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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 84 Records
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2015 (5) TMI 451 - DELHI HIGH COURT
Waiver of pre deposit - Whether the Appellate Tribunal, Value Added Tax was justified in directing the appellant to deposit 25% of the amount in dispute in respect of assessment of tax, though the appellate authority on the question of quantum and other issues had remanded the matter to the assessing authority and, therefore, no payment was due and payable on the date when the appeal was preferred and on 24th April, 2014, when the Appellate Tribunal had passed the order directing the said pre-deposit - Held that:- When there was no demand, which was due and payable, we do not think that the appellant was required to pay 25% of the “disputed amount”. The reason is simple, because when no demand was in existence and payable, the question of waiver of pre-deposit would not arise. There is difference between waiver of pre-deposit and direction to pay “tax” which was not determined and decided. Appellate tribunal has decided the application for waiver of deposit. It has not decided an application of the revenue that ad hoc payment should be deposited, assuming that such application was maintainable. The aforesaid distinction has not been kept in mind and deliberated while deciding an application for waiver of pre-deposit. In fact the appellant was not required to file the said application. Noticeably, the appellant assessee had deposited 5% of amount in dispute i.e. ₹ 1,65,670 as per the directions of Additional Commissioner, the first appellate authority. If we accept ratio and direction to deposit 25% of the demand, originally computed but set aside, we would be restoring and in a manner directing payment of an amount not due and payable. - Decided in favour of assessee.
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2015 (5) TMI 450 - GUJARAT HIGH COURT
Rectification of application - Appeal dismissed for non compliance order - Held that:- Against the petitioner's willingness to deposit sum of ₹ 50 lacs during the appellate proceedings, the Tribunal reduced such requirement to ₹ 24 lacs on the say of the petitioner. The petitioner's advocate had assured the Court that such amount would be deposited within two days from the date of order. Instead of making good such deposit by 29.6.2007 as assured, the petitioner filed affidavit before the Tribunal on 18.2.2008 suggesting that due to death of husband of the Director of the petitioner company and for want of making arrangement of funds, the amount could not be deposited. The Tribunal rejected the application noting that such amount of ₹ 24 lacs which was required to be deposited within two days, was not deposited till the year 2013. When the representative of the petitioner held out a promise before the Tribunal that such sum of ₹ 24 lacs would be deposited within two days, none of the factors sought to be pressed in service for recalling such order existed. Such development took place much later. On such basis, condition could not be rescinded.
Tribunal committed no error. Before the Tribunal, the petitioner had requested for a remand to enable the petitioner to take benefit of amnesty scheme. While accepting such request, the Tribunal imposed precondition. Such condition was as suggested by the counsel for the petitioner. Amount required to be deposited was less than half of the petitioner had agreed before the first appellate authority. In fact, it was stated that such amount would be deposited within two days. Much later the petitioner requested for deletion of such condition. Even till date such amount is not deposited. - Time extended for making deposit - Decided partly in favour of assessee.
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2015 (5) TMI 414 - MADRAS HIGH COURT
Levy of tax under Section 3(4) of the Tamil Nadu General Sales Tax Act - Tribunal sustained the levy of tax under Section 3(4) of the Tamil Nadu General Sales Tax Act in respect of turnover relating to stock transfer and deleted the levy of tax under Section 3(4) of the Act on the sales to exporters - whether the Tribunal was justified in deleting the turnover in terms of Section 3(4) of the Tamil Nadu General Sales Tax Act. - Held that:- Following decision of M/s.Tube Investments of India Limited V. State of Tamil Nadu [2010 (10) TMI 938 - MADRAS HIGH COURT] - no tax can be collected without the authority of law. Therefore, following the above-said decision, we find no question of law, much less any substantial question of law, for consideration in this revision - Decided against Revenue.
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2015 (5) TMI 413 - BOMBAY HIGH COURT
Denial of exemption claim - Assessing Officer under the CST disallowed claim of exemption of Sales Tax at High Sea Sales on the ground that the Respondent dealer did not produce bill of lading and other important documents to prove such a sale - Tribunal confirmed the tax levied on interstate sales, but set aside the levying of custom duty at 8% by the Additional Commissioner of Sales Tax - Held that:- Assessing Authority as also the Appellate Authority ought to have recorded a finding that there is no evidence to support the fact that the Custom Duty was paid by the Assessee before the delivery of the goods, namely "Quality Prime Tinplates to M/s. Raja Crown and Cans Pvt. Ltd. If there is no evidence pointed out to support this fact, then we do not see how the Tribunal committed any error in allowing the Appeals partly. The levy of Sales Tax at 8% on Custom Duty in the present case was not justified and rightly deleted. These are not findings which would raise any wider questions and particularly of law. In the peculiar facts and circumstances and looking into the documents produced, the Tribunal concluded that there is no evidence to support the concurrent finding as rendered by the Assessing Authority as well as the Appellate Authority. - finding does not raise any question of law for being answered and opined upon by this Court - Decided against Revenue.
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2015 (5) TMI 412 - MADRAS HIGH COURT
Validity of assessment of order - Petitioner has not been afforded adequate opportunity to put forth their submissions stating that the proposal to reverse the ITC availed is incorrect - held that:- petitioner had stated that the proposal to reverse the ITC has been made without taking into consideration of adjustment of ITC towards future demands and that they wanted 30 days' time since they were collecting the details of adjustment of ITC. Therefore, the first respondent ought to have examined the issue in a more objective manner and should have taken note of the fact that opportunity to the Assessee should be a meaningful opportunity and it is not for the sake of mere satisfying or compliance of the statutory requirement. That apart, when the petitioner made a request for grant of 30 days' time, if the authority was not inclined to accept the request, then a separate order ought to have been passed prior to finalizing the assessment. Even in such a case, the Assessee should have been afforded an opportunity of personal hearing. Since all these above procedural illegalities have crept in, the impugned orders are liable to be quashed. - Decided in favour of assessee.
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2015 (5) TMI 380 - KARNATAKA HIGH COURT
Reassessment proceedings - Violation of principle of natural justice - No fresh notice issued - Held that:- after remand order was passed for fresh assessment by the Assessing Authority, the appellant had been given full opportunity to produce the books of account as well as the other evidences, as had been directed by the Tribunal. This being a case of reassessment after remand, cannot be said to be a matter relating to original assessment where notice under Section 39(1) of the Act was required to be given. It is not denied that at the time of original assessment, such notice under Section 39(1) of the Act had been given to the appellant - Where reassessment has been directed under orders of the Tribunal, permitting the appellant to produce books of account and other evidence, which has been complied with. In our view, no fresh notice under Section 39(1) of the Act, was required to be given after the remand - there is no violation of the principles of natural justice. We are also of the opinion that while holding that the books of account produced by the appellant were not to be accepted, the Assessing Authority was not obliged to give any notice to the assessee. As such, no interference is called for with the order of the learned Single Judge. - Decided against assessee.
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2015 (5) TMI 379 - RAJASTHAN HIGH COURT
Jurisdiction of tax Board - Restoration of assessment order - Whether in construing the impugned transaction as sale and not lease, the learned Tax Board has exercised its jurisdiction appropriately for reversing the findings and conclusions of the first appellate authority and restoring the assessment order - Held that:- Tax Board, while noticing a very vital fact that dish antenna and digital decoders are supplied by Essel Agro to the petitioner-assessee on refundable security of five years, with a clear stipulation under an agreement that these goods are not for sale, has finally concluded that in want of lease agreement between the petitioner-assessee and the respective dealers, it is difficult to presume that the transaction is a lease, and as such it is a transaction of sale. In fact, none of the authorities have made any endeavor to find out truth about the transaction and more particularly the second appellate authority while passing the impugned order has not recorded cogent and convincing reasons. The very edifice of initiating proceedings by the Anti-Evasion Wing of the Commercial Taxes Department is investigation and the alleged incriminating materials collected during investigation against the petitioner-assessee. There remains no quarrel that petitioner-assessee has received dish antenna, digital decoder and other accessories from Essel Agro on payment of advance security deposit and there is an agreement between Essel Agro and the petitioner-assessee.
Customers clearly know the price they will have to pay for the beer. They are required to pay an additional amount by way of deposit for taking away the bottle which is refunded if the bottle is returned. If the bottle is not returned the deposit is retained as liquidated damages for the loss of the bottle. There is a clear intention not to sell the bottle. Hence, we are of the view that the deposit cannot be considered as price of the bottles. - Tax Board has not exercised its jurisdiction appropriately in reversing the findings and conclusions of the first appellate authority and restoring the original assessment order. - entire matter requires re-examination by the original assessing authority, which has initiated the assessment proceedings pursuant to investigation.
It will be noticed that if the Sales-tax authorities refused the prayer of the assessees to cross-examine the wholesale dealers, then such a refusal would not amount to an adequate opportunity of explaining the material collected by the assessing authority.
Imposition of penalty pre-supposes an attempt of the assessee to avoid payment of tax or evasion of tax by resorting to certain dubious means. Legal position is no more res integra that avoidance, or evasion of tax is a sine qua non for imposition of penalty under Section 65 of the Act of 1994. The question of evasion of tax arises only when there is a concrete material against assessee that it is liable to pay the tax, which he has avoided to pay or made an attempt to evade the same. - question of tax liability of the petitioner is still fluid, inasmuch as, the dish antenna and digital decoders which it has supplied to the respective dealers is sale transaction or a lease is yet to be determined, obviously, it is not possible to infer mensrea of assessee in evading the tax. Therefore, this question at this stage cannot be conclusively decided, however, prima facie, it is answered in affirmative manner favouring the cause of the assessee of course subject to the final outcome of denovo assessment. As such, at this juncture, imposition of penalty is out of question. - Decided in favour of assessee.
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2015 (5) TMI 378 - KERALA HIGH COURT
Validity of revised assessment orders - Exemption from tax to cotton tape - Finalization of proceedings - Held that:- Proceedings have been finalized by passing Exts. P9 and P10 orders by the fourth respondent with unwarranted haste, and virtually denying an effective opportunity of hearing to the petitioner. In the said circumstance, this Court finds that, the said orders cannot stand the test of judicial scrutiny of this Court and they stand set aside. It will be open for the 4th respondent to finalize the proceedings afresh, after giving an effective opportunity to produce the relevant books of accounts and hearing. The proceedings as above shall be finalized and orders shall be passed in accordance with law, on the basis of merits involved and untrammelled by any direction from any corner, to have the assessment finalized in any particular manner. - Decided in favour of assessee.
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2015 (5) TMI 377 - KERALA HIGH COURT
Denial of request of adjournment for production of Books of Accounts - Held that:- Court finds that the reason stated by the petitioner for granting adjournment for producing the Books of Accounts was turned down, saying that it was a 'false reason', in view of the extent of turn over for the year 2012-13; for which no audit was necessary and hence not acceptable. The learned Counsel for the petitioner points out that the petitioner being a Company incorporated under the relevant provisions of the Companies Act, audit of accounts was very much necessary and denial of opportunity is totally against the principles of natural justice. - Matter remanded back on the condition of pre deposit - Decided conditionally in favour of assessee.
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2015 (5) TMI 340 - GUJARAT HIGH COURT
Validity of order of Tribunal - Whether the Hon’ble Tribunal has erred in deciding the appeal on merits despite the fact that the first appellate authority dismissed the appeal for failure to deposit the pre-deposit - Held that:- In view of the catena of decisions of this Court and the subsequent recent decision of the Division Bench of this Court in the case of City Tiles Limited (2015 (2) TMI 838 - GUJARAT HIGH COURT), it was impermissible for the learned Tribunal to decide the appeals on merits when the appeals before the learned Tribunal were against the orders passed by the first Appellate Authority dismissing the appeals on the ground of non-deposit of the amount of pre-deposit. - Matter remanded back - Decided in favour of Reveue.
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2015 (5) TMI 339 - KARNATAKA HIGH COURT
Imposition of penalty under S.72(2) of the KVAT Act - Understatement of tax liability - Held that:- Imposition of penalty under S.72(2) of the KVAT Act was not warranted in the present case - Once a revised return has been filed and accepted by the Department, the original return gets obliterated and the only return which remains for consideration would be the revised return, as there cannot be two live returns pending consideration of the Department. In the present case, as a matter of fact, not only the revised return had been filed by the petitioner, but the same was also accepted by the respondents, and the validity of the revised return is not in question or in dispute. Once the revised return has been accepted and acted upon by the parties, then it is only the revised return which has to be taken as the sole return for the purpose of sub-section (2) of S.72.
For the prescribed tax period, the return to be considered was the revised return filed on 16.3.2009 and not the original return filed on 20.02.2009, which had been nullified or obliterated after the filing and acceptance of the revised return. Then, it cannot be said that there was any understatement of the tax liability by the petitioner to any extent in its revised return (which was the only return to be considered), as in terms of the said revised return, the entire tax along with interest, had been paid. In such view of the matter, we are of the opinion that in the facts of the present case, the provision of sub-section (2) of S.72 of the KVAT Act would not be attracted.
Imposition of penalty is not being automatic unless the intention to evade tax is made out or any malafide act is made out, the penalty cannot be imposed." Although the reasons for arriving at such conclusion in the aforesaid case were different, but in the said judgment also it has been held that imposition of penalty in the facts similar to the facts of the present case, could not be justified under S.72(2) - Decided in favour of assessee.
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2015 (5) TMI 338 - GUJARAT HIGH COURT
Whether the Tribunal has erred in not appreciating that the assessment order passed under Section 41 (7) of the Sales Tax Act would not be governed by the time limit prescribed under Section 42 (1) of the Act - Held that:- For applying the time limit as provided under Section 42(2) of the Act, the condition precedent is issuance of notice under subsection 6 of the 41 of the Act, and only, thereafter the question of applying time limit of eight years or four years may arise. But not in a case where no notice under Section 41(6) of the Act has been issued. Therefore, all assessment barring the assessment made after issuance of the notice under Section 41(6) of the Act, would stand covered by the provisions of Section 42(1) of the Act for the time limit within which the assessment has to be completed. The second reason is that subsection 6 of Section 41 of the Act does not include the contingency of non filing of the return, but rather the basic requirement is that the registration is not obtained or the person who has failed to apply the registration within the time prescribed. In any event as observed by us herein above, Section 41(7) is no independent mode of assessment but rather a step in furtherance to the assessment which is applicable to both type of assessment, either under Section 41(3), 41(4) and also 41(5) of the Act as well as for Section 41(6) of the Act. It cannot be said that merely because a mode was undertaken under Section 41(7) of the Act, the limitation provided under Section 42(1) of the Act for completing the assessment, would not be applicable.
It is hardly required to be stated that even in case where the assessment is to be made, the examination of books of accounts or the consideration of books of accounts will be one of the aspects, to be considered before finalising the assessment. If the appropriate books of accounts are maintained, the details of return can be verified, but if not maintained, and the conditions are satisfied, subsection 7 of Section 41 of the Act may be invoked. But thereby, it cannot be said that such is an independent mode of assessment. Further, Section 42 of the Act recognizes only two type of assessment, one in a case where the notice under subsection 6 of the Section 41 has been issued and the another assessment would be under Section 41(3) or 41(4) with 41(5) of the Act. - Tribunal has not committed error in holding that the assessment was barred by Section 42(1) of the Act - Decided against Revenue.
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2015 (5) TMI 337 - MADRAS HIGH COURT
Determination of total taxable sales value - respondent has placed reliance upon some material which are not made available to assessee by the second respondent - violation of principles of natural justice - Held that:- Perusal of the impugned proceedings would disclose that primary reliance was placed on the website entries relating to M/s.S.K.S. Industries, Coimbatore having TIN No.33732124475 and the assessment notice came to be passed on the basis of the said information. In the considered opinion of the Court, non-furnishing of information, result in prejudice to the petitioner to put forth his defence in proper and effective manner. - Decided in favour of assessee.
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2015 (5) TMI 296 - GUJARAT HIGH COURT
Provisional attachment of property - Excersice of power u/s 45 of the Gujarat Value Added Tax, 2003 - Garnishee order - Held that:- Against the estimated liability of the petitioners under the VAT Act of ₹ 4.5 crores, the immovable property worth ₹ 5 crores is already under attachment. Under the circumstances, the interest of the Government Revenue has been fully protected. Therefore, thereafter, there was no reason whatsoever for the respondent No.2 to pass the order under Section 45 of the VAT Act of provisional attachment of the bank accounts of the petitioners including the personal bank account of the petitioner No.2. Such an exercise of powers is absolutely illegal and most arbitrary which cannot be sustained. There is no justification pointed out to exercise powers under Section 45 of the VAT Act and passing the order of provisional attachment of the bank accounts of the petitioners including personal bank account of the petitioner no.2. There is no formation of opinion by the Commissioner that for the purpose of protecting the interest of the Government Revenue, the impugned order of provisional attachment of the bank account of the petitioners including the personal bank account of the pet No.2 has been passed
Impugned order of provisional attachment of the bank accounts of the petitioner including the personal bank account of the petitioner No.2 and the impugned garnishee notice served upon the respondent No.3-Punjab National Bank and the banker of the petitioners are absolutely illegal and most arbitrary. In the present case, the exercise of powers by the respondent No.2 under Sections 45 and 44 of the VAT Act is nothing but an abuse of powers by the respondent No.2 and undue harassment to the petitioners. Under the circumstances, this is a fit case to impose exemplary cost upon the respondent No.2 while allowing the present petition and quashing and setting aside the impugned orders. - Decided in favour of appellant.
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2015 (5) TMI 295 - GUJARAT HIGH COURT
Adjustment of carried forward input tax credit - Levy of penalty - Demand of interest - Held that:- when on assessment the assessee / dealer is held to be entitled to a particular Input Tax Credit, in that case, the assessee/dealer is entitled to the benefit of Rule 18 of the Rules, 2006 and is entitled to adjust such Input Tax Credit against its output tax liability under the VAT Act of the current year under consideration. Merely because while submitting the Form No.108 the assessee/dealer submitted the claim of Input Tax Credit more than which is held to be admissible on assessment may be original assessment or even audit assessment or even reassessment, by that itself is no ground to deny the assessee/dealer to adjust the admissible Input Tax Credit against its output tax liability of VAT Act of the current year under consideration.
Dealer can adjust the tax liability out of the amount in the current year of tax liability out of the Input Tax Credit available in the credit of the dealer. - Decision of State of Gujarat Versus Cosmos International Ltd. [2015 (4) TMI 779 - GUJARAT HIGH COURT] followed - Decided against Revenue.
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2015 (5) TMI 294 - GUJARAT HIGH COURT
Demand of interest under Section 47(4A) - Levy of purchase tax - Held that:- Tribunal has relied upon its earlier judgment in the case of M/s. T.J. Agro Fertilizers Pvt. Ltd. and the decision of the learned Tribunal in the case of M/s. T.J. Agro Fertilizers Pvt. Ltd. has been confirmed by the Division Bench of this Court vide judgment and order [2015 (4) TMI 964 - GUJARAT HIGH COURT]. Under the circumstances, following the decision of the Division Bench of this Court - Decided against Revenue.
Assessing Officer levied the purchase tax of ₹ 7,84,672/-. However, the same has been deleted by the learned Tribunal by the impugned judgment and order by observing that the dealer was holding exemption, being the manufacture of paints, and, therefore, was not required to pay any tax on sale of the goods while holding exemption certificate. Considering the definition of taxable goods under Section 2(33) of the Act, the learned Tribunal has rightly held that the dealer was not liable to pay purchase tax while holding the exemption certificate. Under the circumstances, no error has been committed by the learned Tribunal in deleting the levy of purchase tax of ₹ 7,84,672/- as during the relevant period, the dealer was holding the exemption certificate. - no question of law, much less substantial question of law, arises in the present Tax Appeal - Decided against Revenue.
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2015 (5) TMI 293 - GUJARAT HIGH COURT
Denial of input tax credit - Whether the process undertaken by the dealer while converting Natural Sesame Seeds (NSS) to Huld Sesame (HS) can be said to be the process of ‘manufacture’ and will tantamount the 'manufacture' within the definition of Section 2(14) of the Act and consequently, the dealer on such process shall be entitled to the input tax credit or not - Held that:- From the order passed by the Assessing Officer as well as the first Appellate Authority and even from the impugned common judgment and order passed by the learned Tribunal, it appears that while converting the NSS to HS, the dealer was required to undertake the process of cleaning, drying and brushing with chemicals and removing the upper layer of NSS. - after undertaking the process, the product NSS will be converted into altogether a new product named Huld Sesame. Thus, not only the form will be changed but the NSS initially which was not eatable, would now become eatable and marketable.
Process undertaken by the dealer can be said to be process of ‘manufacture’ within the meaning of Section 2(14) of the Act and, therefore, as such, no error has been committed by the learned Tribunal in holding that the process undertaken by the dealer to convert the NSS to HS can be said to be the process of ‘manufacture’ within the meaning of Section 2(14) of the Act and consequently, the dealer would be entitled to the input tax credit. As observed hereinabove, as such, by the process undertaken by the dealer, seeds which was initially not marketable and eatable, would become eatable and marketable and, therefore, there will be change in the form. - no reason to interfere with the impugned common judgment and order passed by the learned Tribunal - Decided against Revenue.
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2015 (5) TMI 253 - KARNATAKA HIGH COURT
Request for early disposal of appeal - Held that:- Petitioner has filed an appeal before the Joint Commissioner of Commercial Taxes/respondent no.1 herein. As that appeal has not yet been taken up for consideration, the only direction that can be issued in this writ petition to the respondent no.1 is to consider the appeal filed by the petitioner as against the order at Annexure- D in accordance with law and in an expeditious manner in the context of registration of the petitioner’s Firm under the provisions of the Karnataka Value Added Tax Act, 2003 Act. For that purpose, petitioner is directed to appear before the 1st respondent on 3.12.2014 without insisting on any separate notice from that authority. - Petition disposed of.
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2015 (5) TMI 252 - MADRAS HIGH COURT
Detention of vehicle - movement of vehicle was suspicious and it has unnecessarily entered into Sidco, Sundarapuram, instead of going to Puducherry - petitioner has contravened the provisions of Section 71 of Tamil Nadu Value Added Tax Act, 2006 - Held that:- Admittedly, the impugned proceedings are the only show cause notice for composition of offence and draft compounding notice. It is well open to the petitioner to submit their objection and to satisfy the respondent that the goods were accompanied by proper documents. Merely because, the driver of the vehicle had gone into Sidco Sundarapuram will not make the transportation of goods in any manner as illegal or in contravention of the provisions of the Act. However, without submitting their objection, the petitioner has approached this Court directly. - petitioner submitted that the petitioner is ready and willing to submit their objection before the respondent, however, in the interregnum period, the vehicle may be released. - Therefore, there shall be a direction to the respondent to release the vehicle in question, subject to the certain conditions - Decided conditionally in favour of assessee.
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2015 (5) TMI 251 - MADRAS HIGH COURT
Challenge to the orders of assessment - Increase in rate of tax - Held that:- On a perusal of the impugned assessment order dated 31.07.2014 for the Assessment Year 2011-12, it is seen that there is no reference to any show cause notice issued to the petitioner and the only reference is the order of original assessment dated 07.10.2013. If the authority had issued a show cause notice, the same should have find place in the reference column and that should also be in the reference of the body of the assessment order as to whether the notice was served on the Dealer and whether the Dealer has submitted his objection and such other things, these basic requirements are necessary while passing the impugned order dated 31.07.2014. Therefore, the impugned order is held to be illegal.
So far as the impugned order relating to the assessment year 2010-11, it is a original assessment. The petitioner had filed monthly return in Form I for the said year and reported a total taxable turnover of ₹ 73,11,750/- and ₹ 19,77,050/- and they have remitted tax at the rate of 4% on Direct Sales. However, while making the assessment, the respondent has assessed the dealer at 12.5%. It is alleged in the impugned order that the Concessional Tax Rate at 4% is not applicable and the goods are taxable at 12.5%. However, this enhancement of the rate of tax has been done without notice to the petitioner. Therefore, the impugned order of assessment dated 31.07.2014 for the assessment year 2010-11 is in violation of principles of natural justice. Accordingly, the same is also held to be bad in law. - Decided in favour of assessee.
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