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VAT and Sales Tax - Case Laws
Showing 61 to 80 of 86 Records
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2017 (9) TMI 438 - MADRAS HIGH COURT
Jurisdiction - whether the first respondent being an Enforcement Wing Officer has no jurisdiction to call upon the petitioner to file objections or to produce books of account or to attend the personal hearing and the manner in which the notices have been issued and its tenor will clearly establish that the petitioner has been threatened and coerced to submit to the jurisdiction of the first respondent? - Held that: - the first respondent, being an Enforcement Wing official, cannot usurp the powers of the assessing officer. All that can be done is to prepare a report based on the inspection conducted in the place of business of the petitioner and it can at best give cause of action for issuing a revision notice and upon issuance of the revision notice by the assessing officer and inviting objections from the dealer, the assessing officer has to independently consider the objections and take a decision in the matter uninfluenced by any observations made by the Enforcement Wing official in the D3 proposal. Thus, the notices issued by the first respondent cannot be enforced - the notices issued by the first respondent dated 26.09.2016 are held to be non-est in the eye of law - petition allowed - decided partly in favor of petitioner.
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2017 (9) TMI 437 - MADRAS HIGH COURT
Jurisdiction - AO - Transfer of case from the second respondent to some other Assessing Officer - petitioner case is that they had not received assessment order - Held that: - there is record to indicate that Mr.Jothi has been regularly receiving copies of the orders on behalf of the petitioner. Faced with this situation, the learned counsel for the petitioner submits that the plea raised by the petitioner that he has not received the assessment order is given up. This stand is taken on record and it is held that the petitioner has received the assessment order.
Whether the allegation made against second respondent in paragraph No.8(d) was justified? - Held that: - the petitioner filed an affidavit dated 08.08.2017, withdrawing all those allegations against the second respondent. This affidavit is placed on record and the allegation against the second respondent in paragraph 8(d) stands deleted. In the light of the above, the question of transferring the case from the second respondent does not arise and the prayer sought for in the writ petition is to be rejected.
Petition dismissed - prayer sought for to transfer the case is rejected - decided against petitioner.
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2017 (9) TMI 395 - GUJARAT HIGH COURT
Branch Transfers - Form-F - Whether under the facts and circumstances, the learned Tribunal erred in allowing the production of F-Forms without insisting the production of evidence? - Held that: - If apart from non furnishing of F forms, the Assessing Officer had disputed about the movement of goods, the transactions could not have been taxed as inter-State sales. If the department was aggrieved by the same, it was open for the department to challenge the same before the first appellate authority. Not having done so, the department cannot reverse the situation - appeal dismissed.
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2017 (9) TMI 394 - GUJARAT HIGH COURT
Maintainability of petition - time limitation - Validity of Revision Order - challenge on the ground that the Revision authority had acted on the opinion of the audit party without independent application of mind - Held that: - after the Tribunal passed its impugned order on 04.02.2005, the Government took no steps to challenge the same for close to 10 years when for the first time rectification application came to be moved before the Tribunal. This application was filed on 03.02.2015. Thus, for 10 long years there was no action on part of the department. It may be that the rectification application came to be dismissed by the Tribunal on 16.02.2015. Nevertheless, the delay has to be seen in light of the overall facts. Even after the Tribunal rejected the rectification application, the department took two years to move the present petition - petition dismissed on the ground of delay.
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2017 (9) TMI 393 - MADRAS HIGH COURT
Validity of assessment order - levy of tax - tax not deducted at source - Held that: - This Court is aware of the fact that there is no privity between the first respondent and respondents 4 and 5. Therefore, there is no statutory duty on his part to cause such verification. Nevertheless, the first respondent, being the Assessing Officer of the petitioner has to ensure that there is no double taxation - slight departure can be made in the instant case, where the first respondent using his official machinery can verify from the respondents 4 and 5 as to whether the taxable turn over pertaining to the subject construction has been reported with the respondents 2 and 3 in their returns and whether taxes have been paid or in the alternative, the first respondent may address the respondents 4 and 5 for issuance of necessary declaration as sought for - petition allowed by way of remand.
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2017 (9) TMI 326 - MADHYA PRADESH HIGH COURT
Classification of goods - leaf springs - whether leaf springs are classifiable under Schedule-II Part-IV of the M.P. VAT Act liable to tax @12.5% or as iron and steel under Entry 30 (v) of Part II of Schedule II? - jurisdiction of the authority to reassess merely on the basis of change of opinion - sub-section (3) of Section 21 of M.P. VAT Act - obligation on the part of Assessing Authority to pass an order within one year from the date of initiation of proceedings - Held that: - in view of the provisions of sub-section (3) of Section 21 of M.P. VAT Act, it can be said that impugned order of re-assessment does not get invalidated even if it is passed beyond the period of one year from the date of initiation of proceedings with the issuance of show cause notice - contention made on behalf of the petitioner that it was beyond jurisdiction of the Assessing Authority to have passed the order of re-assessment after expiry of one year from the date of issuance of show cause notice is answered in the negative.
Whether the change of opinion can be the basis for re-assessment? - Held that: - the law is settled that mere change of opinion in absence of any other material will not be sufficient for reassessment - re-assessment of tax is permissible only when it has been under assessed or has escaped assessment, or has been assessed at a lower rate, or any wrong deduction has been made while making the assessment or a rebate of input tax has incorrectly been allowed, while making the assessment or is rendered erroneous and prejudicial to the interest of revenue. Consequent to or in the light of any judgment or order of any Court or Appellate Board, which has become final. Thus, except these circumstances no other grounds available for the Commissioner to reassess the tax - in the present case, it was only on the basis of opinion formulated by order dated 5.6.2007 the Commissioner has re-assessed the tax of the period 2006-07 which cannot be upheld. Therefore, the demand raised for additional sum being the difference i.e. 8.5% amounting to ₹ 47754454/- is set aside. Consequently the demand carried for said amount is also quashed.
Sub section (3) stipulates that any order passed by the Commissioner under sub-section (1) and (2) shall have a prospective effect and shall be binding on the authorities referred to in Section 3 in all proceedings under this Act except appeals - the order passed on 5.6.2007 was applicable for next financial year i.e. 2007-2008 and not 2006- 2007 - For this reason also the impugned order cannot be upheld.
Petition allowed - decided in favor of petitioner.
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2017 (9) TMI 325 - MADRAS HIGH COURT
Validity of assessment order - Central Sales Tax Act, 1956 - The respondent has doubted the transactions done by the petitioner, suspecting it to be 'bill trading'. Therefore, the respondent has insisted upon the proof to show movement of goods - Held that: - When the petitioner has taken a stand that they do not maintain any log book / trip sheets for local movement and they use their own vehicles for movement of goods and as per the trade practices, they do not avail insurance coverage, the respondent should have directed the petitioner to produce oral evidence or affidavits substantiate their plea, in the absence of documentary evidence. If this had been done, the truth would have been established and the respondent would have been in a position to pass a reasoned order. However, the respondent, in a hurried manner, has completed the assessments, by passing such cryptic orders. Thus, for the above reasons, the impugned orders are liable to be set-aside - matters are remanded back to the respondent with a direction to furnish the documents sought for by the petitioner - petition allowed by way of remand.
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2017 (9) TMI 322 - BOMBAY HIGH COURT
Validity of circular dated 5.6.2000 - encouraging and developing Khadi and Village Industry. - circular is challenged on the ground that it is discriminatory in nature and it violates the provisions of Articles 14, 19 (1) (g) of Constitution of India - direction is also claimed to strike down notification dated 7.6.2001 by which amendment in Bombay Sales Tax Act concerning the hand made paper industry is made - Held that: - In view of coming in to force of Goods and Service Tax, the provisions of Sales Act etc. will not be used against the petitioner and further, for the applicability of GST, there are different conditions/requirements and those conditions/requirements will be considered for taxing now. Thus, nothing survives in the present matter - petition dismissed.
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2017 (9) TMI 285 - GUJARAT HIGH COURT
Bail u/s 438 of the Code of Criminal Procedure, 1973 - false claim of sales against Form F, Form C, Form H under CST act - It is alleged that after obtaining the delivery of the goods in New Delhi under the guise of its branch transfer, the goods were in fact sold in the State of Gujarat; but a show was made as if the goods are sold in New Delhi, Haryana and Rajasthan by issuing Form ‘C’ in the name of certain business people most of whom were dealing in ready made garments. It is alleged that, in fact, such persons had received ready made garments referable to Form ‘C’ in question, but a wrongful claim was made as if tobacco / its products were sold to them. It is alleged that in some cases even the refund was claimed.
Held that: - It cannot be disputed that as and when necessary and if the facts of the case so requires, an authorized Police Officer can obtain the custody of a person for investigation / interrogation either with or without warrant as the case may be. The arrest, however, cannot be made on mere imagination; but it can always be made inter alia on reasonable suspicion on fortification of the “reason to believe” on the basis of the information of the person having committed the offence. The necessity of the arrest of a person would, therefore, depend upon the facts and circumstances of each case and no straight jacket formula can be laid for that purpose. It is a settled legal position that a person can be proceeded against and can be tried even without arresting him.
In so far as facts of the present case are concerned, it appears that the petitioners are sought to be proceeded against for the offences in question not in individual capacity but as Directors of the Company afore stated. The FIR avers the commission of the offence particularly by the Company by allegedly employing dubious method for avoidance of the tax as above stated. The Company, however, is not made a party to the proceedings and the FIR does not specify as to which of the nine Directors of the Company had played an active role. In this context, it would be relevant to refer to Sections 85 (1)(b)(c)(e)(f)(g), 85 (2)(g), 85(4) and Section 85(6) of the Gujarat Value Added Tax Act, 2003 (for short ‘VAT Act’), which deal with the procedure in relation to the offences by Company etc. The person incharge of the affairs of the Company at the time of commission of the offence and who was responsible to the Company for the conduct of its business is the person, who is deemed to be guilty of the offences; along with the Company. FIR contains averments in general against the directors and no other material is shown in agreement with above referred provision is placed on record of the case or shown to this Court.
The petitioners are sought to be charged with offences under Sections 85(1)(b),(c),(e), (f),(g) as also Section 85(2)(g) and 85(C) of the VAT Act - It will be relevant to note that definition of dealer contained in Section 2(10) of the GST Act makes the dealer which would include CSA responsible for tax and the material has been produced on record indicating the movements of goods subsequent to issuance of Form ‘F’ by the CSAs and not the petitioners. The needle of suspicion is, therefore, rightly directed by the investigator against the said dealers and in absence of strong suspicion, sufficient enough to divert such needle of suspicion to the Company or its Directors, it is not possible at this stage to say that if the dealer turns out to be fake, the Company or its Directors would be beneficiaries as argued by the learned PP.
It is also required to be noted that in absence of the material against the petitioners, so far the petitioners were not contemplated to be arrested and in the opinion of this Court rightly so.
It is true that the statement of coaccused can form the basis for investigation at preliminary stage of anticipatory bail. However, the foregoing discussion would show that prima facie, the case against the petitioners is based upon imagination rather than the suspicion contemplated under Section 41 of the Cr.P.C., and therefore, even if the statement of the coaccused is taken into consideration, the case for admitting the petitioners to bail is made out. This Court, therefore, orders bail for the petitioners in anticipation of their arrest.
Bail application allowed - the applicants shall be released on bail on their furnishing a personal bond of ₹ 1,00,000/- each with one surety each of the like amount - decided in favor of applicant.
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2017 (9) TMI 284 - MADRAS HIGH COURT
Refund the amount of input tax credit (ITC) reversed by the petitioner - Section 19 (2) of TNVAT Act, 2006 - Held that: - The settled legal position being that, mere pendency of the Appeal without interim order will not amount to the grant of stay of the order passed by the Lower Court or Lower Forum. In the instant case, it appears that the Appeals filed by the State are yet to be numbered. Therefore, this Court is inclined to issue appropriate direction in this Writ Petition - respondent directed to consider the petitioner's representation, dated 25.07.2017.
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2017 (9) TMI 199 - DELHI HIGH COURT
Revision of assessment - review power of VATO - Held that: - There was no occasion whatsoever for the exercise of review powers suo motu and that too after nearly 8 years and without notice to the Petitioner. Also, with the AT having already set aside the earlier orders of the VATO by its judgment dated 16th June 2017, the VATO was on 1st July 2017 reviewing non-existent orders of assessment - the Court is unable to sustain the validity of the 24 impugned orders passed by the VATO; 12 in regard to default assessment of tax and interest under Section 32 and 12 in relation to penalty under Section 33 of the DVAT Act - petition allowed - decided in favor of petitioner.
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2017 (9) TMI 198 - MADRAS HIGH COURT
Rejection of returns filed by the petitioner - input tax credit - it is noticed that the petitioner issued invoices from C2H001 to C2H155, and not reported in the Annexure II filed by them - it is also alleged that, on verification of the sales details filed in Annexure II with other dealer purchase details, it is seen that the petitioner has effected sales using the same tax invoice to different buyers, and thereby, maintained two sets of parallel bill books. Therefore, the respondent proposed to reject the returns filed by the petitioner as incorrect - Held that: - According to the petitioner, whatever sales effected by them, i.e. substantial portion of the sales, which were in the form of DVDs have been returned to the petitioner, for which, the petitioner has given credit notes. The said credit notes have been placed in the typed-set of papers filed in support of this Writ Petition, to substantiate the case of the petitioner. Therefore, it is the case of the petitioner that the turnover, which was reported in the month of March, 2015, vide their returns, is the turnover, which was determined after giving due credit to the sales returns.
The petitioner sought to demonstrate the factual position by referring to a tabulated statement filed in page No.22 of the typed-set of papers. However, even the tabulated statement was not placed before the Assessing Officer, and this fact is even admitted by the petitioner. In any event, since the legal position is in favour of the petitioner, this Court is of the view that, an opportunity can be granted to the petitioner to go before the Assessing Officer and contest the matter on merits by placing all records - petition allowed by way of remand.
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2017 (9) TMI 197 - PUNJAB AND HARYANA HIGH COURT
Levy of purchase tax - Sale of sugar and other allied products - The Excise and Taxation cum Designated officer, Jalandhar while completing the assessment determined the purchase price of sugarcane for the purpose of levy of purchase tax at ₹ 4,75,60,337/-. The appellant had declared the purchase price at ₹ 4,66,76,828/- being the statutory minimum price fixed by the Government of India for the year under consideration - According to the appellant, although the Assessing officer admitted availability of ITC at ₹ 20,95,351/- yet allowed ITC at ₹ 29,964/-. The Assessing officer allowed net ITC at ₹ 1,85,875/- and created additional demand of ₹ 38,85,333/- inclusive of penalty under Section 53 of the PVAT Act at ₹ 16,10,307/- and interest under Section 32 of the PVAT Act at ₹ 4,02,576/- - Held that: - similar issue decided in the case of THE MORINDA COOPERATIVE SUGAR MILL LTD MORINDA Versus STATE OF PUNJAB & ORS [2016 (9) TMI 1315 - PUNJAB AND HARYANA HIGH COURT], where it was held that There is no justification for levy of penalty for the period recovery of tax remained stayed by this Court - following the said decision, there is no merit in the appeals and the same are hereby dismissed.
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2017 (9) TMI 133 - MADRAS HIGH COURT
Interpretation of statute - Reversal of Input tax credit u/s 19(2)(v) and 19(5)(c) of the TNVAT Act - with regard to the proposed reversal of input tax credit under Section 19(2)(v), the petitioner placed reliance upon the decision of this Court in the case of Everest Industries Limited v. State of Tamil Nadu and another [2017 (3) TMI 279 - MADRAS HIGH COURT] - Held that: - In the said decision, it has been held that a plain reading of the provisions of sub-sections (1) and (2) of Section 19 of the TNVAT Act would show that, as long as specified goods, which suffer tax are used for any of the purposes set out in clauses (i) to (vi) of sub-section (2) of Section 19, the dealer should be able to claim the input tax credit, with a caveat in so far as clause (v) is concerned encapsulated in the proviso to Section 19(2) of the TNVAT Act, and therefore, the limitation provided in the proviso would apply only vis-a-vis the purpose specified in clause (v) and not qua other purposes set out in clauses (i) to (iv) and (vi) of Section 19(2) of the TNVAT Act - the finding rendered by the respondent with regard to reversal under Section 19(2)(v), as made in the impugned order, has to be set aside.
With regard to reversal under Section 19(5)(c), the petitioner has given factual explanation and their case is, immediately after manufacture, the value cannot be ascertained, as the market is fluctuating and only after the manufacture is completed, the value of the manufactured goods could be ascertained. But the petitioner has furnished all the other values. Further, the petitioner has also furnished the details of the closing stock value as on the relevant date item-wise and only the value that was not furnished is for the manufactured goods, which according to the petitioner could not be done immediately. This aspect has not been properly dealt with by the respondent while completing the assessment and the reason assigned for not considering the Stock-cum-Production Statement is not tenable. Therefore, the reversal made under Section 19(5)(c) also calls for interference.
The matter is remitted to the respondent for fresh consideration who shall take note of the observations of this Court in the decision made in Everest Industries Limited's case (supra), apply the same to the petitioner's case and redo the assessment under Section 19(2)(v) and also under Section 19(5)(c) of the TNVAT Act - appeal allowed by way of remand.
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2017 (9) TMI 132 - SC ORDER
Classification of goods - Mileage Drinking Powder - Whether in the facts and circumstances of the case of Rajasthan Tax Board was justified in law in classifying “Mileage Drinking Powder” at general rate and not the rate of tax for the specific entry in which it falls? - the decision in the case of Asstt Commissioner Spl Circle-IV, Jaipur Versus M/s Cedilla Pharmaceuticals Ltd. And Asstt Commissioner, Commercial Tax, Circle-I, Rajasthan, Jaipur Versus M/s Cadbury India Ltd. [2017 (9) TMI 125 - RAJASTHAN HIGH COURT] contested, where it was held that the above products do not fall in entry 184/186 - Held that: - the decision in the above case upheld - SLP dismissed.
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2017 (9) TMI 131 - MADRAS HIGH COURT
Validity of assessment order - time limitation - Held that: - considering the fact that the plea of limitation is a technical plea and a legal plea and it could be raised at any stage of the proceedings and this Court also is entitled to look into the said plea, this Court is of the opinion that the petitioner should not be shut out without any remedy with regard to such plea, as the plea of limitation if found to be correct, will go to the root of the matter - the respondent shall examine the same on merits and in accordance with law and pass a speaking order after affording an opportunity of personal hearing to the petitioner - petition allowed by way of remand.
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2017 (9) TMI 130 - MADRAS HIGH COURT
Principles of Natural justice - input tax credit - movement of goods - Held that: - the respondent has disbelieved the lorry receipts which were produced by the petitioners and to that extent, the petitioners did not have an opportunity to contest the said finding by producing their evidence or cross-examining the parties whose cases were referred to by the Assessing Officer to disbelieve the receipts. In such circumstances, the respondent ought to have afforded an opportunity of personal hearing to the petitioners, before completing the assessment. Therefore, this Court is of the view that the assessment should be redone - petition allowed by way of remand.
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2017 (9) TMI 125 - RAJASTHAN HIGH COURT
Classification of goods - Mileage Drinking Powder - Whether in the facts and circumstances of the case of Rajasthan Tax Board was justified in law in classifying “Mileage Drinking Powder” at general rate and not the rate of tax for the specific entry in which it falls? - Held that: - the products as they stand, namely “Coco, Drinking Chocolate and Bournvita” or “Mileage Drinking Powder” cannot be straight away eaten or used directly but have to be mixed with milk or other drink. Eatable in normal parlance or common parlance is an item which can directly be taken through mouth - these products are not substitute for food though these products can be taken every day like adding flavour to the milk or otherwise but these are not taken as a food but only as nutritive supplant/element. By eating these products, hunger of a person does not come to an end and, therefore, to say that it is an eatable product, as claimed by the Revenue, is not well reasoned. These products as they stand, cannot be taken alone, but mostly mixed with milk or other drinks. By adding these products to milk, the taste of milk which normally the children do not like, enhances the taste and deliciousness of the milk and merely because these products supplies some nourishment or sustenance, it cannot be said to be an eatable product. It is true that these products are not used by common people and by & large taken by people other than common people - the claim of assessees that the above products do not fall in entry 184/186, is well reasoned - appeal dismissed - decided against Revenue.
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2017 (9) TMI 62 - ALLAHABAD HIGH COURT
Jurisdiction - rectification / revision of order - whether the First Appellate Authority was within its jurisdiction in imposing tax upon the dealer under Section 3F in proceedings under Section 22 of the U.P. Trade Tax Act? - Held that: - On plain reading of Section 22 of the Act makes it clear that a mistake apparent from the record is rectifiable. In order to attract the application of Section 22, the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. "Apparent" means visible; capable of being seen, obvious; plain. It means "open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming." A mistake which can be rectified under Section 22 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration.
The ambit and scope of Section 22 is distinct and different, the section does not confer power of appeal or revision as contemplated under Section 9 or 10B of the Act respectively. Nor does Section 22 confer power upon the assessing authority to assess or reassess the dealer on whole or any part of the turnover of the dealer that has escaped assessment to tax or has been under-assessed or has been assessed to tax at a lower rate or any deduction or exemption has wrongly been allowed.
Section 22 merely confers upon all the authorities under the Act to rectify any mistake that has crept into the order which is apparent on the face of the record. The rectification can be sought by a dealer or by a person interested which in my opinion would include the assessing authority. The assessing authority can rectify the mistake in its order on its own motion, but where the order is subjected to challenge in appeal and the appellate authority has disposed of the appeal, then in that event the assessing authority being the interested person is empowered to move an application for rectification. The second proviso requires providing opportunity of hearing to the affected party be it the dealer or the other person, meaning thereby that the expression "other person" would include the assessing officer.
The mistake is apparent on the record of the order of the first appellate authority which was rightly rectified under Section 22 of the Act. The rectification and subsequent assessment to tax under Section 3F does not amount to review/revision but a rectification of mistake apparent on the record in the order of the first appellate authority in view of retrospective application of Amendment Act restoring Section 3F and validating all actions taken thereunder - revision dismissed.
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2017 (9) TMI 61 - ALLAHABAD HIGH COURT
Application to grant moratorium for the unexpired portion of the period of exemption granted to original manufacturer from 23.12.2002 to 30.10.2006 - exemption under Section 5(4-A) of U.P. Trade Tax Act, 1948 - Notification dated 31.03.1995 - Petitioner as a successor manufacturer and transferree of ice-cream unit, moved application on 24.01.2003 to Additional Director, Industries, Agra with a request to issue fresh eligibility certificate incorporating petitioner's name therein so as to enable it to avail benefit of exemption/deferment for unexpired period of exemption and amount - Petitioner also requested to be permitted to honour payment obligation of deferred tax already availed by M/s DFL, Agra - Whether petitioner is entitled for deferment in payment of tax under Section 8(2-A) of Act, 1948 and Rule 43 of Rules, 1948?
Held that: - wherever benefit under sub-section (2-B) of Section 4-A is claimed that has to be read with sub-section (1) and (2) of Section 4-A - Section 8(2-A) read with Rule 43 has to be read with Section 4-A(2-B) as well for the reason that Successor Manufacturer when gets eligibility certificate, it is referable to Section 4-A(1) and (2) and said benefit could not have been denied by confining meaning of "discontinuance of business" under Rule 43(4)(a) to principal manufacturer and not to the successor one.
In order to support the ground that benefit of deferment under Section 8(2-A) read with Rule 43 would be available to only original manufacturer and not to Successor, who is also held entitled for similar exemption under Section 4-A(1) and (2) of Act, 1948 by virtue of Section 4-A(2-B) inserted with retrospective effect of 1983, learned Standing Counsel could give no satisfactory reply at all.
Competent Authority directed to reconsider petitioner's application and pass a reasoned order - petition allowed by way of remand.
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