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Showing 81 to 100 of 576 Records
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2008 (6) TMI 566
The High Court of Kerala quashed a clarification by the Commissioner of Commercial Taxes, stating that labelling equipment sold by the appellant is not considered "machinery" under entry 84(i) of the Kerala General Sales Tax Act, 1963. The court found the equipment to be a simple device for printing labels, not comparable to items listed under entry 84(i). The item was deemed taxable under the residuary entry, not under entry 84(i) of the Act.
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2008 (6) TMI 565
Order of assessment [exhibit P14] questioned - Held that:- While in the beginning the assessing authority states that the objections are not signed and therefore they are rejected, a perusal of the order would further show that the authority has considered the objections of the petitioner and proceeded to reject the same on merits. Once the latter course came to be adopted by the assessing authority, it is evident that the authority was adopting a course which involves rejection of the objections on merits which he could have done only after an opportunity of being heard was given to the petitioner, going by the decisions of the court aforesaid.
Once this principle is found to be contravened, than it is not necessary to drive the party to pursue the alternate remedy, as the contravention of the law is patent and violation of the principles of natural justice is an established exception to the general principle that courts would not entertain writ petitions under article 226 of the Constitution of India in the face of effective and efficacious alternate remedies available. In such circumstances, it is constrained to quash exhibit P14.
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2008 (6) TMI 564
Whether the royalty income received by the assessee from the franchisees for the use of the trade mark is exigible to tax under the Kerala General Sales Tax Act, 1963 in the hands of the assessee?
Whether, in the facts and circumstances of the present case, can it be said that there exists the concept of "goods", "turnover" and "taxable turnover" with reference to the receipt of royalty by the assessee from its franchisees?
Held that:- The questions of law raised by the assessee in these revision petitions are no more debatable in view of what has been stated by this Court in the case of Mechanical Assembly Systems (India) Pvt. Ltd. v. State of Kerala [2005 (12) TMI 536 - KERALA HIGH COURT]. These revision petitions require to be rejected
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2008 (6) TMI 563
Vires of rule 13A of the Bihar Sales Tax Rules, 1983 as amended by notification dated February 1, 2000 and also section 21(1)(a)(i) of the Bihar Finance Act, 1981 challenged - Held that:- In Voltas's case [2007 (5) TMI 18 - SUPREME COURT OF INDIA] the Supreme Court fully agreed with the view of Patna High Court in Larsen & Toubro's case [2003 (11) TMI 565 - PATNA HIGH COURT] that rule 13A as amended in 2000, was not workable. The Supreme Court therefore did not interfere with the judgment. As noticed above, the petitioner has not challenged the vires of rule 13A as amended in 2006 when the impugned order of reassessment has been passed after the amended rule came into force. As a matter of fact, the whole case of the petitioner in the writ petition and the reliefs sought for therein are wholly misconceived and devoid of any substance. W.P. dismissed.
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2008 (6) TMI 562
Issues:
1. Interpretation of taxability under the U.P. Value Added Tax Act, 2008.
2. Legality of demanding security for release of goods.
3. Consideration of Commissioner's decision under section 59 of the Act.
Interpretation of Taxability:
The case involved a revision under section 58 of the U.P. Value Added Tax Act, 2008, concerning the taxability of cotton lungis despatched to unregistered dealers. The applicant contested that the goods were not taxable under the Act, leading to a dispute with the tax authorities. The Tribunal found that the question of taxability should be determined at the time of assessment. Notably, the Tribunal reduced the demanded cash security from 40% to 6% of the goods' value, aligning with the tax rate of four percent.
Legality of Demanding Security:
The applicant challenged the legality of demanding security for releasing the goods, arguing that the goods were not taxable under the Act. The Deputy Commissioner had previously held that certain textiles, including lungis, were not taxable. The Tribunal, considering the nature of the controversy, directed the release of goods upon furnishing six percent security other than cash or a bank guarantee, deviating from the initial demand for cash security at a higher rate.
Consideration of Commissioner's Decision:
The applicant relied on a Commissioner of Commercial Tax's order under section 59 of the Act, stating that power-loom lungis were non-taxable. The Tribunal considered this decision and ordered the release of goods on furnishing security at a rate of six percent of the goods' value, different from the original cash security demand. The revision was allowed in part, granting relief to the applicant in terms of the security requirement.
In conclusion, the judgment addressed the taxability issue, the legality of demanding security, and the weight given to the Commissioner's decision under the U.P. Value Added Tax Act, 2008. The Tribunal's decision to reduce the security amount and consider the tax rate in releasing the goods showcased a balanced approach in resolving the dispute between the applicant and the tax authorities.
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2008 (6) TMI 561
Assessment orders challenged - alternative remedy - Held that:- In view of the settled legal position, i. e., disputed facts cannot be gone into in a writ petition and in tax matters wherever alternate remedy is provided, writ petition shall not be entertained, thus these writ petitions challenging the orders of assessment made by the respondent, are not maintainable and the petitioner is bound to file appeals against the said orders of assessment as per section 31 of the Act.
The petitioner is given two weeks time to file appeals against the orders of the assessment and if such appeals are filed within two weeks, the appellate authority is directed to consider the same on merits and in accordance with law, without referring to the period of limitation. Since deciding the writ petitions solely on the ground of availability of alternate remedy, merits of the cases canvassed by the learned Senior Counsel for the petitioner-company and by the learned Additional Government Pleader are not considered and decided in this order, in any manner. W.P. dismissed.
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2008 (6) TMI 560
Assessment order - remedy of appeal - Held that: - In view of this well-settled principle, we direct the appellant to file an appeal within a period of three weeks from today before the appellate authority. If the appeal is filed within that period, the appellate authority will consider the appeal on merit by condoning the delay in filing the appeal in view of the fact that the writ petition was kept pending in this court since 2007.
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2008 (6) TMI 559
Whether the sales effected by the respondent are inter-State sales, liable to tax under the Act?
Held that:- Immediately after the respondent delivered the goods to the persons who came to its shop the property in those goods passed on to the buyer by virtue of section 20 of the Sale of Goods Act. Therefore, the fact that person who took delivery of the goods had thereafter consigned the goods taken delivery of by him from the respondent to his head office, which is located in another State, would not make the sale made by the respondent an inter-State sale.
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2008 (6) TMI 558
Issues Involved:
1. Whether plastic hangers can be considered as packaging materials under the West Bengal Value Added Tax Act, 2003.
2. The applicable tax rate for plastic hangers.
Issue-wise Detailed Analysis:
1. Whether plastic hangers can be considered as packaging materials under the West Bengal Value Added Tax Act, 2003:
The applicant, a reseller of ready-made garments, challenged the order of the Sales Tax Officer (STO/RJ) rejecting the classification of plastic hangers as packaging materials and directing a tax rate of 12.5% on them. The applicant argued that plastic hangers should be taxed at 4% as they are used to retain the style, look, shape, and pattern of the garments, making them packaging materials.
The applicant relied on the Gujarat High Court decision in *State of Gujarat v. Kishor Timber [1991] 83 STC 370*, where wooden pallets were considered as packing materials under the Gujarat Sales Tax Act, 1969. The court observed that packing materials are those used to put things together compactly for transport or sale. The applicant argued that plastic hangers serve a similar purpose by keeping garments in a saleable condition.
Conversely, the respondent-authorities contended that hangers are not used for making a packet or facilitating transport but for hanging clothes, which does not qualify them as packing materials. They argued that hangers are distinct commercial commodities used for displaying garments rather than packing them.
The tribunal noted that the Gujarat High Court's decision was specific to wooden pallets, which could hold and protect items, unlike hangers. It emphasized that hangers are primarily used for hanging clothes and not for packing or protecting them. The tribunal concluded that hangers do not meet the common parlance definition of packing materials and are not used primarily for packing purposes.
2. The applicable tax rate for plastic hangers:
The applicant claimed a lower tax rate of 4% under section 16(2A) of the VAT Act, which applies to containers or packing materials sold with taxable goods. However, the tribunal pointed out that for an item to qualify for this lower rate, it must be recognized as packing material or a container.
The tribunal reviewed Part III of Schedule C to the VAT Act, listing industrial inputs and packing materials, and noted that hangers were not included. The listed items, such as boxes, cases, bags, and crates, share the characteristic of holding and protecting goods, unlike hangers.
The tribunal observed that the applicant admitted that garments are packed in cardboard boxes after being placed on hangers, indicating that hangers are not essential for packing and delivery. It concluded that hangers are not commonly used for packing ready-made garments and do not qualify as packing materials under the VAT Act.
Conclusion:
The tribunal ruled that plastic hangers cannot be considered as packing materials within the meaning of the VAT Act, 2003, and thus, the applicant's claim for a lower tax rate was rejected. The petition was dismissed on contest with no order as to costs.
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2008 (6) TMI 557
Whether "white oats" sold by the assessee under the name "Shantis " is exempted from tax under original entry 9 renumbered as 12 of the First Schedule to the Act?
Whether the item falls under any entry of any of the other Schedules to the Act to justify the clarification and assessment under the residual entry at 12.5 per cent?
Held that:- The assessee's product is not "coarse grain" but a refined product made out of coarse grain "oats". Moreover, items 1 to 9 arrayed under entry 12 of the First Schedule are not any product of the grain named therein, but are grains of various types in the pure and simple form. We, therefore, reject assessee's claim that the product is exempted from tax under item 12(3) of the First Schedule to the Act.
"White oats" other than those sold under brand name registered under the Trade Marks Act 1999, will be taxable at four per cent under entry 49(2) of the Third Schedule to the KVAT Act. It is for the assessing officer to examine whether the appellant has obtained a trade mark registration for the product and if not to assess the product at four per cent. Appeal allowed in part.
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2008 (6) TMI 556
Whether, on the facts and in the circumstances of the case and on true and correct interpretation of the notification entry 374 issued under section 41 of the Act, read with Schedule C, Part II of entry 35(1) the Tribunal was justified in law in granting prospective effect to the determination order passed by the Commissioner though the said notification entry is quite clear and unambiguous?
Held that:- After perusal of the earlier order dated March 23, 2001 as well as subsequent judgment and order dated September 30, 2005 passed by the Tribunal, it is explicitly clear that till the judgment was delivered by the Tribunal on March 23, 2001, there was a clear impression that ice-creams would be covered within the meaning of "sweets" and in fact right from January 1, 1960 till June 30, 1981 and even after July 1, 1981 till the aforesaid decision, every one had an impression that ice-creams were covered within the entry "sweets" and "sweetmeats". Having regard to the facts and circumstances of the case, we do not find any substantial question of law in the above, since the Tribunal had fairly on a rational basis exercised its discretion in favour of the assessee to give prospective effect. Under the aforesaid facts and circumstances of the case, we do not find any ground made out for interfering with the above and the above sales tax application is devoid of merits. Hence, the same stands dismissed.
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2008 (6) TMI 555
Revenue recovery proceedings - sales tax dues payable - Held that:- In so far as the validity of annexure C forfeiture order passed by the Tahsildar is concerned, examination of statutory provisions does not reveal any enabling power in favour of the Tahsildar to order forfeiture. An order of forfeiture is a very serious order which is in the nature of penalty and until and unless it is an express provision, there is no question of reading the power of forfeiture in favour of any authority. In fact, under the KST Act what is enabled in favour of the officials of the commercial taxes department is for recovering the arrears of tax and for such recovery, amount as notified under the KLR Act as though it is arrears of land revenue can be resorted to. A recovery is different from forfeiting the properties. Even the KST Act does not envisage any forfeiture of any of the property belonging to an assessee in default. While that in itself is sufficient to invalidate the action under annexure C even under the KLR Act, there is no power of forfeiture and particularly on a reading of the statutory provisions referred to and relied upon by learned Additional Government Advocate.
Writ petition allowed in part. Forfeiture order bearing No. ST. TAX. CR. 23/05-06 dated June 23, 2006 passed by the Tahsildar is quashed by issue of a writ of certiorari, but in respect of all other aspects, the challenge fails. It is also made clear that it is open to the recovering authority to take recourse to recovery proceedings even against the property under annexure C in the manner permitted under the law and if there are still any arrears by the petitioner to recover in such manner.
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2008 (6) TMI 554
Entry tax - whether the machinery was brought to the local area from outside the State of Uttarakhand and U.P.?
Held that:- In the facts and circumstances of the case taking into consideration the fact that the U.P. Tax on Entry of Goods Act, 2000 has been declared ultra vires by the Division Bench of the Allahabad High Court and it has also been held that the "entry tax" is not a "compensatory tax". Therefore, the writ petition is liable to be allowed. The impugned circular dated September 14, 2000 is liable to be quashed.
The writ petition is allowed. The respondents are restrained by a writ of mandamus not to realise the entry tax from the petitioner in respect of machines imported from outside the country for the assessment year 2000-01 and 2001-02. The circular dated September 14, 2000 issued by the Commissioner of Trade Tax, U.P., Lucknow, which is impugned in this writ petition (annexure No. 2), is accordingly quashed.
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2008 (6) TMI 553
Issues:
1. Challenge to a show-cause notice for sales tax imposition with penalty under the Tamil Nadu General Sales Tax Act, 1959.
2. Allegation of failure to consider objections raised by the petitioner.
3. Question of appealability of the order under challenge.
4. Violation of principles of natural justice in passing the impugned order.
Analysis:
1. The respondent issued a show-cause notice to the petitioner for imposing sales tax and penalty. The petitioner submitted objections on August 22, 2005, but the respondent confirmed the proposal and passed an order on November 30, 2005, determining tax and penalty amounts. The order was challenged in the writ petition.
2. The petitioner contended that the respondent did not consider the objections raised, despite the petitioner's timely submission. The court noted that the respondent tacitly admitted receiving the reply on August 22, 2005, making the order erroneous.
3. The respondent argued that the order was appealable, and the petitioner should pursue that remedy instead of filing a writ petition. However, the petitioner relied on a judgment emphasizing the need for providing copies of documents relied upon and granting the dealer an opportunity to challenge them before passing such orders.
4. The petitioner's reply to the notice requested copies of bills to challenge the basis of the proposed conclusion. The requested copies were not provided, leading to a violation of the principles of natural justice. As a result, the court set aside the impugned order and remitted the matter back to the respondent for fresh disposal in accordance with the law, directing the respondent to provide copies of relied-upon documents and allow the petitioner to submit objections.
In conclusion, the writ petition was allowed, the impugned order was set aside, and the matter was remitted back for fresh disposal, emphasizing adherence to the principles of natural justice.
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2008 (6) TMI 552
Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in allowing the claim of ₹ 60,82,73,339 in respect of various transactions of local sale and ₹ 23,27,45,141 in respect of inter-State sale covered by bulk imports by ships and which were at an un-ascertained stage till the clearance from customs as sales in the course of imports by transfer of document of title to the goods within the meaning of section 5(2) of the Central Sales Tax Act, 1956 read with section 75 of the Bombay Sales Tax Act, 1959 and hence, not liable to tax under the BST Act, 1959 or CST Act, 1956?
Whether, on the facts and circumstances of the case, the Tribunal is justified in holding that provisions of Sale of Goods Act, 1930 particularly section 18 of the Sale of Goods Act, 1930 is not applicable to the transaction in dispute?
Held that:- The orders passed by the Tribunal rejecting the reference applications filed by the Commissioner cannot be faulted. See Sales Tax v. Tata Iron and Steel Co. Ltd. [2006 (12) TMI 464 - BOMBAY HIGH COURT]. Hence, we dismiss both the aforesaid sales tax applications with no order as to costs.
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2008 (6) TMI 551
Benefits of the exemption denied - assessee is a public limited company engaged in the manufacture and sale of "Portland Pozzalona cement" - whether the revising authority, viz., the Deputy Commissioner, Commercial Taxes and the Tribunal were justified in setting aside the orders of assessment passed by the assessing authority for the assessment years in question, who had simply followed the eligibility certificate issued by the Director of Industries and Commerce and the order of exemption from payment of tax passed by the Secretary, Board of Revenue (Taxes)?
Held that:- Merely because petitioner's industrial unit uses the brand name of another person, it does not mean that the petitioner's industrial unit is not manufacturing cement using fly ash and effecting sale of such cement both within the State as well as outside the State. Since the industrial unit fulfils all the conditions that are stated in S.R.O. Nos. 388/96 and 1729/93, the revisional authority/Deputy Commissioner of Commercial Taxes, merely relying upon a decision which has no bearing whatsoever on the facts and circumstances of this case, could not have initiated any proceedings for revising an order of assessment passed by the assessing authority for the two assessment years in question. Since we are granting relief to the petitioner on the first issue itself, we need not have to consider the other issues canvassed by the learned senior counsel, Sri Joseph Vellappally. In that view of the matter, the revision petitions requires to be allowed and the questions of law framed by the assessee require to be answered in favour of the assessee and against the Revenue.
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2008 (6) TMI 550
Issues:
Appeal against adjudication order under FER Act, 1973 for contravention of Sections 9(1)(b) and 9(1)(d) - Admissibility of admissional statements - Verification of non-residential status - Confiscation of recovered amount - Retraction of admissional statements - Lawful possession of recovered amount - Corroboration of retracted confession.
Analysis:
The appeal before the Appellate Tribunal for Foreign Exchange challenged an adjudication order imposing a penalty and confiscation of recovered funds under the FER Act, 1973 for contravention of specified sections. The appellants contested the basis of the order, primarily arguing against the admissibility of admissional statements that were retracted later. The appellant's counsel contended that the statements were made under questionable circumstances, including coercion and lack of verification of a key individual's non-residential status. However, the opposing counsel supported the impugned order.
The Tribunal noted that the appellants were intercepted with a substantial amount of money, part of which was exchanged between them. Despite claims of handing over money for safekeeping, the possession of a significant sum remained unexplained. The Tribunal addressed the issue of retracted statements, citing legal precedents that allow for the consideration of such statements if found voluntary and true, even without independent corroboration. The Tribunal emphasized the need for examining the voluntariness and truthfulness of retracted confessions in determining guilt.
In evaluating the situation, the Tribunal found no error in the impugned order and dismissed the appeals for lacking merit. The order imposing penalties and confiscation based on admissional statements was upheld, emphasizing the appellants' failure to provide a satisfactory explanation for the possession of the recovered funds. The Tribunal directed the appellants to deposit the respective penalties promptly, warning of enforcement action in case of non-compliance. The judgment underscored the importance of voluntary and truthful statements in legal proceedings, highlighting the significance of corroborative evidence in assessing the reliability of retracted confessions.
Overall, the judgment delved into the nuances of admissibility, voluntariness, and corroboration of statements in the context of the FER Act violations, ultimately affirming the impugned order and emphasizing the legal obligations regarding the possession and explanation of recovered funds in such cases.
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2008 (6) TMI 549
Whether the complaint under section 138 of the Act signed by a Attorney holder is not maintainable?
Whether the attorney holder can lodge the complaint?
Held that:- In regard to business transactions of companies, partnerships or proprietary concerns, many a time the authorized agent or attorney holder may be the only person having personal knowledge of the particular transaction; and if the authorized agent or attorney-holder has signed the complaint, it will be absurd to say that he should not be examined under section 200 of the Code, and only the Secretary of the company or the partner of the firm or the proprietor of a concern, who did not have personal knowledge of the transaction, should be examined. Of course, where the cheque is drawn in the name of the proprietor of a proprietary concern, but an employee of such concern (who is not an attorney holder) has knowledge of the transaction, the payee as complainant and the employee who has knowledge of the transaction, may both have to be examined. Be that as it may. In this case we find no infirmity.
Allow this appeal, set aside the impugned order dated 21.8.2002 and direct the learned Magistrate to proceed with the complaint as already directed by the interim order.
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2008 (6) TMI 548
Whether in the facts and circumstances of the case, the Tribunal was right in deleting the addition made by the assessing officer on the income of the 3 flat complexes promoted by the assessee?
Held that:- Both the authorities have given concurrent finding that additions were made only by comparing with the project of M/s Alacrity Housing Limited and that assessment could not be made on surmises and conjectures. The findings given by both the authorities are that the revenue did not prove that the assessee has collected on money on the sale of flats and also there is no proof that the assessee had made unaccounted investments or credits etc. Therefore, it is clear that the concurrent findings are based on valid material and evidence. It is a question of fact and not a perverse order. The learned counsel appearing for the revenue is also unable to produce any material evidence to take a contrary view. Hence, no error or infirmity in the order of the Tribunal warranting interference. Appeal dismissed.
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2008 (6) TMI 547
Kar Vivad Samadhan Scheme - certificate dated February 26, 1999 issued under sub-section (1) of Section 90 of The Finance (No. 2) Act, 1998 determining the amount payable by the petitioner-company to settle this case at ₹ 3,63,920.09P. challenged - Held that:- The impugned certificate dated February 26, 1999 issued by the respondent no. 1 is quashed and set aside. The petitioner-company be refunded the sum of ₹ 1,19,962/- so deposited with the Registrar, Original Side, together with interest as accrued thereon. I find that the respondent no. 1 was entitled to claim ₹ 2,43,957.30p. under the Kar Vivad Samadhan Scheme, 1998. The above amount already paid to the respondent-authority in terms of the order dated March 17, 1999 be treated as payment towards revenue in full and final settlement under the Kar Vivad Samadhan Scheme, 1998.
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