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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 68 Records
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2017 (11) TMI 863
Maintainability of petition - return of pre-revision notice was issued to the appellant - alternative remedy - writ petitions were dismissed, giving liberty to the petitioner, either to seek for rectification of the orders passed by the Commercial Tax Officer, Perur Assessment Circle, Coimbatore, respondent herein, by invoking the power under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 by filing a petition or to file an appeal before the Appellate Authority.
Held that: - As per Section 51 of the Act, any person objecting to the order passed by the appropriate authority under Section 22, Section 24, Section 26, sub - sections (1), (2), (3) and (4) of section 27, section 28, section 29, section 34 or sub-section (2) of section 40 other than an order passed by a Deputy Commissioner (Assessment) may, within a period of thirty days from the date on which the order was served on him, in the manner prescribed, appeal to the Appellate [Deputy] Commissioner having jurisdiction: Provided that the Appellate Deputy Commissioner may, within a further period of thirty days admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period. Whereas, in Section 54 of the Act, any person objecting to an order passed Or Proceeding recorded under this Act for which an appeal has not been provided for in section 51 or section 52 may within a period of thirty days from the date on which a copy of the order or proceeding was served on him, in the manner prescribed file an application for revision of such order or proceeding to the Joint Commissioner: Provided that the Deputy Commissioner may within a further period of thirty days admit an application for revision presented after the expiration of the first mentioned period of thirty days, if he is satisfied that the applicant had sufficient cause for not presenting the application within the first mentioned period.
If according to the appellant, revision under Section 54 of the Act is the only remedy available to the appellant and not an appeal as indicated, it is always open to the petitioner to challenge the assessment orders for the years 2012-2013, 2013-2014, 2014-2015 and 2007-2008, respectively in the manner provided therefor, under the Statute and that there is no need for this court to say as to whether a revision or appeal, as the case may be, would be the appropriate remedy, which the appellant has to take recourse.
Petition dismissed being not maintainable.
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2017 (11) TMI 747
Levy of VAT - Entry Tax - sale of petroleum products - grievance of the Appellant in the present appeals is that when a sale is made to the OMCs, after payment of Entry Tax, VAT is not set off against the Entry Tax - Whether the second proviso to Section 3(2) of the Entry Tax Act is ultra vires to the Constitution? - Held that: - Since the set off in question depends upon the interpretation of Section 3(2) of the Entry Tax Act, it is necessary to state, at the outset, that certain conditions need to be satisfied for claim of set off - It will be seen that the tax leviable under the Entry Tax Act shall be paid by every dealer liable to pay tax under the VAT Act. Under Section 3(1) of the VAT Act, all persons who are registered dealers under the Bihar Finance Act, 1981, as it stood before its repeal, are liable to pay tax under the said Act on sales and purchases made by them. There is no dispute that the Appellant is a registered dealer under the Bihar Finance Act, 1981 and is thus liable to pay tax under the VAT Act - under Section 3(2) itself, the tax leviable by way of Entry Tax can only be paid by every dealer liable to pay tax under the VAT Act, this condition has been duty fulfilled.
Second condition need to be fulfilled is, The set off can only be granted if the assessee is an importer of scheduled goods, who is liable to pay tax under the VAT Act - Held that: - the Appellant is an importer of scheduled goods, viz., petroleum products. Words and expressions that are not defined under the Entry Tax Act shall have the meaning assigned to them under the VAT Act - when a sale is effected by the Appellant to BPCL and HPCL, there is no levy of any VAT that is contemplated at this point. The VAT gets levied only at the next point in the chain of sales, which is the sale from BPCL and HPCL to their retailers and/or consumers. Thus, it is clear that the second condition is not fulfilled as the importer of the scheduled goods i.e. the Appellant is not at all liable to pay tax under the VAT Act.
Third condition which is needed to be fulfilled is, The assessee must incur tax liability at the rates specified under Section 14 of the VAT Act - Held that: - there being no levy on the Appellant, the Appellant does not incur any tax liability at the rates specified under Section 14 of the VAT Act.
Fourth condition need to be fulfilled is, This must only be by virtue of the sale of imported scheduled goods - Held that: - this must be by virtue of sale of the very imported scheduled goods, which means that the sale must be by the Appellant itself and not by the other OMCs.
Fifth and last condition needed to be fulfilled is, “His” tax liability under the VAT Act will then stand reduced to the extent of tax paid under the Act - Held that: - This condition is also not met inasmuch as the set off is person specific and not goods specific, as is correctly contended by Shri Ganesh, learned Senior Advocate, appearing on behalf of the Revenue.
On a literal reading of Section 3(2) second proviso, the Appellant would not be entitled to claim set off - the Appellant is a registered dealer under Section 3(1) of the VAT Act and would be a dealer liable to pay tax under the aforesaid Act within the meaning of the enacting part of Section 3(2) of the Entry Tax Act. However, it is clear that as importer of scheduled goods, the Appellant must be liable to pay tax under the VAT Act. As has already been found, the Appellant as an importer of scheduled goods is not liable to pay tax as the levy of tax is itself postponed when the Appellant sells the oil to another OMC, and VAT is leviable only on the transaction between the said OMC and its retailer or other customers.
When it comes to taxing statutes, the law laid down by this Court is clear that Article 14 of the Constitution can be said to be breached only when there is perversity or gross disparity resulting in clear and hostile discrimination practiced by the legislature, without any rational justification for the same. - We must also not forget that no assessee can claim set off as a matter of right and the levy of Entry Tax cannot be assailed as unconstitutional only because set off is not given.
The Appellant will approach the Appellate Tribunal with all relevant materials in this behalf, and the Appellate Tribunal will render a finding as to how much of the demand of Entry Tax for the assessment years in question would have to be struck down, in that sales made by HPCL and BPCL to their retail consumers and to others are made outside the local area of Patna. We give the Appellants 12 weeks’ time to approach the Appellate Tribunal with all details as aforesaid and request the Appellate Tribunal to render findings - petition allowed by way of remand.
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2017 (11) TMI 746
Sales tax - entry tax - the respondent opined that the petitioner had not remitted the Sales Tax and they have paid only Entry Tax at 6% on the purchase of tractors - Whether the petitioner can be treated as a first seller of tractors inside the State of Tamil Nadu?
Held that: - the presumption arrived by the Assessing Officer to treat the petitioner as the first seller of the tractor inside the State is mis-conceived. The description of entries found in the invoice should not be the sole guiding factor - the respondent did not endeavour to make any enquiry as to whether the M & M Ltd., have paid Sales Tax at 4% and surcharge at 5% on tax (totally at 4.2%) by way of adjustment under Section 4 (1) of the Tamil Nadu Tax on Entry of Motor Vehicles into the Local Areas Act 1990. Without resorting to such procedure, penalizing the petitioner is incorrect and not sustainable.
Petition allowed - decided in favor of petitioner.
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2017 (11) TMI 745
Bail application - input tax credit - petitioner is alleged to have floated 40 shell companies with a view to gain illegal input tax credit under the provisions of Gujarat Value Added Tax Act - The modus operandi alleged against the petitioner is to get registered the TIN number of certain entities on monthly remuneration to be paid to them - whistle blowing mechanism - Held that: - it is difficult to conclude at this stage that the petitioner accused had used the said material and there exists doubt as to whether the said material was being used by Mukesh Mehta to whom the premises were rented out by Geetaben, the owner of the premises. Therefore such recoveries prima facie do not constitute a credible information or reasonable suspicion qua the petitioner. Further except, as above, there is nothing on record to indicate that said house was possessed by the petitioner jointly with Mukesh Mehta.
The respondent claims to have knowledge of dubious transaction as is evident from its affidavit. If that was so, nothing could have prevented it from coming out with incriminating material. There is also no material placed on record to substantiate the allegation about bogus billing. Not a single bogus bill is placed on record. It is not even pointed out as to how the goods or services were delivered by bogus billing. If the shell companies were said to be benefited by bogus billing, obviously, there would be exchange of bogus bill, challans or other similar documents. No such facts are substituted - It is also not pointed out as to which firms amongst the 40 shell companies were benefited by dubious billing and to what extent.
Bail application is allowed and applicant is ordered to be released on bail.
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2017 (11) TMI 744
Interpretation of Statute - Section 19(2) of the Tamilnadu Value Added Tax Act, 2006 - whether proviso to Section 19(2) of the Tamilnadu Value Added Tax Act, 2006, applies both to the registered dealers and manufacturers? - Held that: - if the request of the assessees/manufacturers is conceded, the revenue involved would be above ₹ 1000 Crores - we deem it fit to admit the writ appeal and grant interim stay of the impugned judgment - appeal admitted.
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2017 (11) TMI 739
Validity of assessment order - reversal of input tax credit - Effect of substitution of a provision in the Statute - Held that: - this contention cannot be raised before this Court for the first time, as the petitioner failed to raise the same before the Assessing Officer. In an assessment proceedings, it is always open to the petitioner to raise all the issues, both factual and legal. The petitioner failed to do so.
Taking note of the fact that the petitioner is a small dealer, this Court is inclined to give one more opportunity to the petitioner, however, subject to a condition that petitioner is directed to pay 15% of the disputed tax within a period of three weeks from the date of receipt of a copy of this order - petition allowed by way of remand.
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2017 (11) TMI 732
Validity of assessment order - natural justice - Held that: - On a perusal of the impugned Assessment Order it is evidently clear that that the same has been completed without an opportunity of personal hearing to the petitioner and it is in violation of principles of natural justice - the matters are remanded to the respondent for fresh consideration - appeal allowed by way of remand.
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2017 (11) TMI 728
Condonation of delay in filing appeal - recovery of tax - Held that: - it is true that the appeal could not have been entertained as the appellate authority had no power to condone such delay of 752 days. However, as pointed out and taking note of the other factual circumstances and also the fact that the third respondent has not enforced the recovery of tax dues, pursuant to impugned assessment proceedings, one indulgence can be granted to the petitioner, simultaneously protecting the interest by the revenue - there will be a direction to the petitioner to pay 25% of the disputed tax for each of the assessment years within a period of eight weeks from the date of receipt of a copy of this order - petition disposed off.
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2017 (11) TMI 593
Revision of assessment order - TNGST Act - inter-state purchases - assessment of turnover - penalty u/s 12 (3) (b)of the TNGST Act - natural justice - Held that: - if a document relied by the Assessing Officer collected from the third party is not made available to the dealer and if the dealer is not provided an opportunity to cross- examine such third party for no fault committed by them, then, the benefit should accrue to the dealer. Consequently, it has to be held that no Revision of Assessment can be made based on those documents/ statements which remain uncontroverted. The mistake committed by the respondent is writ large on the face of the impugned order. Therefore, the impugned order has necessarily held to be unsustainable - petition allowed - decided in favor of petitioner.
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2017 (11) TMI 592
Principles of Natural Justice - Revision of assessment order - input tax credit - TNVAT Act - Held that: - the respondent could have afforded an opportunity to the petitioner and directed them to appear in person and produce necessary details and records to substantiate their stand - there has been violation of principles of natural justice in passing the impugned orders - this Court is of the considered view that the assessment should be re-done by the respondent after affording an opportunity of personal hearing - petition allowed by way of remand.
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2017 (11) TMI 529
Constitutional validity of Section 2(11) of the Port Trust Act - tax on sale of goods - scope of the term 'Dealer' - Petitioner's main contention in the Writ Petition is that the sale of goods by the Petitioner is in pursuance of their statutory functions under the Port Trusts Act and these sales are not executed by the Petitioners as a matter of business for commercial enterprise but by way of administering and managing the port of Bombay. The Petitioner has accordingly submitted that they are not carrying on any business of buying or selling goods. The Petitioner has accordingly contended in the Petition that they are not entitled to pay tax on the sale of goods effected by them under the said Act.
Held that: - This Court has in the case of Controller of Stores, Central Railway, Bombay Vs. The Commissioner of Sales Tax, Maharashtra State [1995 (2) TMI 374 - BOMBAY HIGH COURT] considered the challenge to the inclusion of entities in the definition of “dealer” both amended by Section 2(11) of the said Act and Section 2(8) of the MVAT which is pari materia. It was held in the case of Controller of Stores that the Explanation to Section 2(11) of the said Act which had included “Railway Administration” in “dealer” has been held to be clarificatory and that Indian Railways represented by the Controller of Stores is a dealer. - It is clear from the deeming fiction brought in by the explanation that all these entities are now within the definition of “dealer” irrespective of whether they carry on business. - the Port Trust falls within the definition of dealer and is liable to sales tax under the said Act.
The judgment of the Supreme Court in M/s Cochin Port Trust Versus State of Kerala [2015 (4) TMI 936 - SUPREME COURT] holds the field, where it was held that the activities of the assessee in respect of buying, selling, supplying or distributing goods, executing works contract, transferring the right to use any goods or supplying by way of or as part of any service, any goods directly or otherwise, whether for cash or for deferred payment or for commission, remuneration or other valuable consideration, whether in course of business or not, would fall within the purview of Section 2(viii) of the Act. Hence, the assessee-Port Trust would fall within the meaning of "dealer" under Section 2(viii) of the Act and is consequently assessable to tax under the Act
The legislature having greater latitude for classification in taxing statute was competent in amending Section 2(11) of the said Act and thus there is no merit in the challenge to the constitutional validity of Section 2(11) of the said Act.
Petition dismissed - decided against petitioner.
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2017 (11) TMI 528
Extension of stay order - extension sought for the sole reason that the petitioner has not filed any Writ Petition in respect of the revised assessment order for the assessment year 2009-10, whereas, they have filed the Writ Petitions in W.P.Nos.31968 to 31970 of 2015 challenging the assessment orders for the years 2006-07 to 2008-09, as could be seen from the typed-set of papers filed in support of this Writ Petition - Held that: - the first respondent was not justified in refusing to extend the order of stay, though the interest of the Revenue is fully safeguarded, that is to say, 50% of the disputed tax and the balance 50% was secured by way of Bank Guarantee - the interest of the Revenue is fully safeguarded and the first respondent is directed to consider and dispose of the Appeal Petition on merits and in accordance with law - petition allowed by way of remand.
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2017 (11) TMI 527
Rectification of assessment order - petitioner requested the respondent to refer to the Government Order and revised the assessment by exercising powers under Section 55 of the Act - application has been rejected on the ground that there is no direction in the Government Order to levy tax below 10% - Held that: - identical issue decided in the case of J.G.Hosiery Private Limited V. Special Commissioner & Commissioner of Commercial Taxes, Chennai and another [2017 (11) TMI 524 - MADRAS HIGH COURT], where on similar issue it was held that since the petitioner has approached this Court challenging a notice proposing to levy tax at 10%, the matter has to be necessarily remanded to the Assessing Officer - matter is remanded to the respondent for fresh consideration - petition allowed by way of remand.
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2017 (11) TMI 524
Rate of tax - sale of hosiery goods - whether taxable at 4% or 10%? - circular issued by the Government in G.O.Ms.No.39, Commercial Tax Department, dated 04.04.2005, says that the Government has granted waiver and reduced the rate of tax at 1% - Held that: - since the petitioner has approached this Court challenging a notice proposing to levy tax at 10%, the matter has to be necessarily remanded to the Assessing Officer - petitioner are directed to file their objections to the impugned notices, wherein the petitioner is entitled to place reliance upon the circular issued by the Government in G.O.Ms.No.39 dated 04.04.2005 - petition allowed by way of remand.
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2017 (11) TMI 468
Revision of deemed assessments - sale of used car inside the state of Tamil Nadu - rectification of error - Jurisdiction of Stae to levy tax in inter-state sale - maintainability of petition - Held that: - Though, the appellant has contended that it was only an error apparent on the face of the record, upon consideration of the material on record, writ Court, vide common order made in W.P.Nos.21169 to 21171 of 2017, has observed that the income tax certification, holds good only for the purpose of income tax assessment. Writ Court has also observed that when the deemed assessment have taken place, at the instance of the petitioner, who had filed the returns, duly supported by Form-WW Certificates by a Chartered Accountant, writ Court cannot embark upon a fact-finding exercise to examine the correctness of the stand taken by the respondent therein, to ascertain as to whether there was an error apparent on the face of the record.
Under the scheme of the taxing statutes, even the question of jurisdiction, can always be raised before the concerned authorities.
Common order of the writ Court made in W.P.Nos.21169 to 21171 of 2017 dated 09.08.2017, directing the appellant to avail the alternate remedy provided under the statute, cannot be said to be manifestly illegal warranting interference - petition dismissed being not maintainable.
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2017 (11) TMI 467
Reversal of input tax credit - Section 19(20) of the said Act - TNVAT Act - Held that: - as there is a duty cast upon the dealer to produce necessary documents and evidence to substantiate their stand. Even the circular states that the Assessing Officer should take into account the concrete evidence available. It is dealer's responsibility to make available the concrete evidence, which the petitioner failed to do.
Petitioner have not received discounts after issuance of tax invoice without disturbing the tax component, this Court is inclined to grant one more opportunity to the petitioner to submit such documents - petition allowed by way of remand.
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2017 (11) TMI 466
Levy of tax - inter-State purchase of Iron sheets into pipes in the State of Tamil Nadu - job-work - exemption under sub-section (a) of section 38 of the TNGST Act 1959 - Held that: - Decision in the case of The State of Tamil Nadu v. M/s.Sun Paper Mill Ltd. [2009 (2) TMI 750 - MADRAS HIGH COURT], is squarely applicable to the case on hand, where it was held that Stoppage and conversion do not make the transaction a local sale. After taking into consideration the facts involved, we are of the view that the transaction involved is only an inter-State sale - revision dismissed - decided against Revenue.
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2017 (11) TMI 441
Refund claim - despite the finality of the Court directions, the respondent/VAT Department is continuing to harass the petitioner with several queries and has, in fact, passed further orders rejecting the refund claims - Held that: - taking note of the interpretation of Section 10(5) and interpretation of Rule 6A, Court is of the opinion that direction to the respondent to refund the entire amount is not expedient in the circumstances - so far as the exercise of verification of refund claim for the years 2009-10 are concerned, the assessing officer should conduct it fully and a direction is, therefore, issued to the assessing officer to verify the sales/purchases of the goods towards the credit which was claimed by the petitioner and after taking into account the selling price of the said goods, pass a speaking order - penalty order issued, to be quashed - petition allowed by way of remand.
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2017 (11) TMI 330
Exemption by way of refund of Earned Input Tax Credit - Certificate of Entitlement - Section 42(4A) of the Act - case of petitioner is that In the assessment order which is passed on 8.4.2013 there is no discussion about Certificate of Entitlement by the Assessing Authority, of which the petitioner is affected - Held that: - With the consent of the learned counsel for the parties the writ petition is finally disposed of by directing the petitioner to approach the appellate authority under Section 55 of the U.P. VAT Act or any other provision of law, which entitled the petitioner to approach the appellate authority to raise its grievance with regard to claim passed by the amended order by the Commissioner of Commercial Tax dated 10.2.2016 allegedly entitling the petitioner company for the refund, so as claimed - since this writ petition has been entertained in the year 2013 on 27.5.2013 and was pending before this Court, there would be delay caused to approach the appellate authority on the part of the petitioner - we direct the appellate authority to entertain the appeal, if the same is filed within a period of three weeks from today, without going into the question of limitation.
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2017 (11) TMI 329
Application of Stay - request for waiver - huge liability as per review orders - Held that: - It is true that at the stage of considering application for stay it is not necessary to record any concluded findings or to finally deal with serious issues. However, the order must reflect application of mind, on the issue whether the issues raised in the pending Appeal are debatable or arguable. Prima facie consideration of the submissions made on merits is necessary to decide, whether stay should be granted by complete waiver or whether stay should be granted on conditions.
In the facts of the present case, even the Tribunal has declined to go into the question of existence of a prima facie case - The Petitioner has deposited a sum of ₹ 10 lakhs on 13th September 2017 without prejudice to its rights and contentions in the pending Appeal. In view of this deposit and considering the nature of the impugned order, we find that interference with the impugned order is warranted.
The order dated 17th July 2017 passed by the Maharashtra Sales Tax Tribunal at Mumbai is set aside and stay applications in VAT Appeal Nos. 208 to 212 of 2016 are restored to the file of the Maharashtra Sales Tax Tribunal.
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