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Showing 61 to 80 of 563 Records
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2008 (6) TMI 573
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... ... ..... the way-bills or transit declarations were not produced by the dealer before proceedings were drawn against them or the dealers were found to be habitually negligent. The present case is not such a case. In the present case the petitioners voluntarily produced the way-bill and other documents within seven days of the due date and there was no other allegation excepting non-submission of way-bill for endorsement before taking delivery of goods in question. For the reasons stated above, we set aside all the impugned orders imposing penalty on the petitioner-dealer by the Sales Tax Officer, Assistant Commissioner and Deputy Commissioner, all of Kharagpur Range. At the same time we like to observe that the petitioners should be more careful in complying with procedural requirement. Repetition of similar mistake may be treated as intentional omission and may attract appropriate penalty. Application is allowed. No order as to costs. DIPAK CHAKRABORTI (Technical Member). - I agree.
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2008 (6) TMI 572
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... ... ..... s no denying of the fact that satisfaction as to the incompleteness or incorrectness of the returns had been derived upon enquiry but unfortunately, findings of those enquiries were not made known to the applicant, frustrating thereby the very purpose of issuing a notice. In view of the foregoing discussion, we are of the view that no proper notice was issued to and served on the applicant. The notice was materially defective as it did not disclose any reason/reasons for which assessment proceeding was initiated in terms of clause (c) of sub-section (1) of section 46 of the VAT Act. We, therefore, set aside the impugned notice dated October 9, 2007. Liberty is, however, given to the respondent-authorities to initiate assessment proceeding afresh for the period from April 1, 2006 to March 31, 2007 in accordance with the provision of VAT Act and Rules framed thereunder. The application is, therefore, allowed on contests. No order as to costs. PRADIPTA RAY (Chairman) - I agree.
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2008 (6) TMI 571
Whether, on the facts and in the circumstances of the case, the Sales Tax Tribunal was legally justified to hold that the transaction in question cannot be treated as sale and consequently is exempt from tax despite the fact that evidences on record reveal otherwise?
Held that:- The very fact that 95 per cent of the sale consideration was received by the dealer-opposite party which according to it was returned subsequently and the fact that the goods were dispatched from the State of U.P. to the State of Gujarat is sufficient to show that the goods were sold by the dealer. In absence of any contrary material, it would show that the sale as a matter of fact, had taken place. It may be noticed that a categorical finding was recorded by the first appellate authority which has not been met by the Tribunal that the dealeropposite party has not produced any evidence or the account books to substantiate its plea of rejection of goods by the purchasing dealer.
The Tribunal was duty bound before reversing the order of the first appellate authority to have met the reasonings given by the first appellate authority. Without adverting to the reasonings furnished by the first appellate authority, the Tribunal has erred in law in allowing the appeal by making observation in one sentence that the goods were not in deliverable state. The order of the Tribunal, therefore, cannot be sustained. Appeal dismissed.
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2008 (6) TMI 570
Whether the applicant is "owner" of the vehicle for the purposes of section 28B of the U.P. Trade Tax Act?
Held that:- All the three authorities below including the Tribunal have found that the dealer-applicant has failed to prove that the vehicle in question, as a matter of fact, was given on hire basis to the alleged transport companies. The said finding is based on relevant material on record. No evidence was produced by the applicant except a bald statement that the said vehicle was given to the concerned transport companies. A fresh opportunity was afforded to the applicant to substantiate the plea by the High Court while passing the remand order but the applicant failed to avail it. He could not establish that he was not in any manner involved with the transportation of the goods in the State of U.P. from the outside of the State. The driver of the vehicle in question, admittedly, got form 34 issued while entering in the State of U.P.
On the facts of the case, it has been rightly held that the applicant is the "owner" of the vehicle in question and is, therefore, liable to pay the sales tax dues. Appeal dismissed.
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2008 (6) TMI 569
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... ... ..... of the Act. Whether there was any stock of imported goods against which the penalty was paid or whether any goods were imported during the year 2006-07 is a question of fact to be decided by the fact-finding authority. In the above circumstances, the Deputy Commissioner, Commercial Taxes, Burrabazar Circle, is directed to cause an enquiry on this point. If the Deputy Commissioner is satisfied that there was any stock of imported goods as on April 1, 2006 or any goods were imported during 2006-07, he shall invoke rule 38(6) of the VAT Rules, 2005 to come to a decision that the petitioner-dealer is not entitled to enjoy the benefit of compounded rate of tax under section 16(3) of the West Bengal VAT Act, 2003. Such exercise shall be completed within 3 (three) months from the date of communication of this order. The application is thus disposed of, but under the facts and circumstances of the case without any order as to costs. R.K. DATTA CHAUDHURI (Judicial Member). - I agree.
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2008 (6) TMI 568
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... ... ..... fore, the appeal was allowed by the Karnataka Appellate Tribunal on the ground that the orders of the assessing authority and the appellate authority are not based on proper appreciation and the objection statement filed by the assessee should be supported by the documentary evidence. Therefore, the Tribunal has rightly set aside the orders of the assessing authority and the first appellate authority and further directed the assessee to discharge its burden as provided under section 6A of the Act to justify its claim made in the statement of objections. Therefore, the assessing authority is required to consider the objection statement. The objection statement of the assessee must be supported by the books of account regarding the purchase bills corresponding to those purchases which are reported in the intelligence report, with regard to the second sales and also the sales as stated in the intelligence report. With the above observations, this revision petition is dismissed.
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2008 (6) TMI 567
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... ... ..... lear that the exemption granted in the said notification was prospective from the date of issuance of the notification and the same cannot be extended to a back period. Therefore, the Tribunal has rightly held that the decision in Deepam Silk case 2004 134 STC 337 has no application to the case on hand. Even the decision of the apex court pressed into service before us has no application to the fact-situation. The claim of the assessee is wholly untenable in law. The order passed by the assessing officer, affirmed by the first appellate authority and confirmed by the Tribunal are in conformity with the provisions of the Act and the exemption notification. The authorities have rightly rejected the contention of the assessee and we do not find any ground to interfere with the same. The questions of law framed in the memorandum of revision petition do not arise. The revision petition is devoid of merit and liable to be dismissed. Accordingly, the revision petition is dismissed.
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2008 (6) TMI 566
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... ... ..... on the label to be fixed on the cover of the product. During hearing, learned counsel for the appellant produced sample of the item marketed by the appellant. We find that one-side-gum pasted paper roll is loaded in it and what the machine does is printing the figures or letters on the label. It is a simple device like a rotating sealer or a stapler. The items of machinery referred under entry 84(i) are internal combustion engine, marine engine, diesel generating set, diesel engine, etc. We do not think the simple equipment used for printing the price on the label can be equated to any of these items of machinery referred to under entry 84(i) of the Act. In common parlance, nobody will treat a stapler or a rotating sealer or a label printing device like this as machinery. We, therefore, allow the appeal by quashing annexure A order of the Commissioner and hold that the item is taxable under the residuary entry and not under entry 84(i) of the First Schedule to the KGST 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
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... ... ..... he value of the goods and it has ordered six per cent cash security instead. The rate of tax is four per cent. The learned counsel for the applicant has placed reliance upon an order of the Commissioner of Commercial Tax given under section 59 of the Act wherein the Commissioner has opined that power-loom lungi is a nontaxable item. A copy of the said order has been annexed along with the affidavit. Looking at the nature of the controversy involved, it is desirable that the goods in question be released to the applicant on furnishing six per cent security other than cash or bank guarantee. In the result, the revision succeeds and is allowed in part. Instead of demanding cash security at six per cent on the total value of the goods at Rs. 1,50,000, the goods in question may be released on furnishing security at the rate of six per cent of the value of the goods to the satisfaction of the authority concerned which may be other than cash or bank guarantee. No order as to costs.
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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
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... ... ..... to all the item mentioned, i.e., they can hold something and can act as a container thereby protecting the articles placed within against probable damage. That the hangers are used basically for keeping the ready-made garments in straight and crease-free condition is also admitted by the petitioner as may be seen from ground No. 2 wherein the applicant states after each ready-made garments are hanged in each plastic hanger, the same are packed in cardboard boxes and sold to the buyer . Moreover, hangers are not commonly or generally used for packing ready-made garments. These are not such items but for which packing cannot be done and delivery cannot be made. In the fact and circumstances of the case, we are of the view that hangers are not packing materials within the meaning of the VAT Act, 2003. We, therefore, decline to issue any direction on the respondent authorities, as prayed for. The petition fails on contest. No order as to costs. PRADIPTA RAY (Chairman) - I agree.
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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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