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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 84 Records
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2015 (5) TMI 1209
Jurisdiction - power of assessing officer to levy of compounding fee - Agreeing of petitioner for levy of compounding fee - release of detained goods on payment of tax - non-application of mind - principles of natural justice - HELD THAT:- Following the decision in the case of M/S. TRISTAR KITCHENS (P) LTD. VERSUS THE DEPUTY COMMERCIAL TAX OFFICER, THE ASSISTANT COMMISSIONER (CT) , CHENNAI [2015 (3) TMI 1375 - MADRAS HIGH COURT], this Court is constrained to set aside the impugned order - petition allowed.
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2015 (5) TMI 1185
Maintainability of appeal before Tribunal - Tribunal under the Haryana Value Added Tax Act, 2003 has not yet been constituted - HELD THAT:- The appeal that had been filed by the petitioner cannot proceed at this stage. In lieu thereof, it is not possible for the petitioner to seek interim relief before the Tribunal.
Petition dismissed.
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2015 (5) TMI 1182
Imposition of penalty - classification of sanitary items - HELD THAT:- The matter to be noted is that, this Court specifically directed the petitioner to appear on 28.02.2015 with all relevant documents. The petitioner also appeared and submitted all the documents. The natural justice in such circumstances could only be understood in terms of the direction of this Court, not beyond. It is no doubt that, the authorities are bound to verify the relevant materials produced by the petitioner.
The procedure adopted cannot be found fault with. If the petitioner has any grievance on the merit of the order, he is at liberty to challenge the same in appropriate proceedings - petition dismissed.
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2015 (5) TMI 1150
Re-opening of reassessment proceedings - C-Forms - The stand of the State that the petitioner firm was assessed at the rate of 2% as the petitioner firm submitted C-Form(s) in respect of interstate sale of crude soya oil, but after verification from the concerned State it was found that number of C-Forms were not issued in favor of the petitioner purchaser or the C-Form found to be not genuine and, therefore, reassessment was done and the petitioner has been assessed @ of 5% along with three times penalty of the tax.
Held that: - It is the duty of the petitioner to prove the bonafides on his part that he took all necessary steps to prove the validity of the C-Forms received from the purchaser. The connivance of the petitioner is clear from the act that no specific document has been annexed or has been submitted during the reassessment proceeding stating that he has inquired from the purchaser about the validity of the C-Form.
As per original record, here is a huge scam in respect of C-Form submitted by the company like petitioner and similarly other situated companies who are in the business of crude soya oil, cotton seed oil and doing refinery business and due to bogus Forms / non-verified C-Form, the State of Madhya Pradesh suffered a loss of more than ₹ 200 crores.
The fact that number of C-Forms were found fake as the same were not issued by the concerned department and rest of the C-Forms were not verified on the basis of verification report, we are of the view that no case to interfere with the order of reassessment and penalty, as prayed is made out - petition dismissed - decided against petitioner.
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2015 (5) TMI 1067
Assessment under the Luxury Tax Act - banquet sales bills - Rule 3C brought into rules as per SRO 566/2006 dated 28/07/2006 which prescribes procedure for computation of rent or other charges realized for hall, auditorium, Kalyanamandapam etc. where such rent or other charges are not separately ascertainable - whether Rule 3C of the Rules which was introduced only subsequent to the year of assessment, i.e. 2005-06, Rule 3C procedure can be relied on for determination of luxury tax? - Held that: - Merely because there is no definite procedure as contemplated under Rule 3C for determination of luxury tax in the year 2005, it does not divest the petitioner from any liability to pay luxury tax in the light of non obstante clause under Section 4(2) of the Act. Though, Rule 3C would not apply, its yardstick can be applied to arrive at as a best judgment - no infirmity with the calculation of the luxury tax.
Whether the petitioner is entitled for credit of the payment already made for the entire amount towards sales tax? - since the petitioner has already paid VAT on full value on banquet sales, excess VAT paid has to be set off against luxury tax payable. Fresh assessment shall be made after giving credit to the excess VAT paid.
Petition disposed off - decided in favor of petitioner.
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2015 (5) TMI 1053
Levy of penalty - section 78(5) of the RST Act, 1994 - Held that:- In the light of the judgment of the honourable Larger Bench of this court and the judgment of the honourable apex court in Guljag Industries v. Commercial Taxes Officer mens rea is not essential. Such overwritings and cuttings in declaration form, in all columns would certainly fall in the category of forged, fabricated or false declaration form and therefore, in my view, the assessing officer was correct in levying the penalty and the Deputy Commissioner (Appeals) as well as the Tax Board were unjustified in deleting the same, therefore, the order of the Tax Board is quashed and set aside and order of the assessing officer is restored. - Decided in favor of revenue.
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2015 (5) TMI 1052
Levy of penalty u/s 78(5) of the Rajasthan Sales Tax Act, 1994 - Whether the mens rea is required to be proved as a necessary ingredient for imposition of penalty - Held that:- As held by the Hon'ble Larger Bench of this Court, though mens rea is not essential but in the present case, the penalty is not leviable for the reason that it is an admitted fact that the assessee is not a dealer of telephone cables but is a manufacturer of cement and the telephone cable of a value of ₹ 1,08,349.28 were purchased for its own use and for the use in factory for diverse purposes.
The declaration form ST-18A need not be furnished, if the goods of the class or classes are specified in the registration certificate would mean that the goods, which were being purchased by the assessee, once having been recorded in the registration certificate, requirement of carrying declaration form ST-18A was not there. - No penalty - Decided in favor of assessee.
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2015 (5) TMI 1050
Imposition of penalty - section 22A(7) of the Rajasthan Sales Tax Act, 1994 - branch/stock transfer - mobil oil of the respondent-assessee was being carried in vehicle - declaration form ST-18A was not available with the vehicle - requirement of mens rea - Held that:- in so far as the issue of mens rea is concerned, when the Larger Bench of this court has already opined that mens rea is not essential, therefore, the issue, with regard to mens rea, is decided in favour of the Revenue, but in the instant case, the penalty is not leviable as admittedly the vehicle was intercepted on July 13, 1995 and on or before March 30, 2000, in the light of the notification, referred to above, there was no requirement of carryingdeclaration form ST-18A and once there was no requirement or necessity of carrying the declaration form ST-18A in a case of branch/stock transfer, then penalty under section 22A(7) is not required to be levied. Admittedly, it is a case of branch/stock transfer and therefore, on this alternative plea and in the light of the judgment in assessees' own case reported in [2015 (11) TMI 1078 - RAJASTHAN HIGH COURT], and the judgment rendered by this court in the case of Assistant Commercial Taxes Officer v. Kamlesh Kumar Rajesh Kumar [2013 (3) TMI 631 - RAJASTHAN HIGH COURT], the instant revision petition deserves to be dismissed though for different reasons. - Decided against the revenue
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2015 (5) TMI 1047
Classification - Whether the ice-cream is a milk product as per appellant exempt under Salex Tax Act or not as per Revenue exiqible to tax - Held that:- ice-cream can certainly be said to be a product of a milk and certainly would be covered within the definition of a milk product, dahi (curd), khoa and cream. It is true that ice-cream as such is not mentioned anywhere but when ice cream is prepared basically by ingredient of milk and cream, I have no hesitation in holding that ice-cream would certainly be exempt under the Rajasthan Sales Tax Act. It is observed that the present matter is being decided for the assessment years under challenge and the judgment is based on the material available on record. In my view, the Tribunal exceeded its jurisdiction by holding that the rate of tax would be levied for succeeding assessment years as well which in my view, is contrary to the law laid down under the taxing statutes. Each year is different and the Tribunal cannot come to a conclusion that the same rate would apply for all times to come.
Therefore, when cheese, paneer, lassi, shrikhand and yogurt can be said to be items which are being produced with the main ingredient being milk so also on the same analogy, ice-cream in my humble opinion, would also fall within the same category and would thus, be exempt and therefore, finding reached by the Tax Board, is required to be reversed. Even as per common parlance in every household or even otherwise one immediately understands as to how ice-cream is being prepared and even a child would know that the ice-cream would be prepared by mixing milk, cream, sugar, etc. - Decided in favour of assessee
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2015 (5) TMI 1046
Seeking withdrawal of contempt petition - with liberty to file a writ petition - Held that:- With the aforesaid liberty, the present contempt petition and application are dismissed as withdrawn.
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2015 (5) TMI 1045
Refund claim - Whether communications can be regarded as orders - e-mail and the letter purported to be orders under Section 38 Delhi Value Added Tax, 2004 - Held that:- the said communications cannot be regarded as orders in the proper format, therefore, the communications are set aside. - Refund application disposed of
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2015 (5) TMI 1028
Entitlement for input tax credit under the KVAT Act - Reduction in contract amount to the extent of input-tax credit - Petitioner purchased the materials on payment of tax and issued invoices, the statutory right available under the KVAT Act is to collect the entire tax from the purchaser but Board refused to pay the tax paid by the petitioner to his sellers - Held that:- even if the entire tax component was paid to the petitioner, the petitioner would have been liable only for payment of tax at four per cent. To the Government, on the value addition at his hands, since, the returns would have claimed the input-tax credit, being the tax paid by him to his seller, which his seller would be liable to pay to the Government. The clause , does not indicate waiver of the amount paid as input-tax credit, as agreed by the Board. The Board had specifically made a condition that the tax payable to the Government would be paid by the Board itself and not paid to the petitioner herein. This was to ensure that the tax component would definitely go to the Government.
VAT as applicable under the KVAT Act, being the net tax after input tax credit, that alone would be the liability of the petitioner to the Government, which is paid by the Board. Otherwise, if the amounts already paid by the petitioner to his seller is also paid to the Government, then the very scheme of VAT would be put in jeopardy since then, for the first sale, the Government would get four per cent tax twice on the sale to the petitioner and also on his subsequent sale to the Board. In such circumstance, the input-tax credit available to the petitioner would have to be paid by the purchaser of the petitioner, i.e., the Board. Therefore, since the Board definitely comes within the purview of article 12 and the terms of the contract are clear, the tax component which is available to the petitioner by way of input-tax credit would be paid by the Board to the petitioner. - Decided in favour of petitioner
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2015 (5) TMI 1022
Seeking setting aside of impugned order - Show cause notices issued are vague in most of the cases - Petitioners are transporters registered under the Tripura Value Added Tax Act, 2004 - Held that:- there was a practice going on for long in Tripura that the transporters used to deal with the check post and settle the cases with the departments. In case the transporter compounds the matter then the transporter is virtually admitting that he is at fault because compounding can only be done by the person who is at fault or by his representative. However, this position was not clear till now. Therefore, one more opportunity is to be give to the transporters for the past and also because in most of the cases the show cause notices issued are very vague and do not clearly depict what are the violations made by the transporter. But in the final order reference has been made to the various violations committed by the transporter and compounded by them. Since the transporters have not denied that they have compounded these matters, it is apparent that they settled the matters. Whether these matters were settled on behalf of the dealers or not is not for this Court to decide in these proceedings. Therefore, for the future, we make it clear that if the transporter settles the matter and compounds the matter at the check post it shall be deemed that he is the offender and, therefore, he is compounding the matter unless he produces a written authorization from the dealer authorizing the transporter to compound on his behalf when the composition shall be treated to be an offence by the dealer and not by the transporter. Therefore, the impugned order is set aside. - Petitions disposed of
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2015 (5) TMI 1021
Eligibility for benefit of exemption notification dated March 26, 1999 - Demand of entertainment tax under the Rajasthan Entertainments and Advertisements Tax Act, 1957 - Assessee engaged in providing service of video game and other indoor game facility to its customers - Whether video games and video games parlors can be considered even otherwise to fall within the purview of "all kind of sports and games" to be eligible for benefit of exemption - Held that:- by following the judgment of Hon'ble Supreme Court in the case of Novopan India Limited, Hyderabad v. Collector of Central Excise and Customs, Hyderabad [1994 (9) TMI 67 - SUPREME COURT OF INDIA], the Supreme Court recently in State of Gujarat v. Essar Oil Ltd. [2012 (1) TMI 47 - SUPREME COURT OF INDIA], in case of ambiguity, a taxing statute should be construed in favour of the assessee, does not apply to the construction of an exception or an exempting provision, as the same have to be construed strictly and that in construing the exemption notification, question of equity does not arise. The exception or exemption provision must be construed strictly. Give it or does not give it at all. An exemption is a standalone process. Therefore, the assessee is not eligible for benefit of exemption notification. - Decided against the assessee
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2015 (5) TMI 1020
Imposition of penalty - Section 78 (5) of the RST Act - Form ST-18A accompanying in the goods in transit was not complete - No requirement in law for Revenue to establish mens rea on the part of assessee - Held that:- in view of catena of judgments of the Hon'ble Supreme Court and full bench judgment of this court in the case of ACTO Vs. Indian Oil Corporation Ltd. [2015 (11) TMI 1078 - RAJASTHAN HIGH COURT], the mens rea is not required to be proved as necessary ingredient for imposition of penalty under sub-section (5) of section 78. - Matter remanded back
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2015 (5) TMI 1018
Period of limitation - Punjab VAT - Invokation of extended period of three years for assessment provided by Section 29(4) of the Act - Apex Court dismissed the Revenue appeal against the decision of HC [2015 (8) TMI 823 - HIGH COURT OF PUNJAB AND HARYANA] wherein it was held that, Service of individual notice was sine qua non for invoking power and admitted absence of any such individual notice, renders assessment orders, illegal and void.
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2015 (5) TMI 946
Waiver of pre deposit - Validity of order passed by Tribunal - Tribunal directed the first appellate authority to disposed of the matter in the light of decision in the case of ONGC within 3 months - Held that:- State of Gujarat brought it to the notice of the learned Tribunal that the decision of the learned Tribunal in the case of ONGC is challenged before the High Court and the High Court has admitted the appeals and the appeals are pending for final disposal and therefore, the High Court is seized with the matter. Despite the aforesaid brought to the notice of the learned Tribunal, the learned Tribunal not only dismissed the said applications by not removing the outer time limit fixed by it directing the first appellate authority to decide the appeals within a period of three months after following its earlier decision in the case of ONGC Limited, reiterated again and directed the first appellate authority to decide the appeals within stipulated time after following its decision in the case of ONGC Limited.
Once it was brought to the notice of the learned Tribunal that the appeals against its decision in the case of ONGC Limited are pending before this Court and this Court is seized with the matter, even to avoid any further multiplicity of proceedings, the learned Tribunal could not have insisted for disposing of the appeals by the first appellate authority following its earlier decision in the case of ONGC Limited, which are the subject matter of appeals before this Court and that too within stipulated period - respondent - original appellant has stated at bar that he has no objection, if that part of the order, by which the learned Tribunal has directed the first appellate authority to decide the appeals within three months and that too after following the decision of the Tribunal in the case of ONGC Limited is quashed and set aside.
If the respondent - original appellant is permitted to withdraw the amount, which the respondent - original appellant deposited pursuant to the interim order dated 25.6.2013 passed by the learned Tribunal in First Appeal Nos.11 and 12 of 2013 i.e. ₹ 18,69,75,730/- on furnishing unconditional and irrevocable Bank Guarantee of the like amount in the name of the Commissioner of Commercial Tax, it will make the ends of justice and it will protect the interest of both the parties. - Decided partly in favour of Revenue.
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2015 (5) TMI 945
Claim of interest on refund with refund - Refund not granted inspite of order of High Court - Levy of sales tax – turnover - shame transactions for obtaining loan from bank - Held that:- From a cursory reading of Rule 34, it is evident that the said rule mandates that the assessing authority shall give effect to the order of the High Court (Special Tribunal) within three months from the date of communication of the order. It is clear from the above provisions that there appears to be no other option except to comply with the order of the High Court (Special Tribunal), except where the order in issue is challenged in a higher forum and the order has been stayed. - Supreme Court in SCBA - Vs - B.D. Kaushik (2012 (9) TMI 560 - SUPREME COURT), while considering the scope of the Court to entertain miscellaneous petitions after delivery of judgment in the main petition, held that to do complete and substantial justice to the parties in the proceedings, when the miscellaneous petition filed is curative in nature and not used for supplanting substantive law, in exercise of inherent powers, shall entertain such petitions for implementing the orders of the Court.
Power of the Court does not end with the passing of the order, but more so, in seeing that the order is implemented in letter and spirit, howsoever difficult it may be. In case where the orders passed by the Court are not implemented, the Court, in exercise of the inherent powers, should see to it that the orders passed by the Court are implemented. - Insofar as the interest for the delayed payment is concerned, Rule 34 mandates that the assessing authority shall refund without interest within three months from the date of communication of the order, any excess tax found to have been collected. A reading of Rule 34 makes it abundantly clear that beyond the period of three months from the date of communication of the authorisation (order of the High Court), any delay in refund of excess tax is liable to attract interest and the department is bound to pay the same. In the present case, inspite of the order being despatched by this Court on 15.4.2014, almost a year having passed, the department has not refunded the amount back to the petitioner. Therefore, invoking Rule 34, the petitioner is entitled to interest on delayed payment beyond the period of three months from the date of communication of the order. Therefore, this Court is of the considered view that the department is liable to pay interest on the amount deposited by the petitioner pursuant to the order of this Court dated 3.8.2010, as provided under Rule 34 of the Rules. - Decided in favour of assessee.
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2015 (5) TMI 915
Claim of interest on refund - Refund claim was adjusted towards penalty imposed - Penalty for charging tax at higher rate - Held that:- On an order being made by the First Appellate Authority on 04.10.1988 that a decision was taken by the Assessing Authority on 16.05.1989 to the effect that the money cannot be returned in view of Section 29 (3) of the Sales Tax Act. The issue of refusal to refund the money due under Section 29(3), in our opinion, would only arise when something becomes payable to the assessee under orders of the competent authority which in the facts of the case would be the order of the First Appellate Authority dated 04.10.1988. - under Section 29(1) proviso of the Sales Tax Act, a power has been conferred upon the taxing authority to adjust any amount which is refundable against any other outstanding of the assessee. It is with reference to this power that the amount of excess tax which was paid by the assessee had been adjusted by the department against the amount of penalty which was levied under Section 15-A(1)(QQ). It is also relevant to note that Explanation II to Section 29 provides that the refund would include any adjustment under sub-section 1 of Section 29 of the Act.
In the facts of case, the order for refund of the money adjusted against penalty was directed to be returned to the assessee under the order dated 04.10.1988 which order stands affirmed up to the High Court. Therefore, the liability to make payment of interest under sub Section 29(2) would accrue from the date the order of the First Appellate Authority was received by the department. - it is a fit case to issue a writ of mandamus directing the Assessing Authority to re-calculate and pay the interest for the period commencing from the date the Assessing Authority had received the order of the First Appellate Authority dated 04.10.1988 till 27.12.2002 at the rates as were applicable from time to time to the assessee. - Decided in favour of assessee.
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2015 (5) TMI 914
Stay application - Penalty imposed under Section 9(2) of the Central Sales Tax Act, 1956 - Held that:- A perusal of the recovery notice under the Land Recovery Act dated 24.11.2014 would go on to show that recovery was only made regarding the bank guarantee which has already been done. In such circumstances, once the petitioner himself has given his consent for the recovery of the tax amount along with interest, in view of being unsuccessful in appeal, we are of the opinion that subsequently, the petitioner had a change of heart and has approached this Court on the ground that since he had filed the appeal thereafter, the amount should be refunded to him and it was wrongly encashed, without giving him prior notice. - petitioner has submitted that the petitioner shall furnish adequate security, to the satisfaction of the Assessing Authority, in the manner prescribed under Section 33(5) of the VAT Act. - petitioner is granted the benefit of protection of recovery of the amount in dispute, during the pendency of the appeal, subject to the Assessing Authority being satisfied regarding the furnishing of adequate security, as prescribed under Section 33(5) of the VAT Act, within a period of 4 weeks - Conditional stay granted.
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