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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 65 Records
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2018 (1) TMI 1698
Revision of order of Appellate Tribunal - levy of Additional Sales Tax - threshold monetary amount not reached - Whether, the Tribunal has erred in dismissing the review petition, filed by the State, without considering the principles of law, to be applied, while dealing with a review petition and also on the merits? - HELD THAT:- The Additional Sales Tax cannot be levied, since the taxable turnover for the whole year is below Rs.100/- Crores.
The Tax Case Revision is dismissed.
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2018 (1) TMI 1627
Validity of assessment order - re-doing of assessment denied on the ground of time limitation as was filed beyond the time limit of five years - Section 27 (1) of the TNVAT Act - HELD THAT:- The original assessment order was passed on 10.06.2011, and the time limit of five years expires on 09.06.2016. Therefore, the assessment for the relevant year could not have been reopened and redone. The respondent cannot place reliance on the amendment to Section 27 of the TNVAT Act, which was brought about by Act 23 of 2012, with effect from 19.06.2012, and therefore, such amendment can be only on prospective. Hence, the respondent cannot state that the period of limitation is six years.
This very issue was decided by the Court, in the case of M/S. UNIVERSAL ABRASIVES VERSUS THE COMMERCIAL TAX OFFICER [2013 (10) TMI 440 - MADRAS HIGH COURT], which decision has attained finality, and accepted by the Department. Thus, on facts, the revision of assessment order is without jurisdiction, as it is barred by limitation.
Petition allowed.
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2018 (1) TMI 1606
Issuance of C-Forms - AO rejected the request made by the Petitioner for issuance of C-Forms in relation to the inter-state purchases - Appellant seeks time to file spare copies of Civil Appeal for issuance of Notice of Lodgment of the Petition - HELD THAT:- Appellant is granted four weeks' time to file spare copies of Civil Appeal for issuance of Notice of Lodgment of the Petition of Appeal Signature Not Verified in C.A. No.9780/2017.
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2018 (1) TMI 1592
Jurisdiction of first respondent/Checkpost Officer to levy and collect tax and penalty - HELD THAT:- This issue was considered in favour of the assessee by the Tamil Nadu Taxation Special Tribunal in the case of GODREJ-GE APPLIANCES LTD. VERSUS ASSISTANT COMMERCIAL TAX OFFICER AND OTHERS [1999 (2) TMI 636 - TAMIL NADU TAXATION SPECIAL TRIBUNAL] where it was held that the failure to obtain transit pass at the first check-post on entering into Tamil Nadu adds strength to the case of evasion of tax.
The writ petition is disposed of by directing the first respondent to transmit the files pertaining to the impugned order to the second respondent, who shall issue notice to the petitioner, afford them an opportunity to submit their objections and after hearing the dealer in person pass a reasoned order on merits and in accordance with law.
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2018 (1) TMI 1590
Validity of assessment order - TNVAT Act - purchase from the registration canceled dealers - reversal of input tax credit as suggested by the Chartered Accountant in Form WW - petitioner pleads that one more opportunity may be granted to the petitioner to go before the Assessing Officer since the petitioner is in the process of filing a petition under Section 84 of the said Act for reopening the assessment - HELD THAT:- The writ petition is disposed of with a direction to the petitioner to pay the tax towards reversal of input tax credit as suggested by the Chartered Accountant in Form WW, being a sum of ₹ 19,712/-. In addition to that, the petitioner is directed to pay 15% of the disputed tax under the other two heads namely reversal of input tax credit under Section 19(5)(c) of the State Enactment and the purchases alleged to have been effected from registration canceled dealers, within a period of 15 days from the date of receipt of a copy of this order. If the petitioner complies with the above two conditions, they will be entitled to treat the impugned assessment order as a show cause notice and submit their objections within a period of 15 days thereafter.
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2018 (1) TMI 1532
Recovery of Commercial tax dues - amendment in the Enforcement of Security Interest and Recovery of Debts and Loans and Miscellaneous Provisions Act and the Amendment Act, 2016 - HELD THAT:- In the considered opinion of this court, the Enforcement of Security Interest and Recovery of Debts and Loans and Miscellaneous Provisions (Amendment) Act, 2016 came into force with effect from September 1, 2016 and by virtue of the said amendment, the right of secured creditors to realise the secured dues and debts dues, which are payable to the secured creditors by sale of assets over which security has been created, is having priority over all other debts and Government dues including revenue, taxes, cesses and rates due to Central Government, State Government and local authorities.
Not only this, it is having overriding effect over all other enactment including the provisions of Madhya Pradesh VAT Act, Central Sales Tax Act, Entry Tax Act and any other Tax Act - Though, an attempt has been made by the State Government to demonstrate before this court that the amendment will not disentitle to recover the dues by them as the dues are outstanding since 2012.
Petition allowed.
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2018 (1) TMI 1492
Revision of assessment - TNGST Act - time limitation - HELD THAT:- The revision of assessment could have been made if proceedings had been initiated prior to 09.08.2012. In the instant case, even the first of revision notice was issued on 27.03.2013. Thus, the impugned revision of assessment exercising power under Section 16(1) of the TNGST Act is barred by limitation.
Petition allowed.
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2018 (1) TMI 1442
Rate of tax - works contract - grievance of the petitioners is that even though nature of works contract undertaken by the petitioners’ firm with the local bodies and other departments of the State of Karnataka involved two or more specified categories mentioned at Sl.Nos.1 to 21 and 22 of the Sixth Schedule of KVAT Act and leviable for tax at the rate of 5.5%, respondent No.3 has levied tax at the rate of 14.5% by classifying their business as non-specified category mentioned at Sl.No.23 of the Sixth Schedule of KVAT Act - Held that:- In the facts and circumstances of the case if the Assessment Order at Annexure-F is set aside and if the Assessing Authority is directed to reconsider the matter, no serious prejudice will be caused to the respondents, as the petitioners have already paid the admitted tax at the rate of 5.5% and the difference of tax as demanded under Annexure-F may be around ₹ 10,00,000/- that can be safeguarded if the petitioners are asked to furnish bank guarantee to a tune of ₹ 10,00,000/- to respondent No.3-Assessing Authority.
The Assessment Order passed by respondent No.3 at Annexure-F is set aside - Matter stands remitted to respondent No.3 Assessing Authority with a direction to reconsider the matter afresh after providing opportunity to the petitioners to produce documents on which they want to rely upon and after providing personal hearing - petition allowed.
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2018 (1) TMI 1434
Payment of tax at compounded rates - levy of turnover tax on liquor - Interpretation of statute - Amendment in section 7 of Kerala General Sales Tax Act, 1963 - time of amendment coming into effect - whether effective from the commencement of year or from the date of amendment? - clauses a and b of section 7 - scope of expression 'whichever is higher', whether confined only to clause b or is applicable to both clauses? - Whether Section 7(b) of the Kerala General Sales Tax Act, 1963 introduced on 24.10.2006 with retrospective effect from 01.07.2006, could be applied to those dealers who had contracted for payment of turnover tax at the compounded rate (by way of the alternate method of taxation provided for), under the unamended Section 7 of the 1963 Act for the assessment year 2006-07? - Held that:- The amended provision of S. 7(b) of the KGST Act introduced through the Finance Act with retrospective effect from 01.07.2006 could be applied to those dealers who had opted for payment of compounded tax for the year 2006-07 under the unamended provision as well
Whether Section 7(a) and 7(b) of the 1963 Act operate in different spheres and if not, would the said amended provision violate Article 14 and Article 19(1)(g) of the Constitution of India as contended in the Writ Petition? - Held that:- The term 'whichever is higher' used in S. 7(b) is not in respect of the three instances of the tax shown payable in the return, shown in the accounts or the tax paid in respect of the previous three consecutive years, but something else, which has to be dealt with more meticulously. It is in this context that the expression used- 'the highest turnover" in the very same provision requires consideration. Even going by the grammatical peculiarities and interpretations, 'super relative degree' is used in the first limb of the provision, qualifying the same with the word "the". In English language, 'comparative degree' is used only to compare between two instances, whereas super relative degree is to be used when there are more instances than two.
For the very same reason, usage of the expression 'the highest Turn Over Tax payable' as conceded by the assessees in the return or the accounts or the turnover tax paid, definitely refers to more than two instances and as such it, evidently, is in respect of the three previous consecutive years, i.e., the amount which is the highest in respect of three different consecutive years has to be reckoned for working out the quantum of 115%. The expression 'whichever is higher'\s only an instance using 'comparative degree'. It cannot be with reference to the three different instances of the tax conceded in the return or accounts or turnover tax paid (as contended by the assessees) and it is definitely in respect of something else.
That apart, since the highest figure is stipulated to be taken as contained in the first limb/opening part of the sentence, if the version of the assessees is accepted, the words 'whichever is higher used in the very same provision will become otiose. For this reason also, it has to be held that the expression "whichever is higher" is not confined to S. 7(b), but is in the context of a comparison to be made between the two figures available under S. 7(a) and (b).
The amended provision of S. 7(b) of the KGST Act introduced through the Finance Act with retrospective effect from 01.07.2006 could be applied to those dealers who had opted for payment of compounded tax for the year 2006-07 under the unamended provision as well - S. 7(a) and S. 7(b) of the Act do not operate in different spheres and it is in respect of the same sphere facilitating to identify the proper figures, i.e., the higher one of the figures worked out separately under S. 7(a) and under S. 7(b). There is no violation of Article 14 or Article 19(1) (g) of the Constitution of India in any manner.
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2018 (1) TMI 1357
Supplementary affidavit - the date of entry of vehicle into State is 23.6.2017 which is misread as the date of exit of vehicle, whereas the date of exit as per TDF was 26.6.2017 - A supplementary affidavit has been filed before this Court, annexing therewith certain rates quoted by the traders in order to contend that the valuation in fact was much below the amount assessed by the authorities.
Held that:- Since by way of supplementary affidavit new facts have been introduced, it would be appropriate to permit learned Standing Counsel to obtain instructions in that regard - List on 23.1.2018.
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2018 (1) TMI 1352
Demand notice in Form VAT 202 dated 8.1.2018 - recovery of sales tax deferment - Held that:- While the petitioner is still entitled, if they so choose, to repay the entire amount even before the end of the financial year 2017-18, ie before 31.3.2018, the authorities can take coercive steps, for recovery of the said amount, only thereafter and not before - demand notice set aside.
The petitioner shall pay the sales tax deferment amount due, for the assessment year 2003-04, on or before 31.3.2018, failing which it is open to the respondents to take steps for recovery of the said amount on or after 1.4.2018.
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2018 (1) TMI 1347
Taxability - sale of flavoured milk - Held that:- There is no legal and valid ground for interference - The Special Leave Petition is dismissed.
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2018 (1) TMI 1342
Rejection of Form I submitted by the appellant / writ petitioner - rejection on the ground of non-entertainment - Tamil Nadu Sales Tax (Settlement of Arrears) Act, 2008 - Held that:- Sub section (3) of section 6 mandates the applicant to remit 90% of the arrears and if the applicant has not paid 90% of the amount payable under Section 7, along with the application, the designated authority shall summarily reject the application - Admittedly, the father of the appellant has paid only 63% of the arrears as against the said mandate of 90% of the arrears - In the considered opinion of this Court, it cannot be termed as mere omission or defect so as to attract Rule 3(5) of the Tamil Nadu Sales Tax (Settlement of Arrears) Rules, 2008.
In the considered opinion of this Court, the appellant / writ petitioner has failed to comply with the mandatory provisions and the first respondent, in exercise of the power under Section 6(3) of the Act, has rightly rejected the application - petition dismissed.
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2018 (1) TMI 1320
Levy of entertainment tax on entertainment content in DTH services - the decision in the case of Sun Direct TV Pvt. Ltd. Versus State of UP. and Others [2014 (9) TMI 109 - ALLAHABAD HIGH COURT] referred - Held that: - As an interim measure, it is directed that there shall be a stay of the demand notice, subject to the petitioner depositing an amount of ₹ 28 crores before the competent revenue authority within three weeks hence - applications are listed.
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2018 (1) TMI 1316
Validity of assessment order - adequate opportunity of hearing - sufficient opportunity to produce Form-C certificate - It is claimed that the petitioner is not liable to pay sales tax on high seas sales in view of Section 5 of the Central Sales Tax Act, 1956 (hereinafter referred to as CST Act) read with Article 286 of the Constitution of India so also in view of Section 6 of BVAT Act. That apart, for the indigenous sales the petitioner claimed exemption under Section 3(b) read with Section 6(2) of the CST Act.
Held that:- Taking into account all aspect of the matter, we are of the considered view that it is a fit case where instead of relegating the petitioner to take recourse to the statutory alternative remedy interest of justice would be made if it is remitted to the Assessing Officer with a direction to proceed with the assessment afresh in accordance with law. - Matter remanded back.
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2018 (1) TMI 1253
Benefit of exemption from payment of tax - Section 4-A of the U.P. Trade Tax Act - The only reason assigned to non-suit the revisionist is that the condition in the notification that unit is allotted land for the factory is not fulfilled - whether the conditions imposed in the notification is directory or mandatory? - Held that: - The provision makes it clear that where in the opinion of the State Government, it is necessary for increasing the production of any goods or for promoting the development of any industry in the State, or any district or part of district in particular, it may exempt the turnover of sales in respect of such goods from payment of tax in the manner contemplated. Conditions for grant of such exemption is to be specified in the notification itself.
It has to be examined as to whether condition of allotment of land for the unit is a mandatory condition or is it directory. The object underlying Section 4-A of the Act and the exemption notification is to promote development of any industry in the State generally or in any district or part of it. The idea is to encourage setting up of new units for the purpose in the specified areas. So far as establishment of new unit is concerned, it would have to be shown that the unit has land available with it for the purpose. Possessing of land is thus a mandatory or substantive condition in the exemption notification. The manner and mode of such acquisition has been specified from time to time. A notification dated 31st March, 1995 has been brought on record, issued for similar purposes, which was to apply in respect of production starting between the period 1.4.1995 and 31.3.2000.
It was the notification dated 31st March, 1995, which was followed by the notification in question dated 15.1.2000. The condition of allotment of land specified in the notification dated 15.1.2000 has been substituted vide subsequent notification of 22.12.2001, as per which land could be obtained from any source. Possessing of land has a direct nexus with establishment of new unit, inasmuch as the new unit itself cannot come up in its absence. It has a direct nexus with the object sought to be achieved i.e. increase in production or development of industry in State. However, its mode of acquisition neither has any such nexus nor can it be attached the same importance. Section 4-A otherwise does not limit the grant of exemption to a unit depending upon the mode of acquiring land for it.
Possessing of land for establishment of new unit although constitutes the mandatory or substantive part of exemption notification but mode of acquisition of land is wholly directory, and its non-compliance would not affect the essence or substance of the notification in question, granting exemption - revision allowed - decided in favor of revisionist/assessee.
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2018 (1) TMI 1252
Classification of entries - computer consumables including DAT tapes, print ribbon, printer cartridge taps and computer cleaning ink - whether eligible for exemption from resale tax, as per G.O.Ms.No.82 dated 01.07.2002? - Held that: - issue squarely covered by the decision in the case of Canon India Private Limited, New Delhi Vs. The State of Tamil Nadu Through Secretory, Ministry of Education and Commercial Taxes, Commercial Taxes Department, Secretariat, Chennai and others [2013 (8) TMI 569 - MADRAS HIGH COURT], where it was held that ink jet cartridges and toner cartridges are parts and accessories of printer which is a peripheral to a computer system and would be covered under Entry Nos.22 & 24 of serial No.68, Part B of First Schedule to the Tamil Nadu Value Added Tax Act, 2006 - revision allowed - decided in favor of assessee.
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2018 (1) TMI 1251
Exemption on consignment sale - Rosin - Pine oil - turpentine - dis-allowance of the exemption granted on the strength of Form C and proposed to assess turnover at 12.6% - duplicate forms - Held that: - Having regard to the Forms (Original, duplicate or counter foil) and placing reliance on the decision rendered in Manganese Ore (India) Ltd Vs. Commissioner of Sales, Tax, Madhya Pradesh, [1989 (1) TMI 351 - MADHYA PRADESH HIGH COURT], the Appellate Deputy Commissioner (CT)-I, has passed the orders, stating that, there is nothing wrong in filing duplicate forms, for availing concessional rate. The Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Chennai, has referred to the Rules and accordingly, concurred with the views of the appellate Authority.
Merely because the assessee had not made any submission, before the Assessing Officer that he had lost the original, it cannot be contended that he cannot made such submission, before the Appellate Authority, which is also a fact finding authority.
In State of Himachal Pradesh and others Vs. Gujarat Ambuja Cement Ltd., and another [2005 (7) TMI 353 - SUPREME COURT OF INDIA], while dealing with the belated filing of statutory forms, the Hon'ble Supreme Court held that the provisions requiring filing of declaration forms along with the return is a directory provision and not a mandatory provision.
Appeal dismissed - decided against appellant-Revenue.
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2018 (1) TMI 1196
Effect and clarification given by the Advance Ruling Authority - rate of tax - Held that - the effect and clarification given by the Advance Ruling Authority was considered by this Court in assessee's own case M/s. All India Marathon Sports Versus The Assistant Commercial Tax Officer [2017 (8) TMI 625 - MADRAS HIGH COURT], in which, the petitioner challenged the pre-assessment notices for the assessment years 2009-10 and 2010-11 as being barred by limitation as prescribed under the PVAT Act - the only irresistible conclusion to be arrived at is that the order passed by the Appellate Assistant Commissioner in dismissing the petitioner's appeal without considering the matter on merits is incorrect and not legally sustainable. This is sufficient to set aside the impugned order - petition allowed by way of remand.
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2018 (1) TMI 1195
Classification of goods - Rate of tax - bakery shortening - appellant claims that the goods falls under Entry 38 of the Third Schedule of the KVAT Act exigible to tax @ 5% - The clarification sought was in the context of the Department having the opinion that it would not fall under Entry 38, for reason of the product not being covered under the specific Harmonised System of Nomenclature (HSN) Code shown against Entry 38(18) (d): 'Others including vanaspati'.
Held that: - Rule (v) of the 'Rules of Interpretation of Schedules' under the KVAT Act, applies in so far as the doctrine of ejusdem generis commends the general words to take the colour of the specific words. The word 'others' under Entry 38(18)(d) has to be understood as including all partly or wholly hydrogenated vegetable oils. But the words 'including vanaspati' cannot be taken as including any preparation of vanaspati. The inclusion of vanaspati, being by way of a specific word following the general word 'others' cannot be understood as enlarging the scope of the entry, but is one restricting the inclusion to 'vanaspati' alone which is a hydrogenated vegetable oil. Though the inclusion of vanaspati does not restrict the more general commodities included in the entry; there cannot be a further expansion or enlargement inferred.
Clause (b) of item 3 of the General Rules for the Interpretation of the Schedule under the First Schedule - Import Tariff would be applicable only if the commodity 'cannot be classified by reference to (a)', which is the specific words used in that sub-clause. Clause (a) provides for classification under the heading which gives a specific description which has to be preferred, to headings providing a more general description. HSN heading 1516 provides for inter alia hydrogenated vegetable oils which are not prepared and HSN heading 1517 provides for edible mixture or preparations inter alia of vegetable oils other than edible oils and their fractions under HSN heading 1516. 'Bakery shortening' being a preparation of hydrogenated vegetable oils, it cannot be included under HSN heading 1516 nor under the category 1516.20.91; the HSN code with which is aligned Entry 38(18)(d) of the Third Schedule of the KVAT Act. The products under HSN heading 1517 having not been included in any of the entries, come under the residual entry of S.R.O. No.82/2006.
Tribunal has extracted the notification published in the Gazette of India Extraordinary, Public Notice No.07 (RE-2008)/2004-09 dated 22.04.2008 of the Government of India, Ministry of Commerce and Industry, Department of Commerce, which, on a reference to the Indo-Sri Lanka Free Trade Agreement, details the items Vanaspati, Margarine and Bakery Shortening, having been included under the respective HSN Codes of 1516.20, 1517.10 and 1517.90.
The order of the Clarification Authority is sustained - appeal dismissed.
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