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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 68 Records
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2017 (11) TMI 1982
Jurisdiction - Validity of assessment - power of respondent no. 4, to make a fresh assessment in pursuance of the remand order - suo motu revisional proceedings are pending before respondent No. 2 - HELD THAT:- When this case came up for admission on 10-11-2017, learned Special Standing Counsel for Commercial Taxes (A.P.) requested for an adjournment for instructions. Today, on instructions, he has not disputed the fact that the suo motu revisional proceedings initiated by respondent No. 2 are still pending. When the suo motu revisional proceedings of respondent No. 2 are pending with reference to the remand order of respondent No. 3 against the order dated 25-07-2012 of respondent No. 4, respondent No. 4 is denuded of jurisdiction to pass a fresh assessment order purporting to comply with the remand order of respondent No. 3.
It is found from the impugned proceedings of respondent No. 4 that the specific objection raised by the petitioner in this regard has not been dealt with.
The impugned assessment order of respondent No. 4 cannot be sustained - Petition allowed.
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2017 (11) TMI 1950
Violation of principles of natural justice - mismatch between the purchases effected and Annexure of the other end dealer - HELD THAT:- Similar cases were dealt with by this Court and a decision has been taken in the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT]. In the said decision, this Court indicated certain guidelines as to how the assessment should have proceeded in cases where the revision is based on details culled out upon verification of the Departmental website. Therefore, the second respondent, being a new officer, should have afforded an opportunity to the petitioner especially when the revision notices were issued in the year 2015. Thus, this Court is unable to approve the manner, in which, the impugned assessments have been completed.
The matters are remitted back to the second respondent for a fresh consideration. The second respondent shall direct the petitioner to appear before her and furnish all details as sought for by them, after which, the petitioner should be given a reasonable time to submit further objections - Appeal allowed by way of remand.
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2017 (11) TMI 1889
Cancellation of registration certificate - cancellation of registration certificate of the appellant on the basis of the allegations and grounds neither made out nor established in the original order cancelling the registration certificate - HELD THAT:- The appeal is admitted on the substantial questions of law.
Issue Notice for final disposal returnable on 18th January, 2018.
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2017 (11) TMI 1876
Reversal of input tax credit - levy of penalty - business of buying and selling export/import licences such as REP licence and DEPB licence etc. - petitioner's case is that these licences fall under Entry 70 of Part B of First Schedule to the TNVAT Act and taxable at the rate of 5% - it was stated that the petitioner cannot claim input tax credit unless he satisfies that the tax paid or payable was in respect of goods specified in the First Schedule - HELD THAT:- This Court is of the considered view that the assessing officer should re-consider the matter afresh taking note of the factual issues, as to whether the assessment for the years 2007-08 to 2010-11 is barred by limitation, the advance ruling dated 25.07.2012 in ACAAR 14/2012-13, the clarification issued by the Commissioner of Commercial Taxes dated 28.06.2007 - Petition allowed by way of remand.
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2017 (11) TMI 1786
Imposition of tax and penalty - Section 7AA of the Rajasthan Sales Tax Act, 1954 - Whether Works contract given to the assessee is divisible in nature? - Held that:- By virtue of the Forty Sixth Amendment to the Constitution, a single and indivisible contract is now brought on par with a contract containing two separate agreements. It has also now become a settled position in law that the State Governments have power to levy sales tax on value of material in execution of the works contract. This position is brought about by creating friction whereby the transfer of moveable property in a works contract is deemed to be sale, even though it may not be well within the meaning of Sale of Goods Act.
In the present case, the assessing authority, after scrutinising the agreement in question between the assessee and the State Government, returned a finding of fact that manufacture and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. do not fall within the scopes of buildings, bridges, dams, roads and canals. It was also held that the agreement was clearly in two parts, namely, (i) sale and supply of PSC pipes, jointing material specials, valves, anchor blocks, etc. and (ii) the remaining part being supply of labour and services.
The assessee has, in fact, admitted that it had no grievance against the finding that supply of pipes was nothing but the sale of pipes involved in the execution of the contracts and, therefore, it was excisable to sales tax. In view of the findings recorded by the authorities below, this element of sale of goods shall apply to jointing material specials, valves, anchor blocks, etc. as well.
Appeal dismissed.
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2017 (11) TMI 1772
Review petition - time limitation as provided u/r 6 (5) of the Central Sales Tax (Kerala) Rules - finalization of assessment - Held that:- Rule 6 (5) of the CST [Kerala] Rules does not stipulate any time limit to complete the assessment and the said aspect has been correctly understood and put forth by the assessee concerned in paragraph 8 and Ground D of the Writ Petition No. 4832 of 2010 and in paragraph 7/Ground C of W.A. No. 1076 of 2013 - It has to be borne in mind that the scope of review is very much limited and it is not a substitute for appeal. Unless there is any error apparent on the face of records, no interference is possible.
Review petition dismissed.
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2017 (11) TMI 1742
Validity of assessment order - CST Act, 1956 - whether the petitioner is entitled to claim exemption on the sale of zip fasteners to a readymade garment manufacturer, who has exported the readymade garments outside the territory of India?
Held that:- The petitioner has sold zip fasteners to a manufacturer of readymade garments, who has fixed the zips in the garments and exported the garments outside the territory of India. Therefore, the transaction between the petitioner and the exporter was inextricably connected with the export of the goods outside India - Thus, when the transaction between the petitioner and the exporter and the transaction between the exporter and the foreign buyer were inextricably connected with each other, the “same goods” theory would have no application to the case on hand.
Petition allowed.
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2017 (11) TMI 1698
Clarification under Section 94 of the Kerala Value Added Tax Act, 2003 - Transfer of right to use goods - installation of hoardings and providing the services of putting up advertisements on the said hoardings - taxable event or not - Held that:- Even if the irregularities pointed out by the learned Government Pleader did exist, it was incumbent upon the respondents to have brought the anomaly to the notice of a judicial forum for the purposes of setting aside Ext.P4 order of clarification, which, according to them, was illegal. The said course of action not having been adopted by the respondents, permitting the 1st respondent to withdraw an earlier order passed by him, would tantamount to blessing an illegality that is committed by the 1st respondent, in that it would amount to permitting the 1st respondent to exercise a power to review, which is not conferred under the Statute.
Ext.P5 order is quashed, to the limited extent that it withdraws Ext.P4 earlier order of clarification.
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2017 (11) TMI 1691
Principles of Natural Justice - case of petitioner is that petitioner's objections dated 10.06.2017 and 11.06.2017 respectively, though received by the Assessing Officer has not been taken note of and the assessment has been completed stating as if no objections have been received - Held that:- When the dealer has produced the copy of the objections dated 10.06.2017 and 11.06.2017 respectively, wherein the Assessing Officer has signed and a seal has also been affixed, unless and until the Assessing Officer took a stand that it is a case of forgery, communication made by the officer to the learned Special Government Pleader has to be held to be factually incorrect.
In the absence of any specific material to show that the objections filed by the dealer are not on record and in the absence of any denial of the signature and the seal affixed in the office copy of the objections dated 10.06.2017 and 11.06.2017 respectively, this Court is inclined to accept the case of the petitioner.
Matter is remanded to the Assessing Officer for fresh consideration, who shall consider the petitioner's objections, afford an opportunity of personal hearing and re-do the assessment in accordance with law - petition allowed by way of remand.
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2017 (11) TMI 1682
Condonation of delay in filing an appeal - application under section 5 of the Limitation Act - Held that:- Assuming for the sake of argument that since the papers were not traceable, no mala fide or deliberate negligence could be attributed to the officers, even thereafter, from 2.6.2017 it has taken more than three months for all concerned to ensure that the appeal is filed before the High Court. When there was already such inordinate delay, one would expect the concerned officers and all concerned in filing the tax appeal, to ensure that the needful is done promptly. Therefore, it cannot be said that the concerned officers were diligently pursuing the matter and had taken all necessary steps to ensure that the appeal is filed within time.
In the opinion of this court, considering the delay that has occasioned at each stage in the filing of the present appeal, it cannot be said that sufficient cause has been made out for condoning the delay caused in filing the appeal.
No sufficient cause has been made out to condone such delay - Decided against the revenue.
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2017 (11) TMI 1656
Jurisdiction - validity of the VAT audit, conducted by the officials of the Department based upon the authorization given by the second respondent/ The Joint Commissioner (CT), Enforcement-I, Chennai - Held that:- With regard to the jurisdiction of the second respondent to authorize VAT Audit, the question arose for consideration before this Court in the case of M/s. Original Vel Sporting News Vs. The Joint Commissioner (CT) [2017 (7) TMI 1151 - MADRAS HIGH COURT], where it was held that the Statute prescribes that the Commissioner alone can authorize VAT Audit, the Joint Commissioner viz, the second respondent would have no jurisdiction to issue such authorization.
The impugned VAT Audit proceedings dated 16.05.2014 are set aside - petition allowed - decided in favor of petitioner.
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2017 (11) TMI 1617
Input tax credit - whether the petitioner can be denied input tax credit for the period from April 2007 onwards and whether the respondent was right in restricting it for a period of 90 days? - Held that: - The question of restricting the input tax credit for 90 days is incorrect. If such is the situation, it goes without saying that the petitioner would be entitled to input tax credit for the entire period, as the petitioner has paid higher rate of tax - The decision in the case of CKG. Agencies Versus Assistant Commissioner (CT) FAC Avinashi Assessment Circle, Coimbatore [2010 (4) TMI 1022 - MADRAS HIGH COURT], would squarely apply to the facts of the case, wherein it has been held that the assessee was entitled to avail benefit of input tax credit, once the turnover exceeds ₹ 50,00,000/- limit - petition allowed.
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2017 (11) TMI 1565
Refund claim - Form P - Held that: - It is high time that the third respondent - the Commissioner of Commercial Taxes fixes personal responsibility on the officers, who delay such refund claims. Even when the Assessing Officers are summoned to court for non compliance of directions issued to effect admitted refund of excess tax, the Officers invariably state that their superior officers are yet to approve it. Hence, it is high time for the third respondent to evolve a procedure, by which, individual officers will be personally held liable for delaying such admitted refund claims - petition disposed off.
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2017 (11) TMI 1501
Initiation of reassessment proceedings - Section 21 of the 1948 Act - sale of SSF - Held that: - In view of the inextricable and umbilical link between the material and the formation of an opinion, in the considered view of this Court, it was wholly improper for the assessing authority to proceeded to assess the revisionist with respect to the sale of SSF - the assessing authority had never decided to reassess the revisionist on the issue of SSF. The formation of opinion was based solely upon material which seemed to suggest that the disclosure with respect to closing stock of forms was incorrect.
Scope of SCN - Held that: - During the reassessment or after the said process was set in motion, it was not open to the assessing authority to review the entire assessment undertaken earlier. The path which the assessing authority proceeded to traverse could not have been validated or conferred an "imprimatur" by the Tribunal.
This more fundamentally so since this issue neither formed the subject matter of the permission which was accorded by the Additional Commissioner, nor did it form part of the show cause notice. This fundamental flaw in the course adopted by the assessing authority could not have been cured by the liberty which was accorded by the Tribunal in terms of the order impugned. This additionally because the power to reassess was authorized by the Additional Commissioner in terms of the proviso to section 21. But for this permission, admittedly, the assessing authority had no jurisdiction to initiate or commence proceedings for reassessment.
Revision allowed.
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2017 (11) TMI 1488
Condonation of delay in filing revision - delay of eight years, eight months and twenty five days - Held that: - the order of Tribunal was served upon the department on 09.07.2002 and it has been stated that the department has decided to file revision on 02.01.2003 i.e. after about six months from the date of service of order dated 09.07.2002. In the year 2009, the department came to know that no revision has been filed by the State Counsel. Therefore, the learned Chief Standing Counsel was requested to allot the files to some other State Counsel. However, no explanation from the year 2002 to 2009 has been given. In case files were allotted to the State Counsel in the year 2003, even then the revisionist must have contacted the State Counsel / office of the Chief Standing Counsel to know about the fate/ progress of the aforesaid revision, but nothing has been seriously done on the part of the revisionist with regard to filing of the revision. Therefore, the explanation given by the revisionist for condonation of delay cannot be said to be the sufficient reasons.
Delay in filing instant revision cannot be condoned - application for condonation rejected - revision also dismissed being barred by the time.
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2017 (11) TMI 1376
Suppression of facts - purchase omission - sales suppression - levy of tax and penalty u/s 27(3)(c) of the TNVAT Act, 2006 - Held that: - the petitioner wanted the respondent to accept the monthly returns. However, the respondent, construing the representation dated 31.3.2017 received on 03.4.2017, as an objection, completed the assessment. In the representation dated 31.3.2017, the petitioner sought for an adjournment only apart from mentioning that some error has crept in while filing the monthly return. Therefore, the said letter dated 31.3.2017 cannot be construed as an objection.
The writ petition is disposed of with a direction to the petitioner to treat the impugned proceedings as a show cause notice and submit their objections within a period of 15 days' from the date of receipt of a copy of this order.
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2017 (11) TMI 1316
Principles of natural justice - jurisdiction under Section 32(2) of the Act - revisional powers of Commissioner - Held that: - the revisional power can be exercised by the competent authority in order to examine the record of any order passed or proceeding recorded by any authority, officer or person subordinate to him, under the provisions of the Act - It is evident from the impugned order that respondent No.1 has exercised her revisional power with reference to the final assessment proceedings dated 29-3-2014, which, as noted hereinbefore was set-aside by this Court in the Writ Petition and consequently it was no longer in existence when she has passed the impugned order in purported exercise of her revisional power.
Respondent No.1 being a functionary occupying a reasonably high position and exercising her quasi-judicial power is expected to be vigilant and responsible while dealing with the rights of the assessees. We are not able to appreciate the callous and casual and negligent manner in which respondent No.1 has initiated the proceedings and passed the impugned order disregarding the fact of the assessment under revision not being in existence, as brought out by the petitioner in its objections filed before her.
Impugned order is without jurisdiction and is quashed - petition allowed - decided in favor of petitioner.
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2017 (11) TMI 1315
Rate of tax - confectionery items produced and packed in covers containing the name V.R.S. Confectionery, Rasipuram - whether taxable at 12% under residuary entry or 4% as unbranded confectionery? - Whether the items can be said to have Brand names? - Held that: - the mentioning of the name of the petitioner being the producer of those goods in the packing materials cannot be construed as a brand or a brand name or a trade mark or a trade name. At best, it can be taken to indicate the name of the producer of goods, which are contained in the packs.
The confectionery items have been specifically mentioned in entry item-4 (iii) of Part-B of first schedule of the TNGST Act taxable at 4%. This being a specific entry the general entry or residuary entry, could be invoked only when a product can be dealt with in any of the entries. Even assuming the respondents construe the products produced by the petitioner as a bakery product, even then, regardless of the product with a brand name or without a brand name registered under the Trade and Merchandise Marks Act, 1958, it would fall under entry Item-11 (ii) of Part-B of first schedule of the TNGST Act.
So far as the clarification is concerned, admittedly, the petitioner did not have an opportunity of personal hearing before the clarification was issued. Though, the petitioner sought for revision of the clarification, the same was rejected by letter dated 31.07.2006 - the clarification issued by the Commissioner dated 29.08.2005 is clearly unsustainable.
The petitioner is liable to the taxed only at 4% - petition allowed - decided in favor of petitioner.
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2017 (11) TMI 1299
Delay in payment of tax - TNVAT Act and TNVAT Rules - sale of liquor - Form U notice / garnishee order - payment of arrear of tax in instalments - Held that: - the respondent cannot seek indulgence everytime to make the payment in instalments by stating one reason or the other, and further observed that once the tax liability is fixed and also admitted by the respondents, it is the bounden duty to pay without dragging the matter.
As per Rules 7(1)(a) and 7(1) (b), respondent has to pay tax due along with the monthly returns in Form I, as prescribed - As per the statutory provisions, tax has to be paid, before the 12th day of the succeeding month. Contention of the appellant in the grounds of appeal that even after receiving the tax amount along with the sale price from TASMAC Limited, well before the date of filing of the return, the respondent has not remitted the tax to the government, has not been refuted by filing any counter in this appeal.
As per the statute, tax has to be paid in time, failing which interest is levied. There is no provision in the statute to pay tax in installments.
The respondent has suppressed collection of tax from the buyer, and failed to remit the same to the government in time - It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.
The respondents having collected tax from TASMAC Limited, has not only failed to remit tax, due to the Government, in time, but also withheld the same for a considerable period and by filing successive writ petitions, has been gaining long time, for payment of tax, on installment basis, which the statute does not contemplate - Taking note of the averments in the supporting affidavit to W.P.No.24657 of 2017 as regards financial constraint, respondent seemed to have persuaded the writ Court to exercise discretion in favour of the respondent, which on the facts and circumstances of the case, not entitled.
Section 45 (1)(b) of TNVAT Act, 2006, states that any person who holds or may subsequently hold money for, or on account of the dealer or other person who has become liable to pay any amount due under this Act, to pay to the assessing authority either forthwith upon the money becoming due or being held at or within the time specified in the notice - When the dealer had collected the tax from the buyer, the tax should be paid to the Government, within time. Retention of the same, would amount to unjust enrichment and as rightly pointed out would pave way, to similar request.
The action of the 3rd appellant in issuing 'U' Form dated 31.08.2017, cannot be set at naught, by granting liberty to the respondent to pay tax in installments - Appellants are empowered to collect the amount from the buyer, due and payable by respondent - appeal allowed - decided in favor of appellant.
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2017 (11) TMI 1298
Interest on refunds - relevant date for computation of interest - Section 42(1)(a) of the Delhi Value Added Tax, 2004 - interpretation of statute - case of the respondent authorities is that the petitioner/ IJM Corporation Berhad would be entitled to refund in terms of Section 42(1)(a) of the Act after a period of one or two months, as the case may be, from the date of filing of the Return and not from the date of filing of the return - Held that: - When we harmoniously read Sections 38 and 42 of the Act, which relate to processing of claim for refund and payment of interest, it is crystal clear that the interest is to be paid from the date when the refund was due to be paid to the assessee or date when the overpaid amount was paid, whichever is later. The date when the refund was due would be with reference to the date mentioned in Section 38 i.e. clause (a) to sub-section (3). This would mean that interest would be payable after the period specified in clause (a) to sub-section (3) to Section 38 of the Act i.e. the date on which the refund becomes payable. Two sections, namely, Sections 38(3) and 42(1) do not refer to the date of filing of return. This obviously as per the Act is not starting point for payment of interest.
Under sub-section (2) of section 39, interest would begin from the period specified in clause (a) to sub-section (3) to Section 38 of the Act, albeit the quantum of refund would depend upon the adjudication.
In the present context, we would not like to go into the multifarious situations which may arise when an assessee files the revised return. It would be more appropriate and proper for the authorities under the Act to examine each and every case wherein a revised return has been filed and thereafter, determine whether the assessee would be entitled to interest and, if so, from which date, on the findings. We leave the question/issue open.
It is directed that the authorities will examine the question of interest payable on refund and the date from which it is payable in accordance with the aforesaid dictum and principles - petition allowed by way of remand.
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