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VAT and Sales Tax - Case Laws
Showing 61 to 68 of 68 Records
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2017 (12) TMI 264
Exemption from CST - disallowance of export sales - demand on the ground that on the ground that the petitioner did not produce documents to show that he had realised the proceeds of the export sale in foreign currency, in India - Held that: - there is no provision under the Act or Rules which mandates that the petitioner should produce a document showing realisation of export proceeds as a condition for claiming the exemption that is available for transactions which are in the nature of sale transaction in the course of export. The exemption under the CST Act is available to an assessee if he demonstrates that the sale transaction occasioned a movement of the goods from within the country to a place outside the country.
The documents produced by the petitioner clearly indicate that the goods, which were the subject matter of the sale transaction with a foreign buyer, had left the shores of India for a foreign destination as shown in the documents. In the absence of anything to suggest that the goods did not cross the customs frontiers of India, the respondents cannot take a stand that the transaction in question was not an export sale transaction for the purposes of exempting the transaction from the levy of CST under the CST Act - Petition allowed - decided in favor of petitioner.
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2017 (12) TMI 263
Validity of assessment order - time limitation - APVAT Act - case of petitioner is that out of the block period of 1.9.2005 to 31.3.2012, the period of 1.9.2005 to March 2009 falls beyond the limitation period of four years, that therefore respondent No.4 had no jurisdiction to pass such an order and that, as the power exercised by respondent No.4 is without jurisdiction - case of Revenue is that the writ petition was filed bypassing the effective alternative remedy of appeal before the A.P. VAT Tribunal and that therefore the same is liable to be dismissed in limine - Held that: - The rule of alternative remedy is not a rule of law, but a self imposed restriction by the Constitutional Courts. When a statute created efficacious remedies, a litigant cannot insist on entertaining the writ petition without availing such remedies. Though availability of an alternative remedy is not an absolute bar for entertaining the writ petition, ordinarily this Court would not allow a litigant to bypass an alternative remedy except in exceptional situations.
It is not the pleaded case of the petitioner that its case falls in any of the exceptions recognized by the Supreme Court as discussed above or that the issue raised in this writ petition cannot be adjudicated by the A.P. VAT Tribunal presided by no less an officer of a Special Grade District Judge - the petitioner is not entitled to invoke the jurisdiction of this Court without availing the statutory remedy of appeal before the Tribunal.
Time limitation - case of Revenue is also that as the petitioner has not raised the aspect of limitation in both the rounds of litigation before the Assessing Officer as well as the Deputy Commissioner, it is barred from raising such plea in the present writ petition - Held that: - the counsel for the petitioner is labouring under a misconception that this Court has duty and obligation to entertain writ petitions in order to set aside every wrong or illegal order. The law is well settled that the jurisdiction under Article 226 of the Constitution of India is discretionary and this Court would not be compelled to adjudicate upon the merits of a case merely because a case is made out that the order challenged before it is illegal. While exercising the jurisdiction under Article 226 of the Constitution, this Court would consider the conduct of the party and the facts and circumstances of the case, before adjudicating the case on merits.
Limitation being a mixed question of law and fact, has to be necessarily raised by a party in order that the adjudicating authority applies its mind and renders a finding thereon. The petitioner has not offered any semblance of explanation as to why and for what reason it has failed to raise the issue of limitation - the conduct of the petitioner shows that there is lack of diligence in raising necessary plea which ought to be raised by it and a decision invited thereon. The absence of explanation on the part of the petitioner for not raising the objection in spite of repeated opportunities to raise such objection, both before the original and the appellate authority, would give rise to a presumption that it has deliberately not raised the issue in order to avoid a finding from the jurisdictional hierarchical authorities.
Petition dismissed - decided against petitioner.
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2017 (12) TMI 205
Waiver of assessment procedure - fire accident occurred in the business premises of the petitioner on 11.01.2002 - petitioner's case is that on account of the fire accident, entire records, books of accounts, etc. which were kept in the office premises were gutted down and are not available with the petitioner for production before the Assessing Officer and therefore, requested for waiver of the assessment procedure - Held that: - nothing appears to have been done by the Assessing Officer from 1995 onwards and for the first time action was initiated in the year 2003. Since the fire accident had occurred on 11.01.2002 and the records were gutted as soon as pre-assessment notices were received, the petitioner moved the first respondent through proper channel - to state that the petitioner is guilty of non-production of records at the appropriate time is an incorrect statement since there is no record to show that despite summons being issued to produce the records and books of accounts, the petitioner failed to do so. More importantly, the respondent did not dispute the fire accident and the same is admitted. In such circumstances, every step should be taken by the Assessing Officer as well as other respondents to complete the assessment at an earliest point of time.
There is a statutory duty on the part of the third respondent to call upon the petitioner to produce the books of accounts and then finalize the assessment. For reasons best known, this never happened till 2003 and the matter was in limbo from 1995 onwards. Therefore, the petitioner cannot be solely blamed for the situation.
The matter is remanded to the third respondent, the Assessing Officer who is directed to waive the assessment procedure as contemplated under Section 12 of the TNGST Act r/w Section 9(2) of the CST Act and complete the assessment for all the assessment years - appeal allowed byway of remand.
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2017 (12) TMI 204
Jurisdiction - time limitation - whether the first respondent, in exercise of his powers under Section 32 of the TNGST Act, while purporting to pass orders of assessment could do so, beyond the period of limitation stipulated under Section 16 of the TNGST Act, 1959? - Held that: - the issue involved in this writ petition is squarely covered by the decision of this Court in the case of Salem Steel Suppliers and others vs. The Deputy Commissioner and another [2017 (9) TMI 946 - MADRAS HIGH COURT], where it was held that The power under Section 16(1) is wide enough and cannot be said to be limited to assessment of assessable turnover under that sub-section by the Assessing Authority only. It is to be invoked in all cases, where, a statutory functionary under the Act assumes jurisdiction to assess the escaped turnover. Therefore, it was held that, in passing an original order of assessment, the Board exceeded its powers under Section 34, and that the order was also passed beyond time. Therefore, the order was held to be unenforceable in law.
Petition allowed - decided in favor of petitioner.
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2017 (12) TMI 203
Penalty on entry tax - Section 15 of the Entry Tax Act - Held that: - Section 15(1) of the Entry Tax Act could be invoked only when a person, who is liable to pay tax under the Entry Tax Act, fails to comply with any of the provisions of the Entry Tax Act, and if he fails to do so, he is liable to pay penalty not exceeding finalised amount of tax - On a reading of the impugned assessment order, it is not clear as to how the respondent imposed penalty u/s 15(1) of the Entry Tax Act, and as to how the petitioner, who is liable to pay tax under the Entry Tax Act, failed to comply with the provisions of the Act. Admittedly, the entry tax has been paid, assessment has been completed and there is no tax liability pending. Therefore, to invoke Section 15(1) of the Entry Tax Act, the respondent should bring out as to how there is failure to comply with the provisions of the Act.
The records show that nothing was retained by the petitioner and therefore, the question of invoking Section 15(1) of the Entry Tax Act, does not arise, as there is no contravention of the provisions of the Act as has been pointed out in the impugned order.
Petition allowed - decided in favor of petitioner.
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2017 (12) TMI 3
Reversal of input tax credit - TNVAT Act - computation of taxable turnover - liability of interest - Held that: - it is the endeavour of the petitioner to state that the respondent committed a serious error in clubbing turnover under the CST Act and to draw the inference that the taxable turnover has exceeded ₹ 200 Crores and therefore, returns filed by them are belated and the petitioner is liable for payment of interest - with regard to Rule 7 of the TNVAT Rules, 2007, which states that every dealer shall file their return for each month in Form I on or before 20th of the succeeding month. Sub-Rule 8 of Rule 7, is sought to be invoked by the respondent by stating that if the taxable turnover in the previous year is ₹ 200 Crores and above, the returns should be filed on or before 14th of the succeeding month. This having not been done, the petitioner is liable for payment of interest.
Whether at all the turnover under the CST Act could be clubbed with the turnover of the TNVAT Act, is an important question to be decided. However, the respondent having not considered these issues, this Court is of the view that the matter requires to be remanded to the assessing officer for fresh consideration, on the above factual and legal issues, after affording an opportunity of personal hearing.
Petition allowed by way of remand.
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2017 (12) TMI 2
Rate of tax - purchase turnover - TNGST Act - purchases of raw materials, availing concessional rate of tax, under Section 3(3) of the TNGST Act, 1959, by issue of Form XVII declaration and used them in the manufacture of goods and effected export sales - taxable under Section 3(3) of the TNGST Act, 1959 or under Section 3(4) of the TNGST Act, 1959? - Held that: - In State of Tamil Nadu v. Essar Inc., [2014 (8) TMI 935 - MADRAS HIGH COURT], while considering the very identical substantial questions of law, stated supra and following the decision in Tube Investment of India Ltd.,'s case [2010 (10) TMI 938 - MADRAS HIGH COURT], a Hon'ble Division Bench of this Court, dismissed the appeal filed by the State Government.
Having regard to the dismissal of the Special Leave Petitions, filed against the decision of this Court made in Tube Investment of India Ltd.,'s case and following the above decisions made in State of Tamil Nadu v. Essar Inc., this Court is inclined to dismiss this tax case revision petition, as no question of law, much less substantial question of law, arises for consideration in the present revision.
Tax revision dismissed.
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2017 (12) TMI 1
Sale of capital goods - car used as a demo car - exemption from tax - Section 6 (3) of the DVAT Act - the decision in the case of Triumph Motors (A Unit of Khushi Traders Pvt Ltd) Versus Commissioner Of Value Added Tax [2017 (8) TMI 299 - DELHI HIGH COURT] contested - Held that: - delay condoned - notice to be issued on the prayer for interim relief.
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