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VAT and Sales Tax - Case Laws
Showing 81 to 86 of 86 Records
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2017 (9) TMI 60 - CHHATTISGARH HIGH COURT
Time limitation - validity of assessment - case of petitioner is that initiation of assessment barred by limitation - Held that: - Under Section 22 of the VAT Act, the time limit prescribed for issuance of notice for re-assessment is three calendar years from the date of order of assessment - the order of assessment in the present case for the assessment year 2001-02 was 28.01.2005 and under the new law i.e. VAT Act, the notice for re-assessment could have been issued within three years from the date of order of assessment i.e. by 28.01.2008. For argument sake even if we take three years from coming into force of the new law, the notice could have been issued only by 28.01.2009 as VAT Act came into force w.e.f. 01.04.2006 and the notice for reassessment as mentioned earlier was 14.06.2010 which again is much beyond the prescribed period under Section 22 of the VAT Act for issuance of notice of re-assessment.
The notice of re-assessment issued by the respondents were beyond the period of prescribed limit. No plausible explanation has been furnished by the State Govt. justifying the delay part. Neither does the Act empower the authorities under any circumstances to proceed for re-assessment beyond the limitation period prescribed under Section 22 of the VAT Act - assessment not sustainable and is quashed.
Petition allowed - decided in favor of petitioner.
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2017 (9) TMI 59 - MADRAS HIGH COURT
Release of detained goods - intra-state sale - jurisdiction - case of appellant is that the 2nd respondent has no jurisdiction to detain the consignment, since it was an interstate sale, where the appellant had already paid the Central Sales Tax - Held that: - The appellant has not invoked the provision under Article 269 of the Constitution of India, in the grounds stated in the writ petition. The said fact has to be urged before the Appellate Authority. By an interim order passed by this Court in M.P. No. 1 of 2012 on 08.02.2013, the appellant's interest has been safeguarded, as an interim measure. Therefore, it is open to the appellant to prefer an appeal as per Section 54 of the TNVAT Act. Since the appellant has got the benefit of the interim orders for release of goods, by furnishing bank guarantee as security, no prejudice would be caused for the appellant to file an appeal, before the appellate authority, by raising all the grounds - appeal dismissed - decided against appellant.
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2017 (9) TMI 7 - MADRAS HIGH COURT
Validity of assessment order - sales details have been noticed as mis-match, based on which input tax credit has been taken - Natural Justice - Held that: - The respondent, unfortunately, did not even make an attempt to verify as to which of the dealers are within the same assessment circle. It appears that the Assessing Officer was not at all aware of the same, because while issuing notices, dated 22.08.2016 and 24.08.2016, the respondent has stated that the petitioner should produce the monthly return copies of the sellers with payment and adjustment details in the concerned notices/circulars. If the other end dealers are registered within the same circle, the respondent should be aware of the same and should have made an attempt to verify the facts.
When completing the assessments based on mis-match between the details shown in the dealers returns and the details of the dealers at other end, this Court, in the case of J.K.M. Graphics Solutions Private Limited v. Commercial Tax Officer [2017 (3) TMI 536 - MADRAS HIGH COURT] has considered the matter and had given certain broad guidelines as to how the Assessing Officer have to undertake the exercise, by conducting thorough enquiry in consultation with the Assessing Officer of the other end - The Assessing Officer has also not followed the directions issued by this Court in the said decision in J.K.M.Graphics Solutions Private Limited's case.
The impugned orders, having been passed without due application of mind and without proper verification, deserve to be set-aside - the matters are remanded back to the respondent for fresh consideration, who shall afford an opportunity of personal hearing to the petitioner - appeal allowed by way of remand.
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2017 (9) TMI 6 - GUJARAT HIGH COURT
Ultra vires of Section 52 of the Gujarat Value Added Tax Act, 2003 - Company is deemed to be in existence for the purpose of taxation under the VAT Act - merger / demerger - levy of VAT - consideration received by the Merging Entities/Transferor Companies with respect to the transactions undertaken under the Indefeasible Right to Use Agreements with the Transferee Company - It is the case on behalf of the petitioners that having received the aforesaid show causes notices, the petitioner-Transferee Company filed a letter before the respondent no. 2 duly informing that the Merging Entities/Transferor Companies to whom the said show cause notices have been issued have ceased to exist from 1st April 2009 by virtue of High Court orders - scope of SCN - it is also case of petitioner that Section 52 of the VAT Act cannot be given effect beyond the competence of State as it stands in that case, it would be beyond the powers conferred under Entry 54 of List II of the Constitution of India.
Held that: - the pith and substance of enactment of Section 52 of the GVAT Act is to bring within the net of tax in case sale has taken place within definition of Section 2 [23](d) of the GVAT Act. While considering the doctrine of pith and substance with reference to the State Legislation viz., Section 52 of the Act, one is to ascertain the true nature and character thereof by examining its object, scope and effect of its provisions and the legislation as a whole. If, on doing so, it appears that the State Legislation substantially falls within any Entry under List II of the Seventh Schedule to the Constitution, then in that case, such a State Legislation cannot be invalidated merely because it has incidentally dealt with some aspect already covered by a Central Legislation, relateable to any Entry under List I. As observed hereinabove, Entry 54 of List-II of Seventh Schedule authorizes and/or permits the State to legislate the law in respect of tax on sale or purchase of goods. Under the circumstances, in respect of anything with respect to tax on sale or purchase of goods, the State would have a legislative competence under Entry 54 of List II to Seventh Schedule. Such an “incidental encroachment” by the State Legislation into the exclusive field of the Central Legislation is permissible.
While considering the constitutional validity of a particular statute, the true nature and character of the Statute enacted by the State shall have to be considered and borne in mind, more particularly, when it is alleged that the State Act is encroaching upon field/authority of the Parliament to enact the law, as per List I to Seventh Schedule tot he Constitution of India.
There is no need for any amendment in the Constitution by the Parliament for certain non sales transactions as “sale” by amending Article 366 [29A] cannot be accepted more particularly when, as observed hereinabove, the State legislation/Act is not repugnant to the Central legislation and both operate in different fields. Article 366 [29A] of the Constitution is with respect to extending definition of “Sale” and is with respect to “deemed sale” - In the present case, Section 52 of the GVAT Act cannot be said to be with respect to “deemed sale”. It can be said to be with respect to recovery of the tax on the eventuality of sale, as contained in Section 2 [29] of the GVAT Act for which the tax eventuality had already occurred and/or taken place.
Section 52 of the Gujarat Value Added Tax Act cannot be said to be beyond legislative competence, and therefore, the same cannot be said to be ultra vires to Articles 246 & 252 of the Constitution of India. It is held that Section 52 of the GVAT Act is within the State legislative competence under Entry 52 of List II of Seventh Schedule and the same cannot be said to be encroaching upon the powers of the Union legislation. Therefore, challenge to the constitutional validity of Sections 2 [23] (d) and 52 of the to the GVAT Act fails.
Petition dismissed - decided against petitioner.
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2017 (9) TMI 5 - CHHATTISGARH HIGH COURT
Validity of notice dated 28.10.2009 (Annexure P-5) - Section 26 of the Chhattisgarh Value Added Tax Act, 2005 - petitioners claim that it is not a case where the Petitioners have failed to deposit the return which is one of the most essential ingredient. Further necessary ingredient is that apart from there being a failure in furnishing the return, the assessee should also fail to pay the tax payable, which is not the case so far as the Petitioners are concerned as they have timely deposited their return showing nil return for the assessment years on account of there being an exemption in their favour for the relevant period.
Held that: - what stands admitted from the reply of the State Government is that the Petitioners had submitted their return showing nil return, which establishes the fact that the returns had been submitted. Thus, the requirement under Section 26 of the Act of 2005 regarding failure to furnish any return is not available against the present Petitioners.
The exemption was withdrawn only on 26.10.2009 and the notices for demand of advance tax were issued on the very second day i.e. on 28.10.2009. From this itself it clearly reflects that the return of the Petitioners must have been filed much before the date of exemption being withdrawn by the respondent authorities. If that be so, it appears to be a case where the necessary ingredient required for initiating a proceeding under Section 26 of the Act of 2005 was not available for the department at the time of issuance of Annexure P-5.
This Court has no hesitation in reaching to the conclusion that the notice (Annexure P-5) issued by the State Government was uncalled for at this stage, for the reason that when the State Government itself has admitted in their reply of the returns having been submitted by the Petitioners, the provisions of Section 26 of the Act of 2005 could not have been invoked by the State - impugned Annexure P-5 deserves to be and is accordingly set aside - petition allowed - decided in favor of petitioner.
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2017 (9) TMI 4 - MADRAS HIGH COURT
Inter-State sale - error apparent on the face of the assessment order - Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - Held that: - the second respondent is vested with sufficient powers to examine a petition filed under Section 84 of the TNVAT Act to see as to whether any error which is apparent on the face of the assessment order - the proper course to be adopted by the second respondent is to consider the petition and take a decision on the same and by passing a reasoned order - only issue to be seen is whether the petitioner had produced the original Form-C and Form-F declarations before the learned Departmental representative, who is stated to have verified - petition allowed by way of remand.
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