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VAT and Sales Tax - Case Laws
Showing 61 to 76 of 76 Records
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2017 (10) TMI 391
Validity of assessment order - reversal of input tax credit - demand on the ground that details with regard to opening stock, purchase, sales, Branch Transfer and closing stock separately for local purchase, import purchases and interstate purchases are not furnished - Held that: - there is no specific denial by the respondent with regard to the averments made by the petitioner that all split-up details, as sought for were furnished to the respondent. This Court is at a loss to understand as to how the assessee would be benefited by not fully disclosing the figures, when his case is that substantial portion of transactions had been disclosed - this Court is of the view that one more opportunity should be granted to the petitioner to go before the Assessing Officer to establish all their transactions - writ petition is disposed of, by directing the petitioner to treat the impugned proceedings as a Show Cause Notice and submit relevant documents.
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2017 (10) TMI 325
Penalty u/s 27(3) of the TNVAT ACT - reassessment - Held that: - it is seen that the petitioner has admitted their mistake that the purchases effected by them were not accounted for in the year 2014-15. However, their specific case is that the same is accounted for in the closing stock of the year 2014-15, as they intended to sell the stock during the assessment year 2015-16. Unfortunately, the petitioner did not produce their purchase ledger, stock register, balance sheet etc., before the Assessing Officer. The explanation that is said to be given now is by stating that the Assessing Officer did not call for these documents. The burden of proof is on the petitioner to prove that there was no suppression. One factor, which appears to be correct is that the petitioner has not availed any ITC on the alleged purchase suppression. This factor is a main factor to be noted to examine the conduct of the petitioner/dealer. The second respondent/appellate authority rightly observed that the petitioner did not produce any documents before the Assessing Officer or before the appellate authority - matter is remanded to the second respondent/appellate authority with a specific direction to the petitioner to produce all the records before the appellate authority - appeal allowed by way of remand.
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2017 (10) TMI 324
Validity of assessment order - TNGST Act - Held that: - The Assessing Officer, in his parawise comments, has specifically stated that the petitioner has not produced documentary evidence, as they have charged market value in the sale invoices and they have not produced any evidence that they have received more amount than the sale price. Further, the petitioner did not produce the prevailing market rate for the relevant period, viz., 2003-04. This averment is reiterated in more than one place in the parawise comments - the mater is remanded to the second respondent or fresh consideration, and petitioner is at liberty to produce all necessary documents to substantiate their claims - matter on remand.
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2017 (10) TMI 259
Refund claim - rejection of the same without giving any opportunity of hearing or specific Proposition notice before passing of the said reassessment order - Held that: - When the very first notice was given to the petitioner vide Annexure-A dated 14.09.2016, not only called upon the petitioner to produce the Books of Accounts, but also to raise the objections about two specific proposals of the Respondent-Assessing Authority to deny Input Tax Credit of ₹ 1,52,462/- and also to estimate URD purchases at the rate of 25% of the total turnover, to which, apparently no specific objection was ever raised by the petitioner-assessee, this Court is of the considered view that the petitioner-assessee cannot raise any grievance about no specific Proposition notice was given to him - petitioner-assessee therefore cannot be heard to complain the breach of principles of natural justice by the Respondent-Assessing Authority and not giving him an opportunity to file objections - petition dismissed - decided against petitioner.
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2017 (10) TMI 258
Scope of SCN - Inter-state Sale - validity of assessment order - the petitioner's case is that while the sale has taken place in the course of interstate trade, the quantities to be delivered on a given day are fixed online and delivered as per online confirmation in ALL web portal. However, the true intent and purport of the contract has not been appreciated by the respondent, which has resulted in issuance of revision notice dated 13.10.2016.
Whether the respondent/assessing officer proceeded to travel beyond the scope of the proposal made in the show case notice? - Held that: - In the show cause notice dated 13.10.2016, as pointed out, the allegation was that the tyres which were manufactured by the petitioner in their Mysore plant were not directly supplied to the buyers, but supply is made as and when the buyers made request to supply the tyres - The respondent stated that the materials brought from the other States are being stored in the transporter's place and supplies are being made from their godown with a condition to supply the tyres just in time . This, according to the respondent, has to be construed as local sale and taxable at higher rate of tax at 14.5% under the TNVAT Act. Thus, in the show cause notice, the respondent did not dispute the fact that the tyres were manufactured outside the State of Tamil Nadu and dispatched from the place of manufacturer and retained in the transporter's godown. The crucial question would be, for the transaction to qualify as an interstate sale, the test would be as to where the appropriation of goods took place. In fact, the proposal in the show cause notice does not seriously dispute or contest the place of appropriation, as there is no clear indication as to what has passed in the minds of the assessing officer.
The chain of events clearly show that the respondent obviously could not have appreciated the details placed by the petitioner, which he had called for vide notice dated 26.12.2016. Probably after all the details have been furnished, the assessing officer thought fit to summon the purchaser to understand the nature of transaction. While the move taken by the assessing officer is appreciable, but, the time at which he exercised such discretion is not the proper time as, by then, the respondent had already pre-concluded the matter. In other words, such exercise said to have been done by the respondent is much prior to forming any opinion on the nature of transaction between the parties. Nevertheless, the officials of the purchaser responded to the summon and have given statements.
The assessment order appeares to have been completed in a very hasty manner, without analysing the nature of transaction as projected by the petitioner. As mentioned earlier, the respondent does not dispute the fact that the purchase order has been placed by the purchaser with the factory at Karnataka.
The impugned proceedings are wholly unsustainable warranting interference at the hands of this Court - the impugned assessment orders dated 30.01.2017 are set aside and the matters are remanded to the respondent for fresh consideration - petition allowed by way of remand.
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2017 (10) TMI 257
Reversal of ITC - interpretation of statute - proviso to Section 19 (2) (ii) of TNVAT Act - Held that: - it appears that the State is in the process of preferring Appeals, by re-presenting the Appeal papers and the Appeals are yet to be numbered. The settled legal position being that, mere pendency of the Appeal(s), without interim order(s), will not amount to the grant of stay of the order(s) passed by the Lower Court or Lower Forum - In the instant cases, it appears that the Appeals filed by the State are yet to be numbered - the decision in the case of M/s. Everest Industries Limited Versus The State of Tamil Nadu, The Deputy Commissioner (CT) (FAC) [2017 (3) TMI 279 - MADRAS HIGH COURT] apply, where it was held that the limitation provided in the proviso would apply only vis-a-vis the purpose specified in clause (v) and not qua other purposes set out in clause (i) to (iv) and (vi) of Section 19(2) of the 2006 Act.
Writ Petitions are disposed of, by directing the respondent to consider the petitioner's petitions/letters/representations, dated 30.03.2017, taking note of the decision of the Court in M/s. Everest Industries Ltd.'s case - petition allowed by way of remand.
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2017 (10) TMI 256
Validity of assessment order - consideration of Form-C and Form-F - Held that: - the tabulated statement enclosed along with the letter dated 18.02.2017 does not clearly show as to what are the stocks which were transferred from Madurantakam to Chennai branch. The petitioner has enclosed an extract of the Pay Book Register in Page-38 of the typed set of papers. However, it appears that no annexure has been annexed to the petitioner's letter dated 18.02.2017, for which the learned counsel for the petitioner submits that it has been enclosed. Thus, without standing on technicalities, this Court is of the view that the petitioner could be given an opportunity to go before the officer and produce the details - the petitioner is directed to file a petition under Section 84 of the TNVAT Act, 2006 - petition disposed off.
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2017 (10) TMI 185
Reversal of input tax credit - Violation of Articles 14, 19(1)(g), 301 and 304(a) & (b) of the Constitution - petitioner has asserted that denial of ITC, in respect of bullion and raw material, purchased within the State of Tamil Nadu, which is converted into finished jewellery, albeit, outside the State and sold, thereafter, within the State of Tamil Nadu, is unlawful and violative of the provisions of Article 265 of the Constitution - petitioner's case is that upon payment of conversion charges, the final product, that is, jewellery, is returned to it for sale within the State of Tamil Nadu, once again, against tax invoices. The sale transaction within the State of Tamil Nadu is, thus, completed after paying the requisite tax, albeit, upon claiming set off qua tax paid on bullion and worn-out jewellery.
Held that: - The facts which obtain in the present case, clearly, demonstrate, that ITC is not made available by the respondents, to those assessees who have had tax suffered raw materials such as bullion and / or worn out jewellery converted into final products (i.e. jewellery) by having them manufactured / processed in units situate outside the State of Tamil Nadu, even though, the final product is sold, upon payment of tax within the State of Tamil Nadu - Consequently, the final product (i.e. jewellery) manufactured by the assessee within the State from tax paid raw materials purchased within the State upon sale, within the State, gets the benefit of ITC, whereas, those goods which are manufactured outside the State, though by use of tax suffered raw materials purchased, within the State, do not get that benefit. Clearly, if the impact test is applied, goods manufactured outside the State, upon being brought within the State, for sale, would be costlier, as against those, which are, manufactured within the State.
Section 19(4) of the 2006 Act provides intrinsic evidence that ITC cannot be disallowed merely because transfer of goods takes place outside the State. Section 19(4) allows for ITC on tax paid or payable, albeit, (in excess of 3%)* in respect of goods purchased in the State in two situations: (i) First, where transfer takes the goods to a place outside the State, otherwise than by way of sale; or (ii) Second, where goods are used in manufacture of other goods and are transferred to a place outside the State, otherwise than by sale - The provision, recognises the fact that goods purchased within the State, on which tax has been paid, can be transferred outside the State, for reasons, other than sale. However, while recognising this aspect, the provision grants credit of tax to the extent it is in excess of 3%. In other words, tax paid on purchase of goods, within the State, as rightly pointed out by the respondents is retained by the State to the extent of 3%, while the tax collected over and above 3% is passed on to the assessee, by way of credit.
ITC availed of need not be reversed merely because goods purchased are sent temporarily outside the State for the purposes of job work.
Section 19(2)(ii) of the 2006 Act is invalid to the extent that it denies availment of ITC in respect of those units which despatch tax suffered raw materials i.e. bullion / worn-out jewellery for conversion into final product (i.e. jewellery) outside the State which upon conversion are received back and sold within the State of Tamil Nadu. Thus, according to us, the mere fact that the manufacturing unit is located outside the State of Tamil Nadu, cannot be the basis, for denial of ITC, under Section 19(1) of the 2006 Act. Clause (ii) of Sub-Section (2) of Section 19 of the 2006 Act is, thus, declared bad in law.
The respondents cannot retain ITC on goods purchased within the State, by invoking provision of Section 19(4) of the 2006 Act to the extent of rate of tax provided therein i.e., 3% (which was the rate provided therein at the relevant point of time), as that would make the relief inefficacious since the subject goods i.e. bullion / worn-out jewellery on which tax credit was sought by the writ petitioner was imposed at the rate of 1% - petition allowed - decided in favor of petitioner.
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2017 (10) TMI 184
Composition of offence - Section 71(3)(e) of the Tamil Nadu Value Added Tax Act, 2006 - detention of goods - petitioner's case is that the goods, being perishable in nature namely tea, had to be immediately moved and that therefore, they paid the compounding fees of ₹ 2,89,868/- and ₹ 2,86,085/- respectively, though no specific orders compounding the offence and issuing a demand were served on the petitioner - Held that: - in the instant case, no such compounding orders were issued. But, the Check Post Officer collected the said sum of ₹ 2,89,868/- and ₹ 2,86,085/- respectively. It is not known as to how the computation was done. If a compounding order is passed, then the petitioner could have challenged the same before the Revisional Authority and if that has not been done, obviously the revision petitions would have been within the period of limitation - taking note of the fact that no compounding orders were passed by the Authority concerned and only show cause notices for compounding the offence were issued, this Court is inclined to grant liberty to the petitioner to present the revision petitions before the Revisional Authority - petitioner directed to represent the revision petitions along with a copy of this order before the Joint Commissioner (CT), Coimbatore Division - petition disposed off.
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2017 (10) TMI 183
Attachment of bank accounts, stock and Finished Goods - it was alleged that the petitioner is engaged in the bogus billing activities and had been dealing with purchasers whose registration have been cancelled - Section 45 of the VAT Act - Held that: - Sub-section (2) of section 45 of the Act, in plain terms, ensures that the life of a provisional attachment order does not extend beyond a period of one year. Therefore, unless the order of provisional attachment is withdrawn, recalled, set aside or merges into some final order earlier, the same would cease to have effect at the end of a period of one year - the impugned orders of attachment were passed on 07.09.2016 and 08.09.2016. In terms of sub-section (2) of section 45, therefore they would become ineffective - appeal allowed.
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2017 (10) TMI 182
Validity of assessment order - power of Special Committee to reject an application - application rejected on the ground that petitioner did not appear for several hearings - Section 16-D of the Tamil Nadu General Sales Tax Act, 1959 - Held that: - it is evidently clear that the reason for rejection is utterly perverse. The Special Committee has no jurisdiction to comment upon the observation made by the High Court in the earlier writ petitions and the expressions used in the impugned order are condemnable. The Special Committee did not appreciate the observations made by this Court as to what is the power conferred on it u/s 16-D of the TNGST Act. Without reading the order passed by the High Court, the Special Committee, in a most arbitrary and perverted manner, has passed the impugned order - none of the three members of the Special Committee had applied their mind to the observations contained in paragraph-2 of the order passed in the earlier writ petitions.
Under normal circumstances, when proceedings are quashed on such a ground, the matter would be remanded to the same authority for fresh consideration. However, in these cases, this Court does not propose to adopt such a procedure as in spite of an earlier direction, the Special Committee has failed to take into consideration of the merits of the matter.
The order passed by the Special Committee impugned in these writ petitions are set aside. Consequently, the orders of assessment passed by the second respondent for the assessment years 2004-2005 and 2005-2006 under the TNGST Act dated 27.04.2009 and 29.04.2009 are set aside and the matter is remanded back to the second respondent for fresh consideration - petition allowed by way of remand.
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2017 (10) TMI 181
Amnesty Scheme - Validity of orders issued by the Designated Authority i.e. Additional Commissioner of Income Tax - Delhi Tax Compliance Achievement Scheme, 2013 - power and jurisdiction of the Designated Authority to issue the notice under clause 8 of the Amnesty Scheme - whether, in the present case, there has been any delegation of the said power which is vested in the Commissioner under the aforesaid clause 8? - Held that: - Clause 8(3) of the Amnesty Scheme will have no application to the present case where the initial show cause notice was issued within time and its legitimacy was not contested by the respondent-Assessee. Had such legitimacy been questioned at the stage of reply or even in the course of the adjudication proceedings, there would still have been room/ time for the revenue to correct the error that had occurred. A rectified Notice could even have been issued after the order of adjudication was passed on 11th February, 2015. The close proximity of time between the reply submitted by the assessee to the Show Cause Notice (27.01.2015) and the proceedings in adjudication Revenue on the one hand and the date of filing of the Writ Petition (4.3.2015) would permit us to infer that the conduct of the assessee in raising the issue in the writ petitions and not earlier was not entirely bonafide.
Whether a fresh notice under the aforesaid clause of the scheme can still be issued by the competent authority i.e. the Commissioner or the delegatee of the Commissioner? - Held that: - The respondent-Assessee, cannot be allowed to take advantage of its own wrong. The courts exercising extraordinary jurisdiction cannot be understood to be helpless but concede to the assessee an undeserved victory over the Revenue. The power of the High Court under Article 226 of the Constitution, wide and pervasive as it is, should have enabled the High Court to appropriately deal with the situation and issue consequential directions permitting initiation of fresh proceedings, if the Revenue was so inclined. The High Court having failed to so act, we now correct the error and issue directions to enable the Revenue to issue a fresh notice to the assessee under clause 8 of the Amnesty Scheme, if it so desires and is so advised.
Appeal allowed - decided in favor of Revenue.
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2017 (10) TMI 113
Recovery of tax arrears - company in liquidation - whether the respondent can proceed against erstwhile Director of a Public Limited Company for recovery of tax payable by the Company? - Held that: - the proceedings against the company for recovery of the arrears can be done in accordance with law - Section 19 A of the TNGST Act cannot be taken assistance of the respondent for sustaining the order, which provides for the liability to tax of a partitioned Hindu family or dissolved firm. It is further pointed out that Section 19B of the TNGST Act, which provides for liability to tax of a Private Company, on winding up as in the said case, cannot be invoked, as the defaulter was a public limited company. It has clearly stipulated that as against the petitioner who was the erstwhile director of public limited company, proceeding under Section 19B which has been invoked by the respondent for issuing impugned recovery notice, could not have been invoked against the petitioner - recovery notice issued against the respondent invoking Section 19B of the Act, is without jurisdiction - petition allowed.
Recovery from petitioner in his individual capacity - Held that: - the impugned assessment orders cannot be given effect to, against the petitioner nor any recovery can be made from him. The petitioner is not required to challenge the impugned assessment orders, as admittedly the defaulting assessee is a Public Limited Company M/s.Union Motors Service Limited - it is made clear that the respondent can proceed against the defaulting company and it is reported that the Company has now been wound up, the respondent is given liberty to file an appropriate claim petition before the Official Liquidator who has been appointed as a provisional liquidator for winding up the said company - petition closed.
Petition allowed - decided in favor of petitioner.
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2017 (10) TMI 112
Validity of assessment order - TNVAT Act - the petitioner has not cooperated with the assessment proceedings and has not produced the reconciliation statement to enable the Assessing Officer to complete the assessment - Held that: - if the materials are placed in the petitioner's business premises, then obviously, invoices ought to have been raised in the name of the petitioner or else, it should have been shown as a product for demonstration purpose only and would be taken back by the manufacturer/supplier. However, these facts have to be established by the petitioner before the Assessing Officer, for which purpose, they are bound to produce the entire details of stock, more particularly, the closing stock details along with item code-wise reconciliation statement - this Court is of the view that one more opportunity could be granted to the petitioner to go before the assessing officer for producing all the necessary documents - petition allowed by way of remand.
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2017 (10) TMI 68
Whether iron wire obtained from iron rods is a separate and distinct commodity from iron rods so as to make the same taxable separately over and above the sales tax already paid on iron rods?
Held that: - reliance placed in the case of COLLECTOR OF CENTRAL EXCISE Versus TECHNOWELD INDUSTRIES [2003 (3) TMI 123 - SUPREME COURT OF INDIA], where it was held that Merely because there are two separate entries does not mean that the product becomes excisable. The product becomes excisable only if there is manufacture - iron rods and iron wires are one and the same commodity - appeal dismissed - decided against Revenue.
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2017 (10) TMI 1
Revision of assessment - omission to include the stock of gold in the return - KVAT - Held that: - revision of assessment pertaining to the period of which the assessee was carrying on the business on the strength of the registration granted to him, was permissible in law.
Penalty - it was alleged that the learned single Judge has erroneously reduced the penalty imposed to ₹ 1 lakh - Held that: - levy of penalty should always be proportionate to the gravity of the offence committed by the assessee - Insofar as this case is concerned, though at a belated stage, the assessee himself has confessed his mistake and sought an opportunity to revise his return, though such revision could not have been allowed, still taking into account such conduct of the assessee, we feel that the learned single Judge was justified in taking the view that the penalty of double the amount of tax imposed, viz. ₹ 23,61,076/- was too disproportionate. Therefore, we do not find any reason to interfere with that relief granted by the learned single Judge also.
Validity of order of assessment - Held that: - the omission in question had occurred in April, 2014. The Assessing Officer had issued notice calling upon the assessee to produce the books of accounts on 24.08.2015. The date specified for appearance was 08.09.2015. It is still thereafter that on 14.10.2015, the assessee made request for revision of their returns. In such a situation, when the request was rejected and assessment is completed, we cannot say that the Assessing Officer has committed an illegality in completing the assessment.
Appeal dismissed - decided against appellant.
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