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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 59 Records
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2016 (3) TMI 1466 - ALLAHABAD HIGH COURT
Seeking production of original record relating to the assessment proceedings - proceedings initiated by the Assessing Officer for making a provisional assessment were not correct - violation of principles of natural justice - HELD THAT:- The petitioner was directed to file reply by 10th February, 2016 which was not possible and, accordingly, the petitioner rightly applied for adjournment, which was granted fixing 15th February, 2016. The order sheet shows that the petitioner did not appear on 15th February, 2016, but at the same time, we find that if on the second date the petitioner did not appear, the Assessing Authority had the option to proceed ex-parte or fix another date, which in the instant case did not happen. If the Assessing Officer proceeded ex-parte, he could have fixed another date for ex-parte hearing or after recording the absence of the petitioner could have proceeded ex-parte and passed an assessment order on that date itself, which in the instant case did not happen. Therefore, any assessment order made on the next date i.e. on 16th February, 2016 becomes erroneous, as no date was fixed for 16th February, 2016 for making an assessment. Such assessment order passed on 16th February, 2016 without due notice is apparently in gross violation of the principles of natural justice.
The procedure relating to granting adequate opportunity as provided under Article 25 (1) of the U.P. VAT Act was not followed. Reasonable opportunity of being heard was not given. Proper inquiry was not made and therefore, the ex-parte assessment order cannot be sustained - In exceptional and in extraordinary circumstances as has happened in the instant case, the Court is of the opinion that a writ of certiorari should be issued in order to dispense justice to the assessee. There has been a gross violation of Article 14 of the Constitution of India. Adequate opportunity of hearing has not been provided nor the sufficient time was given to file objections.
In M/S. AROMA CHEMICALS VERSUS UNION OF INDIA & OTHERS [2014 (4) TMI 949 - ALLAHABAD HIGH COURT] a Division Bench of this Court held that a period of 7 days' time given for filing reply to the show cause notice was found to be insufficient and in violation of the principles of natural justice and, accordingly, the order was quashed.
In the instant case, provisional notice was issued on 9th February, 2016 and an assessment order was passed on 16th February, 2016 within a period of one week - undue haste and speed was exercised by the Assessing Officer. The Court fails to fathom as to what was the urgency in proceeding in such a cavalier fashion. There could have been some urgency if the period of limitation was expiring for making an assessment order which in the instant case was not existing.
Tthe assessment orders cannot be sustained and are quashed - The writ petition is, accordingly, allowed at the admission stage.
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2016 (3) TMI 1408 - MADRAS HIGH COURT
Validity of attachment order - order of attachment passed without passing assessment order - opportunity to put forth the case also not provided - HELD THAT:- Indisputably the petitioner was not given an opportunity before passing the impugned order of attachment. In such view of the matter, the impugned order is liable to be set aside and the same is set aside. The second respondent shall pass order afresh, after giving opportunity to the petitioner and in accordance with law and the petitioner is directed to appear before the second respondent, within a period of two weeks, from the date of receipt of a copy of the order, failing which, the impugned order will hold good.
The petition is disposed off.
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2016 (3) TMI 1360 - PATNA HIGH COURT
Issuance of rectified Form C and F - no online procedure for rectification of such declarations - An affidavit has been filed on behalf of Commissioner, Commercial Taxes, Bihar wherein it has been stated that the modules for online rectification of Form C is to be customized for implementation in Bihar with effect from April, 2016.
HELD THAT:- Keeping in view the stand of the respondents in the counter affidavit, we do not feel that any further directions are called for in the present matter.
Application disposed off.
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2016 (3) TMI 1290 - PATNA HIGH COURT
Validity of demand notice - BVAT Act - Section 31(1) of the Bihar VAT Act - Held that: - It is evident from the pleadings of the parties that certain contentions have been raised by the petitioner regarding non-revision of the MRP on the bottles and in particular the reply of the petitioner that the sale had been made at a much lower price on the basis of old MRP printed on the bottles.
The impugned assessment order does not clearly indicate whether the revised MRP was printed on the bottles or not and the levy of VAT-3 has been made on the basis of actual sale price at which they have been sold and not the MRP as printed on the bottles, which cannot be the basis for levy of sales tax. The petitioner having made clear that the sale had been made at a lower price than the revised MRP then the respondents are obliged to pass order under Section 31(1) on the basis of actual sale price at which the goods had been sold - he impugned orders are quashed with a liberty to the respondents to proceed afresh in the matter.
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2016 (3) TMI 1288 - PUNJAB & HARYANA HIGH COURT
Whether on the facts and in the circumstances of the case the assessment orders for the years 1998-99 to 2002-03 passed on 29.6.2008 are barred by limitation in view of the provisions of Rule 28A(10)(ii) of the HGST Rules which require the assessments to be completed by 31st December in respect of the assessment year immediately preceding thereto? - Held that: - The issue raised herein involves examination of factual matrix viz-a-viz various amendments incorporated in the HVAT retrospectively w.e.f. 1.4.2003 - A perusal of the order of the Tribunal shows that no cogent reasons have been recorded by it relating to the applicability or otherwise of the various amendments brought in HVAT effective from 1.4.2003 and its effect on the facts of the present case.
The references are remanded to the Tribunal to re-adjudicate the issues afresh by providing opportunity of hearing to the parties
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2016 (3) TMI 1286 - KARNATAKA HIGH COURT
Vires of Section 10(3) of the Karnataka Value Added Tax Act, 2003 - interpretation of statute - petitioners claim that they purchase various taxable goods to be used as inputs and consumables in the manufacture of finished products. In respect of such purchases, the petitioners pay taxes applicable to its selling dealers, and as the said tax paid qualifies as "input tax" under Section 10(2) of the KVAT Act, the petitioners had deducted the same while calculating the net tax liability as per Section 10(3) of the KVAT Act - Held that: - Section 10(3) as it stood originally provided for the assessee to claim credit for the input tax paid, subject to making a claim for the same within the tax period. If the assessee failed to make such a claim within the period, he would. The right to claim input tax credits subject to the right to file corrected returns under Section 35(4) of the Act. Therefore the provisions of Section 10(3) of the Act is a Substantive provision vesting in the assessee a right to get input tax credit subject to the claim be made within the time frame and creating a liability on the assessee to forfeit the right to input tax credit if fails to make the claim on time and the rights on the revenue to demand payment of the input tax claim that is disallowed.
Section 10(3) of the KVAT Act, prior to its amendment vide the Karnataka Value Added Tax (Amendment) Act, 2015, shall be read down to enable the petitioners to calculate the net tax liability by deducting the input tax paid on its purchases from its out put tax liability, irrespective of the month in which the selling dealer raises invoices - petition allowed.
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2016 (3) TMI 1203 - SUPREME COURT
Valuation - calculation of sales tax - entry tax - includibility - whether the entry tax amounts collected separately from the customers in the sale bills and paid to the Government will form part of turnover so as to be subjected to levy of sales tax under the KST Act? - Held that: - when a registered dealer is authorised to collect any amount by way of tax, that tax shall not form part of turnover - when it is found that the appellant is a registered dealer, it would entail him to collect the entry tax and such an entry tax cannot be treated as forming part of the turnover - appeal allowed - decided in favor of appellant.
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2016 (3) TMI 1190 - KARNATAKA HIGH COURT
Imposition of Penalty - the petitioner was compelled to immediately pay the amount of penalty and when the petitioner's men insisted that there be an order - Held that: - since the rule requires any seizure and detention and while imposing a penalty, unless preceded by an order, any action of seizure or detention or collection of penalty would be bad in law - even if any order is passed, it is an after-thought since it is not on record that it has been duly served on the petitioner - penalty set aside - petition allowed - decided in favor of petitioner.
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2016 (3) TMI 1188 - MADRAS HIGH COURT
Maintainability of petition - after a long lapse of five years, the present impugned orders dated 25.5.2015 have been passed, confirming the original assessment of tax and penalty on the very same grounds and according to the petitioners, it is nothing but non-application of mind on the part of the respondents - Held that: - the first respondent has passed the impugned orders without following the directions issued by this Court as well as the direction issued by the second respondent on two different occasions and at the same time, the first respondent did not even consider the petitioners' reply - the delay in considering the claim of the petitioners, played a pivotal role in the case on hand and thus, the orders impugned herein, have no legs to stand and therefore, they are liable to be interfered with on this ground too - the impugned orders are liable to be set aside - matters are remanded to the authorities for consideration afresh and the respondents are directed to consider each and every aspect on the basis of the materials available - appeal allowed by way of remand.
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2016 (3) TMI 1156 - MADHYA PRADESH HIGH COURT
Validity of assessment order - principles of natural justice - the applications for rectification/correction of mistake has been rejected, behind the back of petitioners - whether opportunity of hearing should be granted when the rectification is sought for by the assessee himself and he wants certain corrections in the orders on grounds as are raised in the rectification application?
Held that: - the Full Bench of the Delhi High Court has dealt with this question in the case of Smart Private Limited [1990 (2) TMI 49 - DELHI High Court]. In the case before the Full Bench of Delhi High Court, the provision of section 254(2) of the Income Tax Act was interpreted and Justice Kripal (as he then was and who has authored the Judgment) after taking note of the provisions of section 254(2) of the Income Tax Act has discussed in detail the import and effect of the provisions of Section 254(2) - the learned Full Bench has come to a conclusion that principles of natural justice have to be read into the provisions of section 254(2) and it has been held that this provision has been inserted in the statute by way of abundant caution to give certain right to a person who is aggrieved by an order passed, and if being aggrieved by certain order passed the statute gives a power to the aggrieved person to file an application, a presumption has to be drawn that the statute correspondingly gives a right to that person for an opportunity of hearing with regard to acceptance or otherwise of the application filed by virtue of the right which accrues to the person on account of the statutory provision.
In the case of Punjab National Bank & Ors. Vs. Kunj Behari Mishra, [1998 (8) TMI 594 - Supreme Court of India], it has been held by the Supreme Court that even if a statutory rule does not provide for an opportunity of hearing if the order impugned has the effect of affecting the rights of person adversely then the requirement of the principles of natural justice has to be read into the Rules.
The requirement of grant of opportunity of hearing or following the principles of natural justice before rejecting an application under section 54(1), has to be read into the rules and in dismissing the application on the grounds as indicated in the impugned orders dated 13.05.2015, without hearing the petitioners, an error has been committed by the department.
Petition allowed and matter remanded to back to the Assistant Commissioner, Commercial Tax, Chhindwara with a direction to issue notice to the petitioners, hear them on the application for rectification and, thereafter pass an order.
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2016 (3) TMI 1155 - KARNATAKA HIGH COURT
Imposition of penalty - goods imported coming from Mangalore Port to Bangalore - E-Sugam was generated on September 18, 2012 at 6.34 p.m. and the period of three days was over - penalty of three times the tax was imposed on the suspicion that E- Sugam might have been recycled to avoid tax - Held that: - it was necessary for the respondent-Commissioner to examine the facts of the present case and thereafter to reach the conclusion as to whether the explanation so given could be said as sufficient reason for the so-called breach or non-compliance of the requisite provision or not - when the aspects are not considered which goes to the root of the matter, the order passed can be said to be a non-speaking, since the grounds germane to exercise the power are not considered, though the respondent-Commissioner has considered only the question of law without considering the facts of the present case. Under the circumstances, we find that the order cannot be sustained in the eye of law and it would be just and proper to remand the matter to the authority for reconsideration of the revision - appeal allowed by way of remand.
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2016 (3) TMI 1154 - MADRAS HIGH COURT
Natural justice - validity of assessment order - petitioners claim that as per Section 27(3) of TNVAT Act, personal hearing is must before the order impugned in this Writ Petition - Held that: - the petitioner, in order to show their bona fides, voluntarily comes forward to pay 20% of the tax demanded by the authorities, the order impugned in this Writ Petition stands set aside and the matter is remitted back to the authorities concerned on condition that the petitioner should pay 20% of the demanded tax in question, with the respondent, on or before 31.03.2016, without waiting for an order copy, failing which, the respondent is at liberty to proceed against the petitioner in accordance with law - petition allowed - decided in favor of petitioner.
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2016 (3) TMI 1153 - KARNATAKA HIGH COURT
Levy of tax u/s 6E - exemption granted by notification dated May 31, 2003 - the appellant is a premier co-operative society dealing in manufacture and sale of milk products including milk powder - Held that: - it is apparent that skimmed milk powder may be consumed or not consumed as baby food or marketed as baby food; skimmed milk will have relevance under item No. 76 only when it is sold by KMF to its unions or when there is an inter-union sale. Therefore, one has to independently consider for interpretation of the entry regarding "milk powder" in entry Nos. 7 and 76. It may fall in item No. 76 and the exemption may be available if sold by K. M. F, to its union or inter-union sale. If both the entries at items Nos. 7 and 76 are considered in juxtaposition, it is not possible to accept the contention of the appellant that all milk powder would get included in entry No. 7. As such, if such a contention is accepted, it would make entry No. 76 redundant. Further, even otherwise also, initially, entry No. 7 includes milk powder used only as baby food or marketed as baby food and not as milk powder per se - no error committed by the revisional authority.
The appellant-assessee is not entitled to the exemption by virtue of entry No. 7 as per notification dated May 31, 2003 - appeal dismissed - decided against assessee.
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2016 (3) TMI 1152 - ORISSA HIGH COURT
Tax exemption on sale - SSI unit - industrial unit of the dealer is a pulverising unit - It has been stated that pulverising units have become ineligible to avail of tax exemption vide Finance Department N/N. 19194/CTA-72/ 92F, dated April 28, 1998 and in the footnote of the said notification it has been stated that the industrial units which are set-up and in receipt of incentives under the notification of Government of Orissa in Finance Department No. 27662 CTA-56/90F dated August 16, 1990 will continue to the said incentives - whether the petitioner is entitled for exemption from payment of tax for the periods from 1994 to 1997 and consequently for refund of the amount already paid?
Held that: - In the impugned order dated February 20, 2007 (annexure 9) passed by the Commissioner of Sales Tax, Cuttack (O. P. No. 1), it is abundantly clear that SSI unit of the petitioner was spice making unit but subsequently used pulverizer to prepare spices but the finished products remained the same and the sales tax imposed is exempted on the finished products which do not undergo any change. The appellate authority has also gone into the depth of the interpretation of the industrial unit and also other aspects of the case to unveil the real truth. It is clear from the impugned order that IPR-1989 is not at all applicable to the facts of the case of the present petitioner and his case is governed under IPR-1986 and IPR-1986 is clear to the effect that the incentive can be availed of for exemption of the payment of sales tax for a period of five years and it has been availed of as observed in the impugned order, that is from April 14, 1989 to April 13, 1984.
So far as the footnote to the notification dated April 28, 1992 (annexure 12) is concerned, the exemption will not be available to the petitioner as the said industrial unit of the petitioner is not covered under IPR-1989.
The present petitioner being a spice making unit is only eligible for exemption for a period of five years from the date of manufacture and it cannot avail of the exemption for the years 1994-95, 1995-96 and 1996-97 - Since the dispute for 1996-1997 is not raised before us, we limit this order to the period of 1994-95 and 1995-96. On the other hand, the refund availed of by the petitioner for these two years on the pretext of such notification, is illegal and the impugned order under annexures 8 and 9 are legal and proper.
Petition dismissed - decided against petitioner.
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2016 (3) TMI 1151 - TRIPURA HIGH COURT
Import of stone chips from Bangladesh - this case is squarely covered by the judgment of this court rendered in Sri Swapan kumar Saha vs. The State of Tripura [2014 (7) TMI 1228 - TRIPURA HIGH COURT] wherein the question was with regard to imposition of tax on stone chips imported into Tripura from Bangladesh - Held that: - as the issue is similar the decision of the said case would apply where it was held that import of stone chips from Bangladesh into India will not be exigible under the TVAT Act and, therefore, the assessment order and notices are bound to be quashed - further the Department is free to take further action to collect tax on subsequent sale, if found to have taken place - petition allowed - decided in favor of petitioner.
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2016 (3) TMI 1150 - KARNATAKA HIGH COURT
Validity of reassessment order - failure to consider F and C forms filed belatedly by the petitioner while passing order - Held that: - It does appear that the petitioner having filed all the C and F forms, the same having ignored since they were filed belatedly. If the same were taken into account before any further orders would be passed by the authorities the interest of justice would be met - the petition is allowed. The reassessment order passed is quashed. The respondent is directed to consider the C and F forms filed belated by the petitioner before passing any further orders - decided in favor of petitioner.
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2016 (3) TMI 1142 - UTTARAKHAND HIGH COURT
Grant of stay - realization of entry tax - Held that: - tax not to be recovered and further proceedings will be kept in abeyance provided the petitioner furnishes security in the form of bank guarantee, which will remain valid till the disposal of the case - It is also directed that the goods already seized shall be released in favor of the petitioner, provided the petitioner furnishes bank guarantee, to the satisfaction of the authority concerned, for different taxes - application disposed off.
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2016 (3) TMI 1120 - MADRAS HIGH COURT
Prayer for revised assessment for the Assessment Year CST 2013-2014 - ‘C’ forms, ‘F’ forms and export turnover - Held that: - since the petitioner could not produce ‘C’ forms, ‘F’ forms and export turnover, the respondent had passed the impugned order without considering the same. In these circumstances, in the interest of justice, the petitioner given an opportunity to produce ‘C’ forms, ‘F’ forms before the respondent. - matter remanded to the respondent for fresh consideration - The petitioner directed to produce ‘C’ forms, ‘F’ forms’ and export turnover within a week from and on receipt of the statutory forms, the respondent directed to decide the matter afresh, on merits and in accordance with law, after giving due opportunity to the petitioner - writ petition disposed off.
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2016 (3) TMI 1094 - KARNATAKA HIGH COURT
Classification - Rate of tax on paving bricks/blocks - 4% or 12.5% - distinction between bricks and paving bricks/ blocks - the first appellant issued show cause notices proposing to levy VAT at 12.5% on paving bricks/blocks treating them as falling outside entry No.2 of Schedule III. - KVAT - Revenue submitted that, Entry No.2 of Schedule III is clear in its language to include bricks and only bricks stipulated therein which are used for construction of a building and it cannot include paving bricks since the normal use of paving bricks is mainly for flooring in the compound, garden etc, and not for construction of a building
Held that:- It can hardly be disputed that the meaning of the word ‘bricks’ is known to public at large who are consumers of varieties of bricks for various purposes. But, the general use and the general meaning the expression brick is one used for construction purposes. One who is involved in the business of construction or who is desirous to put up construction would use of the bricks for the purpose of construction of a building. Therefore, the common meaning of bricks is that which could be used for construction purposes with the help of cement and sand for outer finishing and also for aligning of bricks. If one thinks, of bricks, at the first instance, country made bricks made out of clay would come within such category but the Legislature intended to include refractory bricks, fly ash bricks in addition to country made bricks. Therefore, it has also used the words “all kinds of bricks”. It is true that the language used is to include all kinds of bricks and therefore, one may say that the bricks made out of any preparation, other than fly ash bricks or refractory bricks can also be included.
But, two aspects need to be emphasized here. One, is that the language used is “and the like” and the another, is that the general use of bricks is for constructions of various types of building. Under the circumstances, if the product or item is marketed as bricks, it is for the purpose of construction and in common parlance bricks are used for construction and all such bricks used for construction can be said to be included.
The attempt on the part of learned counsel for the respondent / assessee to contend that laying the flooring in a compound or in the garden is also a part of construction activity cannot be accepted for the reason that if such a wide meaning is given to the word “construction” it would result in an absurdity by equating to construction whereas there is no construction, in the strict sense of the term, while paving or laying a flooring with bricks. While giving a meaning to the word “construction” one would normally consider the general meaning of the word “construction” to something to be raised above the surface of the earth and it may also be below the earth’s surface, but would not include construction on the level of the earth or on the surface of the earth and not raised above the surface of the earth. If the aforesaid aspects are considered, it is not possible to accept the contention of learned counsel for the respondents that the construction should include flooring in the compound or flooring in the garden as sought be canvassed.
In view of the examination of the matter by distinguishing between bricks and the floor bricks or pavers we cannot agree with the view taken by the Gujarat Tribunal as well as Karnataka Appellate Tribunal. Hence, we find that the said views of the Tribunal are not correct.
Decided in favor of revenue.
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2016 (3) TMI 1081 - DELHI HIGH COURT
Seeking de-sealing of business premises - Invokation of powers under Section 60 of the DVAT Act - Held that:-similar oredrs have already been held to be illegal by this Court in several cases. Accordingly the order dated 1st March 2016, the notice under Section 59 (2) of the DVAT Act and the actions taken and orders by the DT&T pursuant thereto are hereby set aside. The business premises of the petitioner be directed to be de-sealed forthwith.
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