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VAT and Sales Tax - Case Laws
Showing 61 to 80 of 90 Records
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2018 (2) TMI 772
Validity of assessment order - APVAT act, 2005 - appeal rejected on the ground that the pre-deposit condition was not satisfied - main grievance of the petitioner is two fold, viz., (a) that the original order of assessment was without jurisdiction, as it included the turnover relating to works executed in other States; and (b) that in any case, the decision of this Court in Ankamma Trading Company [2011 (2) TMI 1254 - Andhra Pradesh High Court] has been suspended by the Supreme Court.
Held that: - the Division Bench came to the conclusion in Ankamma Trading Company that even the payment of admitted tax and 12.5% of the disputed tax beyond the period of 60 days, from the date of receipt of a copy of the order of assessment, would disable the appellate authority from admitting the appeal and that the prescription was mandatory and not directory - it is contended by the learned counsel for the petitioner that as on date, the decision in Ankamma Trading Company cannot be taken to be a binding precedent and that it is always open to this Court to be allowed to be persuaded to come to a different conclusion.
The contention of petitioner cannot be agreed. On first principles, there cannot normally be an interim suspension of a principle of law enunciated in a decision. At the most, the interim relief granted by the Supreme Court in the Special Leave Petition filed by the Ideal Industrial Explosives Limited, can be taken to be an interim suspension of the consequences that flowed out of the judgment of this Court. By way of an interim order, the ratio decidendi of a judgment cannot be kept in suspended animation or in a state of limbo. Therefore, we do not agree with the contention that the ratio of the decision in Ankamma Trading Company stands suspended.
Whether it will be open to an assessee to challenge the original order of assessment, after getting their statutory appeal rejected for failure to comply with the statutory prescription? - Held that: - In cases where an assessee chooses to challenge the original order of assessment, after his appeal is rejected for non-compliance with the statutory prescription, this Court will also see whether the assessee is guilty of delay and laches. In other words, the assessee falling under this category should satisfy this Court not only on the parameters of violation of natural justice or lack of jurisdiction but also on the parameters of delay and laches. Wherever it is found by this Court that an assessee has come up with a writ petition at the earliest point of time, without being guilty of delay and laches, this Court can certainly examine whether the original order of assessment was vitiated by a violation of the principles of natural justice or lack of jurisdiction on the part of the assessing authority.
The second objection to the original order of assessment is that in respect of the works carried out outside the State, the 2nd respondent had no jurisdiction. But in support of this contention the petitioner ought to have produced pending agreement copies. The other contention that the works executed by the petitioner for AMR Constructions and Sushee Infratech Private Limited are in the nature of civil contracts for removal of overburden and that therefore the receipts cannot be considered as hire charges, is an argument that does not go to the root of the issue of jurisdiction.
Petition dismissed.
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2018 (2) TMI 767
Penalty u/s 15-A (I)(o) of the Act - case of petitioner is that Form-31 is to be filled by seller and merely for the reason that details are not correctly filled, it would not mean that there was intention to evade payment of tax - whether penalty justified? - Held that: - Tribunal, however, has observed that there is no check post between Faridabad and Noida, therefore, possibility of misuse of Form-31 cannot be ruled out. The specific finding by the first appellate authority that there was no such misuse of form-31 by the assessee in the past, has neither been dealt with nor has been reserved.
Even otherwise sales and purchase of earth moving equipments and its spare parts are made through banking transactions and are subject to the provisions of Central Excise Act. The mere fact that cheque number is not specified in the order of first appellate authority would not justify inference that the transaction was not a banking transaction.
Tribunal is not justified in restoring penalty upon the assessee under Section 15-A (i)(o) - decided in favor of assessee.
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2018 (2) TMI 757
Demand of interest - Whether the Hon’ble Tribunal has erred in law and in facts in deleting levy of interest u/s 30(5) of the Gujarat Value Added Tax Act in respect of tax paid on turnover related to marketing scheme? - Held that: - the Tribunal found that there was full compliance with the provisions of sub-section (2) of section 30 of the Act and, therefore, sub-section (5) thereof was not attracted. In view of the fact that the respondent dealer had furnished returns as required under sub-section (1) of section 29 of the Act and had paid into the Government treasury the whole of the amount due from him according to such return and had duly complied with the provisions of sub-section (2) of section 30, no infirmity can be found in the impugned order passed by the Tribunal in holding that the provisions of sub-section (5) of section 30 would not be attracted - the question does not merit acceptance.
Whether the Hon’ble Tribunal has erred in law and in facts in reversing the order of the first appellate authority and deleting levy of tax, interest and penalty to the extent of amount of stock difference of ₹ 7,50,000/- which was found by Income Tax authorities during survey proceedings and disclosure made before the Income Tax authorities?
Whether the Hon’ble Tribunal has erred in law and in facts in confirming order of the first appellate authority and deleting levy of tax, interest and penalty to the extent of stock difference of ₹ 7,50,000/- which was found by the Income Tax authorities during survey proceedings and disclosure made before the Income Tax authorities and thereby rejecting cross objection of the appellant herein?
Held that: - the assessing authority had relied only on the statement made before the Income Tax authorities and had not taken into consideration the fact that the Income Tax authorities had not taken into consideration the stock lying at the exhibition place as well as the fact that the books of accounts were closed and adjusted and audited by a Chartered Accountant and the investigation report of the department had given a clean chit to the appellant. It is in this backdrop that the Tribunal found no justification in confirming the order of the first appellate authority and set aside the same and for the very same reason, dismissed the cross objections filed by the appellant - the findings recorded by the Income Tax authorities during the course of search, could have been made a starting point for inquiry as regards the discrepancy in the physical stock and that shown in the stock register. However, the statement made by the dealer, ipso facto, could not have been the basis of an addition.
The Tribunal was wholly justified in setting aside the order of the first appellate authority to the extent it had confirmed the demand which had no legal basis, and confirming the order to the extent it had reduced the tax liability imposed by the assessing authority - these questions also does not merit acceptance.
Appeal dismissed.
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2018 (2) TMI 755
Principles of natural justice - main contention of appellant is that neither in the assessment order nor while passing orders on the applications filed seeking rectification, the Assessing Authority has applied its mind to the various materials placed before it and the request made seeking exemption against the labour charges, sales effected outside the State, TDS input tax, etc. - Held that: - the authorities do not refer to the documents said to have been produced by the appellant/assessee before the Assessing Authority at different intervals - By relying upon the original records, learned High Court Government Pleader has vehemently contended that no such documents were produced by the appellant. Question whether any such document had been indeed produced and how it had any bearing on the merits of the matter is itself a disputed question which we cannot go into in exercise of the power under Articles 226 & 227 of the Constitution of India. Appellant ought to have filed an appeal challenging the assessment order.
An opportunity has to be provided to the appellant to file an appeal against the re-assessment order taking up all legal contentions open to him.
Appeal disposed off.
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2018 (2) TMI 610
Penalty u/s 54(1)(1) of the U.P. VAT Act - delayed deposit of tax - Held that: - It is admitted that the assessee has deposited tax late by two days. It is also not in dispute that on the relevant date when the admitted tax was to be deposited the assessee had no funds available in its bank account. It is, however, not disputed that revisionist had overdraft facilities available and the amount of admitted tax could have been paid from it. The amount of interest payable upon the delayed deposit of admitted tax has been deposited by the revisionist and the interest of State is adequately protected.
This Court finds that the assessee was not having liquid funds available in its bank account when the admitted tax was to be deposited. This explanation submitted by the assessee was accepted by the assessing authority and four days time was allowed for the purpose. The assessee in fact had deposited the amount of admitted tax alongwith interest but by a delay of two days.
Once the statute itself confers discretion upon the authority concerned and the imposition of penalty is not automatic, the authority concerned is expected to take into consideration relevant facts and circumstances that are placed before it. The exercise of jurisdiction to levy penalty in the facts and circumstances is not proper - revision allowed.
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2018 (2) TMI 609
Recalling an order of dismissal of application - Section 9(2) of the Central Sales Tax Act, 1956 - Held that: - the question of declaration forms containing “Self” as consignee/purchasing dealer had come up for the first time before revisional authority and hence there was no scope of urging that point before the appellate authority. The revisional authority has however given factual finding on this issue. No material is available from which we can come to a decision that such finding was perverse - petition dismissed.
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2018 (2) TMI 524
Input Tax Credit (ITC) - Section 10(3) of the KVAT Act, 2003 - denial on the ground that the claim of Input Tax Credit against the Output Tax Liability of the assessees did not pertain to the same ‘Tax period’ for which Output Tax Liability and Net Tax Liability was to be determined in accordance with Section 10(3) of the Act - interpretation of statute.
Whether the claim of deduction or set off of Input Tax Credit against Output Tax Liability of the dealer can be restricted or denied on the ground of any time frame within which such Sales Invoices on the basis of which ITC is claimed should pertain or information or record of such ITC Invoices should be informed in the Returns to be filed, particularly if such time frame is restricted to the period of ‘Tax Period’ which can be as short as a month or a quarter, or the period of filing of Returns being 20 days from the end of month concerned or maximum six months from the end of ‘Tax period’ even for filing of Revised Returns disclosing errors and omissions?
What is the true meaning and purport of Section 10(3) of the KVAT Act, 2003 vis-à-vis Section 35 of the same Act, 2003?
Held that: - The substantive provision of Section 10(3) of the KVAT Act, 2003, did not lay down any such restrictive time frame for allowing the deduction of ITC against the OPT in a particular tax period to determine the net tax payable for that tax period and therefore there is no justification whatsoever to accept such an interpretation put forth by the learned counsels for the Respondent State. Such contentions had not only been negatived and with great respects - this Court can safely conclude 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.
When the Assessing Authority could pass the impugned re-assessment order, Annexure C dated 29/04/2016 for the whole year in one go, disallowing the ITC claim illegally by restricting it on the basis of monthly Tax Periods, what can be the justification for disallowing the same, without it being found to be an unverified claim, not supported by valid Sales Invoices ? None - is the simple answer !
The claim of credit of input tax is indefeasible as was the case of CENVAT under Excise law and such credit of ITC under VAT law which is equivalent to tax paid in the chain of sales of the same goods, cannot be denied on the anvil of machinery provisions or even provisions relating to time frame which is law of limitation only bars the remedy rather than negativing the substantive claims under the taxing statutes.
The impugned assessment orders/re- assessment orders passed by the Respondent - Assessing Authorities to this extent of denying the claim of ITC to the petitioners assessees are illegal and unsustainable and deserve to be quashed and set aside by this Court.
The matters would stand restored to the file of the Respondent Assessing Authorities to pass fresh orders in accordance with law - petition allowed.
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2018 (2) TMI 523
Jurisdiction - power to revise the order of appellate authority - Whether the Additional Commissioner of Commercial Taxes was justified in invoking the powers under Section 64 (1) of the KVAT Act to revise the order of the Appellate Authority passed under Section 62 of the Act? - Held that: - the Addl. Commissioner is empowered to call for and to examine the record of any order passed or proceeding recorded under this Act and on such examination if it is found that any order passed by any Officer who is not above the rank of a Joint Commissioner, revision powers can be exercised provided such order is erroneous in so far as it is prejudicial to the interest of the Revenue.
Time limitation - Whether the re-assessment proceedings initiated by the prescribed authority under the Act are barred by limitation as provided under Section 40 of the Act? - Held that: - it can be held that amendment to Section 40 has retrospective effect with effect from 01.04.2005 enhancing the period of limitation provided under Section 40 of the Act - the proviso to Section 40 have been amended with effect from 01.04.2012 by Act No.17/2012 and subsequently by Act No.54/2013 retrospective effect was given with effect from 01.04.2005 and the constitutional validity of the same having been upheld, the arguments of the learned counsel that the reassessment proceedings are barred by limitation is wholly untenable.
Whether the reassessment proceedings initiated by the prescribed authority are barred by Section 32 of the Act? - Held that: - it is not only until the expiration of 5 years the books of accounts are required to be kept and maintained but also for such other period as may be prescribed or until the assessment reaches finality whichever is later. The phrase “until the assessment reaches finality” has to be read in conjunction with Sections 39 and 40 of the Act - it is clear that assessment also includes reassessment. The prescribed limitation for assessment/reassessment is in terms of Section 40. The limitation period being enlarged by the amendment carried out under Section 40 of the Act, the same shall have a bearing on Section 32.
In the present case, the period of limitation as per the Amendment Act No.54/2013 is eight years with effect from 01.04.2005 i.e., 30.04.2013, the date of finality of the assessment, which would be the date of expiry of limitation to reassess the deemed assessments made under Section 38 of the Act for the assessment year 2005-2006. Reassessment proceedings were initiated by issuing notice dated 16.02.2013 and the reassessment order was passed on 22.04.2013 well within the period of limitation even as per Section 32 of the Act.
The revisional order passed by the Addl. Commissioner of Commercial Taxes is justifiable - appeal dismissed.
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2018 (2) TMI 453
Principles of natural justice - Penalty u/s 70(2) of the KVAT Act, 2003 - only grievance of the appellant in these appeals is, no sufficient opportunity was provided by the Revisional Authority while restoring the penalty order levied u/s 70(2) of the KVAT Act, 2003, for the tax periods in question - Held that: - without expressing any opinion on the merits or demerits of the case, we deem it appropriate to remand the matter to the Revisional Authority for reconsideration in accordance with law in order to provide one more opportunity to the appellant to defend the case - appeal allowed by way of remand.
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2018 (2) TMI 452
Set off of the amount of TDS deducted in the hands of the main contractor - Form VAT 156 - Rule 44 (3) of the KVAT Rules, 2005 - Held that: - the tax payable by the dealer for any period s hall be given set off to the extent of the tax already remitted under sub Section (5) - In the present case, the contractee-BHEL has deducted the tax at source and remitted the same relating to the main contractor/respondent No.5, not of the appellant-assessee herein. The set off is available only to the main contractor to whom VAT 156 certificate is issued. Sub Section (11) further clarifies that the burden of proving the tax on such works contract has been remitted and of establishing the exact quantum of tax so remitted s hall be on the dealer claiming the reduction of tax under sub Section (10).
In the present set of facts, it is the main contractor who can be construed as the dealer to claim the reduction of tax under sub Section (10). This is further clarified by Rule 44 (3) (f) which specifies that any authority or person deducting tax, having obtained Form VAT 156 or Form VAT 158 shall not either directly or through any other person transfer the same to another person. The order of the first appellate authority is contrary to these provisions which is apparently erroneous and prejudicial to the interest of the Revenue.
The appellant is not entitled to claim set off on the TDS deducted in respect of main contractor regarding which VAT 156 is issued - appeal dismissed - decided against appellant.
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2018 (2) TMI 451
Rate of tax - iron and steel in the works contract - whether taxable at 4% or 12.5%? - Held that: - The issue involved herein is no longer res integra in view of the dictum enunciated by the Hon’ble Apex Court in the case of Gannon Dunkerley & Co. Versus State of Rajasthan & Larsen & Toubro Ltd. & Union of India [1992 (11) TMI 254 - SUPREME COURT OF INDIA], where it was held that the declared goods in question can only be taxed at the rate of 4% - revision dismissed - decided against Revenue.
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2018 (2) TMI 450
Liability of interest - on increased tax liability due to rectification of assessment proceedings - Section 12-B(2) of the Karnataka Sales Tax Act, 1957 - Revenue is claiming interest under Section 12-B (2) of the Act based on the rectification orders passed under Section 25-A of the Act, rectifying the assessment orders - Held that: - Section 12- B(1) of the Act deals with the payment of tax in advance according to which every dealer is required to file monthly returns to the assessing authority including the taxable turnover during the preceding month and shall pay in advance the full tax amount payable by him within 20 days after the close of the preceding month to which tax relates.
There is no short payment of tax in terms of the monthly returns filed. If so, initiating proceedings under Section 12-B (2) of the Act to claim interest on the rectification orders passed subsequent to the assessment orders is unjustifiable - it is clear that when the assessee pays the tax which according to him is due on the basis of the information made in the return filed by him, it is highly unrealistic to expect him to pay the tax on the basis of final assessment done by the assessing authority. The assessee cannot predict the liability accruing on the basis of the rectification proceedings initiated subsequent to assessment proceedings.
Revision petition dismissed.
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2018 (2) TMI 449
Penalty u/s 74(4) of KVAT Act - it was alleged that petitioner has not filed audited statement of accounts in Form 240 within 9 months after the end of the relevant year as required u/s 31(4) of the Act - Held that: - the order or endorsement dated 08.11.2016 disclose notice has been issued for the production of the said document with in 7days but it is not mentioned whether an earlier show cause notice was been issued to the petitioner to produce the documents, failing which, to show cause as to as to why penalty should not be imposed upon the petitioner - this endorsement could be treated as a notice to the petitioner to explain why he should not be imposed with penalty and after hearing the parties, the competent authority can pass appropriate orders in this regard, only with regard to penalty.
It is incumbent upon the authority, before levying any penalty, the petitioner should be heard in the matter.
Petition allowed in part.
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2018 (2) TMI 373
Validity of assessment order - section 39(1) of the KVAT Act, 2003 - Principles of Natural Justice - the adverse material was not confronted to the petitioner and merely on the basis of a Investigation Report, the disallowance of ‘ Input Tax Credit’ was made by the Assessing Authority which too was not supplied to the petitioner-assessee and he was not given an opportunity to controvert the said adverse material.
Held that: - There cannot be said to be any breach of principles of natural justice in the course of such assessment proceedings resulting in the disallowance of the Input Tax Credit in the hands of the petitioner-assessee, if the selling dealer himself is shown to be an non-existing dealer from entity. Mere production of papers, which could be a hand work of the petitioner-assessee himself, could not be allowed to be claimed such Input Tax Credit in the hands of the petitioner-assessee, unless on due verification and cross check, such tax paid by the selling dealer on the actual sale of such goods to the petitioner-assesse e was shown to have been deposited with the State Treasury by such selling dealer.
The State cannot be expected to give credit of Input Tax Credit unless on a verification that the selling dealer is not only shown to be existing but such actual sales attracting such liability is established in the hands of the selling dealer and such tax has been deposited by the selling dealers with the State in due discharge of his obligations under the provisions of the KVAT Act, 2003 or at least he exists to undertake the discharge of such tax obligation on his part - petition is misconceived and is thus dismissed.
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2018 (2) TMI 372
Jurisdiction - whether the Deputy Commissioner of Commercial Taxes (Audit – 65) DVO-6 Bangalore was competent to pass the re-assessment order dated 23.11.2010?
Held that: - The reading of S.2(24) makes it clear that the authority competent to authorize is either the Government or the Commissioner. The records produced by the respondent show that on 18.05.2009 the Joint Commissioner of Commercial Taxes (Adm) – VAT Division 6 addressed a letter to the Deputy Commissioner, Commercial Taxes (Central Office- 2) seeking authorization for an Officer to conduct re- assessment of tax liability of the appellant - it is clear that the authorization was not expressly in favour of any specific officer either by name or by designation.
This Court in Windsor Garden Pvt. Ltd. Versus State of Karnataka and Another [2010 (11) TMI 886 - KARNATAKA HIGH COURT] has held that only Officer who has been authorized by the Commissioner is competent to make re-assessment and such authorization must be express - The Commissioner in this case has not given any such express authorization to Deputy Commissioner of Commercial Taxes (Audit – 65) DVO-6. The proposal of the Additional Commissioner itself is defective. It does not specify any particular officer by designation or by name. Consequently, the re-assessment order is without competence.
Appeal allowed.
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2018 (2) TMI 371
Validity of order of the Joint Commissioner of Commercial Taxes (Appeals) - time limitation - Held that: - the contention that was put forth on behalf of the petitioner in the appeal before the Tribunal was that the first appellate authority though had the occasion to verify the books of accounts, had not done so and had modified the liabilities based on assumptions. If that be the position, the books of accounts being available, is required to be noticed and the petitioner would have the opportunity in the first appeal, where it has been remanded, to put forth all contentions with regard to the determination of the taxable turn-over based on the liability, as ordered by the Tribunal - Tribunal, in fact, has remanded the matter to the first appellate authority for consideration.
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2018 (2) TMI 370
Works Contract - rate of tax - iron and steel items - taxable at 4% or otherwise? - Held that: - The issue involved herein is no longer res integra in view of the dictum enunciated by the Hon’ble Apex Court in the case of Gannon Dunkerley & Co. Versus State of Rajasthan & Larsen & Toubro Ltd. & Union of India [1992 (11) TMI 254 - SUPREME COURT OF INDIA], where it was held that the declared goods in question can only be taxed at the rate of 4% - revision petition dismissed - decided against Revenue.
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2018 (2) TMI 314
Valuation - allowability - quantity discounts allowed to its distributors - appellant claims the discount as a deduction from the total turnover while arriving at the taxable turnover under the Karnataka Value Added Tax Act 2003 - disallowance on the ground that the discount was not relatable to the sales effected by the relevant tax invoices.
Held that: - The liability to pay tax is on the taxable turnover. Taxable turnover is arrived at after making permissible deductions from the total turnover. Among them are “all amounts allowed as discounts.” Such a discount must, however, be in accord with the regular trade practice of the dealer or the contract or agreement entered into in a particular case. The expression “the tax invoice or bill of sale issued in respect of the sales relating to such discount shows the amount allowed as such discount” is not happily worded. The words “in respect of the sales relating to such discount” cannot be construed to mean that the discount would be inadmissible as a deduction unless the tax invoice pertaining to the goods originally issued shows the discount. This is a matter of ascertainment - The assessee must establish from its accounts that the discount relates specifically to the sales with reference to which it is allowed. In the first part of the proviso, Rule 3(2)(c) recognizes trade practice or, as the case may be, the contact or agreement of the dealer. The latter part which provides a methodology for ascertainment does not override the earlier part. Both must be construed together.
It must be remembered that taxable turnover is turnover net of deductions. All trade discounts are allowable as permissible deductions.
Similar issue decided in the case of M/s. Southern Motors Versus State of Karnataka And Others [2017 (1) TMI 958 - SUPREME COURT], where it was held that If taxable turnover is to be comprised of sale/purchase price, it is beyond one's comprehension as to why the trade discount should be disallowed, subject to the proof thereof, only because it was effectuated subsequent to the original sale but evidenced by contemporaneous documents and reflected in the relevant accounts.
In computing the taxable turnover for the relevant years, the appellant would be entitled to a deduction of the trade discount - appeal allowed - decided in favor of appellant.
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2018 (2) TMI 313
Pre-deposit - Whether under the facts and circumstances, the learned Tribunal has not erred in hearing the Second Appeal on merits when the First Appeal was dismiss on the ground of pre deposit? - Held that: - the Tribunal has exercised its discretion and has held that the amount deposited is sufficient for admission and stay. The order passed by the Tribunal, having regard to the facts of the case, appears to be just and proper and there is no reason to believe that the same is in any manner arbitrary or rendered without application of mind to the circumstances of the case - it cannot be said that the impugned order passed by the Tribunal suffers from any legal infirmity - appeal dismissed.
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2018 (2) TMI 312
Validity of impugned notice - cancellation of registration of the firm - conversion from proprietorship to partnership without informing the Department in time - TNVAT Act - Form D - Held that: - the counter affidavit is full of contradictious and the third respondent feigns ignorance and states that she does not know that the proprietorship has been converted as a partnership when she herself admitted that Form D application was filed in February, 1986 giving names of four persons as partners including the petitioner s father. Therefore, the impugned notice is illegal, unenforceable and deserves to be set aside - The proceedings initiated by the Commercial Taxes Department especially in the light of the allegations of fraud and collusion made against the officers of the Department themselves can hardly have any impact on the civil proceedings in which the Department is not a party.
The third respondent is directed to restore the registration of Tvl.Kali Chettiar & Sons as a partnership concern in terms of the application in Form D submitted during February, 1986, when the petitioner s father was alive - petition allowed - decided in favor of petitioner.
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