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VAT and Sales Tax - Case Laws
Showing 21 to 40 of 96 Records
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2016 (1) TMI 1112
Stay on the refund granted to the petition - The High Court had dismissed the department's [2015 (5) TMI 293 - GUJARAT HIGH COURT] - SC issued notice on application for condonation of delay and on special leave petitions as also on prayer for interim relief.
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2016 (1) TMI 1105
Illegality and arbitrariness - Revision order not passed for want of Form 'C' - Inter-state sale and sale made to SEZ - Respondent submitted that the Writ Petition is not maintainable, as the assessee / writ petitioner has invoked this jurisdiction despite the availability of an equally efficacious alternative remedy of filing an appeal - Held that:- the petitioner is regularly filing their monthly returns and complying with the statutory requirements. The respondent has also accepted the turnover reported by the petitioner as correct and determined the same. However, for want of Form 'C' and Form 'I', the respondent adopted higher rate of tax at 14.5% also. Therefore, in view of the Full Bench Judgment of this Court in the case of State of Tamil Nadu v. Arulmurugan and Company [1982 (11) TMI 143 - MADRAS HIGH COURT] and also the circular dated 01.02.2000 issued by the Commissioner of Commercial Taxes, Chennai, the Writ Petition is allowed by setting aside the impugned orders and directing the respondent to accept the Form “I” filed by the petitioner on 19.01.2016 for the sales made to “SEZ” for the assessment year 2011-2012 and pass orders afresh in accordance with law. - Decided in favour of petitioner
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2016 (1) TMI 1097
Withdrawal of petition - with liberty to file an appeal challenging the said order - Held that:- Dismissed as withdrawn. It shall be open to the petitioner to take recourse to the remedies as may be available to it, in accordance with law. - Petition dismissed
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2016 (1) TMI 1096
Withdrawal of petition - with liberty to file an appeal challenging the said order - Held that:- Dismissed as withdrawn. It shall be open to the petitioner to take recourse to the remedies as may be available to it, in accordance with law. - Petition dismissed
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2016 (1) TMI 1090
Invokation of power under Section 60(2)(f) of the Delhi Value Added Tax Act, 2004 - Business premises of the petitioner sealed on non production of accounts and other documents at the time of inspection - Held that:- the decision to invoke the powers under Section 60(2)(f) of the Act was taken in undue haste virtually in continuation of invocation of the power under Section 59 of the Act to search the premises for information and documents. Sufficient opportunity was not afforded to the Petitioner to explain why, if at all, it was unable to produce the documents and information sought by the Department. Also, there could not be an automatic presumption that since the Petitioner failed to produce the documents at once it was attempting to avoid or evade tax or was concealing its tax liability. Therefore, the premises of petitioner be de-sealed. - Decided in favour of petitioner
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2016 (1) TMI 1047
Nature of assessment - best judgment assessment or not - Levy of penalty - Assessment made under Sub section (3) of Section 33 of Maharashtra Sales Tax Act, 1959 - Held that:- The order of assessment, looks into the books of account produced by the assessee, draws various transactions from it and ultimately works out tax at ₹ 34,575.85. The tax has been worked out on the basis of books of account of assessee after he produced the same in response to notice of department and, therefore, it is not best judgment assessment.
Perusal of order of the sales tax officer dated 5.8.1980 does not show that it is in exercise of best judgment that the assessment has been done. On the contrary, the entries in the books of account varying with returns filed are relied upon and then the assessment has been completed.
No provision has been pointed out to this Court which prohibits the department from looking into the returns which are filed belatedly i.e. after prescribed date. The provisions of Explanations I and II of Section 36(2)(c) of the said Act are no doubt mutually exclusive, but then that does mean that the provisions of Sections 33(3) and 33(5) of the said Act are also mutually exclusive. If the return is filed belatedly and it does not give correct and complete figures, the provisions of Section 33(3) of the said Act can be applied by the department to such return.
Levy of penalty confirmed - Decided in favor of revenue.
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2016 (1) TMI 1046
Levy of penalty for non-maintenance of complete and true accounts - sale of motor vehicles from another state - According to the Intelligence Officer, the sales were concluded at Kozhikode and hence the vehicles should have been registered within the State of Kerala. Therefore, by showing the sales at Mahe the respondent had failed to maintain true and complete accounts as an assessee under the KGST Act and had evaded payment of tax to the tune of ₹ 86 lakhs and odd during the relevant period. - Kerala General Sales Tax Act (KGST) - Revenue submitted that as per Explanation under Section 45 of the KGST Act, the burden is on the assessee to show that penalty is not liable to be imposed on him.
Held that:- In the light of circumstances governing motor vehicles which may safely be gathered even from the Motor Vehicles Act and the Rules, it is obvious that the seller or the manufacturer/dealer is bound to transport the motor vehicle to the office of registering authority and only when it reaches there safe and sound, in accordance with the statutory provisions governing motor vehicles it can be said to be in a deliverable state and only then the property in such a motor vehicle can pass to the buyer once he has been given notice that the motor vehicle is fit and ready for his lawful possession and registration.
The allegations and facts made or noted by the Intelligence Officer no doubt create some doubts but they do not lead to a conclusive inference that the sales under controversy had taken place at Kozhikode, Kerala. To the contrary, in view of propositions of law discussed hereinbefore, the judgment of the High Court gets reinforced and deserves affirmation. - Decided against the revenue.
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2016 (1) TMI 1045
Demand of VAT on the material consumed in the job work - deemed sale - use of chemicals, fat liquors, dyes, syntans, sodium bicarbonate etc. for cleaning, washing and drying the leather. - Haryana Value Added Tax Act, 2003 (HVAT) - Held that:- In the present case, no additional excise duty was leviable. The issue was how much chemical was transferred in processing of hides and skins as no chemical gets attached to the leather. The appeals of textile industry with regard to quantum of tax to be levied on dyes and chemicals are pending before the Tribunal. The present appeals have been wrongly disposed of by the Tribunal following its earlier decision in M/s Northern India Textiles Processors Association's case - Matter remanded back to tribunal.
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2016 (1) TMI 998
Levy of purchase tax under Section 4(4)(iii) of the A.P. VAT Act on goods sold in the course of export out of the territory of India. - The petitioner claims that, since purchase of chillies by the Secunderabad branch constitutes purchase in the course of export out of the territory of India, the States of Andhra Pradesh and Telangana lack jurisdiction to levy purchase tax in view of the constitutional prohibition in Article 286(1)(b) of the Constitution of India, and Section 5(b) of the A.P. VAT Act.
Held that:- to constitute a sale in the course of export, it may be said that there must be an intention on the part of both the buyer and the seller to export, there must be an obligation to export, and there must be an actual export; the obligation may arise by reason of statute, contract between the parties, or from mutual understanding or agreement between them, or even from the nature of the transaction which links the sale to export; and to occasion export there must exist such a bond, between the contract of sale and the actual exportation, that each link is inextricably connected with the one immediately preceding it.
It is wholly unnecessary for us to examine whether the chillies purchased by the Secunderabad branch of the petitioner, and then transferred to its Cochin branch in the State of Kerala, were exported to foreign buyers; and whether such exports satisfy the requirements of Section 5(1) of the CST Act; as these are all matters to be examined by the assessing authority.
Matter remanded back.
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2016 (1) TMI 997
Recovery proceedings under TNVAT - Revenue neither accepting nor rejecting the reply filed by the petitioner, passed a distraint order for recovery, without passing any order of assessment for the year in question. - Held that:- Admittedly, the provisional assessment order has been passed by the respondent, but the same has not been served on the petitioner. In such circumstances, the action of the respondent by issuing distraint order for recovery of tax, cannot be justified and the same is liable to be set aside. Since the assessment period relating to the months in question was already over, this Court directs the Assessing Officer concerned to pass assessment order for the whole year, after following the procedure prescribed under the Act.
the distraint order in Form No.I dated 15.09.2015 issued by the respondent set aside - The respondent is directed to pass assessment order for the year 2014-15 on merits and in accordance with law, after issuing proper notice and after affording due opportunity of personal hearing to the petitioner. - Decided in favor of assessee.
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2016 (1) TMI 996
Purchase of light diesel oil by the assessee which was used in manufacture of taxable goods. The Department holds belief that such fuel is neither raw material nor consumable goods in manufacturing such items. - Held that:- Mere pendency of the dispute by the Department before the Supreme Court would not permit us to hold back these proceedings. We are therefore not inclined to entertain this petition in which challenge to a judgment of the Tribunal where the Tribunal has merely followed the decision of the High Court. We also notice that the revenue implications in this petition is also not very high. - Petitions dismissed - Decided against the revenue.
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2016 (1) TMI 954
Maintenance of records for 5 years - The five year period to be reckoned from the last day of the financial year concerned or not - Revision proceedings - Rate of tax on zinc oxide - 10% or 4% - In order to set right these mistakes, a revision was proposed. That was to revise the assessment order under section 57 of the BST Act. That is how Notice in Form 40 was issued and served upon the dealer on 7th December, 1998, calling upon him to remain present on 28th December, 1998. However, on that date the dealer did not remain present. That is why the matter was adjourned. On 6th December, 2000, in the absence of the dealer and his representative, the file was closed and the subject order dated 7th December, 2000, came to be passed.
Held that:- This is not a case where any order to the prejudice of the applicant-dealer has been passed because of non availability or non production of the records. The Second Appellate Order initially passed on 23rd June, 2010, recites the facts. The Revisional Authority passed the order ex-parte on scrutiny of the case records underlying the assessment order dated 30th November, 1995. Thus, the records before the Assessing Authority were taken into consideration. The dealer was called upon on the basis thereof to satisfy the Revisional Authority as to why the assessment order should not be revised. There was absolutely no prejudice, therefore, to the dealer and he could have, on the basis of the order of assessment, opposed the exercise of the Revisional power. - Decided against the assessee.
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2016 (1) TMI 953
Recovery proceedings - purchasers of the property over which Sales Tax Department has created charge for unpaid tax dues of the seller - In the revenue records, attachment of the Sales Tax Department was duly records - petitioners would be willing to deposit before this Court the total amount of sales tax dues of the seller, which comes to ₹ 55,00,000/- (approximately) within reasonable time. - Held that:- In view of the fact that the Sales Tax Department has fixed auction of the property in question today, let there be stay against such auction on the condition that the petitioners deposit a sum of ₹ 55,00,000/- (Rupees fifty five lacs only) with this Court in three equal monthly installments starting from 01.02.2016. In case there is failure to deposit any one of the installments it would be open for the respondents to re-schedule the auction.
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2016 (1) TMI 910
Detention of truck along with the goods which are in the nature of ceramic tiles. Case of the petitioner is that the goods were transported for interstate sale originating from Rajasthan for sale at Maharashtra State. The authorities have detained such goods on the ground of insufficient documents. - Held that:- Truck / goods are allowed to released after deposit of tax at applicable rate and subject to further conditions.
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2016 (1) TMI 909
Premature recovery proceedings where there is time to file such an appeal - Held that:- The learned Government Advocate submits that no precipitative action would be taken if the petitioner would file an appeal within the period prescribed for filing the appeal. - Recording the submission of the learned Government Advocate, the petitions stand disposed of. If no appeal is filed, it is open for the respondents to execute the order.
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2016 (1) TMI 908
VAT Commissioner revised the order u/s 75 of GVAT and raised the demand - It is this order that the petitioners have challenged in this petition primarily on the ground that merely because the judgment of the Tribunal, which was in favour of the petitioner, has been carried in appeal by the Department, would not be ground to enable the Commissioner to exercise revisional powers and set aside the order of appellate authority.
Held that:- the course adopted by the Commissioner is wholly erroneous. - The judicial discipline required that the Commissioner did not ignore such pronouncement of the Tribunal. Merely because the Department was aggrieved by such judgment and challenged the same before the High Court, would not be ground enough to enable the Commissioner to exercise revisional powers and to set aside the order of appellate authority. At best, the Department, in order to pursue the issue further, could and in fact ought to have filed appeal against the order of the Joint Commissioner. - Decided in favor of assessee.
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2016 (1) TMI 873
Demand of composition tax on service contract involving supply of labour, trenching and excavation works - Delhi Value Added Tax (DVAT) - Held that:- The stand of the AA that, once the dealer opts for composition, he is required to pay tax on the aggregate value of all the contracts, including pure labour contracts does not appear to be based on a correct understanding of the provisions of the Act. When the provisions are read as a whole, and in the context of the object and purpose of the Act, it is seen that the legislative intention was not to bring pure labour contracts within the purview of the Act, much less within the purview of Section 6 (1) of the Act. - pure labour contracts would not be subject to levy of tax under Section 5 or 6 of the Act. - Decided in favor of assessee.
Change in the nature of contract from works contract to service contract - Held that:- Assessee did not produce copies of the composite works contract executed by it on which it paid the reduced amount of 4% tax in terms of Section 6(1) of the Act. - The Court is of the view that an opportunity ought to be given to the Assessee to produce all the relevant contracts before the AA to enable the AA to pass a fresh order on the issue. This would not unduly prejudice the Respondent. - Matter remanded back on the second issue.
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2016 (1) TMI 872
Purchase of Goods against Form C - concessional rate of tax - Deputy Commissioner amended the registration certificate after deleting the two items, namely, “deep-freezer” and “tricycle”, on the ground, that the petitioner is not re-selling the said items. By another order of the same date, the Deputy Commissioner rejected the petitioner's application for issuance of Form-C, on the ground, that the registration certificate has been amended and, therefore, Form-C could not be issued.
Held that:- the petitioner was purchasing tricycles and deep-freezers from the manufacturers outside the State of U.P. and these products are mentioned in the certificate of registration issued under Section 8(3)(b) of the Act. The petitioner was, therefore, entitled for issuance of Form-C to enable the petitioner to avail concessional rate of tax on the purchase of these products. The respondents have also admitted that the petitioner has entered into a lease agreement with its distributors and sub-dealers and is paying taxes every year on the lease rent.
The order amending the registration certificate is quashed as well as the order refusing to grant Form-C is also quashed. - Form-C to be issued - Decided in favor of assessee.
In the light of the aforesaid provisions, it is apparently clear, that deep-freezers and tricycles are re-sold to the distributors and dealers of the petitioner in the same form and condition as a transfer on the right to use the goods. Such “transfer of the right to use the goods” is a “sale” as defined under the Central Sales Tax Act as well as under the VAT Act. The goods purchased by the petitioner as per the products indicated in the certificate of registration are clearly intended “for resale” by it and consequently, the petitioner is entitled for issuance of Form-C in order to avail concessional rate of tax.
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2016 (1) TMI 870
Levy of VAT / Sales Tax - protected transactions by Article 286 of the Constitution - supply of Natural Gas from Panna-Mukta oil/gas fields to GAIL - Production Sharing Contracts for development and exploration of Panna- Mukta and Mid-South Tapti Oil and Gas fields, in the west-coast off shore, India. Under the terms of the Production Sharing Contract (hereinafter referred to as “the PSC”) - Held that:- On a conjoint reading of the Production Sharing Contract and the Interim Sales and Purchase Agreement, it is apparent that what was agreed to be sold and purchased was Natural Gas.
The goods, viz., Natural Gas were ascertained goods at the time when they came to be separated and measured at the Offshore Processing Facility. The ascertained goods upon being separated and measured came to be appropriated to the contract and delivered at the Delivery Point. In terms of Article 27.2 of the PSC, the title to the goods also passed to the Buyer at the Delivery Point. The situs of the sale is the Offshore Processing Facility where the goods were appropriated to the contract. Therefore, it cannot be said that the goods in question were within the State of Gujarat at the time of their appropriation to the contract of sale so as to fall within the ambit of clause (b) of section 4(2) of the Central Sales Tax Act, 1956. The transactions in question are, therefore, not amenable to tax under the provisions of the Gujarat Sales Tax Act, 1969.
Merely because the Natural Gas upon being delivered at the Delivery Point was commingled with other gases, does not mean that it was not in a deliverable state because having regard to its unique physical properties, large volumes of Natural Gas can be transported only in a continuous stream and once delivered in the pipeline for transportation, it becomes commingled with other natural gas. Individual molecules are not separately indentified and cannot be accurately tracked or traced. As a result, natural gas is sold and purchased on a “quality and quantity” basis.
The act of sweetening of natural gas, having taken place post appropriation, after the goods were delivered and the title had passed to the Buyer outside the State of Gujarat, merely because post appropriation the goods were subjected to the process of sweetening within the State of Gujarat it cannot be said that the sale of goods has taken place within the State of Gujarat.
Since the provisions of the Customs Act, 1962 have been extended beyond the designated area, the Panna Mukta oil fields from where the movement of goods is occasioned fall within the customs frontiers of India Consequently, the sale of goods cannot be said to have taken place in the course of import of goods into the territory of India as contemplated under sub-section (2) of section 5 of the Central Sales Tax Act, 1956.
Since the the sale of goods has taken place outside the State of Gujarat, the question as to whether or not subjecting the Natural Gas to the process of sweetening amounts to manufacture becomes redundant, and hence, it not necessary to enter into the merits of the question as to whether or not the processing of the Natural Gas at ONGC’s sweetening and separation facility at Hazira, whereby the sour gas is converted into sweetened gas, amounts to manufacture.
The show cause notices which form the basis of the impugned assessment orders are without jurisdiction as the same have been issued without formation of the requisite opinion as required under the provisions of section 41 and 44 of the Gujarat Sales Tax Act, 1969 and are based on a mere change of opinion.
The petitions succeed and are accordingly allowed - the sales in question have not taken place within the State of Gujarat, the State of Gujarat has no authority to levy the sales tax under the provisions of the GST Act on the transactions in question - Decided in favor of assessee.
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2016 (1) TMI 869
Input Tax Credit on the capital goods - crushing of stone is manufacturing activity or not. - TNGST - for the purpose of quarrying operations, crushing plants, excavators and front end loaders and its spare parts and accessories are purchased within the State as well as from other States against Form C under the Central Sales Tax Act, 1956. - Held that:- the crusher machine cannot be treated as capital goods - this Court is not inclined to interfere with the impugned orders and these Writ Petitions are liable to be dismissed. - Decided against the assessee.
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