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VAT and Sales Tax - Case Laws
Showing 21 to 40 of 53 Records
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2015 (6) TMI 1008 - MADRAS HIGH COURT
Classification - whether the goods sold would be termed as "butter and ghee sold registered under the Trade and Merchandise Act", falling under serial No. 8 of Part D of the First Schedule, liable to tax at 11 per cent Or they would be termed as "butter and ghee sold under brand name not registered under the Trade and Merchandise Act", falling under serial No. Chapter 10A, Part B of the First Schedule, taxable at four per cent - Nor the respondent had used any trade mark for selling butter and ghee nor it has registered the name of the company and his personal name under the provisions of the Trade and Merchandise Marks Act, 1958 - Held that:- the words printed on the labels, viz., Nathan's Pure Ghee only denote that the product is manufactured by Nathan & Co., viz., the assessee-company. The Department is not able to show any material that the goods sold by the assessee contain any trademark or brand name registered under the Trade and Merchandise Act also it is not in a position to show any material that order of the first appellate authority and the Tribunal is in any way erroneous or irrational. Therefore, the order of the tribunal is upheld. - Decided against the revenue
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2015 (6) TMI 738 - UTTARAKHAND HIGH COURT
Violation of Section 4-B(5) - Whether the learned Tribunal was legally justified in holding, as per facts and circumstances of the case, that there is no violation of Section 4-B(5) of Trade Tax Act - Held that:- A perusal of Section 4-B(2) of the Act would show that it contemplates grant of recognition certificate when a dealer requires any goods referred to in sub-section (1) for the purpose of either manufacturing goods or processing goods by him which are notified goods or in the packing of such notified goods. Then we come to Section 4-B(5) of the Act. It contemplates a situation where a dealer, who has a recognition certificate, purchases goods either on concessional rate or without paying any tax and if he uses goods for a purpose other than that for which recognition certificate is granted or has otherwise disposed of the goods then he would be liable to be proceeded under Section 4-B(5) of the Act. The authorities has invoked Section 4-B(5) and imposed penalty in the matter.
Tribunal which is a final fact finding authority as only on a substantial question of law, a revision can be successfully premised under the Act. The fact finding authority has found that neither is there finding of the authority that the assessee was caught selling packing material or raw material in the same form and condition in which it was purchased. It is found that the State could not submit any proof which may lead to a conclusion that the assessee has actually sold packing material separately in the form and condition in which it was purchased under Form 3-B. - revisionist has a case in the revision memo that this finding was without any material, when we asked whether there is anything to show that the packing material was not used or the goods were sold without their packing material being used for the purpose of packing, the learned counsel for the revisionist was not able to show any material as such. What is material referred to is the fact that the packing material is returned back and it is separately accounted in the ledger. - Under the terms, the recognition certificate, the material purchased against Form 3-B was to be used for packing. There was nothing to show that it was not so used. In such circumstances, we see no reason to interfere with the order of the Tribunal. - Decided against Revenue.
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2015 (6) TMI 664 - GUJARAT HIGH COURT
Levy of turnover tax - Section 10A - turnover tax was leviable only on turnover of sales and purchase above ₹ 50 lakhas. - total turnover including branch transfer outside Gujarat was ₹ 2,38,70,378. The assessing authority has allowed branch transfer of ₹ 2,06,45,800 and ₹ 20,80,022 as interstate sales - Held that:- Tribunal has not committed any error in passing the impugned judgment and order. The learned Tribunal has dealt with all the issues with respect to turnover the tax levied under Section 10A; interest charged under Section 47(4A)(a); interest charged under Section 47(4B) and penalty levied under Section 45(6) of the Act in extenso.
Levy of interest - Held that:- The learned Tribunal has specifically observed and held against the assessee and in favour of the Government that the ad-hoc payment cannot be said to be payment made under Sub-Sections (1), (2) or (3) of Section 47 of the Act.
However, it is further observed that the interest so levied, would be limited from the date of expiry of time prescribed to the date when the ad-hoc payment was made, subject to however that the difference of tax paid and tax assessed exceeds 10% of the tax paid. - there is no substance in the main tax appeal and the impugned judgment and order passed by the learned Tribunal is not required to be interfered with by this Court, to issue Rule in the present application for condonation of delay, call upon the respondent, to condone the delay and thereafter, to dismiss the appeal would, as such, be exercise in futility or the same be unnecessary burden upon the respondent. - Decided against Revenue.
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2015 (6) TMI 629 - PUNJAB & HARYANA HIGH COURT
Clandestine removal of goods - Duty demand - Held that:- No material is available on record to show that any enquiry was made through the vehicle owners or any material was confronted to the assessee-dealer. Further, in the absence of the same, we find that fastening of liability on the petitioners in the facts and cirumstances was uncalled for. - Revenue had failed to prima facie demonstrate with reference to any material on record that there existed some nexus of the petitioners to remove the alleged goods without payment of tax in accordance with law. Furthermore, the factum of the petitioners being exempted unit till November 3, 1988 was also not disputed. - Impugned order is set aside - Decided in favour of assessee.
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2015 (6) TMI 624 - GUJARAT HIGH COURT
Denial of input tax credit - Purchases made from the petitioner whose registration certificate has been cancelled ab initio on the ground that the seller had involved into the billing activities only and all the transactions are held to be bogus - Held that:- petitioner was not served with the copy of the order in the case of M/s Lucky Enterprises. Now, the copy of the order passed in the case of M/s Lucky Enterprises is available with the petitioner. Therefore, after giving an opportunity to the petitioner with respect to observations made in the case of M/s Lucky Enterprises insofar as the alleged transactions between the petitioner and M/s Lucky Enterprises and after giving an opportunity to the petitioner to prove the genuineness of the transaction between the et and M/s Lucky Enterprises in light of the observations made herein above, therefore, the matter is required to be remanded to the adjudicating authority to consider the claim of the petitioner for ITC on the alleged purchases made by the petitioner from M/s Lucky Enterprises. - Decided in favour of assessee.
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2015 (6) TMI 623 - GAUHATI HIGH COURT
Validity of reassessment proceedings - escape assessment - submission of false return - Held that:- quantity of goods shown in form 65A was found to be higher than the one shown in the return, which was assessed in the year 2007 - Subsequent material, a declaration furnished by the petitioner itself under the statutory form 65A, disclose that the quantity and value of the goods were more than what were furnished in the return. Therefore there does not appear to be any reason to hold that the reassessment order is not based on the valid material which is found subsequent to the assessment. That apart the order is an appelable order. The petitioner has taken a shortcut method to file the writ petition bypassing the provisions of appeal and other remedies before invoking the writ jurisdiction under Article 227 of the Constitution of India. A false return has been filed on the basis of the contents of statutory form 65A which the department found subsequent to the assessment from the check-post in West Bengal. This clearly shows that the petitioner has with a dishonest intention filed false return to cause loss to the state revenue. If so, it amounts to commission of offence punishable under section 415, read with section 417 of the Indian Penal Code. - Decided against assessee.
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2015 (6) TMI 583 - TRIPURA HIGH COURT
Nature of Contract - transfer of property for providing services is involved in the contract or not - whether the services being rendered by the petitioner company are in the nature of works contract or are pure and simple services - joint venture - use of machinery for doing Seismic surveys activity - Held that:- The petitioner is not engaged in drilling work but was only engaged for carrying out seismic survey work. The said work does not fall within the ambit of Section 4(3) of the TVAT Act. The Seismic survey is carried out to investigate the Earth's subterranean structure. There was no transfer of the right to use goods. The equipment of the petitioner contractor remained the equipment and material owned and provided by the contractor. The equipment remained in the control of the petitioner. The petitioner remained in exclusive possession and control of the said equipment and all the resources were supplied by the contractor. - These provisions of the contract clearly indicate that the contractor's equipment remained his equipment solely under his control and even the equipment of the company, if any, given to him did not become his equipment but remained the equipment of the company. Therefore, there was no transfer of right to use goods and the petitioner was only rendering services which are only amenable to tax by the Union of India and not by the State. - Decided in favour of assessee.
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2015 (6) TMI 582 - RAJASTHAN HIGH COURT
Validity of tax board's decision - Held that:- The petitioner may be a department, which is responsible for generating/collecting Revenue for the State, is expected to maintain consistency in the judicial verdicts. As, in these earlier judgments, the Revenue has not made any endeavour to assail these verdicts by way of revision petition, it is not in fitness of things to examine the issue involved in this revision petition on merits. However, after examining the impugned order on merits also, at the instance of the learned counsel for the Revenue, I am affraid no question of law is involved in the matter requiring adjudication in exercise of revisional jurisdiction. - Decided against Revenue.
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2015 (6) TMI 542 - MADRAS HIGH COURT
Detention of goods - Held that:- Petitioner is directed to pay the tax as one time payment under protest as a condition precedent for release of the goods in question, in terms of Section 67(4) of the Tamil Nadu Value Added Tax Act, 2006 and on such payment of the one time tax in terms of Section 67(4) of the Tamil Nadu Value Added Tax Act, the respondent shall release the goods forthwith to the petitioner. It is made clear that the petitioner has to face the adjudication proceedings that may be initiated by the respondent. - Petition disposed of.
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2015 (6) TMI 541 - GUJARAT HIGH COURT
Interest on refund claim - Doctrine of merger - compensatory measure - Whether the Tribunal has erred in holding that dealer is entitled to interest under section 54[1][aa] on refund arising from appellate order - Held that:- principles of compensatory measure may apply if the taxing statute is silent about the said aspect. The Legislature may control quantification of interest or the entitlement of interest on refund subject to meeting with the test of constitutional provision. But, when the legislature is silent about entitlement of interest on refund of the tax amount already paid by the citizen, the interest can be considered by way of a compensatory measure.
General principles for awarding compensation to the Assessee for the delay in receiving monies properly due to it is not disapproved by the Larger Bench of the Apex Court in the case of Commissioner of Income Tax, Gujarat Vs. Gujarat Fluoro Chemicals [2013 (10) TMI 117 - SUPREME COURT] - observation made in case of Gujarat Fluoro Chemicals (supra) is a complete answer to the contention that the interest can be awarded even if not expressly barred by the statute or that the taxing statute is silent about the same.
Question raised could no more be considered as substantial question of law since such aspect is already covered by the principles of doctrine of merger well settled in the system of administration of justice and also in the abovereferred decision of the Apex Court as well as of this Court. - no substantial question of law would arise for consideration in the present Tax Appeals - Decided against Revenue.
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2015 (6) TMI 434 - MADRAS HIGH COURT
Jurisdiction of Commercial Tax Officer - Held that:- sales had been done to the tune of ₹ 35,06,220/-. In view of Section 3(4) (a)(ii), the respondent has no jurisdiction to assess the tax based on the purchase value. According to the petitioner, the respondent had taken the purchase value as yardstick without considering the provisions of the Act. The statute speaks about Sales Tax turnover alone for the purpose of liablity under Section 3(4) of the Act - Hence impugned order is set aside - Decided in favour of assessee.
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2015 (6) TMI 406 - PUNJAB & HARYANA HIGH COURT
Jurisdiction of assessing authority to pass a separate order imposing interest after assessment had concluded - Held that:- A considered appraisal of the facts reveals that during assessment proceedings, a separate notice was served, requiring the appellant to show cause against the proposed levy of interest and penalty. The assessing authority should have, ideally decided the question of penalty and interest along with the assessment order but its failure to do so is, at the most, an irregularity, that does not render the impugned order null and void for want of jurisdiction. - An argument that once assessment stood concluded, the assessing authority could not have passed a separate order demanding interest and should have instead filed an application for rectification of the assessment order and then also within two years, disregards the fact that notice requiring the appellant to show cause against proposed levy of interest, was issued and was pending during assessment proceedings and thus, there was no need to have resort to rectification proceedings under Section 33 of the Act. - Decided against assessee.
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2015 (6) TMI 376 - GAUHATI HIGH COURT
Validity of Reassessment proceedings - Incorrect return files - Held that:- subsequent material, a declaration furnished by the petitioner itself under the statutory form 65A, disclose that the quantity and value of the goods were more than what were furnished in the return. Therefore there does not appear to be any reason to hold that the reassessment order is not based on the valid material which is found subsequent to the assessment. That apart the order is an appelable order. The petitioner has taken a shortcut method to file the writ petition bypassing the provisions of appeal and other remedies before invoking the writ jurisdiction under Article 227 of the Constitution of India. A false return has been filed on the basis of the contents of statutory form 65A which the department found subsequent to the assessment from the check-post in West Bengal. This clearly shows that the petitioner has with a dishonest intention filed false return to cause loss to the state revenue. If so, it amounts to commission of offence punishable under section 415, read with section 417 of the Indian Penal Code. The authorities should not remain complacent by invoking right of reassessment; they should also effectively prosecute the person who files a false return by filing a complaint, seek condonation of delay under section 468 of the Criminal Procedure Code if necessary to sternly deal with such cases of false and dishonest returns - Decided against assessee,
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2015 (6) TMI 340 - KARNATAKA HIGH COURT
Difference between tax due after final assessment and advance tax paid by the assessee - penalty u/s Section 12-B(4) - First Appellate Authority held that the difference of 15% and above should be between the actual tax paid and tax payable as per the return as the said difference is less than 15%; levy of penalty was not justified - Held that:- If at the end of the year, it is found that the amount of tax paid in advance for the whole year in the aggregate was less than the tax payable for the whole year as finally assessed and the difference is more than 15%, then the discretion is conferred on the Assessing Authority to levy penalty in addition to the tax. - The actual advance tax paid and the tax payable on the final assessment is a fact to be taken into consideration and if the difference is more than 15%, then the penalty is leviable under sub-section (4) of Section 12B of the Act. The approach of the Appellate Authority was contrary to law, erroneous and prejudicial to the interest of the Revenue. Therefore, the Revisional Authority was duty bound to interfere with such erroneous order which was prejudicial to the interest of the Revenue and the order passed by the Revisional Authority is legal, valid and in accordance with law and does not call for interference of this court. - Decided against assessee.
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2015 (6) TMI 339 - MADRAS HIGH COURT
Determination of total and taxable turnover under revision of assessment - Section 27(1)(a) of the TNVAT Act - Held that:- When the petitioner had appeared before the respondent and also filed his objection, this Court is unable to find any justification to hold against the petitioner that he had failed to appear and submit his explanation. Therefore, this Court, prima facie being satisfied that the orders impugned are reflecting non-application of mind of the respondent, has no other option except to set aside the same. Accordingly, the impugned orders passed in TIN Nos.33714781413/2011-12 and 33714781413/2012-13 dated 05.12.2014 and TIN No.33714781413/2013-14 dated 11.10.2014 are set aside with a direction to the respondent to afford an opportunity of personal hearing to the petitioner and consider his case along with the objection filed on 01.12.2014 and pass final orders on merits and in accordance with law - Decided in favour of assessee.
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2015 (6) TMI 304 - TRIPURA HIGH COURT
Input tax credit - petitioner purchases raw rubber/latex from the growers and pays purchase tax on the same -
Whether the petitioner is entitled to the benefit of input tax credit by taking benefit of the CST payable in respect of inter-State sales - Held that:- Input tax has been defined to mean the tax paid or payable under the Act. Obviously, the word “Act” has to mean the Tripura Value Added Tax Act, 2004 as per the definition of the word “Act” contained in section 2(1) of the Act. Therefore, input tax is relatable to the tax paid or payable only under the TVAT Act and not under the Central Sales Tax Act. Reference may also be made to the definition of the word “Tax” which has been defined in section 2(28) to mean tax payable under the Act, i.e. the TVAT Act.
Intention of the State of Tripura was to give benefit of input tax credit only in respect of sales intended or made within the State of Tripura. There is no doubt in our mind that the Act specifically excludes from its ambit, the inter-State sales and the benefit of tax paid on inter-State sales cannot be availed of by the petitioner to claim input tax credit.
No document like a project report has been placed on record to show that when the petitioner set up the plant, his intention was to sell the goods within the State of Tripura. Some material like a project report or a feasibility report should have been produced before this Court to show that when the plant was set up, it was the intention of the dealer to sell the goods within the State of Tripura. There may be a case where the dealer sets up a plant to produce some goods which can be used by some other factory within the State. If this is reflected in the feasibility report and evidence is led to show that for reasons beyond the control of the dealer, the other plant where the goods of the dealer were to be consumed has shut down, then the dealer can be heard to argue that he was forced to sell the goods outside the State of Tripura. There is no such material placed on record in this case.
Court cannot get inside the mind of the petitioner. The intention of the party has to be determined from the material placed on record. In the present case, almost the entire production for the five assessment years has been sold outside the State of Tripura. The intention of a party has to be judged from its action and as far as the actual action is concerned, it is clear that right from the very inception, the petitioner has been selling almost all its produce outside the State of Tripura. Therefore, we have no hesitation in holding that it was not the intention of the petitioner, while setting up the plant, to sell the produce in Tripura.
Movement of the rubber thread commenced from Tripura. Therefore, the authorities in the State of Tripura are entitled to collect the tax. Sub-section (2) makes it amply clear that the authorities empowered to assess, reassess, collect and enforce payment of any tax under the sales tax law of the appropriate State shall on behalf of the Government of India asses, reassess, collect and enforce payment of tax including interest and penalty payable by a dealer under the Central Act. This leaves no manner of doubt that the Commissioner of Taxes, Tripura had the authority to pass the impugned orders.
It is well settled law that if an authority has the power and jurisdiction to take certain action, then merely because a wrong provision of law is mentioned or because no provision of law is mentioned, the action cannot be set aside on this ground. After considering the entire record, we are clearly of the view that the intention of the taxing authorities of the State was to collect the CST which had not been deposited by the assessee by claiming input tax credit. We are in agreement with the law laid down by the Allahabad High Court [1970 (9) TMI 93 - ALLAHABAD HIGH COURT] and, therefore, we hold that merely because there was no reference to the provisions of the Central Sales Tax will not make the action illegal, if otherwise the authorities of the State had jurisdiction to take the said action.
Section 85 empowers the Commissioner to delegate his powers under the Act to any person appointed under sub-section (1) of section 18 to assist him. When both the sections are read together, it is amply clear that the power of the Commissioner to delegate his powers is hedged by only one condition that he can delegate these powers only to a person appointed under sub-section (1) of section 18 to assist him. The words “assist him” have to be read in the context of section 18(1) and, therefore, the Commissioner can only delegate the powers to a person appointed to assist him under section 18, and not to any other person. In the present case, the Superintendent of Taxes has been appointed under section 18(1) and, therefore, also the Commissioner had the power to delegate his authority to him.
Five notices should have been issued for the five assessment years giving at least 15 days time to the assessee to respond. The manner in which the notices have been issued is not proper. The first notice was issued on 01-02-2014 and in this notice, it was stated that the Superintendent of Taxes felt that he had reasons to believe that detailed scrutiny of returns for the period 2008-09 to 2013-14 (upto 31-12-2013) is necessary. What are the reasons have not been spelt out. The Superintendent wanted to reopen the entire proceedings from the year 2008 till 2014. This notice is dated 01-02-2014 and it requires the petitioner to appear before the Superintendent of Taxes on 13-02-2014. To say the least, the manner in which this notice has been issued is highly improper. No reasons have been spelt out as to why detailed scrutiny is required and nothing is stated in the notice with regard to the nature of the inquiry.
Basic assessments assessing the tax and interest payable for these three years are upheld. With regard to the years 2011-12 and 2012-13, since there is some dispute with regard to the ‘C’ forms and we are of the opinion that no proper opportunity was given to the petitioner, the assessment orders are set aside and the proceedings shall now commence from the stage of filing of reply by the petitioner. - The petitioner did not hide any facts. It claimed input tax credit by claiming that it was entitled to claim the benefit in terms of the TVAT Act. The taxing authorities of the State of Tripura permitted the petitioner to take benefit of input tax credit on these averments. Suddenly after five years the authorities became wiser and found that the assessee is not entitled to such benefit. We are in agreement with the State that the assessee may not be entitled to such benefit and, therefore, it is liable to pay the amount of Central Sales Tax collected by it along with the statutory interest payable under section 25 of the Act which is 18% per annum.
The assessee claimed input tax credit by depicting the true and correct facts. Though we have decided the case against the assessee, we are clearly of the view that in such a situation it cannot be said that the dealer had claimed this input tax credit with a view to evade or avoid payment of tax. It is a plain and simple case of different interpretations of the provisions of law. The assessee interpreted section 10 in a particular manner and this interpretation was accepted by the revenue also. In such an eventuality, it would be highly unfair and unjust to impose the maximum penalty of 150%. This is a fit case where the minimum penalty of 10% alone should have been imposed. - Decided partly in favour of assessee.
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2015 (6) TMI 303 - DELHI HIGH COURT
Whether the Tribunal and the authorities below failed to note and appreciate that the appellant having furnished valid and genuine declaration form ST-35 in terms of rule 11 (XXXIV) of the Delhi Sales Tax Rules, 1975 was legally and rightfully entitled to deduction under Section 4(2)(a)(v) of Delhi Sales Tax Act, 1975, on account of sales made to registered dealer - Held that:- Unless there is some material available to show complicity between the purchasing dealer and the selling dealer vis-à-vis the alleged "doubtful" activities of the former, inferences adverse to the interest of the latter are impermissible. The default on the part of the purchasing dealer in submitting a proper utilization certificate respecting the goods purchased under the cover of the ST-35 form may lead to consequences for him but not for the selling dealer. In this context, the third proviso to Section 4(2)(a) of the Sales Tax Act quoted earlier only needs to be applied. It makes it clear that the benefit of deduction continues to inure for the benefit of selling dealer even if the purchasing dealer is found to have indulged in misutilisation.
The assessee explained in the proceedings under Section 23(3) of Delhi Sales Tax Act that the sale transactions herein were relatable to purchase order dated 27.06.2000. It is not the case of the Revenue that the ST-35 form is a fabricated document. Concededly, it was issued by the sales tax department of GNCTD to the purchasing dealer who is registered for such purposes with the concerned authorities. There is nothing to show that the selling dealer (the assessee) could have known as to for which assessment year the specific form had been issued by the department. For his purposes, the endorsement on the top showing it to be a form pertaining to AY 2000-01 was sufficient. The mere fact that the form when handed over did not bear a specific date is inconsequential and from this complicity of the assessee cannot be inferred. - deduction of the value of the transaction represented by the ST-35 form has been wrongly disallowed by the Tribunal and the authorities below. - Decided in favour of assessee.
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2015 (6) TMI 267 - PUNJAB & HARYANA HIGH COURT
Validity of Tribunal's decision - Tribunal refrained from deciding the question on the basis that the ground had not been raised at all - Held that:- It was observed that the amended grounds were not on record. There was an inadvertent error. The amended grounds had been furnished to the department. The same were, however, annexed with the proceedings in the appeal filed under the Central Sales Tax Act, 1956 although they ought to have been annexed in the proceedings under the Haryana Value Added Tax Act, 2003. That was an error on the part of the department of the Tribunal itself. Even if it was not, it would make no difference. - Matter remanded back - Decided in favour of assessee.
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2015 (6) TMI 266 - KERALA HIGH COURT
Validity of impugned order - Violation of principle of natural justice - Held that:- conduct of the petitioner in not filing his objections within the time granted by the first appellate authority, I am of the view that the challenge in the writ petition, against Ext.P7 order, on the ground that it has been passed in violation of the rules of natural justice, cannot be entertained. Thus, without making any observations as regards the merits of the petitioner's case, I relegate the petitioner to the alternate remedy of filing an appeal against Ext.P7 order of the 1st respondent before the appellate authority under the KVAT Act. - Decided against assessee.
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2015 (6) TMI 228 - GUJARAT HIGH COURT
Interest on refund claim - Whether the learned Tribunal has erred in holding that the dealer is entitled to interest under Section 54(1)(aa) of the Gujarat Sales Tax Act on refund arising from the appellate order - held that:- Dealer is entitled to interest under Section 54(1)(aa) of the Gujarat Sales Tax Act on refund arising from the appellate order - Decision in the case of State of Gujarat Vs. Doshi Printing Press [2015 (3) TMI 211 - GUJARAT HIGH COURT] followed - Decided against Revenue.
Whether the learned Tribunal has erred in deleting levy of penalty under Section 45(2)(c) - Held that:- Following decision of Banu Hasim Vs. State of Gujarat reported in [2012 (7) TMI 873 - GUJARAT HIGH COURT] case decided against Revenue.
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