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VAT and Sales Tax - Case Laws

Showing 81 to 84 of 84 Records

• 2015 (5) TMI 32 - BOMBAY HIGH COURT
  

  Transfer of the rights to use any goods - Leasing transaction - Dealer - Whether on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the respondent is not a “dealer” within the meaning of the term as defined under section 2(4) of the “Maharashtra Sales on transfer of right to use any goods for any purpose Act, 1985” - Held that:- for a person to come within the definition of 'dealer', he is required to transfer the right to use any goods for any purpose. It could, thus, be seen that the right to use any goods for any purpose is essential so as to bring the person within the ambit of dealer as defined in the said Act. Consequently, for the transaction to be a sale within the meaning of the said Act, what is essential is transfer of right to use any goods for any purpose. - to constitute a transaction for the transfer of the right to use the goods, it is necessary that there must be a consensus ad idem as to the identity of the goods. It is further necessary that the transferee should have a legal right to use the goods, all legal consequences of such use including any permissions or licences required therefor should be available to the transferee and for the period during which the transferee has such legal right, it has to be and to the exclusion of the transferor.

  Having transferred the right to use the goods during the period for which it is to be transferred, the owner cannot again transfer the same rights to others. It would thus be seen that unless all the requirements are transferred, the transaction will not come within the meaning of “Transfer of the rights to use any goods”. - Tribunal has extensively reproduced the terms of contract which are also been reproduced by us hereinabove. Perusal of the terms of contract would reveal that as per the contract, the driver, cleaner, diesel and oil was to be provided by the respondent. So also, transportation of accessories was to be done by the respondent. It can further be seen that there is no provision in the contract that the legal consequences such as permissions or licences were to be transferred to the transferee. The ultimate control over the crane retained with the respondent. We find that the learned Tribunal, applying the judgment of Apex Court [2006 (3) TMI 1 - Supreme court], has rightly construed that the transaction which were entered into by the respondent with Offshore Hook Up & Construction Services (I) Pvt. Ltd. would not fall within the meaning of Lease Act and the respondent was not a dealer within the meaning of definition of Section 2(4) of the Lease Act. - Decided against Revenue.

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• 2015 (5) TMI 31 - MADRAS HIGH COURT
  

  Inputs loss during production - Held that:- Following decision of Interfit Techno [2015 (4) TMI 935 - MADRAS HIGH COURT] - Decided in favour of assessee.

  Going by the object of the enactment, the Assessing Officer is bound to examine the refund claim under Section 18 in accordance with the procedure stipulated for availing input tax credit by applying Section 19 of the VAT Act and it is only then, the Authority can pass an order on a refund claim. Therefore, the processing of refund application under Form W is in effect akin to an assessment proceedings since the benefit which flows under claim in Form W, is in effect, the amount which the dealer avail as refund would be a credit if the transaction was not a zero rated sale. - Assessing Officers were not justified in adopting uniform percentage as invisible loss and calling upon the dealer to reverse the refund/input tax credit availed to that extent. Consequently, all notices issued to the petitioner for reopening and all consequential order passed reversing the input tax credit to the extent of either 4% or 5% or adhoc basis stands set aside. However, liberty is granted to the concerned Assessing Officer to issue show cause notices to the petitioners clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objections shall proceed in accordance with law.

  Section 18 of VAT Act is subject to the restrictions and conditions under Section 19 of VAT Act. Therefore, if in a given cases of wrong availment, Section 19 provides for reversal. Therefore, it is incorrect to state that once the refund is granted, reopening does not arise. Such interpretation is not in consonance with the scheme of the Act; more so, when what is given to the petitioner is concession or set-off. - Decided partly in favour of assessee.

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• 2015 (5) TMI 30 - JHARKHAND HIGH COURT
  

  Non payment of the amount of the Value Added Tax under Jharkhand Value Added Tax Act, 2005 - Recovery of tax under Section 46 - Held that:- It is a duty of the "State"-within the meaning of the Article 12 of the Constitution of India, not to infructuous the efficacious alternative remedy. It is constitutional duty of every "State"-within the meaning of Article 12 of the Constitution of India that if any assessee is availing statutory remedy by way of appeal or revision, the low ranking officer should not make appeal or revision infructuous. - there was no need of the Assessing Officer to take a recourse under section 46 of the Jharkhand Value Added Tax Act, 2005 for recovery of the money from the nationalized bank as per the order dated 10th December, 2014 at Annexure- 8 and it is expected from the very same Assessing Officer that such type of mistakes will not be repeated henceforth. As the amount has already been recovered we are restraining ourselves from passing an order of refund, but, we hereby direct the Commissioner, Commercial Taxes to decide the appeal preferred by this petitioner within a period of four weeks from the date of receipt of the copy of the order passed by this Court. - It is high time for the State either to change the Assessing Officer or Commissioner, Commercial Taxes because none of them can make assessee's appeal or revision infructuous and can encash the amount lying in the nationalized bank in the manner in which this Assessing Officer has realized the money. - Appeal disposed of.

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• 2015 (5) TMI 29 - RAJASTHAN HIGH COURT
  

  Denial of Input tax credit - Sale of goods at the rate lower than the price shown in VAT invoice keeping in view the discount/incentive received - Held that:- Assessee-respondent received discount/incentives from the wholesaler/ manufacturer on account of turnover by way of credit notes etc. which was separately shown by the assessee and it is not in conflict under the VAT Act. The assessee managed his affairs in such a manner that he sold goods lower than the value as shown in VAT invoice obviously keeping in mind that discount/commission. The Tax Board after going into the material on record came to a factual finding that the input tax credit was rightly claimed by the assessee and there was no basis for deviation with the same. Act does not prohibit selling of goods lower than purchase value as per VAT invoice but ITC is to be allowed on the basis of VAT invoice. - both the appellate authorities have found that the claim of ITC was correct on the basis of VAT invoice and Tax Board has decided the controversy on the basis of factual finding - Decided against Revenue.

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