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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 86 Records
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2017 (9) TMI 2008
Refund claim - Petitioner clarifies that the refund amount claimed by the Petitioner for the fourth quarter of 2013-14 is Rs.2,64,77,458/- and not the figure stated in the prayer clause - HELD THAT:- If the Petitioner has any grievance regarding non-compliance with the directions and/or the interest amount paid, it would be open to the Petitioner to seek further appropriate remedies, as may be available to the Petitioner, in accordance with law.
Petition disposed off.
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2017 (9) TMI 1975
Validity of SCN - impugned notice is in consonance with section 46 of WB VAT Act 2003 or not - sufficient material existing before the Commissioner to invoke section 46 of the said Act of 2003 or not - HELD THAT:- The notice specify that, for the assessment period from April 01, 2015 to March 31, 2016, the petitioner has taken an excess Input Tax Credit of over ₹ 5.00 lacs and has carried forward to the next financial year. The notice requires explanation from the petitioner for such purpose.
In the facts of the present case, therefore, it cannot be said that the Commissioner has acted wholly without jurisdiction in issuing the impugned notice. It is within his purview to take cognizance of a situation emanating under section 46(1)(b) of the said Act of 2003. In the present case he is prima facie satisfied that, the State Government has suffered loss of revenue and that, there are adequate reasons for the purpose of asking for the explanation. The reasons given in the impugned order are sufficient for the assessee to react thereto.
The impugned notice not being vitiated any perversity, need not be interfere therewith. The authorities are entitled to look at the returns in accordance with the said Act of 2003, particularly under section 46 of the said Act of 2003 thereof - petition dismissed.
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2017 (9) TMI 1841
Refund claim - time limitation - HELD THAT:- It is directed that the refund orders will be issued within four weeks from today and within two weeks thereafter, the refund amount together with interest due thereon shall be directly credited to the account of the Petitioner. In the event that there is any grievance with regard to the non-compliance with the above directions, it would be open to the Petitioner to seek appropriate remedies in accordance with law.
Petition disposed off.
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2017 (9) TMI 1840
Principles of natural justice - ex-parte order passed - petitioner has been proceeded with without hearing him in the matter - Section 25(3) of Bihar VAT Act - HELD THAT:- The interest of justice requires that one opportunity should be given to the petitioner to justify his action before the assessing officer.
The impugned orders are quashed - Petitioner shall appear before the assessing officer along with certified copy of this order on 10th of October, 2017 at 11 A.M. along with all his objections, documents and material in support of the notice issued and thereafter the authority shall proceed to pass assessment order afresh under Section 25(3) of the Act in accordance to law.
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2017 (9) TMI 1829
Refund claim - C-Forms - Petitioner states that C-Form will be produced within four weeks from today before the VATO concerned - HELD THAT:- Subject to compliance with the above assurance, within four weeks thereafter, the refund order will be issued by the Respondent and within two weeks thereafter, the refund amount together with interest due thereon shall be paid directly into the account of the Petitioner.
Interest for the period during which the C-Forms were not available - HELD THAT:- The payment of the amount will be subject to the final outcome of the appeals preferred by the Respondent before the Supreme Court against the order of Vizien Organics v. Commissioner, Trade & Taxes [2017 (1) TMI 1168 - DELHI HIGH COURT].
Petition disposed off.
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2017 (9) TMI 1821
Refund claim - C-Forms not available - HELD THAT:- It is directed that the refund of the Petitioner be processed and the refund order be passed within four weeks from today. The refund amount along with the interest due thereon be credited directly to the account of the Petitioner within two weeks thereafter.
Interest for the period during which the C-Forms are not available - HELD THAT:- The payment of the amount will be subject to the final outcome of the appeals preferred by the Revenue before the Supreme Court against the order in Vizien Organics v. Commissioner, Trade & Taxes [ 2017 (1) TMI 1168 - DELHI HIGH COURT ].
In the event that the Petitioner has any grievance regarding noncompliance with the above directions, it would be open to the Petitioner to seek appropriate remedies in accordance with law - petition disposed off.
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2017 (9) TMI 1763
Principles of natural justice - non-speaking order - CTO has not only ignored the objections, but, has also not even mentioned any reasons to over rule the objection raised by the petitioner - Held that:- This Court has repeatedly held that when notices are issued calling for objections / reply, if any, within a stipulated time, on receipt of the said objection / reply from the assessee, a legal duty is cast upon the assessing officer to pass a detailed and speaking order, dealing with every objection raised by the assessee.
The impugned orders are non-speaking orders and the same are set aside - the matter is remitted back to the file of the respondent for fresh disposal - petition allowed by way of remand.
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2017 (9) TMI 1735
Appealable Order - Section 46 of the Act 2002 and Entry Tax Act of 1976 - the petitioner has circumvented the statutory stipulation contained under section 46 of the Act of 2002 read with Section 13 of 1976 Act, on the contention that the impugned order is contrary to the provisions of section 20-A (1-B) of the Act of 2002 read with section 13 of 1976 Act and barred by time as fixed under sub-section (7) of section 20 of 2002 Act - grant of Input tax Rebate - pre-deposit - violation of Section 20A (1B) of 2002 Act - Deemed Assessment.
Held that:- In the present case, evidently the petitioner availed the benefit under Deemed Assessment Scheme for the Assessment period 2014-15 which was accepted with carried forward Input-tax rebate ₹ 1346886/- for the year 2015-16, by order dated 27/07/2016, brought on record as Annexure P/2 - the rebate of Input Tax under sub-section (1) of Section 14 subject to sub-section (5) thereof, is allowed on being claimed in the circumstances which find mention in clauses (a) and (b) of sub-section (1) of Section 14.
We are not commended at any provision which stipulates that with the acceptance of the application under Deemed Assessment Scheme, the registered dealer is exonerated from all other provisions contained under Section 20 of 2002 Act. The Legal fiction attached to assessment under the Scheme that it is treated as assessment under sub-section (1) of Section 20, cannot be extended beyond the purpose for which it is created or beyond the language of Section by which it is created - the applicability of the provision of Section 20 of 2002 Act is thus not waived.
It was within the competence of the Competent Authority to have exercised its jurisdiction under Section 20(5) of the Act of 2002. And since the order has been passed within the extended time period, we perceive no jurisdictional error as would give right to the petitioner to invoke extraordinary jurisdiction under Article 226 of the Constitution of India.
The petitioner is relegated to avail the remedy of appeal under section 46 of 2002 Act read with 13 of 1976 Act - Petition disposed off.
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2017 (9) TMI 1733
Liability of VAT - process of setting up the power station - Sub-contract - Applicant submits that the sub-contractors are registered dealers under the provisions of MVAT Act, 2002 and are discharging the applicable VAT on the aforesaid work carried out under the sub-contract. Since the VAT is discharged on the works contract by the sub-contractor, the Applicant does not charge VAT in its invoices raised on the customer for the same sub-contract work.
Whether the Applicant would be liable to pay VAT on the invoice raised to its customer i.e. PGCIL for the work undertaken by sub-contractors on its behalf - The clarification is being sought especially in light of the decision of the Hon. Andhra Pradesh High Court in the case of Larsen & Toubro [2006 (10) TMI 377 - ANDHRA PRADESH HIGH COURT] as upheld by the Hon. Supreme Court in STATE OF ANDHRA PRADESH & ORS. VERSUS LARSEN & TOURBO LTD. & ORS. [2008 (8) TMI 21 - SUPREME COURT]?
Held that:- The applicant would be liable to pay tax on the entire value of the contract, subject of course to discharge of liability by the sub-contractor to the extent of the amount forming part of the contract value in terms of section 45 of the MVAT Act, 2002 - As regards amount retained by the principal contractor, the same is also a part of the same transaction and is liable to tax subject to the deduction as provided in law.
Prospective effect of order - Held that:- In the present case there is no ambiguity in the provision of Act. The total contract value is taxable in the works contract. The rule 58 is clearly laid dawn for the eligible deductions the principle contractor and subcontractor are held jointly and several responsible for tax liability. The rule 58 has taken due care to avoid double taxation as it provides the deduction of turnover related to subcontractor from total contract value. There is no scope, for any doubt arising out of the provisions. There is no ambiguity in language provided in the Sections and Rules - The applicant cannot prove existence of circumstances which warrant us to use the discretionary power. In fact use of such discretionary powers in the absence of compelling circumstances would be detrimental to legitimate government revenue and would wipe out the legitimate tax liability In these circumstances, we do not allow the use of prospective effect as a tool to protect or to wipe of legitimate tax liability - the pray for granting prospective effect to this order is hereby rejected.
Ruling:- The applicant is liable to pay tax on the entire value of the contract, subject of course to discharge of liability by the sub-contractor to the extent of the amount forming part of the contract value in terms of section 45 of the MVAT Act, 2002 and rule 58 of MVAT Rules, 2005.
Amount retained by the principal contractor is also a part of the same transaction and is liable to tax subject to the deduction as provided in law.
The prayer for prospective effect is rejected.
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2017 (9) TMI 1728
Reopening of assessment - demand of differential tax - classification of Crusher machine - Held that:- Ass per the statutory scheme of payment of compounded tax under Section 8 (f), the tax payable is based on the production capacity of the machine, which in turn is determined by the jaw size of the crushing machine concerned. The capacity of the machine, based on the power of the motor affixed to the machine, is not the criteria that is specified under the Act for classifying a machine for the purposes of tax.
The material received from the Mining and Geology Department is wholly irrelevant to the determination of the capacity of the machine for the purposes of payment of tax under the KVAT Act - Petition allowed - decided in favor of petitioner.
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2017 (9) TMI 1727
Penalty u/s 27 (3) (c) and another penalty u/s 27 (4) (2) - mismatch of purchase and sales - opportunity of personal hearing not provided - principles of Natural Justice - Held that:- When the respondent Assessing Officer has passed the impugned order levying two penalties one under Section 27 (3) (c) and another under Section 27 (4) (2) of the Tamil Nadu Value Added Tax Act, 2006, the Assessing Officer ought to have given an opportunity of personal hearing - Also, a sum of ₹ 3,41,533/- has been found as balance tax due payable by the petitioner. Therefore, the respondents in my considered opinion, should have given the petitioner a reasonable opportunity to explain his case by appearing in person.
As it had not been done so and the matter involves the appreciation of facts, the respondents are hereby directed to give the petitioner a chance of personal hearing within a period of two weeks from the date of receipt of a copy of this order and thereafter pass final order - petition allowed by way of remand.
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2017 (9) TMI 1725
Validity of reassessment - survey proceedings undertaken at the business premises of the petitioner u/s 52 of the KVAT Act, 2003 - Supervisory Jurisdiction on the part of this Court - Held that:- This court is satisfied that the proceedings of the respondent-Commercial Taxes Department, in the present case, does not require any interference or investigation under the directions of this court in exercise of its jurisdiction under article 226 of the Constitution of India.
This court does not have any supervisory jurisdiction to oversee the dealing of the complaints of the individual assessees by heads of Commercial Taxes Department or any other Department for that matter. If there are allegations of corruption or other specific nature duly supported with the evidence, there are agencies and authorities to look into that and the writ jurisdiction of this court cannot be invoked for the purpose of directing such investigations - If there is any allegations of the petitioner made against that Customs Official, that is not the subject-matter of the present writ petition. Therefore, even if a complaint is filed against any official of the Commercial Taxes Department as well, that too, also cannot be the matter of investigation under the writ jurisdiction.
Petition disposed off.
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2017 (9) TMI 1539
Recovery of amount refunded and interest paid on the refund amount - section 40(1) of the VAT Act - the petitioner had purchased goods from dealers who themselves were eligible under the said scheme - breach of condition no.19 of the notification dated 11.10.2013 - the case of the petitioner was that the condition no.19 would not disentitle the petitioner from seeking refund on such purchases - Section 37 of the VAT Act.
Held that: - Under subsection (1) of section 37 thus, it is open for a registered dealer to apply for a provisional refund pending assessment. Under subsection (2), it is open for the Commissioner by imposing necessary condition to grant such provisional refund. Such provisional refund can be disturbed only in terms of subsection (4) of section 37 if on assessment, the provisional refund granted is found to be in excess. In order to disturb the provisional refund already granted what is therefore necessary is to assess the return of the petitioner - A provisional refund once granted under subsection (4) of section 37 can be disturbed and recovery can be demanded only on final assessment and not otherwise. In can be appreciated that during the assessment, many issues may come up and ultimate tax liability of an assessee can be judged only on final assessment. There cannot be a stand alone assessment of a refund claim in isolation, keeping the rest of the return unassessed.
In the present case, no such assessment is framed. In that view of the matter, impugned orders dated 20.07.2017 and 25.07.2017 in both the petitions are set aside - petition allowed - decided in favor of petitioner.
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2017 (9) TMI 1538
Validity of assessment order - principles of Natural Justice - Held that: - the petitioner has stated in his representation / letter to the respondent that, their Zonal Office has been shifted to Gurgaon (Hariyana) and all the documents are available in the said Office, and requested for further four weeks' time to produce the same. The respondent cannot disbelieve the said request, nor, there was any material available with the respondent, to come to conclusion that the statement of the petitioner was false - matter is remanded to the respondent for fresh consideration - appeal allowed by way of remand.
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2017 (9) TMI 1537
Levy of tax on sale value on purchase suppression found with regard to check post extract - reversal of Input Tax Credit on purchases from registration cancelled dealers - Held that: - not only there is a direction to the petitioner to produce the documents and details but there is a pointed direction to the assessing authority to furnish the purchase list including supplier name, address, invoice number, sales amount, etc., to the petitioner. Further there is a direction to investigate on issuance of Form C also through Departmental Cell. The bank account of the petitioner was directed to be checked to find out payment, if any, to the dealers listed.
With regard to the issue relating to reversal of Input Tax Credit, there is a direction to the petitioner to produce the tax invoices and also prove the payments made for those transaction and the assessing officer, on the strength of the invoices, was to conduct an enquiry through departmental source and to prove that on the date of invoices, the supplier was not registered. Unfortunately, the respondent ignored the directions issued and completed the assessment in a summary manner.
The matter is remanded back to the respondent for fresh consideration, who shall scrupulously follow the directions issued by the appellate authority - appeal allowed by way of remand.
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2017 (9) TMI 1536
Classification of goods - rate of tax - Blood Collection Monitors - Blood Storage Refrigerators and Deep Freezers - Platelet Agitators with incubators - Plasma Expressers (Electrical and Manual) - Cryobaths - whether the said goods would fall within the ambit and scope of Entry 61 of the III Schedule to the KVAT Act, 2003, which reads as “61. Medical Equipments, Devices and Implants” taxable at the rate of 4% or would be taxable at the rate of 12.5% in the Residuary Entry as per Section 4(1)(b)(iii) of the KVAT Act, 2003?
Held that: - the well settled legal principles for interpretation of various Entries under the Tax Laws are that such Commodities have to be interpreted in the manner in which the persons concerned with that Trade will construe them to be or in other words, the Common Parlance Test or Trade Parlance Test has to be applied while making such interpretations. There is no doubt that the collection of Blood samples and Diagnosis of the various contents of the Blood is a useful and integral part of the Medical treatment and without the Diagnosis of the Blood samples, possibly, the Medical Science as far as Allopathy is concerned, cannot even work. The integrity of the Blood Banks and Blood Bank Equipments with the Medical profession comprising of Diagnosis and treatment of the human beings and animals cannot be doubted and they cannot be separated also.
The nature of business of the petitioner-assessee who is a registered dealer with the Respondent Department is nothing except dealing with the Blood Bank Equipments and other Medical Equipments. It was not selling usual Refrigerators or Cold Storages. These Refrigerators are specially designed for storing only Blood samples before or after their processing. Therefore, there is no good reason even to treat the Refrigerators specially designed for Blood samples as not falling within the wide scope of Entry 61, which as quoted above reads as ”Medical Equipments, Devices and Implants” - The other Blood Bank Equipments are undoubtedly covered by Entry 61 of the III Schedule to the KVAT Act, 2003.
The goods viz. “Blood Collection Monitors, Blood Storage Refrigerators and Deep Freezers, Platelet Agitators with incubators and Plasma Expressers (Electrical and Manual) and Cryobaths” are taxable at the rate of 4% under Entry 61 “Medical Equipments, Devices and Implants” and not in the Residuary Entry of the KVAT Act, 2003 - petition allowed - decided in favor of petitioner.
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2017 (9) TMI 1472
Taxability - Jau Ghat (Mota Anaj) - whether it is taxable or not? - Held that: - "Jau Ghat" was exempted from tax and no tax was payable - the word ''cattle fodder' in the entry dated 31.03.1956 included grain feed, chuni, bhusi, chhilka, choker, cotton seed, gwar and oil-cake - revision allowed - decided in favor of revisionist.
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2017 (9) TMI 1471
Validity of assessment order - Form F declarations - request for consideration of Form F declarations with proof of dispatch of goods filed by the petitioner under Section 6A of the Central Sales Tax Act, 1956 - penalty u/s 12(3)(b) of the TNGST Act - Held that: - The particulars required to be furnished in Form F clearly manifest that the proof required is as to whether the goods were factually transferred to the assessee himself or his branch office or his agent and not to any third party. Any other enquiry is beyond the realm of the assessing authority.
Once a declaration had been accepted and acted upon by the Revenue, unless and until on further enquiry made thereto the particulars furnished were found to be incorrect or untrue, the assessment once made based on Form F, could not be reopened. Unless the details were found to be writ with fraud, collusion or misrepresentation or suppression of material facts, on a mere change of opinion, the findings could not be disturbed under Section 16 of the Act. When the original assessment rested on the findings of enquiry with reference to the details in Form F and the finding on Form F thus remained undisturbed even in the reassessment proceedings, the reassessment order revoking the exemption granted under Section 6A of the Central Sales Tax Act could not sustained.
Penalty - Held that: - It is a settled legal position that if the turnover is culled out from the books of accounts of the dealer and the conduct of the dealer is not contumacious or there is any mala fides with intent to evade payment of tax, the said provision would not stand attracted. Therefore, in the event, the second respondent proposes to rake up the issue relating to penalty, the petitioner is entitled to raise objections and the second respondent shall take note of the legal principles laid down in a catena of cases as to under what circumstances penalty is leviable.
The second respondent is directed to furnish the copies of the seized documents, which have been marked as book D and E within a reasonable time on costs being remitted by the petitioner for making out such copies - the second respondent shall verify the entire records provided, afford an opportunity of personal hearing, verify the records and decide the issues - petition allowed by way of remand.
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2017 (9) TMI 1470
Validity of assessment order - discrepancy between the returns filed by the petitioner and the details in Annexure II filed by the other end dealers - non-production of the certificates to show that tax has been deducted at source - Held that: - the respondent / Assessing Officer has given due credit to the Forms R & T produced by the petitioner for the relevant assessment years and issued the certificates - issuance of the certificates alone will not suffice, since the assessment orders have to be consequently revised. Therefore, necessarily, the Assessing Officer has to pass revised assessment orders and in that regard, this Court is inclined to issue appropriate directions, by remanding the matters to the respondent, for passing fresh orders - matters are to be remanded to the respondent, this Court is of the view that an opportunity can be granted to the petitioner to raise objections to the "mismatch issue" - appeal allowed by way of remand.
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2017 (9) TMI 1469
Restoration of appeals - pre-deposit - the decision in the case of HYNOUP FOOD AND OIL INDUSTRIES LTD Versus STATE OF GUJARAT [2017 (1) TMI 1116 - GUJARAT HIGH COURT] contested, where the appeals were restored - Held that: - decision in the above case upheld - Exemption from filing certified copy of the impugned order is granted - SLP disposed off.
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