of law arose from the Tribunal's order but granted the appellant liberty to raise such questions before the appropriate authorities as permissible by law.
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2013 (1) TMI 693
Issues involved: Challenge to notice u/s 82 of Assam Value Added Tax Act, 2003 and order of assessment u/s 9(2) of Central Sales Tax Act, 1956 based on validity of suo motu revisional order of assessment.
Summary:
The High Court of Gauhati, comprising Chief Justice A.K. Goel and Justice Kotiswar Singh N., heard multiple petitions challenging the validity of a suo motu revisional order of assessment. The petitioner in W.P. (C) No. 936 of 2009 contested a notice dated November 28, 2007 u/s 82 of the Assam Value Added Tax Act, 2003, and an order of assessment dated March 6, 2008, alleging an error in the turnover assessment for the year 2005-06. The petitioner argued that the declaration relied upon in the notice was non-existent and not provided for rebuttal, leading to a best judgment assessment by the assessing authority. The petitioner emphasized the need for tangible material to support any further revision by the authority.
The court noted the absence of the declaration referred to in the notice, which deprived the petitioner of the opportunity to challenge it. As the alleged declaration was disputed by the petitioner and not produced before the court, the revisional order based on it was deemed unsustainable. Consequently, the petition was allowed, and the impugned order of the revisional authority was set aside. However, the revisional authority was granted the liberty to issue a fresh order after providing the petitioner with a fair opportunity. The petitioner was directed to appear before the revisional authority on March 4, 2013, for further proceedings.
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2013 (1) TMI 692
Due diligence by bringing the form C on record - Held that:- As it is not in dispute that for the first time, the form C has been received by the revisionist on April 5, 2008 when the second appeal is pending before the Tribunal, so prior to the said date, the revisionist was not in possession of the form C and after receiving he immediately moved an application in order to bring the same on record. So, the said exercise on his part is within the ambit and scope of "due diligence", thus he is entitled to get the benefit of the provisions of sub-section (ii) of section 12B of the Act. Hence, the impugned order dated September 16, 2009 passed by the Tribunal in second appeal thereby not giving benefit to the said section to the revisionist to bring on record the form C is an action contrary to law, liable to be set aside.
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2013 (1) TMI 691
Natural justice denied - non affording a personal hearing to the petitioner - Whether proviso to section 48A of the TNVAT Act, 2006 speaks about the rejection of the application
Held that:- Admittedly, the application filed by the petitioner seeking clarification on the product has been rejected holding that it falls under a different category, namely, Part C of the First Schedule to the TNVAT Act, 2006. Therefore, before rejecting the petitioner's application, the proviso to section 48A of the TNVAT Act, 2006 and rule 12A of the TNVAT Rules, 2007 necessarily have to be followed. Admittedly, in this case, no opportunity of personal hearing was given to the petitioner. In such view of the matter, the impugned order is liable to be set aside.
In view of the above, the impugned order is set aside and the matter is remitted back to the first respondent-Authority for fresh consideration after giving reasonable opportunity to the petitioner in accordance with law.
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2013 (1) TMI 690
Denial of registration - Held that:- In the case of Krishna Lifestyle Technologies Ltd. (2008 (2) TMI 2 - HIGH COURT, BOMBAY) the Hon’ble High Court of Bombay has held that “purchase of immovable/movable assets of a tax defaulter, though assets were sold, sale of assets by itself would not be transfer of business in whole or in part, there must be material on record to show that business has been transferred to Petitioner and consequent thereto petitioner has succeeded in business. In absence of petitioner succeeding in business or part of business, issue of petitioner being liable for arrears of Central Excise dues will not arise.” appellant is not a successor of business of M/s. Anway Industries, therefore, the appellant is not liable to pay the arrears of Central Excise dues pending against M/s. Anway Industries. Therefore, I do not find any infirmity in the impugned order the same is upheld - Decided against Revenue.
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2013 (1) TMI 689
Condonation of delay - Medical reasons - Held that:- Appeal can be considered by the appellate authority only if delay in filing the appeal is condoned. Therefore I direct the first respondent to consider exhibit P3 application filed by the petitioner and pass orders thereon. This shall be done as expeditiously as possible at any rate, within four weeks from today. If delay is condoned, the appellate authority shall proceed to consider the appeal itself within two months thereafter. It is also directed that in the meanwhile, recovery of tax due from the petitioner will stand stayed subject to the petitioner remitting 50 per cent of the amount thereunder, within two weeks - Delay condoned.
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2013 (1) TMI 688
Deduction u/s 80-IA - Treating the year of first generation of power from the ‘Windmill Undertaking’ i.e. AY.02-03 as the ‘initial assessment year’ - Reducing the amount of profits derived from the said undertaking in the year under appeal by the amount of unabsorbed losses and depreciation relating to all the assessment years beginning AY 2002-03 - Held that:- Following the decision of Velayudhaswamy Spinning Mills (P) Ltd. Vs. ACIT [2010 (3) TMI 860 - MADRAS HIGH COURT] wherein held profits are to be computed as if such eligible business is the only source of income of the assessee. When the assessee exercises the option, only the losses of the years beginning from the initial A.Y. are to be brought forward and not the losses of the earlier years which have been already set off against the income of the assessee - no notional brought forward and set off against the profits of the eligible business as no such mandate is provided in section 80-IA(5). When the assessee exercises the option, only the losses of the years beginning from the initial A.Y. are to be brought forward and not the losses of the earlier years which have been already set off against the income of the assessee.
As DR has not brought to the notice of the Bench any decision contrary on the issue in question it is to be held that the assessee is eligible for claim of deduction u/s 80-IA for the year under consideration in a manner whereby the initial assessment year referred to in section 80-IA(5) is to be taken as the A.Y. 2004-05 as the assessee has opted to claim this deduction only in this assessment year - in favour of assessee.
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2013 (1) TMI 687
Benefit of Amnesty Scheme denied - KGST Act - Held that:- Although the petitioner was given an option in Ext.P5 judgment of the Division Bench to avail of the benefit of he scheme, the petitioner did not submit any application as prescribed. Instead of that petitioner submitted Ext.P6 representation which did not satisfy the requirements of the scheme. It was in those circumstances benefit of the Amnesty Scheme was not given - no fault with the assessing officer in denying claim - writ dismissed.
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2013 (1) TMI 686
Valuation – Short payment of Service tax – Penalty u/s 78, u/s 76, u/s 77 - Misstatement - Suppression of facts - Intent to evade payment of duty - Commercial training or coaching centre – Exclusion of the value of materials sold from the value of the taxable services - Notification No. 12/2003-ST dated 20.6.2003 - Circular No. 59/8/2003-ST dated 20.6.2003 – Two types of bills were being issued one for training and coaching classes run by assessee and the other as a consideration for providing study material to the students by another firm which is run by assessee’s wife in same premises – Entire receipts are being divided into two parts
Whether M/s Soni Patrachar was independently selling the books to their students or whether the same was created on paper and the total consideration received for providing coaching services by M/s Soni Classes was being artificially bifurcated, so as to avoid payment of service tax
Held that:- The bills was not able to produce any literature issued to the public or the invoices issued for enrolling the candidates. There is no material on record to show that M/s Soni Patrachar was an independent proprietary firm. On the other hand, a lot of evidence appears on record to reflect upon one fact that though the value of coaching classes being provided by M/s Soni Classes to their students was collected as such, the same was being projected under two different categories.
Providing study materials, test papers etc. is a part of coaching services and is required to be included in the value. At the cost of repetition it may be observed that it is only the extra text books or extra material, which is admittedly being sold to the students and is also available for sale to outsiders and students or procured from the outside and sold to the candidates, which will not form part of the taxable coaching services
The appellant was aware of the fact that it is the entire consideration for the coaching services which has to be taxed. It was only with a mala fide view to save the service tax that he bifurcated the consideration into two different parts and indulged in diverting a part of the consideration to the sale of the study material – In favour of revenue
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2013 (1) TMI 685
Recovery proceedings against a deceased assessee – Whether SCN issued against non-existent firm is valid in law - Death of sole proprietorship - Cancellation of Excise registration – Wrongly availed Cenvat credit in respect of the inputs not received in the factory – Held that:- Sole proprietorship concerned has no legal entity independent of its proprietor. On death of sole proprietor respondent company ceased to exist. Therefore notice issued was bad in law as it was issued against any non-existent firm. In favour of assessee
Recovery from legal heir - legal heir of the deceased sole proprietor had undertaken to pay all the pending central excise liability of the firm – Held that:- As the SCN raising demand was issued almost three years after the undertaking on 2.4.2009. This imply that the dispute pertaining to the demand in question was raised much after the undertaking as such the demand which is subject matter of the SCN cannot be termed as pending as covered by the undertaking given by the legal heir. Therefore, demand confirmed on the basis of aforesaid SCN cannot be sustained. In favour of assessee
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2013 (1) TMI 684
Denial of refund claim – Relevant date for refund claim - Period of limitation – Unjust enrichment – Duty paid under protest - Section 11B of the Central Excise Act, 1944 - Hire purchase finance – Assessee pay duty under protest - Dispute of liability of service tax have been settled by the Commissioner (Appeals) vide his order dated 27.8.2010 in favour of assessee - Refund claim filled on 22.9.2010 – Department argue that appellants were required to file refund claim within one year from the date of tax paid
Held that:- As per the provision of Section 11B of the Central Excise Act, 1944, refund claim has to be filed within one year from the relevant date. Section 11B provides that if the duty is paid under protest, then the date relevant to be the date when the dispute is settled. Therefore, relevant date is 27.8.2010 and the appellant has filed the refund claim within one year from the relevant date. Therefore, it is held that refund claim is within time – In favour of assessee
Unjust enrichment – Amount of service tax in interest - Amount of finance is added by interest and divided by the period thereafter the installment comes – Held that:- Service tax element is nowhere mentioned in the instalment, the same has been confirmed by the C.A after verifying the records. Although the appellant paid the service tax to the department by calculating the instalment as cum-service tax, but it does mean that they have collected / included the service tax amount in their instalment. They have also explained that the instalment is only principal plus interest divided by period – In favour of assessee
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2013 (1) TMI 683
Penalty u/s 76 - u/s 78 - Activity of technical testing of the LPG tankers - Technical Testing and Certification Services - Rule 18 and Rule 44 of the Explosives Act - Held that:- Following the decision in case of Harshita Handling (2010 (4) TMI 122 - CESTAT, NEW DELHI) that technical inspection and testing under the Indian Explosive Act, 1884 is a statutory obligation, therefore the same is not liable to service tax and therefore penalties under Sections 76 and 78 of the finance Act, 1994 are not warranted - In favour of assessee
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