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VAT and Sales Tax - Case Laws
Showing 1 to 20 of 100 Records
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2018 (3) TMI 1978
Acceptance of Form C and issue Form E-1 to the petitioner for the goods distained from one State to another - grant of benefit of concessional rate of tax to the petitioner after accepting Form C on record - HELD THAT:- The fact admitted to both the sides is that the petitioner had purchased coal from the respondent no.2 through an Eauction. The terms and conditions of the E-auction has been placed on record by way of a counter affidavit annexed as CA- 1 to the counter affidavit. The scheme contemplates that if any dispute arises out of the E-auction, the same will be subject-matter of the Arbitration.
Even otherwise, the petitioner is virtually seeking the enforcement of a contract through a writ petition and is raising claim for refund of money. It is open to the petitioner to take recourse to the other legal remedies available to him. The writ petition would not lie under such a situation under Article 226 of the Constitution of India.
Petition dismissed.
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2018 (3) TMI 1950
Violation of principles of natural justice - opportunity of hearing not provided - seeking Writ of Certiorari to call for the records on the file of the respondent dated 15.04.2016 for the assessment year 2014-15 - HELD THAT:- Since the mandatory requirement under section 22 (4) of the Tamil Nadu Value Added Tax Act, has not been complied with by the respondent by giving an opportunity of personal hearing to the petitioner, the impugned order is liable to be set side solely on that ground.
The matter is remitted back to the respondent for fresh consideration. The respondent is directed to decide the matter afresh, after giving due opportunity of personal hearing to the petitioner, on merits and in accordance with law - Petition allowed by way of remand.
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2018 (3) TMI 1941
Reversal of ITC - the assessment are sought to be re-opened and the ITC availed by the dealers are directed to be reversed - mismatch in books - HELD THAT:- The issue involved in these writ petitions is mismatch and such issue is already covered by the decision of this Court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT]. This Court, in the said decision, has directed the Assessing Officer to evaluate a centralised mechanism exclusively to deal with the cases of mismatch and to do some exercise, before issuing a notice - It was held in the said case that this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed orders reversing the Input Tax Credit with no appreciable impact on the revenue collection. Matters are remanded to the respective Assessing Officers, to undertake a fresh exercise by conducting a thorough enquiry in consultation with the Assessing Officers of the other end dealer.
Considering the fact that the Assessing Officer has to re-do the assessment, in view of the said decision of this Court, this writ petitions are allowed and the impugned orders are set side. Consequently, the matters are remitted back to the Assessing Officer to re-do the assessment commencing from the stage of issuing notice of proposal, after following guidelines/procedures issued by this Court in the above referred order. The Assessing Officer shall also give personal hearing to the petitioner before finalizing the order of assessment.
Petition allowed by way of remand.
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2018 (3) TMI 1918
Registration of sale certificate - priority of secured creditors over all other dues - cancellation on the ground that the Commercial Tax Department has created an encumbrance on the property - HELD THAT:- The decision of the Full Bench in the case of Assistant Commercial Tax Officer (CT) V. Indian Overseas Bank [2016 (12) TMI 373 - MADRAS HIGH COURT] squarely answers the legal issue, wherein, it has been held that the secured creditor is entitled to realise secured debts due and payable by sale of assets over which security interest is created and would have priority over all debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or Local Authority. Therefore, the impugned order has to be held to be unsustainable in law.
The first respondent is directed to register the sale certificate after deleting the encumbrance created at the instance of the Commercial Tax Department and the sale certificate shall be registered in favour of the third respondent, within a period of one week from the date of receipt of a copy of this order - Petition allowed.
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2018 (3) TMI 1916
Levy of tax - EMU Oil - Government order in G.O.Ms.No.122 Animal Husbandry, Dairying and Fisheries Department, dated 30 September 2009 - HELD THAT:- The issue as to whether EMU Oil is a taxable commodity requires to be decided by the authority under the TNVAT Act. Even in the detention order, there is no clear indication as to how the check post authority has arrived at a conclusion that the EMU Oil is taxable under the TNVAT Act. We are therefore of the view that liberty should be given to the appellant to file revision petition before the jurisdictional Joint Commissioner.
Liberty is granted to the appellant to file a revision before the Joint Commissioner challenging the order passed by the Deputy Commercial Tax Officer, Pennaiyar Bridge Check Post, which is impugned in the writ petition - appeal disposed off.
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2018 (3) TMI 1863
Auction - recovery of dues - priority of charges over the property - whether the bank is having first charge over the property in question? - it was held by the High Court that the bank shall have preference over others - HELD THAT:- Issue notice.
Application for exemption from filing official translation is allowed.
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2018 (3) TMI 1859
Recovery of arrears of sales tax - sale of immovable property in an auction - HELD THAT:- Portion of the property has been sold by the Recovery Officer - II, Debts Recovery Tribunal -1, Chennai, the fourth respondent herein, and another portion of the property has been sold by the Official Liquidator, High Court of Madras. No material has been placed by the respondents that the writ petitioner was put on notice of the arrears of tax due and payable by M/s. Moolchand Exports Limited (In Liquidation), Chennai -108, and the creation of charge over the property. No encumbrance has been made in the office of the Sub-Registrar, within whose territorial jurisdiction, properties are situated - Though Mr. M. Hariharan, learned Additional Government Pleader (Taxes), contended that the Sales Tax Department had already informed the arrears of tax due and payable by M/s. Moolchand Exports Limited, to the Tribunal, sale notice does not reflect any condition imposed on the bidders to pay the arrears of tax, payable by M/s. Moolchand Exports Limited to the Government.
In the absence of any specific condition, in the sale notice that, arrears of tax due and payable by M/s. Moolchand Exports Limited, has to be paid by the auction purchaser, in the sale notice we are of the view that sale notice he should be treated as a be bona fide purchaser, without notice - the petitioner is bona fide purchaser and that he should not be imposed with any liability to pay arrears of tax, payable by M/s. Moolchand Exports Limited, (In Liquidation), Chennai.
Petition allowed - decided in favor of petitioner.
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2018 (3) TMI 1852
Validity of assessment proceedings - service of notice of such assessment proceedings - fraud committed by the consultant cocern of petitioner - HELD THAT:- Whatever be the differences between the petitioner and the department with respect to service of notices and assessments on the petitioner, it appears that even the department is prima facie convinced that Jignesh Metha had duped the petitioner and other similar traders. This is precisely why criminal prosecution has been launched against him. Under the circumstances, we would allow the petitioner to file appeals against the two orders of assessment. We are informed that the petitioner is already participating in the assessment which is pending for the remaining year. Though initially the petitioner had made a grievance that the orders of assessment were also not supplied by the department along with the reply, copies thereof are produced. The petitioner at least now has the copies of the orders of assessment.
It will be open for the petitioner to file appeals against the orders of assessment. If such appeals are filed latest before 20.04.2018, the same shall be entertained on merits ignoring delay, if any, in filing such appeals.
Petition disposed off.
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2018 (3) TMI 1822
Priority of Charge - mortgage of property - whether the Financial Institution, which is a secured creditor, or the department of the government concerned, would have the 'Priority of Charge' over the mortgaged property in question, with regard to the tax and other dues? - HELD THAT:- Delay condoned. Issue notice.
Status quo, as it exists today, shall be maintained by the parties, in the meantime.
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2018 (3) TMI 1776
Recovery notice - demand of service tax with interest and penalty - HELD THAT:- Since the respondent has not considered the objections filed by the petitioner as early as on 15.10.2015, the impugned order dated 30.01.2018 and the notice dated 06.03.2018 are liable to be set aside. Accordingly, the impugned order dated 30.01.2018 and the notice dated 06.03.2018 are set aside and the matter is remanded back to the respondent for fresh consideration.
Petition allowed by way of remand.
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2018 (3) TMI 1754
Stay on demand - Submission is that there is no consideration of prima-facie case and the aspect of financial condition has also not been correctly examined - HELD THAT:- It is apparent that no consideration with regard to prima-facie case of the assessee, has been made. The assessee has otherwise deposited substantial amount towards the tax payable. In such circumstances, ends of justice would be met in directing the first appellate authority to decide the appeal on merits, upon the revisionist's furnishing security in respect of balance amount other than cash and bank guarantee, within a period of four weeks from today.
Appeal disposed off.
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2018 (3) TMI 1727
Valuation - stock transfer of Medicament - relevancy of Maximum Retail Price i.e. MRP shown on the product - enhancement of value of turnover - Held that:- The turnover of the assessee would have to be determined with reference to the rate at which the product is sold by the assessee, and for such purposes the maximum retail price i.e. MRP at which product would be sold by the retailer is not material - MRP is usually fixed/specified by the manufacturer to ensure that the product manufactured by it is sold at one rate across the State. It is not at MRP that the product is being sold by the manufacturer from its stocks situated within the State of U.P. The Tribunal, therefore, was not justified in enhancing the turnover of the assessee and thereby imposing higher tax - Decided in favor of assessee and against Revenue.
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2018 (3) TMI 1717
Stay of collection of the balanced disputed tax pending disposal of the appeal - APVAT Act - transfer of the right to use Set Top Boxes - Held that:- As it is not in dispute that this Court, in the case of M/S TATA SKY LIMITED, SRI JAYA LAKSHMI RICE AND GROUNDNUT VERSUS STATE OF ANDHRA PRADESH, THROUGH THE PRINCIPAL SECRETARY [2016 (4) TMI 1346 - TELANGANA & ANDHRA PRADESH HIGH COURT], had granted stay on condition that the petitioner deposited 25% of the disputed tax; and in as much as, in the present case, the petitioner has already deposited 50% of the disputed tax, we set aside the order passed by the revisinal authority, and direct the respondents not to take any coercive steps to recover the balance 50% of the disputed tax from the petitioner, till the appeal filed by them is finally disposed of by the A.P. VAT Tribunal - petition disposed off.
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2018 (3) TMI 1716
Rate of tax - Tendu Leaves - whether Tendu leaves can be brought within the ambit of notification issued by the State Government in exercise of its powers under Section 15(B) of the Chhattisgarh Value Added Tax Act, 2005 whereby tax on minor forest produce has been reduced to 5%? - Held that:- There is no dispute of the fact that under Schedule-II of VAT Act there are various entries/items which are otherwise minor forest produces. Once when a notification has been issued invoking the powers under Section 15B of the VAT Act, there cannot be different conclusion drawn than that of the exemption so granted being in respect of those items which under the schedule are minor forest produces or else the notification would have been specific or at least the notification would have mentioned that the said notification would be applicable except for Tendu Leaves. There can be no dispute of the fact that the exemption certainly would be applicable only to those minor forest produces which are exigible to tax.
Once when a generic term has been used by the legislature, it has to be construed as if the legislature meant all those items which fall under the said generic term which in the instant case is minor forest produce and which includes Tendu Leaves - Further there is no exclusion carved out in respect of any item including Tendu leaves from its applicability so far as the notification granting exemption under Section 15 B of CG VAT Act is concerned.
This Court is of the opinion that vide notifications issued under Section 15 B of the VAT Act from time to time, the State Government has granted an exemption to a generic term known as minor forest produce which includes Tendu leaves as there is no clarification or exclusion in any of these notifications. Since minor forest produce has not been separately entered in the Schedule, it would be inclusive of all those items which are shown as taxable products under Schedule-II. Unless a product is exigible to tax, there can be no exemption or reduction in rate of tax.
The petitioners are liable to pay tax only at the rate as specified in the notification issued under Section 15 B of the CG VAT Act, 2005 reducing the rate of tax to 5% - petition allowed.
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2018 (3) TMI 1683
Classification of goods - rusk/toast - whether the rusk/toast would fall under entry 7, i.e., bread, under Schedule I of the Chhattisgarh Value Added tax Act, 2005 or it would fall under the residuary entry under Part IV of Schedule II of the said Act as claimed by the respondents?
Held that:- A plain reading of section 15 of the VAT Act itself would show that all those products which are specified in Schedule I, tax shall not be payable on the sale and purchase of said products. Entry 7 of the said Schedule clearly refers to products both Bread or otherwise. Likewise, Schedule II of the said Act also envisages a list of products. What is also relevant is that the products which have been specified in Part II of Schedule II, the rate of tax levied is prescribed. Likewise, Part IV of the said Schedule II envisages that "all those goods which are not included in Schedule I, Part II and III of the said Schedule" have fixed the rate of tax at 14 per cent. The said entry in the Schedule, i.e., Part IV is normally referred to as residuary entry.
Whether the toast or rusk would fall under the residuary entry under Part IV, the burden of proof is on the State Government and the onus also lies on them to first establish conclusively that by no conceivable process of reasoning can the said product be brought under any of the tariff items and hence the product was being brought under the residuary item.
Bringing an item under the residuary entry - Held that:- It is the primary and paramount responsibility of the State to first convincingly prove and establish that the item under no circumstances can be brought under any of the tariff items under the Schedule of the VAT Act. Only then could the Government claim a particular product to be one which would come under the residuary entry - It is settled law that the onus or burden to show that a product falls within a particular tariff item is always on the Revenue.
There is substantially no change in the basic physical properties used for manufacturing of bread as well as toast and rusk. It is only the manufacturing process and that too restricted to the time required for baking of the two products everything else is the same.
The term "bread" under Schedule I, entry 7 has to be construed as a generic entry made and it has to be given the widest interpretation that could be given, subject to the condition that the ingredients being substantially the same - this court holds that rusk and toast also would fall within entry 7 of Schedule I of the VAT Act and it cannot be considered to be one which would come under the residuary entry.
Petition allowed.
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2018 (3) TMI 1660
Input tax credit - purchases made by it pursuant to D.E.P.B. licence - Held that:- The Division Bench in the case of JAGRITI PLASTICS LTD., N.F. IMPEX PVT. LTD. VERSUS COMMISSIONER OF TRADE & TAXES [2015 (10) TMI 291 - DELHI HIGH COURT] has held that D.E.P.B. scrips has contributed, if not directly then indirectly, to the price of imported commodity sold by the Assessee in the market - In the present case, the D.E.P.B. has been utilized to import the raw material and, therefore, the analogy has rightly been followed by the Tribunal in the facts of the present case also - The revision is, accordingly, dismissed.
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2018 (3) TMI 1659
Jurisdiction - declaration sought that respondent and its officers and agents are incompetent either to legislate or to impose and realise sales tax and re-sale tax under any power conferred under serial No 54, List II of the Seventh Schedule to the Constitution of India, on the services provided by Cellular Mobile Telephone service providers - TNGST Act.
Held that:- The legal issue has been settled by the Hon'ble Supreme Court in the case of BSNL Vs Union of India and Others [2006 (3) TMI 1 - SUPREME COURT] which was considered by the Hon'ble Supreme Court in the case of Idea Mobile Communication Ltd Vs Commissioner of Central Excise and Customs, Cochin, [2011 (8) TMI 3 - SUPREME COURT OF INDIA], where it was held that there was no element of sale involved in the sale of sim cards or recharge vouchers.
Petition allowed.
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2018 (3) TMI 1644
Validity of assessment Order - KVAT Act - delay on the part of the appellate authority in deciding the appeals - Held that:- The writ petition is disposed of directing the appellate authority to consider and pass orders on the applications for stay preferred by the petitioner in the appeals, within one month from the date of receipt of a copy of the judgment - petition disposed off.
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2018 (3) TMI 1617
Principles of Natural justice - Ex-parte assessment - Reversal of Input Tax Credit - exempted sale and sale on consignment basis - whether the respondent was correct in resorting to an ex parte assessment, when there are documents available on file indicating that the appellant has given explanation to the notices issued by the Enforcement Wing? - Held that:- It is true that the appellant has not given any reply subsequent to the pre-assessment notices issued by the respondent. However, that would not give a right to the respondent to resort to the process of ex parte assessment in view of the explanation given by the appellant to the Enforcement Wing, which is part of records - The respondent exercised the jurisdiction to re-open the assessment only on the basis of the materials collected by the Enforcement Wing. Those materials along with the written objections were forwarded to the respondent. The respondent without looking into the objections took cognizance of the alleged incriminating materials and passed an ex parte assessment. The failure to consider the objections received by the Enforcement Wing and forwarded by them to the respondent would vitiate the assessment orders passed by the respondent.
Denial of personal hearing before completing the assessment - rejection on the ground that objection was not given to the pre-assessment notices - Held that:- Even if objection was not given, still the assessing authority was expected to post the matter for hearing by issuing notice to the assessee. In case the assessee fail to appear, it is open to the assessment authority to pass orders on merits - the failure to submit objection to the preassessment notice would not give a right to the Assessment Officer to deny opportunity of personal hearing to the assessee.
The appellant is given time till 09 April, 2018 to submit a comprehensive reply to the pre-assessment notices issued by the respondent dated 21 October, 2013. It is open to the respondent thereafter, to post the matter for personal hearing on a particular date - Since the assessment order has already been set aside, the respondent is directed to de-seal the premises in question so as to enable the appellant to submit the explanation with documents.
Appeal allowed.
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2018 (3) TMI 1611
Duty Entitlement Passbook Scheme (DEPB benefits) - Levy of Sales Tax - whether upon transfer of DEPB, the transaction would invite Sales-tax? - Jurisdiction - powers of Revisional Authority u/s 67 of the Act - the petitioner had already approached the High Court challenging notices issued by the Revisional Authority - Section 41AA by the Gujarat Sales Tax [Second Amendment] Act, 2001.
Held that:- The provision was in the nature of a general amnesty. The State Legislature having noted that despite efforts made for simplification of assessments there are large number of pending disputes which had clogged the system, introduced a one-time amnesty scheme. The scheme was peculiar on two counts viz., unlike the settlement schemes under the Income-tax Act, 1961 or the Customs or Central Excise Act, it is not an ongoing scheme and covered only the assessments which were pending and which related to AY 1999-2000 and earlier years. Thus, this was a one-time scheme. Secondly, unlike in case of other settlement proceedings in the above referred Acts, there was little element of examination of the declaration made by an assessee desirous of availing benefit of the scheme. Once the assessee applying for such a scheme fulfilled the eligibility conditions and paid the additional taxes, his assessment would be deemed to have been completed.
The competent authority thereafter had no jurisdiction to question the declaration made by the assessee which would be in the realm of scrutiny assessment envisaged under subsection [3] of Section 41 of the Act. Quite apart from the plain language used in Section 41AA, for more emphasis, sub-section [1] of Section 41 was made notwithstanding anything contained in sub-sections [2] and [3] of Section 41AA. Further, even in the proviso granting benefit to one who availed the scheme, the Legislature has consciously provided that the same would be available irrespective of the fact whether notice under sub-section [3] of section 41 was issued or not. In other words, even if the scrutiny assessment under sub-section [3] of Section 41 had commenced, the dealer could make a declaration under Section 41AA and if fulfilled other conditions, the benefit flowing from such scheme would floss.
Section 67 of the Act undoubtedly gives wide powers to the revisional authority, who on his own motion or on an application made to him, can call for and examine the record of any order passed by an authority appointed under Section 27 and can pass such order, as he thinks just and proper. This would however not imply that the revisional authority could do what the original authority could not. Whatsoever wide his powers may be, the same would be co-terminus with that of the original authority.
The Revisional authority under section 67 of the Act would have power to test the legality and correctness of the action or order of the competent authority in accepting a declaration made under Section 41AA of the Act. If the order is contrary to the requirements of Section 41AA of the Act, the Revisional authority could certainly correct the same, nevertheless in the present case; as observed, the Revisional authority exceeded its jurisdiction and rejected the declarations on the grounds which were otherwise not permissible.
The impugned judgment of the Tribunal is set-aside - Revisional orders also stand quashed - petition disposed off.
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