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VAT and Sales Tax - Case Laws
Showing 81 to 90 of 90 Records
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2018 (2) TMI 311
Rejection of compounding facility - Section 8(c) of the Kerala Value Added Tax Act, 2003 - Held that: - The prohibition available in sub-clause (d) of sub-clause (i) of clause (c) of Section 8 was introduced only in the year 2014. Considering only the fact that there is a discrepancy insofar as the provision relied on by the Assessing Officer, being subsequent to the subject years, this Court would set aside the orders and direct re-consideration - petition allowed by way of remand.
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2018 (2) TMI 274
Recovery of Arrears of sales tax - validity of demand notice in Form No.IV dated 08.12.2014, for alleged arrears of Sales Tax for the years 2002-2003, 2003-2004, 2004-2005, 2005-2006 - APGST Act, 1957 - Whether sales within the State treated as Inter-state sale? - Held that: - It is evident from the show-cause notices issued, and the assessment orders made under the CST Act, enclosed along with the counter-affidavit, that the petitioner was assessed to tax under the CST Act for his failure to submit the declarations in Form-F as proof that the goods were despatched outside the State on consignment to his agent. Payment of sales-tax by the petitioner, under the APGST Act, is on the sale of goods within the State and not for transfer of goods outside the State - the sales made by the petitioner within the State were not subjected to tax as inter-State sales, and it is only the consignment of goods, from the State of Andhra Pradesh to another State, which were treated as inter-State sales on the failure of the petitioner to submit Form-F declarations. The contention that intra-State sales were treated as inter-State sales is, therefore, not tenable.
Are the assessments barred by limitation? - Held that: - The Andhra Pradesh Value Added Tax Act, 2005 came into force on 01.04.2005 and consequently, in view of Section 9(2) of the CST Act, it is the provisions of the A.P. VAT Act which is the applicable State law for the assessment year 2005-06. Section 21(4) of the AP VAT Act stipulates that the prescribed authority may, based on any information available or on any other basis, conduct a detailed scrutiny of the accounts of any dealer and where any assessment, as a result of such scrutiny, becomes necessary, such assessment shall be made within a period of four years from the end of the period for which the assessment is to be made - Even for the CST assessment year 2005-06, the assessment order was passed on 18.04.2009 well within the four year limitation period prescribed under Section 21(4) of the AP VAT Act - it is evident that the assessment orders, made for these four years, are within the period of limitation prescribed, for making assessment, both under the APGST Act and the AP VAT Act.
Should the period of limitation be computed till the date of passing the assessment order or till the date they are served on the dealer? - Held that: - the prescribed period of limitation, for passing an assessment order under the CST Act for the three year period 2002-03 to 2004-05, is, in view of Section 9(2) of the CST Act, governed by the provisions of Section 14(1) of the APGST Act. For the assessment year 2005-06 the period of limitation for passing an assessment order under the CST Act is, on a conjoint reading of Section 9(2) of the CST Act and Section 21(4) of the AP VAT Act, four years - Much less adducing any proof of the assessment orders having been served belatedly, the petitioner has not even pleaded as such in the affidavit filed by him in support of the Writ Petition. It would be wholly inappropriate for us, in the present case, to examine, even in the absence of a plea in this regard in the writ affidavit, whether there was belated service of the assessment orders necessitating an inference being drawn that the assessment orders were either ante-dated or were passed after expiry of the period of limitation prescribed under Section 14(1) of the APGST Act and Section 21(4) of the AP VAT Act.
Is passing assessment orders, at the fag end of the period of limitation, illegal? - Held that: - The period of limitation, for passing an assessment order under Section 14(1) of the APGST Act, is three years from the expiry of the year to which the assessment relates. Likewise an assessment under Section 21(4) of the A.P. VAT Act is required to be made within a period of four years from the end of the period from which the assessment is to be made. As long as the assessment order is within the period of limitation, stipulated in Section 14(1) of the APGST Act and Section 21(4) of the A.P. VAT Act, it matters little whether these assessment orders were passed immediately after the end of the assessment year/assessment period, or at the fag end before expiry of the period of limitation. Since the assessing authority is empowered by law to make an assessment even at the fag end of the period of limitation, and before its expiry, the question whether he should have passed the assessment order immediately after the end of the assessment year, or at the fag end of the period of limitation, are not matters for examination in proceedings under Article 226 of the Constitution of India, as the assessing authority is entitled to pass an assessment order any time after the end of the assessment year/assessment period and before expiry of the period of limitation.
Are the assessment orders void and liable to be ignored? - Held that: - As the assessment orders made under the CST Act, for the assessment years 2002-03 to 2005-06, do not bear the brand of invalidity upon its forehead, it is only if necessary proceedings are taken to challenge these orders can they be quashed. These assessment orders would remain as effective as the most impeccable of orders till then. While an order without jurisdiction can be subjected to challenge even in collateral proceedings, other orders, even if they be otherwise illegal, can only be questioned on a direct challenge thereto - the contention, that these assessment orders are liable to be ignored as a nullity, does not merit acceptance. The assessment orders would, unless and until they are declared as void by this Court, continue to remain in force.
Can factual pleas, raised for the first time in the reply affidavit, be examined in writ proceedings - Held that: - the petitioner had copies of the assessment orders with him, when he filed the Writ Petition on 27.04.2015. Nothing prevented him from either questioning the validity of the assessment orders or raise these factual pleas, which have now been urged in the reply affidavit, in the affidavit filed in support of the Writ Petition. As these contentions, which are factual in nature, are urged for the first time in the reply affidavit dated 22.01.2018, the very day on which Writ Petition was finally heard and judgment reserved, they cannot be examined as the respondents could not have rebutted these factual assertions in the counter-affidavit filed by them much earlier.
Is the demand notice vitiated by malafides? - Held that: - The burden to prove the charge of malafides is always on the person who moves the court for invalidation of the action of the State and/or its agencies and instrumentalities on the ground that the same is vitiated due to malafides. The Court should resist the temptation of drawing dubious inferences of malafides or bad faith on the basis of vague and bald allegations or inchoate pleadings - Challenge to the demand notice, on the ground of malafides, must, therefore, fail.
Is a single demand notice for four assessment years and its belated issue, illegal? - Held that: - the assessment order for the assessment year 2002-03 was made on 10.03.2006, for the assessment year 2003-04 on 30.03.2007, for the assessment year 2004-05 on 17.03.2008, and for the assessment year 2005-06 on 18.04.2009. The final notice dated 21.07.2014 was issued just a little more than five years after the assessment orders were passed for the assessment year 2005-06 on 18.04.2009, and therefore the contention that the demand notice was issued after 11 years is factually incorrect - It is only on an assessment being made, and the tax liability determined, can a demand be raised for payment of the assessed tax. As no demand could have been raised even without an assessment order being passed, the contention that the period of four years should be computed from the end of the assessment year, and the demand notice was issued 11 years thereafter, is not tenable.
Petition dismissed.
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2018 (2) TMI 273
Validity of assessment order - TNVAT Act - principles of Natural Justice - Section 27 of the TNVAT Act, 2006 - Held that: - This Court was of the opinion that there is not a true compliance of the requirement under Section 27 of the TNVAT Act, 2006 nor would it satisfy the principles of natural justice. This is so because after issuance of SCN, if a dealer submits their objections, there is every likelihood that the Assessing Officer may be convinced with the objections and may even drop the proposal. In such an event, appearing before the Assessing Officer in person is unnecessary.
The impugned orders have been passed in violation of the principles of natural justice and that the petitioner did not have adequate opportunity to put forth their objections, as the revision notices were bereft of particulars.
Appeal allowed by way of remand.
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2018 (2) TMI 199
Reversal of Input tax credit - TNVAT Act - Held that: - Honble Division Bench of this Court, in Sri Vinayaga Agencies v. Assistant Commissioner (CT), Vadapalani-1, Assessment Circle, Chennai and another [2013 (4) TMI 215 - MADRAS HIGH COURT], where it was held that All the revision orders revising the input tax credit on the admitted case of tax having been paid to the selling dealer, therefore, are found to be totally incorrect, erroneous and contrary to the provisions of the TNVAT Act and Rules - the revision petitioner, has not made out a case for reversal - revision dismissed.
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2018 (2) TMI 198
Penalty - Whether in the facts and circumstances of the case, the Tribunal in having confirming the order of the lower appellate authority by deleting the penalty is legally correct even after amendment carried out to Section 12(3) of the Tamil Nadu General Sales Tax Act 1959 by Tamilnadu Act 22 of 2002?
Held that: - In TVl. Apollo Saline Pharmaceuticals Private Limited Vs. Commercial Tax Officer (Fac) and Others [2001 (10) TMI 1100 - MADRAS HIGH COURT], a Hon'ble Division Bench of this Court has held that The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates, have therefore, to be regarded as assessments made under Section 12(1) to which the penal provisions of Section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside.
Thus, penalty levied by disallowing the claim of exemption are deleted.
Revision dismissed - decided against Revenue.
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2018 (2) TMI 197
Revision of assessment - rate of tax - tools & hardware - Whether on the facts and in the circumstances of the case the Tribunal was right in law in setting aside the assessment made by the Assessing Officer on the turnover at 4% when the dealer has not exercised their option as per the amendment Act? - Held that: - The appellant had filed their return in form K and paid tax u/s 3(4) of the Act from 2006-07 i.e. from the introduction of the Tamil Nadu Value Added Tax Act 2006. At the time of introduction of the Act there is no provision to exercise their option to pay tax u/s 3(4) in each year. Hence, the appellant had filed his option for the year 2006-07. In the absence of such provision as each yearthe appellant had paid the tax u/s 3(4) for the year 2008-09 also further the Act amended in the middle of the year is not aware by the appellant. If an amendment made in the Act the Assessing Officer has to issue notice to the dealer who has paid compounding tax to file their option immediately. It is not done by the Assessing Officer - Further the amendment made in December 2008 will not attract with effect for 01.04.2008 - the order passed by the Assessing Officer is set aside - appeal allowed.
Whether on the facts and in the circumstances of the case the Tribunal was right in law holding that mere filing of returns in Form K is enough and filing of fresh option within 30 days from the amendment for the year 2008-09 does not arise? - Held that: - the option should be given on or before 30th April of that year of the taxable turnover is below ₹ 50 lakhs in the previous year. But this Amendment came into effect from 18.06.2008 only. Even before and after the Amendment the dealer has filed return in Form-K issued under Section 3 (4) of the Act and not Form-I issued under Section 3(2) of the Act. So the filing of fresh option within 30 days from the Amendment for the year 2008-09 does not arise in our case - the re-assessment order of Assessing Officer is not correct and the order of Appellate Deputy Commissioner set asiding the order of Assessing Officer is correct and no Interference is warranted.
Revision dismissed - decided against Revenue.
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2018 (2) TMI 123
Validity of SCN - recovery of VAT dues of the seller of the flat from the purchaser of the flat in the housing society - case of petitioner is that the impugned notice issued by the respondent authority to the housing society is wholly without jurisdiction, bad and illegal as the petitioner is a bonafide purchaser of property for valuable consideration - Held that: - it is evident that the petitioner had issued public notices dt.1.2.2016 in two newspapers inviting any claim on the property. The respondent authorities did not respond to the same. The petitioner was never informed about the VAT dues either by the sellers or by the Respondents. Therefore, in our opinion the respondents can be said to be negligent in not being attentive to the notice issued by the petitioner, hence, the petitioner cannot be fixed with any constructive notice of the VAT dues.
The core component which emanates from a bare reading of the aforesaid section is that the charge or transfer of the property shall be void if it is made with an “intention of defrauding the government revenue”. Thus, the transfer of property can be declared void provided there is intention to defraud the government revenue. The Act does not lay down any mechanism to declare the transfer as void. In our considered opinion, the only remedy available to the respondent authorities is to approach the Civil Court for a declaration to treat the transfer as void by adducing evidence of an “intention to defraud”.
In the present case no tax was due on the petitioner and no charge is created on the property in question in respect of the alleged dues of the erstwhile owner which is an essential requirement of the section. Hence, the applicability of the provisions of section 47 in the case of the petitioner itself is an argumentative issue. In such circumstances, the only recourse available for the VAT authorities is to approach the Civil Court to annul the transfer on the ground that it was made with an intention to defraud the government.
A conspectus of the aforenoted sections of the Act, will postulate that the authorities are not conferred with any powers to issue any communication/notice to the Society instructing it not to issue a “No due certificate” in relation to the property. In our opinion, such notice will circumvent the provisions of the Act as they do not intend to empower or authorize the department to issue directions/instructions directing the Society to refuse “No due certificate” of the property on which charge is established. By issuing the impunged notice debarring the Society from issuing the No due certificate, the authorities have conferred upon themselves with the power which is lacking in the provisions of the Act, hence, the same can be said to be extralegal and unwarranted. Thus, the impugned notice merits to be set aside as the same travels beyond the scope of the provisions of the GVAT Act. However, the department may, if so desire, take appropriate proceedings in accordance with law for having the transfer to be declared as void under section 47 of the GVAT Act.
Petition allowed.
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2018 (2) TMI 122
Validity of assessment order - finality attached to the Form F declaration - petitioner's contention is that the third respondent committed an error in disallowing the claim of exemption on the ground that the third parties are agents of the petitioner and not the employees of the petitioner, without taking into consideration the legal position that, once Form F declaration is filed, it is mandatory that exemption ought to be necessarily granted.
Held that: - similar issue in the case of M/s.Hindustan Petroleum Corporation Ltd. v. The Deputy Commissioner (CT) [2016 (12) TMI 313 - MADRAS HIGH COURT]. In the said case, the writ petitions were filed challenging the assessment orders under the CST Act and the TNGST Act by which the assessing officer disallowed the stock transfer effected by the petitioner therein to their depot at Tada, State of Andra Pradesh. The Court considered various decisions and held that the assessing officer in the said case misdirected himself in not posing a right question for arriving at a right conclusion.
The reasons assigned in the impugned order with regard to finality of the Form H declaration is incorrect.
This writ petition is partly allowed, in so far as it relates to enquiry into the Form F declaration and the same is set aside and the matter is remanded to the third respondent to conduct an enquiry, examine the correctness of Form F declaration, who shall afford an opportunity of personal hearing to the petitioner - appeal allowed in part and part matter on remand.
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2018 (2) TMI 121
Motor Vehicle or not? - Tata Hitachi Model EX 200 LC Hydraulic Excavator with HD Bucket and kit loaded on Truck No.HR 38 F 1131 - Petitioner has contended that Tata Hitachi Model EX 200 LC Hydraulic Excavator is not a motor vehicle as defined in Clause 28 of Section 2 of the Motor vehicles Act, 1988 and therefore, cannot be brought under tax net - whether Tata Hitachi Model EX 200 LC Hydraulic Excavator is a motor vehicle, falling within Section 2 (i) of the Motor Vehicles Act, 1988 and whether tax has to be paid?
Held that: - In RDS Projects Ltd., Vs. Commercial Tax Officer, Chennai, [2006 (11) TMI 559 - MADRAS HIGH COURT], a Hon'ble Division Bench of this Court, directed physical inspection of the machines and file a report. After considering the report, the Hon'ble Division Bench of this Court framed a question, as to whether the excavator not running of tyres but on iron chain plates such as, the caterpillars and military tanks and others, would fall within the definition of Section 2 (i) of the Tamil Nadu Tax on Entry of Motor Vehicles Act, 1990 read with Section 2 (28) of the Motor Vehicles Act, 1988, and whether, liable to pay tax under Section 3 of the Tamil Nadu Tax on Entry of Motor Vehicles Rules, 1990 - it was held in the case that having regard to its distinguishing features from the other excavators has to be held as not "motor vehicle" falling under the definition of the term defined under Section 2(28) of the Motor Vehicles Act, 1988 and therefore, not liable for entry tax.
Petition allowed.
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2018 (2) TMI 120
Penalty u/s 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 - Exemption towards the sales made to 100% EOU - disallowance of exemption on the ground that on the ground that tools did not fall, within the scope of the notification, issued in GO Ms.No.528 CT & RE dated 21.11.1997 - Held that: - similar issue decided in the case of Appollo Saline Pharmaceuticals Versus Commercial Tax Officer (Fac) And others [2001 (10) TMI 1100 - MADRAS HIGH COURT], where it was held that The assessments for the assessment years 1993-94 and 1994-95 which were assessments made on the basis of the accounts, and not based on any other material and were not estimates, have therefore, to be regarded as assessments made under Section 12(1) to which the penal provisions of Section 12(3) are not attracted. The levy of penalty for those two assessment years is set aside - revision dismissed - decided against Revenue.
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