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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 90 Records
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2018 (2) TMI 2085 - MADRAS HIGH COURT
Levy of Additional Sales Tax - deletion of turnover assessed to tax - Section 12(3)(b) of the TNGST Act, 1959 - HELD THAT:- The issue as regards the levy of additional sales tax in respect of the assessment year 1996-97 is covered by the decision of this court in the case of THE STATE OF TAMIL NADU VERSUS TVL. NATIONAL TIME CO. [2010 (7) TMI 842 - MADRAS HIGH COURT], wherein, it has been held that after taking the taxable turnover for the entire year, the taxable turnover upto the date of amendment has to be assessed with reference to the relevant tax rate therein applicable to the period.
On the similar issue, a Division Bench of this Court in STATE OF TAMIL NADU VERSUS KIRTHILAL KALIDAS & CO. [2013 (10) TMI 1280 - MADRAS HIGH COURT], following the decision in THE STATE OF TAMIL NADU VERSUS TVL. NATIONAL TIME CO. [2010 (7) TMI 842 - MADRAS HIGH COURT], and while setting aside the order of the Sales Tax Appellate Tribunal, remanded the matter back to the assessing officer to work out the liability based on the decision of this court and thus, taking the taxable turnover for the entire year, the taxable turnover up to the period July 31, 1996, has to be worked out to attract the liability at the rates specified therein and beyond that, the liability of the turnover has to be worked out based on the amended provision depending on the taxable turnover crossing rupees 100 crores for the whole year.
The Tax Case Revision is dismissed.
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2018 (2) TMI 2082 - BOMBAY HIGH COURT
Default in repayment of loan - forcible possession - Rule 9(1) of the Contempt of Courts (Bombay High Court) Rules, 1994 - HELD THAT:- It is beyond all doubt that the entire process of invocation of Arbitration on a non-existent so-called oral agreement and obtaining, within one day, a reference to Arbitration, a hearing before the Arbitrator, and, within two days, an Arbitral Award, and then promptly obtaining an appointment of the Receiver, all had one and only one objective: to prevent Fullerton from recovering its dues. There was no other purpose.
All manner of submission are attempted today, including telling me that Fullerton has an understanding with Tornado Motors. Then Mr Agrawal for the Claimant, Prithipal, with the same alacrity that his son-in-law displayed in consenting to the flat going into Receivership, agrees to that very order - one that he sought on the ground that the flat needed to be protected - being vacated. This is nothing but playing ducks and drakes with the Court and its processes.
List the matter for compliance on 15th February 2018.
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2018 (2) TMI 2058 - MADRAS HIGH COURT
Infringement of principles of natural justice - petitioner submitted a letter seeking grant of further time - HELD THAT:- Without formally considering the said request for grant of further time, the respondent chose to pass the final order. The final orders are vitiated for not having afforded due opportunity to the petitioner. Since the final orders have clearly infringed the principles of natural justice, this Court is inclined to quash the same. The matters are however remitted to the file of the respondent with liberty to pass fresh orders after affording due opportunity to the petitioner.
These writ petitions stand allowed.
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2018 (2) TMI 1980 - TELANGANA HIGH COURT
Rejection of application for grant of stay of collection of the disputed tax - Valuation - handling charges and warranty claims - pre-sale or post sale consideration - HELD THAT:- As the substantive appeal is still pending consideration before the Appellate Deputy Commissioner, and as the Judgment of the Supreme Court in MOHD. EKRAM KHAN & SONS VERSUS COMMISSIONER OF TRADE TAX, UP. (AND ANOTHER APPEAL) [2004 (7) TMI 341 - SUPREME COURT]s relates to warranty charges which forms a substantial part of the turnover subjected to tax, we consider it appropriate to direct the respondents not to take coercive steps to recover the balance tax due, pending disposal of the appeal before the Appellate Deputy Commissioner, on condition that the petitioner deposits 2/3rds of the disputed tax with the Assessing Authority within four weeks from today.
Petition disposed off.
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2018 (2) TMI 1911 - DELHI HIGH COURT
Default assessment of tax and interest - CST Act - case of petitioner is that the said order was passed without hearing - invocation of Section 74B(5) of the Delhi Value Added Tax Act, 2004 - HELD THAT:- The Learned counsel for the petitioner submits that the Objections Hearing Authority must be an independent person, who was not member of administrative approval committee, i.e., refund committee in the present case. Learned counsel for the respondent states that the Special Commissioner would be the Objections Hearing Authority in the present case. He states that the Special Commissioner, who has not dealt with the case of the petitioner on administrative side, could be appointed as a special case.
The Special Commissioner, who is not a part of the Refund Committee, would be, as a special case, appointed to hear and decide the objections raised by the petitioner - The Objections Hearing Authority will pass a speaking order within a period of six weeks from the date of filing of objections - petitioner would file objections within three weeks.
Petition disposed off.
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2018 (2) TMI 1908 - KERALA HIGH COURT
Waiver of penalty - Demand of security deposit on detention of goods - whether the Tribunal was right in deleting the penalty imposed on the ground that there was no evasion of tax since the transaction was reflected in the accounts? - HELD THAT:- Sub-section (6) of section 47 enables imposition of penalty only if there is evasion of tax - In the present case, we find that by annexure A, there is no explicit finding but however, it can easily be inferred that the imposition of penalty was on account of there being no delivery note accompanying the transport which was a clear attempt to evade tax. We, hence, do not find any reason to accept the claim of the assessee.
There has been an estimation made of the value of the goods to demand security deposit. This is without any basis. The invoice accompanying the transport showed the value of ₹ 78,000. Hence, the evasion would be only with respect to the tax element as per the invoice. Computation of tax being possible, the penalty imposed has to be confined to maximum of twice the amount of tax sought to be evaded.
Revision allowed.
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2018 (2) TMI 1865 - MADRAS HIGH COURT
Recovery of tax arrears - creation of charge over the property - encumbrance on the property or not - bonafide purchaser - constructive notice - specific contention of the appellant / writ petitioner is that since he is a bona fide purchaser for value, there is no justification for the first respondent in making a claim against him - TNGST Act.
Whether the writ petitioner is a bona fide purchaser of the property and would be protected from the proceedings under the Revenue Recovery Act, and under Section 24 (A) of the Tamil Nadu General Sales Tax Act, 1959?
Held that:- In the present case, the encumbrance certificate does not reveal the charge created over the property and there is nothing to infer that the appellant / writ petitioner and his vendor with an intention to defraud the tax payable to the first respondent colluded with each other and effected transfer of the property. The business conducted by the vendor of the writ petitioner was actually closed on 01.04.2002 and the property had been purchased by the writ petitioner only in the year 2004 - it cannot be said that he had actual or constructive notice of the charge created over the property for payment of arrears of sales tax in respect of the business conducted by his vendor.
A bona fide purchaser takes the property he buys free of all charges of which he has no notice either actual or constructive - In the instant case, the encumbrance certificate did not disclose any charge created over the property. A reading of Section 3 of the Transfer of Property Act, 1882, shows that a person is said to have notice of a fact when he actually knows that fact or when, but for willful abstention from an enquiry or search which he ought to have made or gross negligence, he would have known it. This presumption is known as constructive notice.
The correctness of a notice of recovery issued to a specific purchaser came up for consideration before the Division Bench of this Court in K. SENTHIL KUMAR AND OTHERS VERSUS COMMERCIAL TAX OFFICER, ERODE AND ANOTHER [2006 (7) TMI 588 - MADRAS HIGH COURT], in which it has been held that the appellant therein was a bona fide purchaser for valuable consideration and therefore, he would be covered within the exempted category, as provided under Section 24 (A) of the Act. It is further held in the said judgment that under Section 100 of the Transfer of Property Act, 1882, a charge may not be enforced against a transferee, if he had notice there of, unless by law, the requirement of such notice had been waived.
Thus, even though a charge is created on the properties on the finalisation of the assessment of tax and a demand is raised, the same would not preclude the bona fide purchaser from seeking protection under Section 24 (A) of the Act. The specific contention of the appellant / writ petitioner is that prior to the purchase of the property in the year 2004, he had verified the encumbrance details in the Registration Department and finding that there was no encumbrance over the property, he had purchased the same. This would show that the appellant / writ petitioner had made sincere efforts to find out whether there was an encumbrance over the property - The first respondent did not also file any materials before this Court to show that steps have been taken by them under the Provisions of the Revenue Recovery Act, against the defaulter from whom the appellant / writ petitioner had purchased the property in the year 2004.
It cannot be said that there was willful abstention or gross negligence in making any enquiry that would tantamount to a notice under Section 3 of the Transfer of Property Act, and the appellant / writ petitioner is a bona fide purchaser for value - petition allowed - decided in favor of appellant/petitioner.
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2018 (2) TMI 1827 - GUJARAT HIGH COURT
Input tax credit - interpretation of statute - meaning of the expression “input including raw material” - “capital goods” used as “Inputs” in manufacturing of taxable goods - Whether in the facts and circumstances of the case, the Hon'ble Tribunal was right in law in holding that Input Tax Credit @ 2% is not required to be reduced on “capital goods” used as “Inputs” in manufacturing of taxable goods? - Notification No.(GHN14) VAT2010S.11(6)(2)/TH dated 29.06.2010.
Held that:- In essence and substance “input” is what is put in the final product. Anything which goes into the manufacture of the final product is an “input” but not everything that is used for manufacturing the final product can be termed as “input”, as is sought to be canvassed on behalf of the appellant. In terms of sub-section (5) of section 2 of the GVAT Act, the expression “capital goods” is defined as plant and machinery (other than second hand plant and machinery) meant for use in manufacture of taxable goods and accounted as capital goods in the books of accounts. Insofar as the expression “raw materials” is concerned, the same is defined under sub-section (19) of section 2 of the Act, to mean goods used as ingredient in the manufacture of other goods and includes process materials, consumable stores and material used in the packing of the goods so manufactured but does not include fuels for the purpose of generation of electricity.
It is difficult to comprehend as to how the capital goods component would be worked out qua the goods which are sold in the inter-State trade and commerce. In terms of the notification dated 29.06.2010, the input tax credit is required to be reduced when the goods are used as input including raw material in the manufacture of goods. Therefore, insofar as the raw material is concerned, even in its widest terms, it would include material which would be consumed in the manufacture of the final product, and the input tax credit availed in respect thereof would be required to be reduced.
It is settled legal position that in a taxing statute, if something cannot be computed, the legislature never intended to tax such item. In the present case, since it would not be possible to compute the input tax credit component of the capital goods in terms of Entry No.2 of the notification, it can be safely presumed that there was no intention on the part of the State Government of including capital goods within the ambit of “input including raw materials.
The impugned order passed by the Tribunal do not suffer from any legal infirmity so as to give rise any question of law, much less, a substantial question of law, warranting interference - appeal dismissed.
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2018 (2) TMI 1816 - ALLAHABAD HIGH COURT
Classification of goods - Chlormint with Herbasol - Happydent White - whether classified as ayurvedic medicines and liable to be taxed @ 4% in view of Item 41 of Part 'A' in Schedule-II to U.P. VAT Act or classified under the residuary entry in Schedule-V @ 12.5%? - onus to prove - Held that:- It is settled that onus or burden to show that a product falls within a particular tariff item is always on the revenue. Once the assessee has discharged its initial burden of proving the product to be covered by Entry 41, it was then for the revenue to prove by adducing cogent evidence that the product did not fall under the Entry 41, so as to take it to the residuary entry. Revenue, admittedly, has failed to discharge such onus.
The assessing authority cannot rely upon its own understanding of the product or his personal knowledge to determine the nature of product after discarding specific evidence led by the assessee, particularly when no contra evidence is otherwise brought on record by the revenue.
The question posed for consideration in this revision is answered against the revenue and in favour of the assessee - revision dismissed.
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2018 (2) TMI 1814 - KERALA HIGH COURT
Adjustment of amount payable - remittance of the amount - KVAT Act - Amnesty Scheme - Held that:- There is no difficulty in issuing the direction sought by the petitioners, if the first petitioner executes the supplementary agreement required to be executed by them. As far as the work covered by Ext.P2 agreement is concerned, it is admitted by the petitioners themselves that the work has been executed by another contractor. True, the petitioners have made the said contractor as a party to this proceedings and the said contractor has not appeared on receipt of notice. But, according to me, that by itself is not sufficient to issue the direction sought by the petitioners.
The writ petition is disposed of directing the Board to transmit the amounts due to the first petitioner in respect of the work covered by Ext.P1 agreement to the second respondent to be adjusted against the amounts payable by the petitioners in terms of Ext.P6 order, if the first petitioner executes all the requisite agreements/documents for effecting the payments due.
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2018 (2) TMI 1809 - KERALA HIGH COURT
Condonation of delay in filing appeal - proceedings have been initiated for realisation of the penalty imposed on him - Held that:- It is deemed appropriate to dispose of the writ petition directing the fourth respondent to consider Ext.P9 application for condonation of delay in filing Ext.P5 appeal - appeal disposed off.
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2018 (2) TMI 1801 - KERALA HIGH COURT
Suppression of turnover - Estimation to the turnover for probable omission and suppression - Rejection of accounts - no further transactions of suppression having been detected by the Assessing Officer - Held that:- We are unable to sustain the view taken by the Tribunal, insofar as relegating the assessee to the Assessing Officer after having sustained the taxable turnover on the suppression detected. There can be no further re-assessment made on the basis of the result of the criminal case.
The challenge in the aforesaid revision is of the State against the complete deletion of the estimation made - The deletion was not proper, especially since the actual suppression detected has been sustained by the Tribunal and there is no challenge to that by the assessee. Hence, the question of law is answered in favor of the Revenue and against the assessee - The order of the Tribunal is modified to the extent of setting aside the deletion of estimation as also the direction enabling the assessee to approach the assessing authority on the basis of the outcome of the case pending before the Court of Judicial First Class Magistrate-I, Palakkad.
Revision allowed.
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2018 (2) TMI 1800 - GUJARAT HIGH COURT
Provisional Attachment of Bank Accounts of petitioners - GVAT Act - CST Act - section 45 of the GVAT Act - Held that:- For the purpose of invoking section 45 of the GVAT Act, the Commissioner is required to record satisfaction that for the purpose of protecting the interest of the Government revenue, it is necessary to provisionally attach any property belonging to the dealer. Such satisfaction has to be based upon objective facts and should fall within the circumstances enumerated in the above referred decision or circumstances which are akin to the circumstances enumerated therein.
In the present case, no satisfaction whatsoever as envisaged under section 45 of the GVAT Act has been recorded by the Commissioner while ordering provisional attachment of the petitioners’ bank accounts. Also, the assessment order has not yet been passed - it is evident that the action of attaching the bank accounts of the petitioners has been taken in a perfunctory and casual manner without application of mind to the relevant statutory provisions.
The action of the respondents of attaching the bank accounts of the petitioners’ stands vitiated by non-application of mind to the relevant factors and other infirmities - petition allowed.
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2018 (2) TMI 1781 - MADRAS HIGH COURT
Re-opening of assessment - reversal of ITC - mis-match occurred in transaction - calling for the records on the file of the respondent dated 20.12.2017 for the assessment years 2011-12, 2013-14, 2014-15 and 2015-16 - Held that:- The issue is covered by the decision in the case of M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT], where the Court has directed the Assessing Officer to evaluate a centralised mechanism exclusively to deal with the cases of mismatch and to do some exercise, before issuing a notice.
Considering the fact that the Assessing Officer has to re-do the assessment, in view of the above said decision of this Court, this writ petitions are allowed and the impugned orders are set side - matters are remitted back to the Assessing Officer to re-do the assessment commencing from the stage of issuing notice of proposal - petition allowed by way of remand.
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2018 (2) TMI 1765 - ALLAHABAD HIGH COURT
Review application - Inter-state sale - alternative plea existed or not? - Held that:- This Court had clearly recorded that apart from the issues considered in the judgment no other plea had been pressed. The alternative plea, since had not been argued at the time of hearing in the matter, I am not inclined to entertain such a plea, for the first time, in exercise of review jurisdiction - Admittedly, under the garb of the review, no re-hearing can be permitted - Review application is accordingly consigned to records.
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2018 (2) TMI 1740 - KERALA HIGH COURT
Permission to submit revised returns - inaction on the part of the first respondent in taking a decision on Ext.P3 application - Held that:- In terms of Circular No.14 of 2017, the Commissioner of the State Goods and Services Taxes Department has clarified the issues relating to the right of the assessees under the Act to submit revised returns - petition disposed off.
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2018 (2) TMI 1728 - GUJARAT HIGH COURT
Works Contract - Levy of tax - grit used for construction of the road - denial of benefit of Composition of Tax on Works contract - Section 14A of the VAT Act - Held that: - what the legislature desired by framing the said provision is that a dealer who has been granted permission for composition of tax must have paid tax; as prescribed, upon consumption of taxable goods. This does not however mean that the dealer has to pay tax - whether such liability under the Act has arisen or not. It is in this context, we may understand the term “tax payable under the Act.” When the taxing event is sale of goods and such event has not arisen, there would be no question of tax becoming payable under the Act. This itself would be sufficient to dislodge Department’s objection.
The term “taxable goods” cannot be seen in isolation by reading the definition contained in Section 229 of the VAT Act. A commodity would become taxable goods when taxable event arises. Merely because upon sale of such goods, tax is prescribed which is not exempt under Section 5 of the VAT Act, and therefore, is “taxable goods” would not for the purpose of relevant portion of Rule 28 [8] of the Rules become “taxable goods”. The term “taxable goods” and “tax payable” under the Act have to be harmoniously construed. Only reconciliation possible is that the dealer is expected to pay tax when taxing event arises and not otherwise.
Since the petitioner had not purchased the goods from market but had selfmanufactured it from the mines taken on lease, there was no occasion to pay the tax. The Department obviously cannot argue that in such a situation, the petitioner cannot avail of composition facility at all - petition is entitled for the benefit of Composition Tax - petition allowed - decided in favor of petitioner.
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2018 (2) TMI 1658 - PUNJAB AND HARYANA HIGH COURT
Validity of Notification dated 31.03.2003 (Annexure P/1) read into Haryana Value Added Tax Act, 2003 - jurisdiction acquired by the State - Whether the notification dated 31.03.2003 is legal and valid in the light of the fact that the VAT Act came into force on 1.4.2003 and that was the “appointed day” as per provisions of Section 1(c) of the VAT Act?
Held that: - The object of issuing the notification on 31.3.2003 is manifestly clear that the State Government wanted to appoint the authorities and to put the complete mechanism in order so as to effectively enforce the VAT Act w.e.f. 1.4.2003. There cannot be any bar on the State's power to do the ground-work for enforcement of a Statute, especially the tax statute where complete mechanism would be required to give effect to the provisions of the Statute for recovery of tax. The State of Haryana had issued notification on 31.3.2003 for appointment of Deputy Excise & Taxation Commissioner (ST) as Revisional Authority. But at any rate, the revisional authority had not exercised any power before the 'appointed day'. Rather, challenge to the order passed by the revisional authority in the present case is dated 30.8.2011 and that is relating to the assessment year 2005-2006 i.e., much after the 'appointed day'.
The impugned notification was issued on 31.3.2003 notifying the appointment of revisional authority after the VAT Act had obtained the assent of Governor of Haryana on 26.3.2003 and it stood notified on 28.3.2003. The State was thus well within its power to issue such notification in respect of appointment of an authority to give effect to the provisions of the VAT Act and in the present case also, the power was actually exercised by the revisional authority on 30.8.2011 i.e., much beyond the appointed day.
There is no illegality in issuing such notification so as to create the mechanism for effective enforcement of the tax Statue especially when the revisional authority, i.e., Deputy Excise & Taxation Commissioner (ST) had not assumed or exercised any authority or passed any order before the 'appointed day' - petition dismissed - decided against petitioner.
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2018 (2) TMI 1657 - MADRAS HIGH COURT
Principles of natural justice - It is the case of the petitioner that the returns filed by the petitioner for the years 2014-15 and 2015-16 had been accepted by the respondent and an order was passed under section 22 of the TNVAT Act - Held that: - considering the fact that the Assessing Officer has to re-do the assessment, the matters are remitted back to the Assessing Officer to re-do the assessment commencing from the stage of issuing notice of proposal, after following guidelines/procedures issued by this Court - petition allowed by way of remand.
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2018 (2) TMI 1656 - ALLAHABAD HIGH COURT
Whether the Tribunal could have decided the second appeal in the manner it has done, cursorily, without considering the grounds of the second appeal and the questions raised before it, by merely reiterating and affirming the order of the First Appellate Court without giving any reasons for non acceptance of the pleas raised before it by the revisionist-appellant?
Held that: - the second appeal of the revisionist is required to be re-considered by the Tribunal keeping in mind the issues involved on merits as noticed hereinabove, as it has not done so as per the requirements of law - the question is decided in favor of revisionist.
Revision allowed.
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