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VAT and Sales Tax - Case Laws
Showing 61 to 80 of 108 Records
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2016 (10) TMI 561
Constitutional validity of levy of VAT on pan masala containing tobacco - claim of exemption from VAT since tobacco products liable to ADE (GSI) under section 3 of the ADE Act, 1957 - The Parliament omitted Chapter headings 2401, 2402 and 2403 and sub-heading and tariff item thereunder from the First Schedule to ADE Act 1957 vide section 10, Taxation Laws (Amendment) Act, 2007 (Act No.16 of 2007) effective from 1st April, 2007, without losing share of central taxes. This enabled States to levy VAT on tobacco with effect from 1st April, 2007.
Held that:- We need not refer to Articles 270 to 281 of the Constitution prior to 2000 and Article 270 to 281 of the Constitution post 2000 for the simple reason that we are considering the question about the State Legislature's power to tax pan masala with tobacco. Prior to that we must refer to Schedule A.
The petitioners rely upon Chapter 24 of the Central Excise Tariff Act, 1985, in which after the Finance Act 2001, it classified pan masala containing tobacco as 2404.09. Mrs. Jeejeebhoy is right in submitting that pan masala on the face of it is different from tobacco and constitutes a separate class by itself. We have perused Chapters 21 and 24 of the Central Excise Tariff Act and as appearing in the compilation tendered by the petitioners from pages 88 to 90, 93, 96 and 101. The corresponding Note, namely, Note No.3 in Chapter No.21 was amended to clarify that pan masala covered by Chapter 21 would not have tobacco as an ingredient. Corresponding to that was the change brought about in column (3) to the First Schedule of the ADE Act to include Tariff Entry 2404.49, namely, pan masala containing tobacco (page 111 of the petitioners compilation). Thus until 2001, pan masala was not included in either page 24 of the Central Excise Tariff Act nor in the the First Schedule to the ADE Act.
Pan masala containing tobacco is known to the commercial world as different from tobacco. Pan masala is said to be a preparation containing betel-nuts and one or more of the ingredients referred above. Unlike the other entries in Chapter 24 of the 1985 Act, essentially dealing with tobacco, pan masala may or may not contain tobacco.
The State's power to legislate is not curtailed by the ADE Act. If that is not curtailed, then, any reliance on the constitutional scheme of distribution of revenues and taxes cannot be of assistance. That would probably deprive a State of its share in the revenue even if a tax is levied and collected in that State, but would not denude it of its power which is otherwise traceable to the constitutional provisions referred above.
The principle that sub-ordinate legislation cannot be given retrospective effect equally is of no assistance in the facts and circumstances of the present case. We are not concerned here with tobacco but a product (pan masala) containing tobacco. Hence, the effect of the explanation as above need not be considered at all.
Decided against the petitioner.
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2016 (10) TMI 560
Principles of natural justice - levy of penalty u/s 12(3)(b) and 10(3)(1) of the Act - determination of total and taxable turnover for the relevant year - inspection of the business premises by the officials of the Enforcement Wing - while denying the allegations made in the pre-revision notice dated 16.11.2004, as defamatory and mala fide, the petitioner requested copies of the records, which were relied upon in the notice, agreeing to pay cost and further requested for an opportunity to enable them to file their objections to the proposal - Held that: - the decision in the case of Kalra Glue Factory Versus Sales Tax Tribunal And Others [1987 (3) TMI 110 - SUPREME Court] relied upon.
If the respondent, for any valid reason, was of the view that the statements and records need not have been furnished, he could have rejected the request by passing a separate order and that could not have been done at the time of completing the assessment and passing the impugned order. Thus, the inherent defect, which has crept in the order, affects its very validity. The violation of the principles of natural justice is writ large on the face of the impugned order, which is sufficient to hold that the same is not sustainable.
Petition allowed - matter remitted back to the respondent with a direction to consider the request of the petitioner for furnishing of statements and records and an opportunity of cross examination and thereafter proceed in accordance with law - decided in favor of petitioner.
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2016 (10) TMI 559
Denial of exemption on sale of cotton hank yarn - levy of penalty u/s 27(3) of the TNVAT Act, 2006 - audit conducted by officials of the Enforcement Wing - reliance placed on findings of Enforcement Officials - Held that: - The Assessing Officer, being a Statutory Authority, is bound to independently consider the objections given by the dealer and not mechanically be guided by the observations of the officials of the Enforcement Wing. That apart, there are no reasons assigned by the respondent for not accepting the elaborate objections given by the petitioner. In fact, identical observations have been made for all the four assessment years, though the petitioner had filed separate objections for all the assessment years. Thus, the impugned orders are held to be one without any reasons and outcome of a total non application of mind. These are good and sufficient reasons to interfere with the impugned orders - petition allowed - matter remanded for fresh consideration after giving an opportunity of being heard - decided in favor of petitioner.
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2016 (10) TMI 467
Evaluation of stock - inspection - Government Order passed stating that the stock discrepancy not exceeding 2% of the total volume of business may not taken serious notice of and the Inspecting Officer should be forbidden from making notice of any proposal based on such discrepancies to the assessing authority concerned and to ignore the discrepancy based on the general performance of the assessee in the past years - When the stock variation is less than 2% of the total volume of business, what the Department has to do, especially when the Enforcement Wing Officials conducted an inspection in the place of business of a dealer? - Held that: - The Government Order appears to have been given only to alleviate unnecessary problems faced by the dealers. Nevertheless the Government has also noted that this sort of discrepancy can be ignored based on the general performance of the assessee in the past years. Therefore, if an assessee has come to adverse notice of the Department on earlier occasions, he cannot as a matter of right claim that by applying the Government Order, the discrepancy should be ignored. Therefore, for each assessment viz-a-viz, a dealer should be specifically considered, if such an issue arises.
The Tribunal failed to go into the correctness of the findings recorded by the Appellate Assistant Commissioner in its order dated 12.2.2001, on a perusal of the connected records and documents as well as the stock reconciliation statement by the Enforcement Wing Officials was proper and justified. Merely by quoting the order of the Assessing Officer, and allowing the Appeal filed by the Revenue, is erroneous and the impugned order is utterly perverse. Further more, there is no specific finding to the effect that the Appellate Assistant Commissioner has committed an error in allowing the Appeal nor there is any record which the Tribunal relies upon to show that the findings recorded by the Appellate Assistant Commissioner are factually incorrect - petition allowed - decided in favor of petitioner.
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2016 (10) TMI 440
Cancellation of option to pay tax under compounded rate under Section 8(C) of the Kerala Value Added Tax Act - compounding of offence of non-payment of tax in terms of Section 74 of the KVAT Act - option of filing a revised return within three months from the date of the compounding order under Section 22(10) of the KVAT Act - whether cancellation of the option to pay under compounded rate justified? - Held that: - the first communication by the petitioner to the respondents, bringing to their notice the fact of non filing of returns and seeking a permission to file revised returns in accordance with Section 22 (10) of the KVAT Act, was made only through Exts.P5 series of letters dated 10.12.2015. This was admittedly beyond the period of three months, that is granted under Section 22(10) of the KVAT Act. Inasmuch as the petitioner did not comply with this requirement of filing revised returns in respect of the tax amount not paid under Section 6(2), no fault found with orders passed by the 1st respondent, cancelling the permission granted to the petitioner for payment of tax under compounded rate.
Completion of assessment as per best judgement basis under Section 25(1) of the KVAT Act - Held that: - the respondent assessing authority would have to consider the specific claim of the petitioner for the grant of input tax credit/rebate of taxes paid under Sections 6(1) and 6(2) of the KVAT Act, and also give credit to the payments effected by the petitioner, while paying tax on compounded basis before the passing of Exts.P7 series of orders, while completing the assessments pursuant to Exts.P8 series of notices. Proceedings to be completed after giving the petitioner two weeks time and personal hearing to be granted to petitioner.
Petition allowed - decided in favor of petitioner.
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2016 (10) TMI 439
Condonation of delay - Kerala Value Added Tax Act - validity of justification offered by the petitioner for the delay - Held that: - the decision in the case of M/s. S.F. DYES REP. BY ITS PARTNER RAVINDRA ARORA. Versus THE AGRL. INCOME TAX AND COMMERCIAL TAX OFFICER and others [2015 (3) TMI 1217 - KERALA HIGH COURT] has been relied upon.
The appellate authority has not considered the application for condonation of delay filed by the petitioner, in accordance with the principles laid down by this court and the Supreme Court. - appeal and delay condonation application restored - delay condonation application to be filed and considered within a period of two months - petition disposed off - decided in favor of petitioner.
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2016 (10) TMI 438
Direction to grant refund as per the refund order already passed and no action taken - certain queries raised by the Deputy Commissioner (CT) - statutory powers of Deputy Commissioner (CT) - are the queries raised by Deputy Commissioner (CT) legal and acceptable? - Held that: - the power of suo motu revision has been conferred on the Joint Commissioner of Commercial Taxes. The procedure adopted by the respondent as well as the Deputy Commissioner of Commercial Taxes is wholly illegal - respondent directed to effect refund of the tax, as per the refund order - petition allowed - decided in favor of petitioner.
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2016 (10) TMI 374
Input tax credit - whether the Hon'ble Tribunal was justified in rejecting the claim of the assessee for the Input Tax Credit, even though such purchases are not disqualified as per Schedule-'E' attached to the Haryana VAT Act, 2003? - Held that: - The kind of goods purchased by the appellant, input tax credit on which has been declined, is “cooper wire, Taflon Tape, Gasket, Union, Socket etc. Fire Bricks or Boiler, G. I. Pipe, M.S. Angle, Flat, T. Iron, M.S. Flange, Drill, Shaft sleeve, Industrial Fan, M.S. Channel, Angle, Fire Bricks, Rubber Ring, Electric Cable, Wire Cold Rolled Strips, Tape Cutter, etc.”. A perusal of the aforesaid goods shows that none of them can be said to be of the category, which are used for construction of building, rather these are parts of machinery. In fact, none of the authorities were very clear on the issue as vague findings were recorded. The goods purchased by the appellant do not fall in the categories described at Sr. Nos. 1 and 2 of SCHEDULE - E.
Entry 5 in Schedule-'E' is general in nature. All goods which are not forming part of the goods mentioned at Sr. Nos. 1 and 2 will form part of this entry. If the goods purchased by the appellant were not in the category of capital goods, the same will fall in the goods mentioned at Sr. No. 5. Considering the conditions as provided in column no.3, the appellant is not in the business of telecommunication, mining or generation and distribution of electricity, hence, the goods could not possibly be used for that purpose. The goods have not been exported out of State or disposed of otherwise than by way of sale. Clause (iii) in the circumstances mentioned in Column 5 provides that if the goods have been used in manufacture or packing of exempted goods then the benefit of input tax credit is not available. Conditions laid down in Clauses (iv) and (v), are also not applicable in the case in hand as neither the goods are in stock nor those have been sold to Canteen Store Department. First proviso to Section 8(1) of the Act provides that if the goods so purchased in the State are used or disposed of partly in the circumstance mentioned in Schedule “E' and partly otherwise the input tax credit in respect of such goods shall be computed on pro-rata basis.
The appellant entitled to input tax credit on the goods purchased by him. However, while calculating input tax credit conditions in Schedule 'E' and provisos to Section 8(1) of the Act have to be kept in view - appeal disposed off - decided partly in favor of appellant.
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2016 (10) TMI 373
Demand of tax - assessment by the Excise and Taxation Officer-cum-Designated Officer, Ludhiana-II under the Central Sales Tax Act, 1956 - the stock transfer to the tune of ₹ 11,54,54,462/- treated as interstate sale - business of manufacture and sale of iron and steel goods including galvanized steel pipes - material was transferred from the manufacturing unit of the petitioner located in the State of Punjab to its branch office at Patna and thereafter local sale was made in the State of Bihar - Held that: - a specific plea was raised by the petitioner before the Appellate Authority that the transaction, which has been held to be interstate sale from the State of Punjab and tax paid thereon, was treated to be local sale in the State of Bihar and tax was paid on the same, however, that aspect was not considered by the Appellate Authority with reference to the alternative claim made by the petitioner in terms of the provisions of Section 22 (1B) of the Act, regarding refund or transfer of the tax from the State of Bihar to the State of Punjab. As the Appellate Authority failed to exercise its jurisdiction on the plea raised by the petitioner, without even disturbing the findings recorded by the Appellate Authority regarding transaction being in the course of inter-state sale from the State of Punjab, the matter deserves to be remitted back to the Appellate Authority for dealing with the alternative prayer made by the petitioner - petition disposed off - matter remitted back to the Appellate Authority to consider and decide the leftout issue - date of hearing shall be fixed by the Appellate Authority with prior intimation to the parties concerned.
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2016 (10) TMI 372
Levy of penalty under Section 27(3) - revision of assessment - TNVAT Act, 2006 - CST Act, 1956 - branded bakery products - Held that: - these revision of assessment under Section 27(1)(b) of the TNVAT has been done by the respondent to increase the rate of tax on the ground that the petitioner has been selling branded bakery products. The revision of the assessment is done under Section 27(2) of the Act, therefore levy of penalty under section 27(4) of the TNVAT Act and under ection 27(3) of the TNVAT Act is not correct.
The petitioner has withdrawn the application filed before the Trade Marks Registry and has got sufficient proof to show that the same has been withdrawn as early as on 03.10.2013, - one more opportunity given to the petitioner to produce proof of withdrawal of application.
Matter remanded for fresh consideration and the respondent directed to issue a fresh notice and after affording an opportunity of personal hearing to the petitioner, shall re-do the assessment in accordance with law - petition allowed - decided in favor of petitioner.
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2016 (10) TMI 330
Validity of the order of assessment made by enforcement wing officials - notice issued to petitioner on the basis of field audit report to revise the turnover for the relevant years - due to ill health the petitioner did not submit his reply and he enclosed a medical certificate issued by the Orthopaedic Surgeon stating that he was advised complete bed rest from 05.04.2016 to 30.06.2016 and prayed for opportunity of being heard - whether the appellant be granted the opportunity of being heard? - Held that: - the petitioner afforded an opportunity to put forth his objections, subject to certain conditions. The petitioner directed to pay 15% of the tax demanded for both the assessment years within a period of three weeks and treat the impugned assessment orders as show cause notices and at liberty to file his objections.
In the event, the petitioner does not comply with the conditions of payment of 15% of the tax demanded for both the assessment years within the three weeks period stipulated by the Court, the benefit of the order will not enure to the petitioner and the writ petition will be dismissed automatically.
However, it is open to the petitioner to invoke the appellate remedy provided under the Act, as against the impugned orders of assessment.
Petition disposed off - decided in favor of petitioner.
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2016 (10) TMI 329
Delay condoned in filing appeal - delay in filing appeal due to the reason that writ petitions were filed in this Court which ultimately came to be decided on 18th February, 2016 - questions of law raised for consideration - On account of the fact that the Appellant has claimed refund in the return, no coercive measures for enforcement of demand arising from the impugned order shall be taken against the Appellant during the pendency of the appeal - application disposed off.
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2016 (10) TMI 290
Imposition of tax - Sec. 53(2)(a) of the M.P. VAT Act, 2002 - whether by virtue of Entry No.18 to Schedule-I of the M.P. Commercial Tax Act, 1994 or Entry No.47 to Schedule-I of the M.P. VAT Act, 2002, the manufactured product i.e. IMFL or Rectified Spirit being an excisable article is liable to be taxed under the Commercial TaxAct, 1994 or the VAT Act, 2002? - Held that: - the decision in the case of Gwalior Alcobrew Pvt. Ltd. Vs. State of M.P. & Others [2016 (9) TMI 355 - MADHYA PRADESH HIGH COURT] apply where it was held that foreign liquor manufactured in the State of M.P. and exported to other State is an excisable article and even though it is exempted from payment of excise duty but being an excisable good on which the State Government may levy excise duty under the Excise Act, recovery of Commercial tax or VAT tax is not permissible.
Amendment brought about in Entry No.47 to Schedule-I of the VAT Act vide notification issued on 1.4.2013. However, in the present appeal as the assessment year is prior to 1.4.2013, the principles laid down in the case of Gwalior Alcobrew Pvt. Ltd. will apply - appeal allowed - decided in favor of appellant.
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2016 (10) TMI 289
Restoration of appeal - quantum of pre-deposit amount - Held that: - the pre-deposit requirement as modified by the Tribunal is barely 10% of the principal tax ignoring the penalty component. The Tribunal has perused the materials on record and come to the conclusion that no further relaxation can be granted - appeal restored on the condition that the appellant satisfies the pre-deposit requirement as provided by the Tribunal latest by 31.12.2016 - appeal dismissed.
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2016 (10) TMI 288
Imposition of condition of deposit of 50% of the tax and grant of stay regarding the rest 50% - whether the amounts, which are allegedly shown separately in the invoice as transaction charges, are to be included in the turnover or not? - question of law framed by revisionist - Held that: - the revisionist, in regard to the interim order passed by the Tribunal refusing to interfere with the interim order of conditional stay granted by the First Appellate Authority, has not made out any substantial question of law - revision dismissed - decided against revisionist.
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2016 (10) TMI 287
Validity of order of Assessment - opportunity of being heard to the petitioner - Held that: - the order passed by the Appellate Assistant Commissioner dated 30.08.2012, calls for interference and consequently, W.P.No.16057 of 2013, has to be allowed.
The Assessing Officer misconstrued the scope of remand, misconstrued the effect of the payment of the tax made by the petitioner as per the direction of the Hon'ble Division Bench resulting in an erroneous order. Therefore, unless and until, the defect is cured at the hands of the Assessing Officer, no purpose would be served in directing the Appellate Authority to consider the appeal petition inspite of this Court having come to a conclusion that the Appellate Authority's order dated 30.08.2012, is not sustainable. Therefore, necessarily, the assessment has to be redone and for which purpose, the matter requires to be remanded to the Assessing Officer.
Matter remanded to the Assessing Officer, for fresh consideration, who shall afford an opportunity of personal hearing to the petitioner, hear the objections of the petitioner on all issues and redo the assessment in accordance with law - petition allowed - decided in favor of petitioner.
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2016 (10) TMI 286
Detention of trucks - imposition of penalty in terms of sub section (5) of Section 68 of the Gujarat Value Added Tax Act - penalty imposable upto 150% of the tax - at Dahod check-post for production of wrong Form No. 403 - opportunity of being heard - Held that: - petitioner to deposit such penalty at one and half times the tax liability which will remain in the nature of deposit with the department. The amount deposited under these directions would be adjusted towards the final liability ascertained - petitioner also to submit correct form no. 403.
Detention of trucks at Kaprada check-post - power of Department to detain goods in terms of Section 45 of provisional attachment - Held that: - penalty levied under sub section (5) of Section 68 of the VAT Act. Petitioner to pay ₹ 50,000/- towards penalty which will be adjusted with the amount of penalty ascertained. Petitioner also to deposit outstanding tax liabilities.
Immediate release of truck granted - petition disposed off - decided in favor of petitioner.
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2016 (10) TMI 261
Validity of order of Revised assessment - valuation - cash discount - sales return - whether the respondents were justified in refusing to consider the issue of cash discount and sales return, as there was no specific direction to the said effect in the earlier writ petition - Held that: - the Assessing Authority, being a statutory authority, have the power to redo the assessment, moreso, when the Court directed to redo the matter. Thus, if the petitioner has made a statement with regard to the sales return and cash discount and produced the necessary documents, it is always open to the assessing officer to take into consideration those documents and take a decision in the matter. The respondent need not restrict himself only with regard to the C-Forms and F-Forms and if the petitioner is legally entitled for any other relief then that may be considered.
Respondent directed to redo the assessment on the issues of Sales Return, Cash Discount and return of stock transferred goods, after affording an opportunity of personal hearing to the petitioner - petition allowed.
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2016 (10) TMI 260
Principle of 'lifting of the corporate veil' - recovery of duty - discharge of duties and functions as a Director of the Company - management of affairs of the company - whether the recovery of duty from the revisionist justified on the strength of the principles of lifting of corporate veil and after going through the facts and circumstances of the case? - Held that: - the said doctrine is liable to be invoked in a case where it is found that the corporate personality or structure itself is used as a camouflage or a vehicle to evade payment of tax and perpetrate fraud upon the revenue.
It is only an allegation that, the revisionist had failed to faithfully and dutifully discharge his duties and functions as a Director and that his conduct of the business of the Company was irresponsible. He had failed to obtain requisite forms as a result of which the dues of the company continued to mount. - This does not in the opinion of this Court satisfy the test of fraudulent conduct, so as to attract the principle of lifting of corporate veil
While no recoveries for the dues of the assessee can be executed against the revisionist, it shall be open to the department to move against the assets, moveable or immoveable, of the assessee in accordance with law - revision allowed - decided in favor of revisionist.
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2016 (10) TMI 259
Evasion of Entry tax - detention of goods - imposition of penalty u/s 51(7)(c)of that PVAT Act - two consignments originating from two consignors meant for two different consignees in the same vehicle - purchase of goods by the appellant on concessional rate of tax against form 'C' - entry tax for one consignment duly deposited and delay in submission of entry tax on other consignment - whether the deposit of tax was made duly and no evasion of tax involved? - Held that: - The appellant claimed that the amount was transferred in the account of the agent before 11.00 AM, however, it was reflected in his account late. The fact was got verified by the first appellate authority from the banker of the appellant and it was revealed that the amount was deposited in cash at 12.27 PM. Still further, the amount deposited in the account of the so-called agent was ₹ 42,500/-, whereas the amount of tax due on both the consignments, which was to be deposited at the barrier, was ₹ 43,170/-, hence, even the amount also did not tally. Further, if the agent could deposit the amount of tax for one consignment before the amount was deposited by the appellant in his accounts, he could very well deposit the same for the second consignment as well. The process for deposit of money started only after the goods were detained and were in the process of verification to create evidence - evasion of entry tax established - imposition of penalty justified - appeal dismissed - decided against appellant.
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