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VAT and Sales Tax - Case Laws
Showing 41 to 60 of 90 Records
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2018 (2) TMI 1430
Entertainment Tax u/s 6- A(4) of Karnataka Entertainment Tax Act, 1958 - “Bangalore Fashion Week” organized and held by the petitioner in Hotel Crown Plaza on 03.02.2012 - case of petitioner is that the Event organized by the petitioner did not fall within the four corners of the definition of ‘Entertainment’ as defined in Section 2(e)(iii) of the Act, 1958 as it was a Fashion Week, in which, the apparels and dresses of various manufacturers were put in exhibition on mannequins and even live models.
Held that: - There is little doubt that the Event of ‘Bangalore Fashion Week” which included lifestyle parties, after Hour Parties, Press Conferences, display of designer products through mannequins and live models etc., would fall within the definition clauses and charging provisions of the said Act, 1958 - There is no doubt that the wide words employed in the said definition of ‘Entertainment’, which words are joined by the word “or” are by themselves of wide amplitude or import and there is neither any exclusion nor any separate inclusion in the said definition, because the legislature in its own wisdom already provided the wide words include all pervasive entertainments so as to cover all kinds of amusement, entertainment, exhibition or performance or pageant or a game or sport whether held in indoor or outdoor and made them taxable under the provisions of Section 3 of the said Act, 1958.
The event organized by the petitioner clearly attracts the entertainment tax liability and there is no escape from the wide definition of “Entertainment” and charging provisions as contained in the Act itself. The overlapping of the words employed in the definition of ‘Entertainment’ is intended to cover different kinds of Events and things of entertainment and they cannot be construed in separate and water tight compartments.
At this stage, there is no need to relegate the petitioner to the appellate channels, as provided under the said Act against the said impugned assessment order - petition dismissed - decided against petitioner.
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2018 (2) TMI 1429
Review of the judgment dated 10.08.2017 - Held that: - the judgment under review was passed relying on that portion of the judgment of the Division Bench in Silver Line Villas & Apartments Pvt. Ltd v. State of Kerala [2016 (12) TMI 1695 - KERALA HIGH COURT], which took a stand that in respect of any suppressed turnover, which was not declared as part of the compounding proceedings, the benefit of the rate of tax applicable to compounding provision would not be applicable.
The judgment under review does not call for any interference - review petition dismissed.
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2018 (2) TMI 1383
Scope of the powers of Tribunal - while deciding the issue of Pre-deposit tribunal deleted the penalty - whether the Commissioner was right in imposing certain predeposit condition and consequently right in rejecting the appeal upon the assessee failing to fulfill such condition? - Held that: - In the present case, admittedly first appeal lied before the Commissioner and the Tribunal would be involved in deciding the contentious issues only after the Commissioner applied his mind. Such filtering of the issues is of paramount importance since when the High Court is finally called upon to judge the question of law, it is confident that the questions of facts have been properly threshed out by the Tribunal at first or second appellate stage as the case may be. The scheme of the Act would not permit the Tribunal to jettison the first appeal before the Commissioner and allow itself to act as first Appellate Authority. If the second appeal lies before the Tribunal and the Tribunal were to disregard the first appellate forum and convert itself into first Appellate Authority, the same would be froth with two difficulties.
The Tribunal had all legal options at its command while considering this issue but certainly under no circumstances had the option of deciding all disputes between the parties on merits by itself, relegating the Commissioner to the position of mere appendage.
Appeal allowed.
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2018 (2) TMI 1382
Penalty - attachment of bank accounts - the petitioner has sought for a direction upon the second respondent to authorize and empower the third respondent to take on file the Revision Petition - Held that: - this issue need not be gone into, in the present case, since the petitioner has paid the entire tax amount and therefore, the attachment of the petitioner's bank account should be immediately lifted and the petitioner should be permitted to pursue his revisional remedy, challenging the levy of penalty.
Since the petitioner has paid the entire tax amount, rather what has been assessed by the fifth respondent, the fifth respondent shall forthwith lift the attachment of the petitioner's bank account, and issue necessary instructions to the petitioner's bankers - The second respondent is directed to empower the third respondent to take on file the petitioner's Revision Petition, dated 02.08.2017, which was initially filed in the Office of the third respondent, dated 03.08.2007, and such order, empowering the third respondent to deal with the Revision Petition.
Petition allowed.
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2018 (2) TMI 1298
Rate of tax - Classification of goods - automotive air conditioning systems - taxable at 4%or 12.5% - Held that: - the goods imported by the petitioner are inputs for the manufacture of car inside the State. Therefore, the appropriate classification should be under Entry 67 of Part B to the First Schedule and not otherwise - In paragraph 13 of the counter affidavit, the respondent took a stand that the industrial input certificates issued by the purchasing dealers do not contain the entire details as per Rule 6(3)(b) of the said Rules. However, this view is incorrect, as all the relevant details have been mentioned in the industrial input certificate.
This Court has no hesitation to hold that the correct rate of tax to be adopted in respect of the transactions effected by the petitioner is 4%.
Petition allowed - decided in favor of petitioner.
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2018 (2) TMI 1297
Detention of goods - Capsule manufacturing equipment “Omega 20 extruder” - stock transfer - detention on the ground that the said consignment was not accompanied with advance CST waybill of Andhra Pradesh - Held that: - the officer concerned is empowered to exercise the power of detention of goods only where he is prima facie satisfied that the movement of goods is covered by the transaction of sale or purchase and that there is an attempt on the part of the person concerned to evade the tax - When Section-45 of the Act and Rule-55 of the Rules are read together, it is clear that wherever there is any movement of goods in pursuance of sale or purchase, the dealer of that particular State has to generate e-waybill, both for importing into the State or sending outside the State, as the case may be. Therefore, a transaction of sale or purchase is a sine quo non for attracting the provisions of Section-45 of the Act and Rule-55 of the Rules.
It is not in dispute that the petitioner is neither a manufacturer nor a purchaser of the detained goods. It was only the machinery which was sent by the petitioner from its Unit at Bachupally to its Manufacturing Unit at Pydibhimavaram for the purpose of erection. This stand of the petitioner is not contradicted by the respondents. There is not even an allegation that the transaction involved sale or purchase of the detained goods (machinery) - This being the admitted position there is no obligation on the part of the petitioner to generate e-waybill of the Commercial tax Department of the State of Andhra Pradesh as, ipso facto Rule-55 of the Rules is not attracted.
The detention of goods in the instant case is wholly without any sanction of law and the same is, accordingly, declared as illegal and unauthorised - petition allowed - decided in favor of petitioner.
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2018 (2) TMI 1224
Maintainability of petition - alternative remedy - Principles of natural justice - Held that: - Merely raising a hue and cry about the breach of principles of natural justice does not entitle the petitioner-assessee to invoke the extraordinary Writ jurisdiction of this Court against the orders, which are appealable before the regular Authorities of the Department created under the enactments.
The power of these Appellate Authorities with two-tier appeal remedies provided under the KVAT Act, first under Section 62 of the Act before the Joint Commissioner (Appeals) and secondly, before the Karnataka Appellate Tribunal under Section 63 of the Act, which have co-extensive powers, as the Assessing Authority has under the said Act. Even assuming that the petitioner-assessee could not adduce relevant evidence before the Assessing Authority, he still has such opportunity available to him even before the Appellate Authorities.
Nothing entitles the petitioner – assessee to invoke the Writ jurisdiction of this Court in these circumstances - petition devoid of merits and is dismissed.
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2018 (2) TMI 1223
Concessional rate of tax - purchase of spares for machinery, against Form XVII - case of Revenue is that spares and machineries, intended for repair and reconditioning, are not eligible to be purchased, against Form XVII, under Section 3(5) of the Tamil Nadu General Sales Tax Act, 1959, as per the clarification issued by the Commissioner of Commercial Taxes, Chennai K.Dis.Acts Cell-I/13063/2004, dated 14.09.2004 - Whether the disputed turnover is not eligible for concessional rate of tax as provided under Section 3(5) of the Tamil Nadu General Sales Tax Act, 1959? - Whether the penalty under Section 23 of the Tamilnadu General Sales Tax Act, 1959 is warranted in this case?
Held that: - In the present case, the goods sold fall within the items mentioned in Entry 3 of the Eighth schedule. Therefore, the assessee has satisfied the first condition. In respect of the second condition, ie., use in the factory site within the State, there is no dispute that the same were used in the factory site, within the State. Hence, the second condition is also satisfied. The third condition is that the goods should be used in manufacture. Use may be direct or indirect, in the process of manufacture.
Plant and machinery are used for the purpose of manufacturing vanaspathi and bakery shortening. Since the goods are installed and used in the factory site, the respondent-dealer is entitled to the concessional rate of tax at 3%. Therefore, the Tribunal has rightly held that the disputed turnovers are eligible for concessional rate of tax, provided under Section 3(5) of the Tamilnadu General Sales Tax Act, 1959. The assessee has satisfied all the conditions enumerated and Section 3(5) of the Act and hence, they are entitled to the concessional rate of tax under Section 3(5) of the Act - Section 3(5) of the Act is a beneficial provision. It provides for concession in tax to encourage industrial activity. It is well settled principle that a taxing provision, granting concessional and incentives for promoting growth and development, should be construed liberally.
Revision dismissed - decided against Revenue.
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2018 (2) TMI 1169
Jurisdiction - whether the Joint Commissioner is empowered to issue such an authorisation in terms of Section 64 (4) of the Act in terms of the statutory provisions, audit can be ordered only by the Commissioner? - Held that: - the audit has been authorised by the Joint Commissioner, who has no jurisdiction to do so - identical issue decided in the case of M/s. Jeevan Buy N. Save Versus The Joint Commissioner (CT), The Commercial Tax Officer, The Assistant Commissioner (CT) [2017 (2) TMI 180 - MADRAS HIGH COURT], where it was held that The jurisdiction to conduct VAT audit, which was authorised by the Joint Commissioner was not accepted by the petitioner and therefore, the assessment orders passed were also without jurisdiction.
The impugned assessment order and the Value Added Tax audit report are set aside - petition allowed.
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2018 (2) TMI 1168
Input tax credit - denial on the ground that the said input tax related to purchases effected from seven dealers, whose returns were not traceable - It was the grievance of the petitioner that even before filing the objections to the said notice, the Assessing Officer proceeded to pass a reassessment order confirming its proposal to disallow the input tax credit claimed by the petitioner.
Held that: - it is categorically admitted that in respect of selling dealer Nos.1 to 3, assessee is entitled to the input tax credit; as regards the selling dealer No.7 is concerned, now the assessee has filed the income tax returns filed by the said dealer along with bank statements, which prima facie shows that the selling dealer has remitted the collected tax from the assessee. The assessee has utilized the goods purchased from the selling dealers for the manufacture of goods and effected local and interstate sales.
It is trite that the revenue can be at a loss in allowing the input tax credit to a dealer, who deals with a bogus transaction, for example, a selling dealer who is not in existence or a deregistered dealer, in such circumstances, it is not in doubt that unless the purchasing dealer establishes the genuineness of the invoices issued by the selling dealer, no input tax credit can be allowed but that is not the case in the present set of facts. The Assessing Officer while passing reassessment order has categorically observed that the invoices are genuine and in view of the material placed before this Court with respect to the selling dealer No.7, the matter requires reconsideration by the Assessing Officer - Even as regards the selling dealer Nos.4 to 6, no reasons are assigned by the respondent for denying the input tax credit. It is also trite that no input tax credit can be disallowed on the premise that the selling dealer is de-registered subsequent to the relevant tax periods.
The factual aspects requires reconsideration - petition allowed by way of remand.
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2018 (2) TMI 1167
Cancellation of registration - TNVAT Act - non-existent dealer - Held that: - the cancellation of the registration appears to be solely based upon report of the Deputy Commercial Tax Officer, which in fact is a report submitted by another officer of the Department. In any event, before cancellation of the registration, procedure required to be complied with under sub-sections (14) and (15) of Section 39 of the Act has to be mandatorily complied with. This having not been done, cancellation of the petitioner's Registration is held to be not sustainable in law - the respondent is directed to restore the petitioner's registration under the provisions of the TNVAT Act - petition disposed off.
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2018 (2) TMI 1166
Principles of Natural Justice - revision of assessment under Section 22(4) of the Act - Held that: - considering the conduct of the petitioner in dragging the matter without offering proper explanation, it is held that the instant case is not a case where there is violation of principles of natural justice or violation of provisions under Section 22(4) of the Act, but it is the case where the petitioner filed to avail the opportunity granted to them - the petitioner should submit a proper reply duly supported by records. However, only one opportunity will be given to the petitioner, failing which, the respondent can proceed to recover the tax as quantified in the impugned order - petition disposed off.
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2018 (2) TMI 1165
Reversal of input tax credit - TNVAT Act - CST Act - petitioner's case is that without even issuing show cause notice where a proposal has been made to reverse the input tax credit availed apart from demanding 50% penalty - Held that: - The petitioner was given 15 days time to produce those records. This notice dated 13.09.2013 was issued after the writ petition was filed and an order of stay was granted on 16.08.2013. Therefore, the petitioner appears to have not acted in furtherance to the amended notice dated 13.09.2013. Since the respondent has himself realized the mistake and issued a modified notice, the impugned notices cannot be enforced - petition allowed.
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2018 (2) TMI 991
Principles of Natural Justice - TNVAT Act - CST Act - reversal of input tax credit - impugned orders have been challenged on the ground that the petitioner was not afforded adequate opportunity to submit their objections and that no opportunity of personal hearing was granted - Held that: - Considering the fact situation, which has led to the impugned assessment orders and also the fact such a consequence is on account of the petitioner not being diligent, this Court is inclined to grant one more opportunity to the petitioner, however, subject to a condition - the writ petitions are disposed of with a direction to the petitioner to pay 15% of the disputed tax for each of the assessment years within a period of three weeks from the date of receipt of a copy of this order - petition allowed by way of remand.
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2018 (2) TMI 990
Reversal of input tax credit - TNVAT Act - Form C - principles of Natural Justice - Held that: - there is violation of natural justice and writ Court has not committed any error - Writ Court has set aside the orders impugned therein, on the grounds that there was no proposal for input tax credit. If law permits initiation of fresh action, no liberty need be given - petition dismissed.
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2018 (2) TMI 989
Release of attached property - whether the Bank has priority over the dues of the Sales Tax Department? - Held that: - the issue is no longer res integra and has been decided by a Full Bench of this Court in the case of The Assistant Commissioner (CT) vs. the Indian Overseas Bank and another [2016 (12) TMI 373 - MADRAS HIGH COURT] in which the Court held that financial institution, which is a secured creditor would have 'Priority of Charge' over the mortgaged property over and above the Department of the Government.
The attachment of the mortgaged property by the Sales Tax Department is held to be without jurisdiction - petition allowed.
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2018 (2) TMI 988
Principles of Natural Justice - the respondent did not appreciate the scope of documents produced by the petitioner, though they have admitted that the petitioner has produced 62 invoice copies - Held that: - this Court is of the view that the assessment should be redone by considering all the documents and by directing the petitioner to produce all the documents, since the endeavor of the respondent should be to ensure that, correct rate of tax is levied and collected, as the assessment order should not be paper orders. - petition allowed by way of remand.
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2018 (2) TMI 987
Validity of assessment order - TNVAT Act - it was alleged that substantial part of the mistake lies with the dealers, as they did not respond to the revision notices respectively dated 01.4.2016 and 06.4.2016 - Held that: - On a perusal of the income and expenditure accounts filed by the petitioners under the Income Tax Act, 1961 for the relevant assessment years, it is seen that substantial portion of the work has been done by the petitioners for various local bodies and the petitioners have given the contract numbers and also mentioned about the departmental supply of materials wherever it has been given. It may be true that the petitioners did not produce the copies of the contract agreements. However, the petitioners having transacted business with the Governmental bodies, the respondent can accept any authenticated record given by the concerned authority, for whom, the work has been performed by the petitioners and this would be sufficient to examine the correctness of the transactions reported by the petitioners in their respective turn over.
The petitioner directed to pay 15% of the dispute tax for each of the assessment years as computed in the impugned assessment orders, within a period of 15 days from the date of receipt of a copy of this order - petition disposed off.
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2018 (2) TMI 886
Revision of assessment - challenge to revision on the ground that the same was passed after the expiry of the time limit prescribed for the said purpose in terms of clause (c) of sub-section (2) of Section 56 of the Act - Held that: - Going by the plain meaning of the words used in the provision, the word 'year' therein can never be the assessment year. Further, if the word 'year' contained in the provision is reckoned as the assessment year, then the power under that section cannot be exercised, if the assessment is not completed within four years from the relevant assessment year.
It is directed that if the petitioner prefers a revision challenging the impugned order within one month from the date of receipt of a copy of this judgment, the same shall be treated as one filed within time - petition disposed off.
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2018 (2) TMI 773
Input tax credit - Section 10(3) of the KVAT Act, 2003 - Held that: - the controversy involved in these writ petitions is squarely covered by a decision of this Court in Kirloskar Electric Co. Ltd. And Others Versus The State of Karnataka [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 - petition allowed.
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