|
Advanced Search Options
VAT and Sales Tax - Case Laws
Showing 21 to 40 of 68 Records
-
2017 (12) TMI 1482
Refund of input tax credit - export sales - Form W - whether the respondent was justified in simply returning the Form-W, for the reasons assigned in the impugned notice? - Held that: - Similar issue decided in the case of R.K. Knits Versus Assistant Commissioner (CT) Adyar II Assessment Circle, Chennai and others [2011 (11) TMI 779 - MADRAS HIGH COURT], where it was held that Admittedly, the dealer had been making a claim in terms of rule 10 (10) in his monthly returns and there was no denial of the fact that the claim had been made within the time specified under the Act. In the face of the admitted fact as to the filing of Form I remaining undisputed, there was no justification in the contention of the Assistant Commissioner that Form W filed beyond 180 days resulted in the rejection of the refund claim.
Writ Petitions are disposed of, by directing the petitioners to re-present the Form-W along with the copy of the decision rendered in R.K.Knits, and on receipt of the application/Form-W, the respondent shall afford an opportunity of hearing to the petitioners/Authorized Representative of the petitioners and pass orders on merits and in accordance with law on the Form -W filed by the petitioners.
-
2017 (12) TMI 1427
Principles of natural justice - It is the case of the petitioners that it is only when the second petitioner received the notice of demand dated 15.11.2017 together with the earlier notices that the petitioners came to know about the impugned orders having been passed and the demand raised by the third respondent on behalf of the respondent State authorities - Held that: - the matter could not be proceeded before the assessing authority, the court is of the view that it would be in the interest of justice if the ex parte orders dated 30.8.2013 and 30.9.2013 are quashed and set aside and the matter is remanded to the assessing authority to decide the same afresh after affording the petitioners an opportunity of hearing as well as producing necessary documents in support of their case - petition allowed by way of remand.
-
2017 (12) TMI 1426
Revision of assessment - Levy of tax @ 5% to 100% EOU - absence of documentary proof - disallowance of exemption of turnover - Held that: - the necessity to set aside the impugned assessment orders does not arise, as, on the date of passing of the assessment orders, the documents now in the possession of the petitioner were not placed before the Assessing Officer. Therefore, the Assessing Officer cannot be faulted for having completed the assessment in the manner done so in the impugned assessment orders.
However, the claim for exemption is an incentive granted to a local manufacturer when he effects sales to 100% export oriented units. Therefore, the claim for exemption should not be denied on technicalities, but the claim has to be verified and if the petitioner produces necessary documents to the satisfaction of the Assessing Officer that they effected sales to 100% export oriented units, then the benefit of exemption should accrue to the petitioner.
The Assessing Officer is directed to afford an opportunity of personal hearing to the petitioner, peruse the documents and if the documents are in order, sanction the claim for exemption by passing revised orders - petition allowed by way of remand.
-
2017 (12) TMI 1425
Levy of tax - Whether the 'export sale' will also be a 'sale' which does not attract the levy of tax under Section 3(4) of the Act? - Held that: - similar issue decided in the case of Tube Investments of India Ltd. (Formerly known as M/s. TI Diamond Chain Ltd.) Versus The State of Tamil Nadu, represented by the Commercial Tax Officer [2010 (10) TMI 938 - MADRAS HIGH COURT], where it was held that Section 3(4) of the Act will have no application since situs of the export sales of the petitioners for the purpose of said Section was the State of Tamilnadu and by virtue of the said factual position, the applicability of Section 3(4) stands excluded for the exigibility of tax - tax revision dismissed.
-
2017 (12) TMI 1286
Exemption from tax - De-Oiled Rice Bran under Entry 3 of the First Schedule - case of Revenue is that De-Oiled Rice Bran is very much covered under Entry-34 of Part-A of the Second Schedule and hence, it is taxable @ 4% - whether Rice Bran and De-Oiled Rice Bran are one and the same or different products? - Held that: - A conjoint reading of Entry-3 of the First Schedule and Entry-34 of the Second Schedule makes it clear that Rice Bran is excluded from the list of exempted goods and has been included in the list of goods taxable - Rice Bran and De-Oiled Rice Bran are one and same product - Calcutta High Court in Sethia Oils Limited vs. Assistant Commissioner, Commercial Taxes, Postabazar Charge, [2003 (8) TMI 494 - CALCUTTA HIGH COURT] has even held that since there is no change in the composition of Rice Bran and De-Oiled Rice Bran, both the products are same and that De-Oiled Rice Bran is Rice Bran and nothing else.
Revision dismissed with cost.
-
2017 (12) TMI 1285
Payment of tax under the Kerala Tax on Paper Lotteries Act, 2005 - whether the respondent-assessee is a promoter within the meaning of Section 2(l) of the Act so as to make it exigible to payment of tax under Section 6 and amenable to the other provisions of the Act? - Held that: - The respondent who was appointed as an agent by M/s. MSIL was expressly barred by the terms of appointment from dealing with lottery tickets in the electronic form and for sale in the physical form outside the territories of the State of Karntaka. If that is so, we do not see how the respondent can be understood to be capable of being included in the definition of 'promoter'. The respondent certainly is not 'any person' appointed by the State of Karnataka to sell lottery tickets in the State of Kerala on behalf of the State of Karnataka - If the respondent is not a 'promoter' within the meaning of Section 2(l) of the Act, the charging Section i.e. Section 6 will have no application to make the respondent liable to payment of tax under the Act nor would be the respondent be liable for registration under Section 7 of the Act. In fact, the present appears to be a situation where the activities of the respondent including the terms of appointment as an agent of M/s. MSIL does not make it exigible to any of the provisions of the Act.
Appeal dismissed - decided against Revenue.
-
2017 (12) TMI 1274
Deletion of assessment of sale - sale of imported Cement - reduction of turnover of Iron & Steel, Shutters and Channels - revisionist treated as "Manufacturer" under Section 2 (ee) of the Act, 1948 without any evidence on record or any purchase from the unregistered dealer - whether there is any finding by any of the authorities that the revisionist has sold any goods after "Manufacturing" or "Importing" the same?
Held that: - The perusal of records shows that there is no finding by any of the authorities that the revisionist has sold the goods in question after "Manufacturing" or "Importing" the same - it appears that the submission of learned counsel for the revisionist has substance. The, learned Standing Counsel could not dispute the aforesaid submission of learned counsel for the revisionist.
The Hon'ble Supreme Court in the case of Commissioner of Customs (Preventive) vs. Vijay Dasarath Patel [2007 (3) TMI 11 - SUPREME COURT OF INDIA] has held that where the order has been passed without adverting to the facts raised, then it is a question of law. Further, where the order is based on no evidence on record, it is liable to be interfered.
The matter is remanded back to the learned Tribunal with the direction to consider and decide the matter afresh in accordance with law after taking into consideration the points raised by the revisionist - revision allowed by way of remand.
-
2017 (12) TMI 1273
Levy of entertainment tax - folk musical festival, namely, Amarrass Desert Music Festival - sponsorship money - Held that: - There is no evidence to show that the event was sponsored by any organization or corporate house. No details of sponsorship stand noticed or adverted to in the assessment order and the appellate orders. The FIR and the report of the raiding team does not refer to sponsorship or any evidence.
The orders passed by the Entertainment Tax Officer or the appellate authorities proceed on surmises and conjecture that sponsorship money of ₹ 10,00,000/- must have been received. In the absence of any such evidence or material, we do not think that the Entertainment Tax Officer could have made any assumption and arrived at a finding - we partly modify the assessment order and the appellate orders to the extent that the petitioner had been asked to pay entertainment tax, penalty and interest on sponsorship fee of ₹ 10,00,000/-. The respondents would accordingly recompute of entertainment tax, penalty and interest - we have not interfered with the quantum/percentage of penalty which has been imposed.
Appeal allowed in part.
-
2017 (12) TMI 1238
Vires of the second explanation to Section 2(m) of the Delhi Entertainment and Betting Tax Act - The GNCT of Delhi amended Section 2 (m) of the Entertainment Tax Act by adding two explanations and took the position that these provisions were clarificatory; the amendments were inserted on 1 October 2012 but brought into force with effect from 01 April 1998. These amendments are the subject matter of challenge in the present writ proceedings - FDCI challenges the impugned amendment to the Explanation on the ground that the power of a state is to impose taxes under Entry 62 of list II on “luxuries including entertainment” and consequently the impugned explanation is ultra vires the Constitution and is beyond the scope of Entertainment Tax Act - petitioners argue that entertainment is an activity by which one person provides entertainment to another; organizers such as the petitioner, through sponsorship funding organize or create events. Whether an event is an entertainment or not would depend on the facts and as such entertainment could not be defined in a straitjacket formula.
Whether as a fashion development and promotion society, which conducts fashion shows provides entertainment by hosting such shows? - Whether payment for admission includes sponsorship? - the events are non-ticketed events where entry is by special invite of the organizers
Dissent Decision - Both the Judges delivers different judgments.
In one view, no entertainment tax can be collected and allowed the writ petitions.
Another view is that entertainment tax can was rightly demanded and dismissed the appeal of the writ petitions.
-
2017 (12) TMI 1232
Appointments of administrative member (technical member) of the tribunal - Constitutional validity of Section 11 of the VAT Act and Rule 6 of the VAT Rules - concept of independence of judiciary - it was alleged that the provisions are violative of the basic structure of the Constitution of India - Government Resolution dated 2nd June 1973 issued by the Finance Department, Government of Maharashtra - amendment to the said resolution.
Held that: - no Member covered by clauses (a), (b) or (c) of subrule (1) of Rule 6 of the VAT Rules shall be appointed without making effective consultation with the High Court of Judicature at Bombay.
A Bench of two or more Members shall always be headed by a Judicial Member appointed under clauses (a), (b) or (c) of subrule 1 of Rule 6 of the VAT Rules.
The matters which are required to be decided by the Members sitting singly shall always be placed before a Judicial Member only. In case of emergency, when none of the Judicial Members are available, the matters where an urgent adinterim or interim relief is sought can be placed before the Administrative Member sitting singly.
As far as selection of the Members covered by clauses (d), (e) and (f) of subrule (1) of Rule 1 of Rule 6 is concerned, the State Government shall constitute a proper Selection Committee preferably headed by a retired Judge of this Court, in the light of observations made in this judgment and order.
The State shall also ensure that the Members shall be judicially trained in the sense that they have long experience of dealing with quasijudicial proceedings and/or adjudication proceedings.
High court disposed off the petition with detailed instruction to the government.
-
2017 (12) TMI 1228
Whether the paddy husk sold by the dealer is exempted under schedule-1, serial no. 4 of notification dated 20 December 2007?
Held that: - the Tribunal was justified in holding that the expression de-oiled paddy husk and outer covering of paddy would refer to two different commodities, and paddy husk which is outer covering of paddy, cannot be considered as de-oiled paddy husk - It is not disputed that the dealer had purchased paddy husk which would be covered within the meaning of the expression "outer covering of paddy - revision dismissed.
-
2017 (12) TMI 1227
Validity of reassessment order - the assertion made by the learned counsel for petitioner that an opportunity of hearing was not given - Held that: - a perusal of the assessment orders dated 21.02.2017, and 01.03.2017, clearly reveal that while the Assessing Officer has noted the specific plea mentioned hereinabove, the Assessing Officer has not dealt with the said plea. In fact, the Assessing Officer has rejected the said plea by merely observing that the said plea is general in nature.
The Assessing Officer is duty bound to give cogent reasons for rejecting the specific plea raised by the petitioner. However, the Assessing Officer has failed to do so - this Court has no other option, but to set aside the assessment order dated 21.02.2017, and the assessment order dated 01.03.20 17, and to remand the case back to the Assessing Officer - petition allowed by way of remand.
-
2017 (12) TMI 1172
Revision of assessment of assessment - absence of F-forms - benefits of stock transfer after the amendment made to Section 6A of the Central Sales Tax Act, 1956 - Held that: - relaince placed on the decision of the Honourable Supreme Court in India Agencies (Regd.) v. Additional Commissioner of Commercial Taxes, [2004 (12) TMI 372 - SUPREME COURT OF INDIA] which categorically found that concessional tax on C-Form sales, cannot be allowed on production of photostat copy of the counterfoil. It cannot be said to be strict or even substantial compliance of Rule 12(3) - there is no reason to entertain the revision since no question of law arises from the impugned order - revision dismissed.
-
2017 (12) TMI 1074
Works contract or contract for Sale - M/s. Rashtriya Chemicals & Fertilizers Ltd. (RCF) had engaged the applicant apparently for designing, engineering, supplying, erection, installation and Commissioning of the TrombayV Expansion Project at RCF site for a total price of about ₹ 22 crores under a contract - The Assistant Commissioner of Sales Tax Assessment treated the transaction as a transaction of sale - The applicant produced the relevant documents and correspondence before the Deputy Commissioner of Sales Tax claiming that the contract was a divisible contract for supply of labour and could not be treated as a contract for sale.
Held that: - in the facts of the present case the contract was clearly one for supply and erection of equipment, supply of equipment being dominant purpose. No doubt the State of Maharashtra had enacted the Maharashtra Sales Tax on “Transfer” of property of goods involved in works contract Act only in 1982 but the contention that during the period under consideration 197980 and 198081 the State had no power to levy the tax on Works contract will not be of any assistance to the applicant - the contract in the instant case is predominantly for supply of equipment, erection and installation. FPDIL was required to carry out all preparation work , provide foundation, provide all civil works required, the equipment was merely supplied and installed.
In the instant case, even assuming a contract was a works contract, we are of the view that the labour element was only incidental. The contract is itself described as a divisible contract. The intention of parties as derived from the diverse contractual provisions set out above leaves us in no manner of doubt that the contract in question was not a works contract but the dominant intention was of sale of equipment. Having reached that conclusion the question referred for our opinion is answered in the affirmative, in favor of Revenue.
Appeal dismissed - decided against assessee.
-
2017 (12) TMI 1073
Condonation of delay of 1519 days in filing the revision - Held that: - Apart from referring to production of the documents being in Hindi and absence of a translator, we see no explanation, which can be treated as being sufficient - We notice that we have already rejected the application for condonation of delay, where the delay was of 1414 days in C.T.R. No. 54 of 2017, delay of 1415 days in C.T.R. No. 55 of 2017 and delay of 1931 days in C.T.R. No. 35 of 2017.
There is no reason to condone the delay of 1519 days in filing the Revisions - application for COD dismissed.
-
2017 (12) TMI 1072
Principles of Natural Justice - main contention raised by the assessee was that Annexure IV order revising Annexure I order under Section 8 of the KVAT Act was passed without issuing notice to it and therefore, the Tribunal ought to have remitted the matter to the assessing officer - Held that: - A reading of the order passed by the Tribunal shows that on a perusal of the provisions contained in Section 6 of the KVAT Act, Rule 10 of the KVAT Rules and Section 8 of the Finance Act, the Tribunal has come to the conclusion that in Section 8 while the legislature has made the tax payable on the basis of the turnover of the sale of the goods, for the purposes of Section 6, the phrase used is taxable turnover. It was therefore that the Tribunal has come to the conclusion that the deductions, which are permissible under Rule 10 provided with reference to Section 6 are of no relevance, in a proceedings under Section 8 of the Finance Act.
The assessee has allowed Annexure V to the extent it was against it to become final. In such a situation, this plea is not available to the assessee at this stage and therefore, we cannot accept this plea - revision dismissed.
-
2017 (12) TMI 1015
Benefit of ‘Composition Scheme’ - Section 15 of the KVAT Act, 2003 - denial on the ground that they purchased certain goods from outside the State or in the course of inter-State Trade or Commerce including the capital goods like Plant and Machinery and in view of the Circulars issued by the Head of the Department, namely Commissioner of Commercial Taxes, Circular No.14/2013-14 on 05/10/2013 and Circular No.20/2013-14 on 18/12/2013, such benefit is sought to be denied to them.
Held that: - this Court does not find anything offending or beyond the language of Section 15 of the KVAT Act, 2003 and Rule 135 of the KVAT Rules, 2005 in the said Circulars. The said Circulars merely explain the provisions of the said Section 15 of the KVAT Act, 2003 and Rule 135 of the KVAT Rules, 2005 in a contextual manner. The Assessing Authorities or even the Appellate Authorities while dealing with such issues are still free to take their independent view of the matter and one cannot say that they are bound by the terms of the Circulars issued by the Commissioner of Commercial Taxes which are nothing but administrative guidelines for their sub-ordinate Assessing Authorities and the learned Commissioner of Commercial Taxes has such powers under the KVAT Act, 2003.
Validity of Section 15 of the KVAT Act, 2003 - Held that: - this Court cannot reconsider the issue de novo merely because some arguments are sought to be raised which as contended by the learned counsel for the petitioners, was not raised earlier. They are free to raise any such questions relating to validity of the said provisions before the Division Bench of this Court where the appeal against the said judgment of the learned Single judge namely Writ Appeal No.1654/2009 is pending in the same case.
This Court does not find any reason to allow the assessees petitioners to by-pass the regular appellate remedies available to them under the KVAT Act, 2003 before the Appellate Forums and if such petitions are directed only against the Show Cause Notices issued by the Assessing Authorities, the assessees may first show cause before the concerned Authorities themselves.
The writ petitions are considered to be premature and do not deserve to be entertained by this Court at this stage - petition dismissed.
-
2017 (12) TMI 1014
Garnishee order - temporary interim protection - Held that: - this Court is of the opinion that though it was of the petitioner-assessee to file its RSA also before the concerned KAT only and seek even the interim relief from the same Tribunal but in the peculiar facts and circumstances of the case the petitioner-assessee is provided a period of one week time to prefer such appeal before the KAT and also seek interim relief from the Tribunal concerned - petition disposed off.
-
2017 (12) TMI 1013
Jurisdiction - interpretation of statute - Section 48-A of the TNVAT Act - case of petitioners is that, under Section 48 -A of the TNVAT Act, the first respondent has no power to interpret Entry in the schedules to the Act, and is entitled only to clarify regarding the rate of tax - Held that: - when an application is made by the dealer, requesting for clarification as to the rate of tax on the commodity dealt with by him, essentially, the first respondent has to examine what is the type of commodity, under which, Entry it would fall and then, proceed to determine the rate of tax of that particular commodity. Therefore, while issuing such clarification, the first respondent is empowered to clarify any point, concerning the rate of tax, and therefore, to state that the first respondent has no power to interpret the Entry in the schedule to the Act, is not tenable.
Classification of goods - yarn - case of petitioners is that all types of yarn, that are packed in hank form are taxable at 5% and the statute does not make a further distinction regarding what is the type of hank yarn, that should be exempted but the exemption shall enure to hank yarn of all kind - Held that: - the Hank Yarn Packing Notification issued by the Government of India pertains to yarn made out of the cotton. Hence, the term ''hank yarn'' used in the Budget Speech shall be referable to only cotton yarn packed in hank form. The intent of the Central Government as well as the State Government is to protect the handloom Industries. Both the Central and the State Governments were concerned about the plight of the poor hand loom weavers, and their family members, and they need to be provided with adequate quantity of yarn in hank form, so that, they can earn their livelihood by operating the hand loom - to state that Entry 44 of Part-B of the fourth schedule to the TNVAT Act should be interpreted to mean any type of yarn, packed in hank form, is a plea, which would be unacceptable, and not the intention of the Government to grant exemption. Admittedly, the Government inserted hank yarn in Sl.No.44 only during 2006-07, and as rightly pointed out by the learned Special Government Pleader, this being an exemption clause, strict interpretation has to be given to such exemption clause, and there is no room for any liberal interpretation with regard to such exemption.
What is required to be taken note of, is the plain terms, based on which, exemption was conceived and granted, and if this is examined, it is clear that the exemption was to reach particular section of weavers, viz. Handloom weavers. Likewise, the Hank Yarn Packing Notification issued by the Ministry of Textiles, Government of India, 17.04.2003, is to protect the handloom weavers, and under the said statutory notification, the term 'Yarn' has been defined only as cotton yarn. To interpret that Entry 44 to mean to include all types of yarn packed in hank form is incorrect way of interpreting the exemption provision.
Petition dismissed - decided against petitioner.
-
2017 (12) TMI 1012
Attachment of Bank accounts - dis-allowance of input tax credit on the purchases made from various vendors - clauses (a) and (b) of sub-section (1) of section 44 of the Act - Held that: - A plain and simple reading of the aforesaid provisions will suggest that the power under the same is to be exercised when there is a person who has debtor-creditor relationship with the dealer and from whom his money is due or may become due to him or the person who holds or may subsequently hold money for or on account of such dealer - the bank and the assessee do not have debtor-creditor relationship - impugned notices of attachment of the bank accounts is to be set aside.
Issuance of the impugned notices of attachment during pendency of the appeal and the stay application of the petitioner - Held that: - it is expected of the authority to stay its hands till the stay application is decided, unless the same is not decided on account of default on the part of the petitioner or it is found that the petitioner is unnecessarily delaying the hearing of the stay application and in absence of any exceptional circumstances, there is no warrant for the respondent authorities to proceed to initiate coercive recovery in exercise of powers under section 44 of the Act by attaching the bank account of the petitioner.
Petition allowed - decided in favor of petitioner.
|
