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VAT and Sales Tax - Case Laws
Showing 61 to 80 of 96 Records
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2016 (1) TMI 377
Disallowance of exemption claim - sale of Maize - TNVAT - Held that:- What was sold by the appellant was Maize. Even the Assessing Officer does not dispute that what was sold by the appellant was Maize. But, unfortunately, the Assessing Officer had gone by the fact that the person to whom Maize was sold, used it as waste for poultry feeding. There is nothing either in the Act or in the circulars to indicate that the eligibility of a product for exemption depended upon its usage. The exemption was a product based exemption and not user based exemption or an assessee based exemption. Therefore, this is a case where the Assessing Officer committed a jurisdictional error warranting interference by this Court. Hence, the writ appeal is allowed, the order of the learned Judge is set aside - Decided in favour of assessee.
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2016 (1) TMI 331
Liability under HVAT - whether supplies of food and drinks to its members / non-members involved any element of sale - principle of mutuality - appellant being a member's club fall within the ambit of definition of dealer under the HVAT Act - Dealer - Held that:- Apex Court in Cosmopolitan Club v. State of Tamil Nadu and others (2008 (9) TMI 540 - SUPREME COURT OF INDIA) had set aside the said decision of Madras High Court while considering the identical issue as to whether supplies of food and drinks to its members involved any element of sale. Further, under similar circumstances the Supreme Court had remanded the case for reconsidering finding of fact regarding the relationship between the club and its members in the matter of supplying food and drinks viz., whether the club was acting as an agent of the members or whether the property in the food and drinks passed from the club to its members. - Impugned order is set aside - Matter remanded back.
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2016 (1) TMI 330
Imposition of penalty - Section 27(3) - Violation of principle of natural justice - Held that:- Additional Government Pleader (Taxes) after verifying the concerned file, by producing the same before this Court submitted that no pre-assessment notice was served before passing the impugned orders. The learned Additional Government Pleader (Taxes) also fairly submitted that the respondent may be directed to issue fresh notices and on receipt of the same, the petitioner may be directed to file their objections and on receipt of the same, the respondent may be directed to consider the objections and pass appropriate orders within a time frame. - violation of principles of natural justice is proved, the impugned orders dated 27.02.2015 cannot be sustained - Decided in favour of assessee.
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2016 (1) TMI 329
Reversal of Input Tax credit - levy of penalty under Section 27(3) of the TNVAT Act - Held that:- At the time of purchasing the goods, admittedly, the petitioner has paid the tax to the seller, which is not under dispute. The reason assigned in the impugned order is that the petitioner firm is denied Input Tax Credit just because the dealer/seller has failed to report the same before the respondents. The reason adduced by the respondent is unacceptable for the reason that when admittedly the petitioner firm has paid the tax, he cannot be made liable for the failure on the part of the seller to report the same to the respondent. - Decided in favour of assessee.
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2016 (1) TMI 284
Claim of exemption from sales tax against Sale of goods through duty free shop to in-transit passengers located at Sahar International Airport - Held that:- The operative order and while remanding the case for the period 1993-94 and 1994-95 to the assessing authority directs that authority to verify whether the sale of goods from dutyfree shops located at Sahar International Airport in the Arrival Lounge are made to in-transit passengers and, therefore, entitled to exemption or all sales from that shop should be exempted because they are necessarily made to in-transit passengers. That verification and scrutiny will have to be done in terms of the operative order. However, it is clear that if the sale is to in-transit passengers and all the terms and conditions of the exemption notification are fulfilled, then, such sales are exempt from tax. Therefore, we do not see any confusion nor would the assessing officer deal with all sales as if they are made to in-transit passengers necessarily. - The transactions with such passengers who are termed as in-transit passengers and within the meaning of the said exemption notification have been referred to by the Tribunal. It is on the understanding that the Tribunal has interpreted the words “in-transit passengers”. That is neither stretching the definition so as to extend the benefit of the exemption notification to any passenger or customer nor does it take away the benefit of the same by reading it as narrowly as was suggested before it. In such circumstances, the Tribunal's understanding of the exemption notification and reflected in its judgment does not raise any question of law. - Decided against Revenue.
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2016 (1) TMI 283
Reversal of ITC for non production of declaration forms and non issuance of notice before imposing tax under other category - Held that:- Admittedly, challenging the assessment order for the year 2011-12, the petitioner preferred an appeal and the same was returned for rectifying certain mistakes and for production of proof for payment of 25% of disputed tax. Accordingly, the petitioner, complying those defects, re-submitted the papers, but, till date, the appeal has not been taken up for consideration. In the meanwhile, the petitioner came to understand by letter dated 11.09.2015 of the 3rd respondent Bank stating that their Bank account was attached pursuant to the order dated 10.08.2015 enclosing Form U for attachment of the balance amount in their account. - petitioner is directed to pay 25% of the disputed tax other than the amount of 25% already deposited and on production of proof of such payment - Petition disposed of.
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2016 (1) TMI 282
Works contractor service - Benefit of composition scheme - Validity of SCN - Issued beyond jurisdiction - Held that:- Petitioner(s) had neither filed any objection/reply to the said notice nor raised the pleas as have been raised in the instant writ petitions before the competent authority. - Proper course of action for the noticee is to file detailed and comprehensive objection/reply and to raise all the pleas as have been raised in the writ petitions. In case any objection/reply is filed by the petitioner(s) within a period of two weeks from the date of receipt of the certified copy of the order, the revisional authority shall decide the same within a period of six weeks from the date of receipt of the objection/reply in accordance with law after affording an opportunity of hearing to the petitioner(s) and by passing a speaking order before proceeding further in the matter. - Petition disposed of.
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2016 (1) TMI 280
Input Tax Credit - levy of penalty - TNVAT - gross violation of principles of natural justice without conducting - The petitioner herein filed a petition under Section 84 of the TNVAT Act to the respondent on 5.11.2015 stating that the revised order has been passed by mistake of law and mistake of fact of incorrect adoption of amount of ITC reversed and hence, it is liable to be rectified under Section 84 of the Act and requested the respondent to issue a revised order. - Held that:- After elaborate arguments, learned counsel for the petitioner submitted that it would be suffice if the petitioner is given an opportunity for production of all the documents for the purpose of quantifying the actual taxes to be paid, it would meet the ends of justice.
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2016 (1) TMI 279
PVAT - validity of exparte assessment - documents were impounded - violation of principles of natural justice without affording an opportunity - Held that:- There is force in the submissions of learned counsel for the petitioner, because the impugned order dated 12.6.2015 was passed exparte without supplying the copies of the impounded documents to the petitioner to enable it to submit its effective reply, explaining the entries in the same, despite the fact that it was obligatory upon the respondents under Section 46 of 2005 Act. The concerned Officer could not have legally kept the impounded documents beyond the maximum period of 60 days.
In the instant case, the premises of the petitioner was inspected on 22.5.2012, on which date, the documents were impounded. The petitioner was asked to submit its reply and to explain impounded documents which was not possible for it, without seeing them. The concerned Officer of the respondents ought to have supplied the copies of the impounded documents, before asking the petitioner to submit its reply and to explain the same.
Accordingly, the order is quashed. The matter is remitted back to the assessing authority to pass a fresh order in accordance with law. - Decided in favor of assessee.
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2016 (1) TMI 278
Validity of assessment order - Bar of limitation - Held that:- Extended period of limitation up to six months is given from the date of receipt by the assessing authority of the order vacating the stay. - proviso to Section 21(6) of the Act clearly indicates that the period of limitation starts from the date of the receipt of the order by the assessing authority and not from the date of knowledge of the order. This is apparently clear from the plain and explicit language provided in the proviso to Section 21(6) of the Act. Similar view was held by this Court in Sri Cement Ltd. Vs. State of U.P. and others, [2013 (6) TMI 197 - ALLAHABAD HIGH COURT]. - Decided against assessee.
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2016 (1) TMI 277
Manufacture of finished leather - Demand of differential ITC - reversal of ITC under Section 19(2)(V) of the TNVAT Act - Held that:- Originally considering the transactions relating to CST for the assessment year 2012-13, an oder of assessment came to be passed, granting the relief as prayed for. Subsequently, the same turnover and the corresponding purchases relating to Form C declarations were sought to be brought in for the assessment year 2012-13 relating to TNVAT Act, as taxable turnover. Concluding that the refund claim made out in respect of the transactions related to C forms is not eligible, the respondent sought to include the same for the purpose of reversal of ITC, invoking Section 19(2)(V) of the TNVAT Act for the assessment year 2012-13 and passed the impugned order dated 30.04.2015, reversing ITC to the tune of ₹ 2,69,629/- for the said period. During the said assessment period, viz., 2012-13, there is no power vested with the respondent to reverse the ITC, since the amended provision of Section 19(2)(V) of the TNVAT Act, 2006 by Act 28 of 2013 came into effect only from 11.11.2013. Hence, to this extent, the impugned assessment order needs interference. Admittedly, the explanation of the petitioner dated 16.02.2015 is also not considered by the respondent. - Matter remanded back - Decided in favour of assessee.
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2016 (1) TMI 276
Revision of assessment - Non perusal of books of accounts - Held that:- For the assessment year 2007-2008, notice was issued in the year 2013. Immediately, on receipt of the notice, the petitioner filed reply and personal hearing was conducted by one officer and after a period of two years, the assessment order came to be passed by a different officer, which has been challenged before this Court in W.P.No.19518 of 2015. This Court, for the same petitioner and on the same set of facts, earlier considered the claim of the petitioner and set aside the impugned order on the ground that the order came to be passed by a different officer, after a period two years - admittedly, the assessment order for the year 2008-2009 came to be passed after a period of two years, without providing opportunity of personal hearing. - Court finds it appropriate to give yet another opportunity to the petitioner. Hence the impugned order is set aside and the matter is remanded back to the respondent for passing fresh order - Decided in favour of assessee.
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2016 (1) TMI 189
Levy of entry tax on Coolants - whether or not it is a petroleum by product - Karnataka Tax on Entry of Goods Act 1979 - various petroleum products including lubricating oil to be taxable under the KTEG Act at the rate of 5% - Held that:- The notices Annexures-D Series are quashed. Liberty is reserved to the 2nd respondent-clarifying authority to have the ‘coolant’ manufactured by the petitioner, tested, and examined in a manner known to law over the genuineness of the claim of the petitioner relating to its contents/ingredients, and if necessary to issue clarification of the ‘coolant’ manufactured by the petitioner, contains petroleum by product, after extending a reasonable opportunity of hearing to the petitioner, to pass orders in accordance with law.
In the event, it is established, by way of test or other examination, that the ‘coolant’ manufactured by the petitioner contains demineralised water and Ethylene Glycol and nothing more, the two clarifications Annexures-B and C will have no application to the case of the petitioner.
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2016 (1) TMI 188
Levy of tax - Discrepancy in stock - Held that:- There was a surprise inspection conducted on 29.03.2010 by the Enforcement Wing Authorities, during which various records were recovered. On 12.04.2014, after four years, a notice came to be issued proposing levy of tax and penalty with a further direction to submit explanation apart from directing the petitioner to produce photo copies of certain documents in order to get the seized documents. Accordingly, on 26.05.2014, the petitioner by enclosing the documents required by the respondent requested them to furnish copies of the recovered records for the purpose of filing necessary objections, followed by a letter dated 21.07.2014 requesting necessary alteration to be made in the certificate of registration pursuant to the shifting of place of business. Thereafter, without affording any opportunity, on 31.07.2015, the impugned order came to be passed. It is the specific case of the petitioner that despite the receipt of copies of documents as required by the respondent, without returning the seized documents, even after the receipt of the objections filed by the petitioner, the impugned order came to be passed, as if the petitioner did not respond to the notice - Additional Government Pleader (Taxes) for the respondent, after verification of the assessment records fairly submitted that the respondent, inadvertently, failed to consider the documents produced by the petitioner. - Matter remanded back.
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2016 (1) TMI 187
Cancellation of exemption certificate - PGST / PVAT - violation of Rule 2(xia) of the Exemption Rules - appellant submitted that the authorities below misconstrued the definition of 'Export Oriented Unit' given under Rule 2 clause (xi-a) of the Rules, which nowhere provides that the appellant was legally bound to export 25% of its production to claim exemption under Rule 8(1)(vi) of the Rules. - collection of amount in as sales tax / CST from the customer but failure to deposit the same with the Government.
Held that:- It has been categorically recorded by the assessing authority that in the assessment years 2000-01 and 2001-02, the appellant exported nothing outside India. In the assessment year 2001-02, the appellant exported only 1.68% of its products in the markets outside India.
Assessing Authority also found that the appellant had neither charged or recovered any handling charges from the customers nor mentioned the same in the sale vouchers. Only in some bills "forwarding and postage" was charged which were posted accordingly. These entries of sale prices including the sale tax element were then posted in the accounts of each customer and, thus, the full amount of goods including the sale tax was collected from the customers. However, sale tax collected from the customers was not deposited by the appellant into Government Treasury in violation of the provisions of Sections 10(4) and 30-A of the PGST Act
Appellant was also disbelieved, because of not mentioning of charging of "handling charges" on the sale invoice/bills or in the sale books. Even otherwise the appellant had admitted before the Assessing Authority that the amount received from the customers included sales tax. Thus, it was rightly held by the Assessing Authority that the appellant had violated the provisions of the rules and accordingly, was not entitled to any exemption under Rule 8(2) of the Rules. - appellant has not been able to show any illegality or perversity in the findings recorded by the authorities below warranting interference by this Court - Decided against assessee.
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2016 (1) TMI 186
Validity of impugned order - Levy of penalty under Section 27(3)(c) of the TNVAT Act - Availment of input tax credit - Held that:- Without considering his objection and revised return filed on 14.05.2015, the respondents had passed an order of assessment - By directing the petitioner to pay 15% of the Tax amount, the matter may be remitted back to the respondent, to pass a fresh order, by considering the petitioner's objection and revised return filed on 14.05.2015, by affording an opportunity of hearing to the petitioner. - Accordingly, the impugned order passed by the respondent in TIN: 33654123301/2013-14 dated 15.06.2015, is set aside and the matter is remitted back to the respondent - Decided in favour of assessee.
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2016 (1) TMI 185
Duty demand - Best Judgment assessment - Determination of taxable turnover - Held that:- It will be seen from a perusal of Rule 38 that the procedure to be followed by an assessing authority, who deems it necessary to verify the books of accounts of an assessee prior to proceeding with the process of best judgment assessment, is to fist serve a notice in Form No.17 calling upon the assessee to produce the books of accounts or other records as evidenced to prove his turnover and tax liability as also the correctness of the stock statement, goods or turnover reported or the input tax credit or refund claim. Thereafter, either after going through the records produced by the assessee in response to the notice or in the event of the assessee not producing any records, the assessing authority is expected to take a decision as regards whether or not to proceed with the best judgment assessment in relation to the assessee. It is thereafter that, he is to issue the notice intimating the assessee of the proposal to complete the assessment on best judgment basis in terms of Section 25(1) of the KVAT Act. - Matter remanded back.
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2016 (1) TMI 144
Detention of Goods at check post - supply of Pan Masala (without Tobacco and Nocotine) - According to the petitioner, the transaction has been effected after being CST charging tax @ 2% against C Form. - According to the learned counsel for the petitioner, though the goods were accompanied with proper documents, the 2nd respondent has passed the impugned order mechanically with no acceptable reason. - Held that:- Admittedly, the goods are detained from 05.12.2015. Till date, tax has not been quantified. Hence, for the purpose of release of goods, the 2nd respondent is directed to quantify the tax to be paid by the petitioner in consultation with the assessing authority and intimate the same to the petitioner within a period of one week from today and on such payment being made by the petitioner, if the goods detained are not prohibitory in nature, the same are directed to be released forthwith. As far as the compounding fee is concerned, it is open to the petitioner to adjudicate the same in the manner known to law. - petition is disposed of.
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2016 (1) TMI 143
Condonation of delay - Tribunal refused to condoned the delay of 448 days which occurred in filing of the Reference applications. - Held that:- The Tribunal, in the impugned order found that the delay is of 448 days. A liberal approach will not enable it to condone such a erroneous delay. There is no explanation forthcoming. A vague statement or a general remark of administrative difficulties was not enough. The version orally canvassed was not supported by any affidavit. The reasons that are assigned from paragraphs 9 to 12 in the impugned order do not suffer from any error apparent on the face of the record or perversity warranting our interference in the writ jurisdiction.
The Supreme Court in the case of Office of the Chief Post Master General v/s Living Media India Ltd [2012 (4) TMI 341 - SUPREME COURT OF INDIA] has held that the Government bodies are required to be informed that unless they have reasonable and acceptable reasons for delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process.
Delay cannot be condoned. - The Writ Petitions are devoid of merits and are dismissed. - Decided against the revenue.
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2016 (1) TMI 142
Whether the first appellate authority was justified and within its jurisdiction to remand the matter for passing fresh assessment order after considering the issues which were not assailed by the assessee - Held that:- Court that under the HGST Act, the appellate authority i.e. the DETC(A) had not been vested with the powers to act on his own motion. Only when an appeal was filed under Section 39 of the Act, did the appellate authority adjudicate upon the specific issues raised in the grounds of appeal or upon those which were urged before it at the time of hearing. The respondent was also given an opportunity to be heard and to reply to the points raised by the appellant. However, the appellate authority while deciding an appeal filed by a party could not take up issues on merit which had not been raised by the appellant. The respondent in the appeal could not invite the appellate authority to take up on merits points or issues not raised,pleaded or urged by the appellant. Accordingly, the DETC(A) was not held to be competent to go into the matters not raised in the appeal and set aside the order of the assessing authority.
Appellate authority was not justified in remanding the matter for fresh assessment for considering those issues which were not subject matter of appeal before it. Consequently, the impugned order dated 30.3.2015 passed by the Tribunal as well as order dated 17.7.2014 passed by the DETC(A) for remanding the matter for fresh assessment are set aside and the matter is remanded to the first appellate authority to pass fresh order in accordance with law after hearing learned counsel for the parties - Matter remanded back - Decided in favour of assessee.
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