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Case Laws
Showing 181 to 200 of 731 Records
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2009 (11) TMI 850 - ALLAHABAD HIGH COURT
Turnover of manufactured goods "menthol" or as the case may be, "rice" sold to exporter through form "H".
Held that:- In the assessment proceedings, the exemption on the basis of form H was wrongly granted by the assessing authority to the petitioner as the same was not a transaction in the course of export but was a local sale to an exporter.
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2009 (11) TMI 849 - GAUHATI HIGH COURT
Whether petitioner No. 1 cannot be termed as a "dealer" within the meaning of section 2(10) of the Mizoram Sales Tax Act, 1989 nor the transfer of building materials to its contractor can be construed as "sale" under section 2(19)?
Held that:- While executing hydro electric project petitioner No. 1 necessarily has to supply various kinds of goods to the owner of the project. Besides this, supply of goods "directly or indirectly" (emphasis Here italicised. supplied) to the client, is also covered under section 2(10). In considered opinion, these words would also bring the methodology of supplying goods by petitioner No. 1 through its contractor in execution of the project, within the ambit of "dealer" and its supply of materials to the contractor as "sale" within the purview of the Act.
The case in hand is squarely covered by the ratio laid down in N.M. Goel [1988 (10) TMI 106 - SUPREME COURT OF INDIA]
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2009 (11) TMI 848 - KARNATAKA HIGH COURT
Whether garam masala, curry powder, sambar powder and rasam powder falling under section 4(1)(b) of the Act are liable to tax at 12.5 per cent for the period April 1, 2005 to March 31, 2006 and does it fall under entry 89 of the Third Schedule?
Held that:- The Legislature by its wisdom under entry 89 prior to Act of 4 of 2006 has not included masala powder or instant mixes and other mixtures containing one spice or a spice with any other material. However, we are of the view that under the Act 4 of 2006 which has come into effect from April 1, 2006 in order to clarify the doubts the Legislature thought it fit to clarify the position to hold that masala is not included in entry 89 which attracts the tax at 12.5 per cent considering entries 61 and 89 as stood prior to Karnataka Act No. 4 of 2006, we are of the view that the word masala powder is not included therein and therefore, it is clear that masala powder come under the residuary clause traceable to section 4 of the Karnataka Value Added Tax Act, 2003. Thus answer the substantial question of law in favour of the Revenue and against the assessee.
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2009 (11) TMI 847 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... n the treasury feeling that exemption limit exhausted on February 5, 2001 when bill No. 650 was made. We repeatedly asked the learned State counsel as to how the finding of fact would be vitiated when the rate of Rs. 48.50 has been charged even in respect of the period for which refund amount has been claimed. We also asked the learned counsel to substantiate how it would amount to undue enrichment when the dealer-respondent has not collected tax from the third party. There has not been any satisfactory explanation. The assessing officer as well as the appellate authority are presumed to have gone through the books of account and the entry of Rs. 48.50 must have been duly reflected. There is no whisper in the grounds of appeal alleging anything to the contrary which lead to the conclusion that the findings recorded by the Tribunal are pure findings of fact which would not give rise to a substantive question of law. Therefore, the appeal does not warrant admission. Dismissed.
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2009 (11) TMI 846 - ALLAHABAD HIGH COURT
Tax imposed under section 21(2) of the Act for the assessment years 2000-01, 2001-02 and 2002-03 during the pendency of this writ petition
Held that:- Impugned orders passed by the Additional Commissioner, Grade 1, Trade Tax, Gorakhpur shows the contents of the notice being noted down, by giving details that sale has not been shown in the books and as such the said sale has escaped attention, thereafter the reply in question furnished has been taken note of, and then proceeds to mention that the proceedings under section 21(2) of the Act can be initiated, and then proceeds to mention that counsel have been heard, documents have been perused and then mentions that bijak in question is of different date, and documents have also not been perused, as such claim is not being accepted and proceedings be undertaken. Similarly, for the assessment year 2001-02, it has been mentioned that bijak has not been produced, and then for the assessment year 2002-03 same reasons have been given. The objection, which had been raised by the petitioner that the petitioner was neither manufacturer nor importer and was not liable to pay any tax, has not at all been considered, and the documents which were not there, qua the same no opportunity was given to produce the same . W.P. allowed.
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2009 (11) TMI 845 - ALLAHABAD HIGH COURT
Levy of penalty under section 13A(4) of the Trade Tax Act, 1948 - Held that:- It is notable that in the present case, the authorities were not solely guided by the non-production of books of account, but have also taken into consideration the statement of the employee made during survey and various other factual aspects as have been noted above for levying this penalty. In my view penalty is imposed essentially as a deterrent that any violation of statutory requirement by the dealer will have pecuniary ramification and thereby ensuring strict adherence of law.
Upon the facts and circumstances of the present case, the imposition of penalty is justified and the Tribunal has committed no error either on facts or in law in upholding the same. Revision dismissed.
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2009 (11) TMI 844 - KERALA HIGH COURT
Recovery steps challenged - petitioner seeking directions for permitting remittance of amounts under the amnesty settlements, in installments - timelimit within which the remittances need be made
Held that:- Having failed in remitting the initial amount of 25 per cent or the subsequent monthly instalments, the request of the petitioner for remitting payment of the settled amount could not be accepted, at this belated stage. It is evident that inspite of receipt of the order in December 2008, the petitioner had raised objection against the wording in those orders, only by filing this writ petition during October, 2009.
A further contention raised by the petitioner that no specific order was issued by the authority concerned cancelling the benefit of the settlement issued under exhibits P5 and P5(a) need to be rejected as it is evident that the petitioner had never acted upon in accordance with the settlement and the settlement so permitted has never come into effect. Therefore the recovery steps now initiated cannot be assailed on the ground that no specific order cancelling the settlement is issued. W.P. dismissed.
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2009 (11) TMI 843 - ALLAHABAD HIGH COURT
Whether, on the facts and circumstances of the case, the Tribunal has not acted beyond its jurisdiction by giving its finding in respect of consignments being transported by truck No. URN 9676 and USD 3967 when the dispute regarding these consignments was finally settled by the order of first appellate authority against which no ground was taken in the memorandum of appeal by the respondent?
Held that:- As there was no form C with all the three trucks when they were intercepted at the check-post. Later, it was found that there was no proper entry in the books of accounts. The gate passes were issued by the mandi samiti pertaining to first two trucks, is not a conclusive proof that the goods were properly shown in the books of accounts.he gate pass can be issued to any vehicle which is crossing the gate of the mandi samiti after paying necessary fee.
In these circumstances, the order of the assessing officer agreed who has rightly rejected the books of account and estimated the turnover. Regarding the additional ground, it may be mentioned that it can be raised before the Tribunal even it was not raised before the lower authorities. Revision filed by the assessee is dismissed.
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2009 (11) TMI 842 - ALLAHABAD HIGH COURT
Remand of the case under section 21 of the U.P. Trade Tax Act - whether the entire assessment could be reopened or only with respect to the transaction which has been alleged to have escaped assessment?
Held that:- Under the facts and circumstances, it would be appropriate that the matter be remanded back to the Tribunal to decide the issue afresh in the light of the aforesaid judgment of the apex court in the case of Kundan Lal Srikishan [1987 (2) TMI 448 - SUPREME COURT OF INDIA] . Revision allowed.
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2009 (11) TMI 841 - ALLAHABAD HIGH COURT
Reopening of concluded assessment - Held that:- There is no denial in the counter-affidavit with regard to the filing of the reply by the petitioner before the Additional Commissioner, Grade 1, Trade Tax. It follows that the Additional Commissioner, Grade 1, Trade Tax has granted the permission without taking into consideration the reply dated March 10, 2005 filed by the petitioner. In view of the decision of the Division Bench of this court in S.K. Traders, Modi Nagar, Ghaziabad v. Additional Commissioner, Grade 1, Trade Tax Zone Ghaziabad [2007 (7) TMI 573 - ALLAHABAD HIGH COURT] the order granting the permission is bad on this ground also. The Additional Commissioner, Grade 1, Trade Tax, has not taken into consideration the reply filed by the petitioner. In view of the above, the writ petition succeeds and is allowed. Reassessment orders quashed.
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2009 (11) TMI 840 - ALLAHABAD HIGH COURT
Benefit of the promotion scheme denied - Whether once the composition charge of ₹ 50,000 was accepted by the authorities, the requirement of rule 3(3) of the Rules, 1951, stood automatically waived and the petitioner ought to have been given the relevant licence?
Held that:- As in paragraph No. 19 of the counter-affidavit, it has been admitted that the petitioner has deposited ₹ 50,000 as composition charges. Since composition fee was paid and accepted, any irregularity that may have been committed stood regularised. Therefore, only on this account, the benefit of promotion scheme cannot be denied to the petitioner. Writ petition deserves to be allowed
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2009 (11) TMI 839 - MADRAS HIGH COURT
Disallowance of turnover in a sum of ₹ 12,22,374 as the consignment sale which claim was rejected by the assessing officer - whether treating the transaction as inter-State sale falling under section 3(a) of the Central Sales Tax Act, 1956 is correct or not?
Held that:- On a consideration of the position of law, we are of the opinion that the issues raised by the Revenue in the present writ petition being questions of fact which were thoroughly considered by the lower authorities they do not warrant any interference. W.P. dismissed.
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2009 (11) TMI 838 - KERALA HIGH COURT
Whether there is any justifiable evidence to assess first sale of liquor on the respondent?
Held that:- In this case the actual accounts maintained by the respondent and seized by the income-tax authorities were transmitted to sales tax authorities for the purpose of assessment of escaped turnover. In fact, the assessing officer verified purchase details of liquor by assessee from authorised channel, that is the Beverages Corporation and found that the excess quantity sold is liquor purchased clandestinely from illicit sources. We are of the view that the assessee cannot object against Department relying on their accounts maintained in the seized computer. In fact, the first appellate authority took a reasonable stand by giving opportunity to the assessee to prove before the assessing officer that the turnover found in the computer statements covers even the disclosed turnover for the purpose of avoiding duplicity. Thus there was no justification for the Tribunal to interfere with the first appellate authority's order. We, therefore, allow the revision cases filed by the State by reversing the majority order of the Tribunal for both the years and by restoring the appellate authority's order remanding the matter.
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2009 (11) TMI 837 - MADRAS HIGH COURT
Whether the respondent, without giving sufficient opportunity of hearing to the petitioner, had passed the impugned order, dated October 19, 2009, in TNGST No. 4821189/2003-04?
Held that:- In view of the submissions made by the learned counsels appearing for the petitioner, as well as the respondent, the impugned order, dated October 19, 2009, made in TNGST No. 4821189/2003-04, is set aside, leaving it open to the respondent to pass appropriate orders, pursuant to the remand made by the respondent, dated May 11, 2007 and October 10, 2007, made in A.P. Nos. 276 of 2006 and 182 of 2007, respectively, within a period of twelve weeks from the date of the appearance of the petitioner and on his production of the necessary records, including the books of accounts, relating to the assessment year 2003-04.
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2009 (11) TMI 836 - KERALA HIGH COURT
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... ... ..... the Appellate Tribunal) shall, for the purposes of this Act, have all the powers conferred on a court by the Code of Civil Procedure, 1908 (Central Act 5 of 1908), in respect of the following matters, namely, - (a) summoning and enforcing the attendance of any person and examining him on oath or affirmation and (b) compelling the production of any document. It is clear from the above provisions that the powers of the civil court to be exercised by authorities under the statute pertain only to summoning and enforcing the attendance of any person and examining him on oath or affirmation and for compelling production of documents. Since the statutory authorities under the KGST Act are not conferred with any powers of civil court contained in Order XXXIII and Order XLIV of the CPC, none of the statutory authorities including the Tribunal has the authority to dispense with payment of court fee. We therefore confirm the judgment of the learned single judge and dismiss the appeals.
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2009 (11) TMI 835 - KERALA HIGH COURT
Amendment brought about to section 6(1)(f) of the Kerala Value Added Tax Act, 2003 as amended by the Kerala Finance Act, 2006 (Act 22 of 2006) challenged as for unconstitutional in so far as it imposes levy of tax at 12.5 per cent in the execution of works contract and transfer is not in the form of goods though goods are not separately assessable and for further consequential reliefs
Held that:- Section 6(1)(f) as introduced by Act 22 of 2006 is well within the legislative competency of the State and that the retrospective operation given from July 1, 2006 to October 24, 2006 does not impose any unreasonable restriction in the matter of freedom of trade or impose any undue hardship
Merely because section 6(1)(f) was introduced without a previous Bill being introduced with the recommendation of the Governor, the infirmity, if any, stands cured once the assent is obtained under article 200 of the Constitution of India in the light of the specific provision contained in article 255 of the Constitution, also that in so far as the rate of tax in respect of declared goods in excess of the rate as provided under section 15 of the Central Sales Tax Act will be unconstitutional, we hold that the ninth proviso added to section 6(1)(f) being clarificatory in nature and in that context it will be effective from the date on which section 6(1)(f) was brought into force and thus save the provision from being ultra vires of the Constitution and consequently we declare the rate of tax applicable to declared goods shall always be at the same rate as provided under the CST Act and that prescription of uniform rate of tax in the transfer of goods and execution of works contract where transfer is not in the form of goods but in some other form at the rate of 12.5 per cent and when the transfer is in the form of goods at the rate prescribed for the respective Schedules, is legal and valid.
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2009 (11) TMI 834 - GAUHATI HIGH COURT
Whether there was no transfer of the right to use the vehicles, covered by the contracts, in favour of the hirer so as to make the payments received under the transactions in question exigible to tax under either of the statutes on the basis of the fiction of a deemed sale within the meaning of the relevant provisions of the two Acts read with article 366(29A)(d) of the Constitution?
Held that:- The above features of the contract, in our considered view, makes it abundantly clear that it is the ONGC and not the contractor who has exclusive control and dominion over the crane during the subsistence of the contract, though, during the aforesaid period, at times, physical possession of the crane may come back to the contractor. Such temporary physical possession of the contractor, according to us, would hardly be relevant as under the contract the ONGC is vested with the authority to requisition the crane for operational purposes at any time. Besides, such temporary possession of the crane by the contractor does not mitigate against the transfer of the right to use the crane which event, as already indicated on the authority of the decision of the apex court in 20th Century Finance Corpn. Ltd. [2000 (5) TMI 980 - SUPREME COURT OF INDIA] 11constitutes the taxable event under article 366(29A)(d) of the Constitution.
The terms of the contract also do not visualize any operation of the tankers/trailers by the owners thereof at any point of time during the period of the contract. The above core terms of the contract being vital for determination of the question of control of the vehicles after the same are hired, the conclusion that can reasonably be reached with regard to the transfer of right to use, necessarily, has to be the same, i.e., that by virtue of the contract agreement in question a transfer of the right to use the goods covered by the contract has been contemplated and in the absence of any contrary material had that been affected by and between the parties. Appeal dismissed.
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2009 (11) TMI 833 - HIMACHAL PRADESH HIGH COURT]
Condonation of delay
Held that:- The Himachal Pradesh General Sales Tax Act, 1968 being a specific Act or statute since has prescribed limitation period under section 33(1) for making statement of case to the High Court by the Financial Commissioner. Such statutory prescribed period is a requirement under law which could override the provision of section 5 of the Limitation Act as legislative intent carries importance which requires that the condonation of delay could only be granted up to 60 days for making statement of case to the High Court. We have noticed that the grounds and explanation for condonation of delay are vague and insufficient, however we are not going to examine sufficiency of cause for condonation of delay but we are of the considered view that the sales tax reference should not have been made beyond the period prescribed under section 33(1) of the Act.
Thus sales tax reference dismissed.
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2009 (11) TMI 832 - KERALA HIGH COURT
Whether the appellants/petitioners are entitled to exemption from tax payable under the Value Added Tax Act, 2003 on the discount allowed by them after sales through credit notes issued to purchasers?
Held that:- We confirm the judgment of the learned single judge upholding the disallowance and demand of tax on discount given after sales through credit notes. However, since the Legislature itself has felt that the discount provision calls for clarification, we feel the penal provision should not be invoked against the appellants/petitioners, provided they accept the disallowance, clear the arrears if any, with interest due thereon. We therefore direct the respondents to recall the orders in the case of such of the appellants/petitioners who concede liability in terms of the judgment and who remit balance tax if any along with applicable rate of interest within three weeks from the date of receipt of a copy of this judgment.
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2009 (11) TMI 831 - ALLAHABAD HIGH COURT
Rejection of the book version and enhancement of the net turnover of the revisionist - Held that:- From a perusal of the order which is under challenge, it is crystal clear that the Tribunal being the last fact finding authorities while deciding the appeal ought to have given its finding on all the grounds which has been taken by the revisionist before the Tribunal in its appeal but in the instant case in a very casual manner by way of non-speaking order without deciding and adjudicating all the grounds taken in appeal the Tribunal had dismissed the appeal by order dated June 21, 2003 as such the said order passed by the Tribunal cannot be sustained.
For the foregoing reasons, the revision is allowed, the order dated June 21, 2003 passed by Trade Tax Tribunal, Bench II, Lucknow in Second Appeal No. 108 of 1999 is hereby set aside. The matter is remanded to the Trade Tax Tribunal, Bench II, Lucknow to decide the same in accordance with law after hearing the parties concerned, expeditiously, within a period of six months from the date of receipt of a certified copy of this order.
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