|
Advanced Search Options
VAT and Sales Tax - Case Laws
Showing 21 to 40 of 90 Records
-
2018 (2) TMI 1655
Issuance of C-form - case of respondent is that they had admitted their liability and submitted that it was not their intention not to pay tax. But due to unexpected situation and stringent financial crisis, they were unable to pay tax.
Held that: - The settled principles of interpretation are that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid the legislature s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.
Courts have consistently held in taxing statute, there is no equity. If tax has not paid as declared, within the time provided there for, consequences would follow. When the dealer had collected tax from the buyer, tax should be paid to the Government, within time. Retention of the same would amount to unjust enrichment.
The respondent/assessee, cannot be permitted to avail the facility of on-line generation of Form C declaration.
Appeal allowed - decided in favor of Revenue.
-
2018 (2) TMI 1605
Penalty - the impugned order would contend that in terms of the invoice placed on record before the check-post officer, goods were moving from Pune to Bangalore. The details of the consignee, Greenline, Bangalore was not forthcoming in the invoice - Held that: - Tax invoice or bill of sale is a necessary document to be carried, where the goods are carried as a result of sale. Tax invoice as defined under Section 2(32) of the KVAT Act, is a document specified under Section 29, with the description of listing goods s old with price, quantity and other information as prescribed.
Invoice should mandatorily contain the particulars as prescribed in Rule 29, which is lacking herein. Admittedly, tax invoice carried by the person in- charge of the goods vehicle in question as found at the time of interception was not in conformity with the provisions prescribed. The goods were moving from Pune to Bangalore without the required documents as contemplated under Section 53(2)(b) of the KVAT Act - Hence, the check post officer was justified in levying penalty.
The contention of the learned counsel for the appellant that no reasons are assigned by the revisional authority while confirming the order of the check post officer setting aside the appellate order is wholly obnoxious and untenable.
Appeal dismissed - decided against appellant.
-
2018 (2) TMI 1604
Classification of goods - pre-painted galvanized corrugated roofing iron and steel sheets - whether taxable at 14.5% or otherwise? - Held that: - From a bare perusal of the order passed by the Respondent-Commissioner of Commercial Taxes under Section 59(4) of the KVAT Act, 2003, it is clear that the said Commissioner has not considered the effect of Section 14(vi) of the CST Act, 1956 at all and therefore, whether the commodity dealt with by the petitioner would fall under clause (vi) or not, was not an issue before the Respondent-Commissioner of Commercial Taxes.
If the said order passed by the Respondent-Commissioner of Commercial Taxes is the cause for issuing reassement notice against the petitioner in the present case, it is open to the petitioner to seek requisite clarification from the Respondent-Commissioner of Commercial Taxes himself with regard to the effect of clause (vi) of section 14 of the CST Act, 1956 in the first instance.
Petition disposed off.
-
2018 (2) TMI 1603
Jurisdiction - power of AO to reopen the assessment- Held that: - the petitioner need not have any apprehension to go before the Assessing Officer and submit their defense. This is so because the law mandates that the Assessing Officer being an independent authority has to exercise his statutory power uninfluenced by any observation or direction that my be issued by the superior officer. No Superior Officer can compel him to do the assessment in a particular manner. This is why he has been termed as independent authority under the provisions of the Act.
The writ petitions are disposed of by directing the petitioners to submit their objection to the impugned notices within a period of 15 days from the date of receipt of a copy of this order, after which, the second respondent shall fix a date for personal hearing and afford an opportunity to the petitioner - petition allowed by way of remand.
-
2018 (2) TMI 1602
Exemption from payment of Sales Tax/Luxury Tax - hotel industry - KVAT Act - Held that: - In the absence of any clear entitlement of exemption of the petitioner and any specific Exemption Certificate issued in favour of petitioner-assessee, the claim of the petitioner-assessee is at best, only debatable one. It would depend upon the facts to be established by the petitioner before the concerned authorities of the Department and the application of the Notifications on such facts, in the present case.
The petition is disposed of by relegating the petitioner/assessee to the alternative remedy available to the petitioner against the impugned order, and if, such an appeal is filed before the Joint Commissioner (Appeals) under Section 62 of the Act within a period of 4 weeks from today - petition disposed off.
-
2018 (2) TMI 1548
Refund of tax paid on excess amount - price variation clause - rejection on the ground that there is no provision under the Act for reducing or refunding the amount of tax once the amount of tax has been paid - Section 2(39) of the Rajasthan Sales Tax Act, 1994 - Held that: - In IFB Industries Limited v. State of Kerala [2012 (3) TMI 66 - Supreme Court of India], the issue was with regard to the definition of ‘turnover’. This court held that to take the benefit of trade discount and to make it eligible for exemption, all that the assessee is required to prove was that the purchaser had paid only the sum originally charged less the discount and that this should be a regular practice in the trade.
A bare reading of Section 2(39) of the Rajasthan Sales Tax Act, which defines “sale price” clearly indicates that it is the price which is either paid or payable to a dealer as consideration for the sale. The definition itself makes it clear that any sum by way of any discount or rebate according to the practice normally prevailing in the trade shall be deducted and shall not be included in the sale price. The definition of ‘turnover’ means the aggregate amount received or receivable by a dealer.
In the instant case, when the orders were placed with the assessee, the price was not finalized by the MoP & NG. There was a clear cut stipulation in the purchase order that the price of ₹ 682/is only a provisional price subject to review and it was clearly understood by the parties that the final price applicable after 01.07.1999 will be the price as approved by the MoP & NG. Therefore, though the assessee may have received ₹ 682/per cylinder, it was under a legal obligation only to receive that price which was fixed by the MoP & NG - since the price of the cylinder has been reduced, the assessee cannot charge more than the price fixed, is bound to refund the excess amount collected and is therefore legally entitled to get refund of the tax paid on the excess amount.
The assessee shall be refunded the amount of sales tax paid on the excess amount - assessee also entitled to interest - appeal allowed - decided in favor of appellant.
-
2018 (2) TMI 1547
Validity of inspection alleged to have been conducted in the place of business of the petitioner - principles of natural justice - Held that: - it is seen that there is no document produced by the Department to show that despite the business premises having been sealed by the Forest Department still he was carrying on business. If the petitioner had been carrying on business it would have been illegal, since the seal of the premises cannot be opened without express orders and permission from the Forest Department. Therefore, the question of inspecting the sealed premises that too on 09.04.2015 is impossible.
The entire proceedings initiated by the respondent are thoroughly flawed for serious procedural infirmities and for that reason, the impugned order is liable for interference.
Petition allowed - decided in favor of petitioner.
-
2018 (2) TMI 1546
Whether the first respondent was justified in levying and demanding interest under the provisions of the Tamil Nadu Tax on Luxuries Act, 1981, when there is no such provision provided under the Act, especially, Section 9 of the Act?
Held that: - identical issue decided in the case of S. Gurunathan Versus The Deputy Commercial Tax Officer [2014 (7) TMI 579 - MADRAS HIGH COURT], where it was held that During the relevant assessment year, there was no provision to levy interest on belated payment of additional tax or in other words, there was no provision enabling the applicability of Section 24(3) towards tax due, under the Act - interest cannot be demanded for belated payment on Additional Sales Tax, as there is no substantial provision in the TNAST Act itself and similarly, no penalty can be levied, as there is no charging Section under the TNAST Act to levy penalty for the relevant Assessment year.
Demand do not sustain - petition allowed - decided in favor of petitioner.
-
2018 (2) TMI 1545
Validity of pre-revision notice - pre-revision notice issued without exhausting the statutory alternative remedy - Held that: - It is not in serious dispute that the appellant in response to the pre-assessment notice, originally submitted its objections on 29.04.2011 stating among other things that due to the wrong entry in the computers for the respective months, the error has occurred and while verification, the Statutory Auditor revealed the said fact and certification of correct turnover has also been obtained and therefore, prays for dropping of the proposal for levying additional sales tax and it is also followed by yet another objections dated 18.05.2011.
The appellant without attending the personal hearing has rushed to the Court and filed the Writ Petition and it was entertained and they had the benefit of interim orders and the writ petition ultimately came to be dismissed on the ground that it is a premature one.
This Court on an independent application of mind, is of the considered view that there is no error apparent on the face of the record - petition dismissed as pre-mature.
-
2018 (2) TMI 1544
Validity of assessment order - TNGST Act - CST Act - Held that: - this Court deems it appropriate to grant liberty to the petitioner to file an application under Section 55 of the TNGST Act which is a power given to rectify any error apparent on the face of record - petition disposed off.
-
2018 (2) TMI 1483
Reopening of assessment - Section 24 of the Delhi Sales Tax Act, 1975 - Held that: - the original records relating to the present case have been misplaced or weeded out and hence it is not possible to establish and show that the assessing authority had recorded ‘reasons to believe’ in writing before issuing notice dated 9th November, 1999 under Section 24 of the Act.
As the respondents are unable to show and establish that ‘reasons to believe’ were recorded in writing, we have to allow the present writ petition and quash the impugned notice dated 9th November, 1999 initiating proceedings under Section 24 of the Act.
Petition allowed - decided in favor of petitioner.
-
2018 (2) TMI 1482
Set off of purchase tax - Whether the applicant is entitled to set off under Rule 41A of the Bombay Sales Tax Rules, 1959 in respect of the purchase tax paid under Section 13 of the Bombay Sales Tax Act while purchasing unginned cotton from the unregistered dealer? - Held that: - It is not in dispute that unginned cotton was purchased by the applicant from unregistered dealers by paying purchase tax under Section 13 of the Bombay Sales Tax Act. The cotton so purchased was processed to take out ginned cotton, yarn and ultimate product of cloth, which is a taxfree product. In the process, two products came out namely, (1) cotton waste and (2) cotton yarn waste, which are the commodities at serial no. 22 in Schedule C and made taxable.
The applicant was entitled to claim set off under Rule 41A in respect of the tax paid by the applicant under Section 13 while purchasing unginned cotton from the unregistered dealer - application allowed.
-
2018 (2) TMI 1481
Validity of assessment order - Section 27 of the TNVAT Act 2006 - Held that: - It is not in serious dispute that the turn over was exceeded Rupees Fifty Lakhs even during the year 2007 and the petitioner has submitted a letter along with Form – I on 22.04.2008, which is prior to the substitution of Section 34 of TNVAT Act under Tamil Nadu Act 49 of 2008 with effect from 18.06.2008.
Admittedly and no doubt, after the said substitution, the petitioner did not inform the said fact within 7 days as contemplated under Section 3(4) of the TNVAT Act. In a case of similar in nature, a clarification in VAT Cell/41922/2007 (VCC No.1161), dated 29.08.2007 has been issued with regard to the compounding scheme in respect of one Mr.Nanjundamoorthy, Sundaram Complex, 19-F, Co-op. Colony, Mettupalayam, Coimbatore District and as per the said clarification, the said assessee is eligible for input tax credit for his purchases made from the beginning of the year, but the time barred sales tax credit to stock held as on 31.12.2006 cannot be claimed.
Appeal allowed in part.
-
2018 (2) TMI 1480
Principles of Natural Justice - TNVAT Act - fulcrum of the argument of the learned counsel for the petitioner is that the revision of assessment was based on the details culled out from the Departmental website and that in spite of the petitioner's request to furnish the details namely mismatch details and check post details, the same were not furnished - Held that: - the respondent understood the scope of the direction and called for information with regard to the stage of adjudication of the case by the Directorate of Revenue Intelligence. However, with regard to the direction contained in paragraph 12(i) of the order dated 08.8.2017, the respondent totally misunderstood the earlier directions issued in the said writ petitions and stated that the details have already been furnished even in the earlier notices dated 15.9.2014.
On a comparison of the notices dated 15.9.2014 with the impugned notices, it is seen that it is a verbatim reproduction of the first notice. This Court did not expect the respondent to proceed in such a manner.
The matters are remitted back to the respondent to scrupulously follow the directions contained in the earlier order dated 08.8.2017 - petition allowed by way of remand.
-
2018 (2) TMI 1479
Maintainability of petition - Issuance of Statutory C Forms - CST Act, 1956 - interstate purchases and transit sales under Section 6(2) - denial of exemption granted for transit sales under Section 6(2) on the ground that the petitioner has not filed the Statutory Forms C/E1 in support of such exemption claimed - Held that: - It may not be necessary for this Court to delve on this issue any further on account of the factual turn of events which have taken place during the pendency of the writ petition. Assuming if the amendment to the prayer as sought for by the petitioner is to be considered and granted, then it would be in direct conflict to order passed by the respondent rejecting the representation made by the second respondent to issue Form C declaration as such request made by the second respondent has been rejected by the first respondent vide order dated 29.11.2017 and communicated to the second respondent. As long as the order remains in tact, the question of considering the prayer for an amended relief does not arise, that too, at the instance of the writ petitioner.
Neither the prayer as sought for by the petitioner can be granted nor the amendment sought for can be permitted - petition dismissed.
-
2018 (2) TMI 1478
Finalization of assessment - authority of Assessing Officer to finalize assessment - Held that: - after reply is given by the dealer, the Assessing Officer is bound to consider the reply and finalize the assessment based upon the facts and materials placed before him and he cannot close his eyes and state that the officials of the Enforcement Wing have given an adverse report against the petitioner and that therefore, he will blindly follow the report. If the Assessing Officer does so, he will be abdicating his statutory duty.
A useful reference can be made to the decision in the case of Madras Granites Pvt. Ltd. Vs. CTO, Arisipalayam Circle, Salem [2002 (10) TMI 767 - MADRAS HIGH COURT], in which, the Hon'ble Division Bench of this Court considered as to how the Assessing Officer should conduct himself and complete an assessment when there is a D3 proposal forwarded by the Assistant Commissioner (CT).
The respondent are directed to finalize the assessments by considering the objections dated 30.6.2017 filed by the petitioner - petition allowed - decided in favor of petitioner.
-
2018 (2) TMI 1477
Principles of Natural Justice - Alternative remedy of filing a revision - Section 54 of TNVAT Act - only grievance of the petitioner is that the objection made by the petitioner by way of reply dated 14.12.2010 had not been considered by the second respondent before passing the impugned order - Held that: - it cannot be said that the second respondent had not considered the objections of the petitioner, amounting to violation of natural justice requiring interference of this Court in exercise of the discretionary powers under Article 226 of the Constitution of India. Further, when the statutory remedy available stands barred by limitation even at the time of filing of the writ petition, it would be without any justification to entertain a Writ Petition against such order.
Petition dismissed.
-
2018 (2) TMI 1476
Validity of assessment order - challenge to order on the ground that the respondent has not strictly adhered to the directions issued by this Court in the earlier writ petition being W.P.No.20189 of 2003 - principles of natural justice - Held that: - the 1st respondent was required to call for the necessary records and details from the 2nd respondent and then conduct an enquiry and pass fresh orders on merits. However, the 1st respondent has partially complied with the directions and appears to have secured some information from the 2nd respondent, the Assessing Officer of the 3rd respondent. However, without providing further opportunity to the petitioner held that the materials collected by him are sufficient to conclude the case against the petitioner.
This procedure adopted by the 1st respondent is in violation of the principles of natural justice as the petitioner had no opportunity to rebut the materials which were collected by the 1st respondent from the 2nd respondent and relied upon to nonsuit the petitioner.
The 1st respondent is directed to afford an opportunity of personal hearing to the petitioner - Petition allowed by way of remand.
-
2018 (2) TMI 1432
Input Tax Credit - Section 10(3) of the KVAT Act, 2003 - demand raised relying upon the decision of this Court in the case of M/s.Kirloskar Electric Co. Ltd., & Ors. vs. The State of Karnataka & Ors. [2018 (2) TMI 524 - KARNATAKA HIGH COURT], where it was held that the machinery provisions cannot be allowed to override and defeat the substantive claim of the Input Tax Credits under Section 10(3) of the KVAT Act, 2003, which without any restriction of the time frame, allowed such deduction or credit of the ITC against the OPT liability of the Dealer in question - Held that: - this Court is of the opinion that since the judgment of this Court has been delivered in recent past and the same can very well be cited before the Appellate Authority also, by which, he is bound, this writ petition deserves to be disposed of by relegating the petitionerassessee to the appellate remedy already availed by it.
The writ petitions are disposed of with a liberty to the petitioner to pursue the pending appeals before the Joint Commissioner (Appeals) and at the same time, the Joint Commissioner (Appeals) is also directed to entertain the appeals on merits and decide the same on merits in accordance with the law.
-
2018 (2) TMI 1431
Demand on the ground that the assessee did not furnish the prescribed Form ‘F’ declarations to prove that the transaction in question were branch transfers not attracting levy of CST - Held that: - this Court is satisfied that Respondent Department itself failed to issue blank ‘F’ Form declarations, allowing the petitioner in turn to furnish the same on monthly basis, as required under Rule 12(5) of CST Rules. The consolidated ‘F’ Form for the entire year, which gives the details of such branch transfers supported by other relevant documents, such as Proforma Invoices and Delivery Challans has been rejected on the ground that separate ‘F’ Forms were not filed within the period of limitation. The respondent has not produced any specific Rule prescribed for limitation for the said purpose and therefore, the separate ‘F’ Forms furnished by the petitioner assessee could not have been rejected on the ground of being filed belatedly.
The demand raised against the petitioner assessee for the alleged failure of production of separate ‘F’ Forms, cannot be sustained - petition allowed - decided in favor of petitioner.
|
