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Showing 161 to 180 of 773 Records
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2009 (12) TMI 902
Rectification of the assessment under section 37(1) of the AGST Act - whether there was mistake of factual nature apparent from the records of the case?
Held that:- On examination of the show-cause notice dated September 11, 2003 issued by the Commissioner, the basis for alleging that the assessment order is erroneous and prejudicial to the interest of the Revenue is not discernible to the court. In the revisional order also, apart from making a bald assertion that the assessment order was erroneous and prejudicial to the interest of the Revenue, nothing is indicated as to the basis for reaching such conclusion by the revisional authority. Accordingly, having regard to the scope and ambit of the provisions of section 36 and also the decisions relied upon by the assessee, I am of the view that in the present case, the exercise of suo motu revisional power by the Joint Commissioner was not supported by law. W.P. allowed.
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2009 (12) TMI 901
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... ... ..... merits. In the circumstances, entire order of the Tribunal dated May 16, 2003 was set aside and the matter was remanded. In this background, we are of the view that the order of the Tribunal in the present case is without understanding the order of remand passed by this court in S.T.R.P. No. 121 of 2004 dated June 29, 2006 (State of Karnataka v. Kap Steel Limited). Due to wrong interpretation of the order of remand the Tribunal has considered the only question of jurisdiction without considering the case of the parties on merits. Only on this short ground we have to answer the questions of law in favour of the Revenue and the order passed by the Tribunal has to be set aside and the matter is required to be reconsidered by the Tribunal on merits and in accordance with law. Accordingly, the petition is allowed. Order of the Tribunal dated May 16, 2003 is hereby set aside and the matter is remanded to the Tribunal to reconsider the case on the merits and in accordance with law.
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2009 (12) TMI 900
Whether the circular dated March 18, 2002 in any manner violates, varies or modifies the notification dated October 10, 1995 issued by the State Government in exercise of its power under section 8(5) of the Central Act?
Held that:- The only power which can be exercised is to exempt the goods from tax. In the present case we find that under the U.P. Act the electronics goods is generally liable to be taxed at 2.5 per cent. including surcharge which is lower than four per cent. and the notification issued under section 8(5) prescribed the rate of tax at two per cent. Thus the case in hand would be covered by sub-section (2A) of section 8 of the Central Act and not by sub-section (1) or sub-section (2) of section 8.
Our above view finds support from the phrase used "tax on such sales shall be calculated at such lower rates than those specified in sub-section (1) or sub-section (2) as may be mentioned in the notification". The use of words lower rates implies that rate of tax may be lowered down than the rate of tax as provided under the State Act. Further the reference of sub-section (1) or sub-section (2) is indicative of the fact that a notification can be issued only with respect to the rate of tax referred in aforestated sub-sections and not to sub-section (2-A) of section 8.
The circular therefore, clarifying the above legal position is not in any manner illegal or contrary to law.
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2009 (12) TMI 899
Whether for facilitating the implementation of Scheme of 2002 the State Government framed rules known as the Madhya Pradesh Bakaya Rashi Saral Samadhan Yojana, 2002 whereunder rule 2(1)(h) defines "amount of arrear" and the said definition nowhere categorises that the assessee, enjoying the benefit of payment of instalments, will not be covered?
Held that:- In the case at hand, admittedly prior to the circular dated February 8, 2002 the Scheme of 2002 do not categorise that the assessee, availing of the benefit of instalments, will be excluded from consideration under the Scheme of 2002. Further clarification circulated vide annexure P2 does include the class of assessee, who are being given the benefit of instalments and otherwise covered by the Scheme and it was only by letter dated February 8, 2002 that the Commissioner, Commercial Tax, has instructed its subordinate staff not to accept the applications and not to issue form No. 2 under the Scheme of 2002 to such class of persons.
In the considered opinion of this court, since the petitioner had filed an application on January 24, 2002 and had deposited the amount, as sought for under the Scheme of 2002, i.e., much before the issuance of letter dated February 8, 2002, it was incumbent upon the respondents to have accepted the same and have issued the form No. 2. Petition is allowed. The respondents are directed to accept the application preferred by the petitioner in pursuance of Scheme of 2002 and decide the same on its own merit.
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2009 (12) TMI 898
Assessment orders, reassessment orders and notices under section 21(2) of the U.P. Trade Tax Act, 1948 on the transactions of job-work and goods-returned treated as sales under section 6A of the Central Sales Tax Act, 1956 challenged
Held that:- In all the cases, in which transactions of job-work and goods-returned are involved, the assessment orders only to the extent that the tax was imposed on such transactions for want of form F of the Central sales tax are set aside. The petitioners will appear and submit before the assessing authority a certified copy of this judgment in six weeks to complete the assessment proceedings with regard to such transactions only, on its own merits, after examining the transactions between the parties, and keeping in mind that the assessee is not in a position to obtain form F for no fault of his; and
In the cases where the assessee has been subjected to reassessment proceedings in which the transactions of job-work and goods-returned are involved, the reassessment orders only to the extent that the tax was imposed on such transaction/s for want of form F of the Central sales tax are set aside. The assessee will appear before the reassessing authority and submit a certified copy of this judgment in six weeks, to complete the reassessment proceedings in respect of such transactions only, on its own merits after examining the transactions between the parties, keeping in mind the findings recorded earlier on such transactions, and also that the assessee is not in a position to obtain form F, for no fault of his.
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2009 (12) TMI 897
Refusal to verify the books of account of the petitioner as requested by the petitioner - Held that:- perusal of the order passed by the Tribunal would reveal that the matter was remanded only for the purpose of cross-examination alone, whereas, the entire assessment order was set aside. It means that the assessing authority has to make a fresh assessment by taking into consideration not only the evidence of witnesses but also the books of account.
For making any assessment, books of account are necessary and the evidence of witnesses cannot be taken into consideration in isolation by the authorities without considering or taking up the books of account. It should be comprehensive exercise by the authority to make an assessment.
As stated in the Division Bench judgment, the best judgment assessment could be only by taking into account the books of account and evidence of witnesses in toto. W.P. allowed
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2009 (12) TMI 896
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... ... ..... ning to the persons whose registration certificates have been cancelled. We do not find any reason for such remittal order. The facts, on record, are available that the registration certificates numbers have been cancelled by the appropriate authority under law with effect from the dates as stated above. Those persons have not taken any steps or interest to get a fresh certificate before the assessing officer. The correctness of the order passed in cancelling the registration certificate numbers has not been questioned. All these things would go to prove that the dealer had carried on clandestine transaction and everything is not correct, which made the Joint Commissioner to suo motu revise the order of the Appellate Assistant Commissioner, and set aside the same and restore the assessment order of the assessing officer. We do not find any illegality or irregularity in the order of the Joint Commissioner to admit this appeal. In the result, the appeal is dismissed. No costs.
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2009 (12) TMI 895
Cancelling the TNGST Certificate challenged - Held that:- In the present case also the certificate is valid for only two days 30th and 31st March, 1999 as per the provision of law. There is no specific indication as to when the renewal has to be effected. Furthermore, the cancellation of the certificate has been done without proper notice and without opportunity to the petitioner and that fact is not seriously disputed. There is, therefore, clear violation of principles of natural justice.
The proceedings initiated by the respondent cancelling the TNGST Certificate No. 1521561/98-99 dated March 31, 1999 is bad and consequently such order is set aside. The respondent is, however, at liberty to initiate proper proceedings after issuance of a show-cause notice to the assessee before proceeding further in the matter. The writ petition is allowed
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2009 (12) TMI 894
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... ... ..... Mere change in the opinion of the assessing authority or to have a relook at the matter would not confer any jurisdiction upon him to get the proceedings reopened. Discovery of new material, although it may form a ground, by itself may not be a ground for reopening the proceedings unless by reason of such discovery it turns out that a jurisdictional error had been committed. In this case, there is no finding recorded by any of the authorities that the conclusion originally reached by the assessing officer was based on mis-representation or collusion. In the absence of any finding to that effect, in the light of the judgment of the Supreme Court in the case of Ashok Leyland Ltd. v. State of Tamil Nadu reported in 2004 134 STC 473, the order of the Tribunal has to be set aside and the same is set aside in respect of the turnover in a sum of Rs. 13,46,187 and the penalty in respect of the said turnover is also deleted. The tax case revision is allowed to that extent. No costs.
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2009 (12) TMI 893
Whether the applicant-company was liable to pay purchase tax and interest in addition to the penalty imposed by the assessing authority?
Held that:- As the learned advocate produced ledger copies showing purchase of raw materials, consumables and packing materials on payment of appropriate rate of VAT. At this stage, it is difficult for us to adjudicate on the points of facts.
Regarding levy of interest we do not find any rhyme or reason as to how he came to the conclusion that the applicantcompany was liable to pay any interest when he himself determined the output tax at "nil". Though the appellate authority substantially reduced the quantum of interest, it is not clear how he came to the findings that the applicant-company did not pay tax for an amount of ₹ 9,08,701.14. There was no finding of the assessing authority in this regard.
As regards imposition of penalty under section 30E read with rules 44 and 45 of the VAT Rules, we would like to observe that no penalty can be imposed under rule 45 without issuing a show-cause notice. From the records, it is not apparent whether any notice in form 8 as required under rule 45 of the VAT Rules was at all issued. Remand the matter back for making a fresh assessment
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2009 (12) TMI 892
Whetehr the Tribunal grossly erred in its conclusion that the Revenue has not established even on a single case that the assessee has handled the goods - Held that:- On the basis of the materials adduced to establish that the assessee has acted only as a commission agent, the Tribunal has in our view rightly come to the conclusion that the order of the assessing officer as well as the appellate authority in so far as sustaining the levy of suppression and the other component is not in consonance with the statutory requirement. Revision dismissed.
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2009 (12) TMI 891
Rate of tax applicable on cut chillies, spent chillies and chilly seeds - whether attracts 12.5 per cent tax under section 4(1)(b) of the Act for the period April 1, 2005 to March 31, 2006 and with effect from April 1, 2006, the above goods are eligible to be taxed at the rate of four per cent in view of entry 89 of the Act?
Held that:- The crushed chilly, spent chilly is a spice by itself which can be sold and traded in common parlance and accordingly, tax leviable would be at the rate of four per cent and it comes within entry 61 under the definition of "dry chillies" and accordingly, we answer the questions of law formulated hereinabove in favour of the assessee and against the Revenue by holding that the Advance Ruling Authority was in error.
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2009 (12) TMI 890
Rejection of the form F declaration - Held that:- In the case on hand, the assessee has produced all the relevant documents sought for by the authorities. Therefore, the finding given by the Joint Commissioner that there was an implied agreement between the assessee and the ultimate purchaser, which is the Kerala State Transport Corporation, is not supported by any material evidence available on record.
Moreover, it is not in dispute that for the assessment years 1989-90 and 1992-93, the Joint Commissioner has accepted the reply filed by the assessee and dropped the proposal to revise the order of the first appellate authority. Form F declaration to be accepted. Appeal allowed
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2009 (12) TMI 889
Whether the transactions involved are consignment sales?
Held that:- A reading of the order passed by the Tribunal would show that the assessee has produced records to show that the goods have been sent to the other State agents and commissions have been paid. The assessee also filed a declaration under form F. It is not the case of the Revenue that the information given under form F is not true. It is also seen that the agents have paid the local tax in the other State and the goods were neither manufactured according to the specifications of a particular goods nor they were meant for a particular customer.
The assessee in the present case has produced all the material evidence to satisfy that the transactions were consignment sales. Non-production of the records as required by the assessing officer cannot be a ground to draw adverse inference against the assessee. Appeal dismissed.
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2009 (12) TMI 888
Demand of deposit a sum of ₹ 19,95,890 as the same was unauthorisedly realised by her from the cinema goers.
Held that:- A person who unjustly enriches himself cannot be permitted to retain the same for its benefit except enrichment. Such licensee/picture hall owners cannot and could not collect any entertainment tax from the cinema goers and if collected, they are liable to deposit the same with the State treasury, otherwise it would amount unjust enrichment.
The petitioner is liable to pay the amount unauthorisedly collected from the cinema goers as entertainment tax as per the impugned demand notice. There is no merit in the writ petition.
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2009 (12) TMI 887
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... ... ..... return. On and after April 1, 1996 an Explanation has been added below section 12(3) which requires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under section 12(3). 8. The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates, have therefore, to be regarded as assessments made under section 12(1) to which the penal provisions of section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside. Hence, following the judgment referred to above, we are of the view that the order of the Tribunal deleting the penalty is quite in consonance with the statutory provision as well as the law declared by this court in the abovesaid judgment. We find no merit in this writ petition. Hence the same is dismissed.
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2009 (12) TMI 886
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... ... ..... assessee in the prescribed return. On and after April 1, 1996 an explanation has been added below section 12(3) which requires the turnover relating to the tax assessed on the basis of the accounts of the assessee, to be disregarded, while determining the turnover on which the penalty is to be levied under section 12(3). 8.. The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates, have therefore, to be regarded as assessments made under section 12(1) to which the penal provisions of section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside. Hence, following the judgment referred to above, we are of the view that the order of the Tribunal levying penalty is not in consonance with the statutory provision as well as the law declared by this court in the abovesaid judgment. Hence, the writ petition is allowed. No costs.
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2009 (12) TMI 885
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... ... ..... asis. No question of law are involved in the present revision. Similar view has also been taken by this court in the case of Asha Industries, Aligarh v. Commissioner of Trade Tax reported in 2009 20 VST 465 (All) 2008 47 STR 63 wherein it has been held as under The Joint Commissioner (Appeals) was of the view that the projected turnover depicted in the balance sheet filed before the bank was only for the purposes of obtaining loan and also for increase of the cash credit limit. It also relied upon two decision of this court in the case of Commissioner of Sales Tax, U.P. v. Prakash Engineering Company reported in 1970 UPTC 426 and also in the case of Commissioner of Trade Tax v. Shri Ram Food reported in 2004 UPTC 680. In the aforesaid view of the matter, I do not see any infirmity in the order of the Tribunal, which is otherwise also concluded by finding of fact which cannot be said to be perverse or without any basis. The revision lacks merit and is, accordingly, dismissed.
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2009 (12) TMI 884
Whether the Tribunal was justified in holding that assessing authority can invoke powers vested under section 18AA of the Karnataka Sales Tax Act, in order to forfeit the excess tax paid under Central Sales Tax Act, pursuant to section 9(2) of the Central Sales Tax Act, 1956?
Held that:- In the instant case the sale attracts the purchase tax. It may affect the price of the seller. But the seller is liable to pay the tax demanded and the same has to be collected from the buyer and the seller is not expected to pay the tax from his pocket when the sale is inclusive of the cost of goods plus tax, the tax collected from the buyer has to be passed on to the Revenue and on same analogy the assessee cannot be permitted to revise the invoices to contend that excess tax collected by him from the customer would be the cost of the value of the material sold by him. In view of the same, we are of the view that it is a fit case to hold that the assessee as a after-thought has devised an idea to enrich himself in an unjust manner by collecting excess tax and seek refund of the same from the revenue. Such a thing cannot be permitted by any court of law. Revision petition is dismissed answering the question of law against the assessee.
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2009 (12) TMI 883
Levy of tax separately - Held that:- Bureau of Indian Standards (BIS) prescribes criteria for adding chemical for colour quoting is mainly for purpose of standardizing so as to avoid any accusation of adulteration. In such cases, the dealers may avoid facing litigation in supplying adulterated kerosene. Similarly, relying upon the notification under the Essential Commodities Act has no place, so long as the commodity is an essential commodity and private marketing system is introduced by the Parliament through a delegated legislation to safeguard the interest of kerosene supply under the public distribution system. Therefore, it cannot be said that the State Legislature lacks power in taxing kerosene different from that of SKO or white kerosene oil. The attack of discrimination thus must fall to ground in the light of the above legal precedents as set out above.
The second contention that exemption notification under section 17(1) will continue to be in operation notwithstanding the amendment to the entry in the Schedule because the same term continues to be in use in the amendment notification cannot also be accepted. Though such an argument is attractive, it does not stand to legal scrutiny in the light of the judgment of the Supreme Court in Sales Tax Officer, Sector IX, Kanpur v. Darling Dairy Products [1994 (5) TMI 213 - SUPREME COURT OF INDIA]
What applies to surcharge is also applicable to resale tax. Further, once legal issues are settled regarding the separate tax for SKO/white kerosene under a different entry in the Eleventh Schedule, the dealers are bound to pay the said rate of levy of tax and also surcharge and resale tax, which are also applicable notwithstanding the so-called exemption under section 17(1). Appeal dismissed.
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