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VAT and Sales Tax - Case Laws
Showing 61 to 80 of 100 Records
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2018 (3) TMI 978
Validity of assessment order - smuggling - the challenge against Exts.P1 and P2 notices is on the ground that the same are issued without complying with the directions issued by the Appellate Tribunal in Ext.P3 order and this Court in Ext.P8 judgment.
Held that: - Since it was contended by the petitioner in the appeals and second appeals preferred against the assessment orders that proper enquiry was not conducted by the competent authority before making huge additions on that ground in their turnover, the Appellate Tribunal ordered the assessing authority to pass fresh orders after conducting an independent enquiry. It is seen that later when the petitioner complained that steps are being taken to complete assessments without providing them the copies of the materials proposed to be used against them, this Court, in terms of Ext.P8 judgment, directed the assessing authority to provide copies of all such materials. If as a matter of fact, the assessing authority has issued the impugned notices without complying the directions issued by the Tribunal in Ext.P3 order and this Court in Ext.P8 judgment, it is for the petitioner to challenge the assessment orders on that ground before the appellate authority.
Petition is dismissed being one instituted without any bonafides.
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2018 (3) TMI 977
Penalty u/s 40(2) of the TNVAT Act - TDS amount recovered and remitted by the contractee - adjustment of TDS towards penalty - Held that: - when the assessment proceedings were made, the petitioner was able to convince that the Assessing Officer by records that the transaction done by the petitioner is entitled for exemption which plea was accepted and assessment was completed. Therefore, the respondent could not have levied penalty at the first instance and could not have adjusted the tax which was deducted at source by the contractee and remitted to the respondent towards the petitioner's account - In fact, the respondent should have refunded the amount to the petitioner as a consequence of holding that the petitioner is eligible for exemption of the contract receipt.
The levy of penalty and the adjustment of TDS towards the said penalty is illegal - petition allowed - decided in favor of petitioner.
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2018 (3) TMI 976
Penultimate sale - whether the purchased goods and the exported goods are one and the same for the purpose of claiming penultimate sale exemption under Section 5(3) of the Central Sales Tax Act? - Held that: - a constitution Bench of the Apex Court, in the case of State of Karnataka Versus Azad Coach Builders Pvt. Ltd. and another [2010 (9) TMI 879 - SUPREME COURT OF INDIA] has held that When the transaction between the assessee and the exporter and the transaction between the exporter and foreign buyer are inextricably connected with each other, in our view, the "same goods" theory has no application, assessee is entitled to exemption under section 5(3) of the CST Act - petition allowed - decided in favor of petitioner.
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2018 (3) TMI 975
Sale of property for recovery of sales tax arrears - by virtue of the impugned notice, the first respondent seeks to proceed against the immovable property owned by the defaulting Company for recovery of the sales tax dues - Held that: - The property, having been sold by the Official Liquidator pursuant to the order passed in Winding Up proceedings and the sale, having been held pursuant to the orders by this Court, proper remedy available for the respondent/Department is to approach the Official Liquidator, by way of a Claim Petition, and the respondent/Department is not justified in proceedings against the petitioner, who is a bona fide purchaser, for valuable consideration.
It may not be necessary for this Court to set aside the impugned proceedings, but, it would suffice to hold that the impugned proceedings cannot be enforced against the petitioner or the property purchased by them, leaving it open to the Commissioner of Sales Tax Department to proceed against the defaulting Company - petition disposed off.
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2018 (3) TMI 908
Compounding of offences - section 74 of the Kerala Value Added Tax Act, 2003 - Petitioner challenges the assessment order inter alia contending that it was based on a compounding order which is patently illegal - Held that: - when an assessee exercises the option u/s 74 (1) of the Act, he virtually agrees to the turnover suppression and the irregularity in maintaining true and correct accounts - even without going into the so called conflict of opinion, in the facts of the present case, we do not think that we will be justified in interfering with the judgment of the learned Single Judge - appeal dismissed.
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2018 (3) TMI 907
Suo motu power of revision to the Deputy Commissioner - transfer of goods otherwise than by way of sale - sub-section (2) of Section 9 of the CST Act - Held that: - the suo motu power conferred on the Deputy Commissioner under Section 35 of the KGST Act could be availed in respect of assessments made under the CST Act in the light of subsection (2) of Section 9 of the CST Act - petition dismissed - decided against petitioner.
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2018 (3) TMI 906
Jurisdiction of Tribunal - Whether the Hon’ble Sales Tax Appellate Authority, committed an error of law in not entertaining the appeal filed by the petitioners under Section 58 of the TNVAT Act, 2006 and wrongly applying the Third Proviso to Section 58(1) which would apply only when the remand made by the first appellate authority was for fresh assessment and not when the remand was coupled with directions and adverse findings?
Whether the Hon’ble Sales Tax Appellate Tribunal committed an error of law in failing to note that the embargo contained in the Third Proviso to Section 58(1) of TNVAT Act, 2006, was intended to reduce multiplicity of proceedings and therefore by its very nature could not apply when the remand made by the first appellate authority contained adverse directions and findings?
Held that: - The impugned order having been passed by the Appellate Deputy Commissioner (CT) under Section 51(3) is an appealable order - In terms of third proviso under Section 58(1), no appeal shall be admitted against an order passed by the Appellate Deputy Commissioner under Section 51 or by the appellate Joint Commissioner under Section 52 as the case may be setting aside the assessment and directing the assessing authority to make a fresh assessment. Therefore, the embargo placed under the said proviso would operate when the appellate authority exercising power either under Section 51 or 52 sets aside the assessment order and remands the matter for fresh assessment.
Tax cases allowed in favor of assessee.
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2018 (3) TMI 905
Filing of returns - Section 3(4) of the TNVAT Act 2006 - according to the department, the assessee is not eligible to file returns in Form-K under Section 3(4) of the TNVAT Act 2006 - Held that: - in the case on hand, when the total and taxable turnover, has exceeded ₹ 50 Lakhs, the dealer ought to have filed the returns in Form-I, instead of Form K.
Factum of inadvertently reporting the turnover, exceeding ₹ 50 Lakhs, has been considered both by the appellate authority and tribunal. Concurrent finding of fact, has not been assailed by the appellant herein. Therefore, when the turnover is below ₹ 50 lakhs, submission of returns in Form K, cannot be said to be erroneous. Department has not alleged any purchase or sales suppression.
Taking note of Section 27 of the TNVAT Act, 2006, the appellate authority has rightly held that revision of assessments, cannot be made.
Revision dismissed.
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2018 (3) TMI 904
Maintainability of petition - reversal of input tax credit - principles of natural justice - instant writ appeal has been filed on the grounds that the writ court has ignored the settled law that the inter-state and import purchases are not taxable under the Act, which is also not disputed by the respondent - Circular No.7/2014 dated 03.02.2014.
Held that: - reliance placed in the decision in the case of SRC Projects Private Limited Versus Commissioner of Commercial Taxes, Chennai and another [2008 (9) TMI 914 - MADRAS HIGH COURT], where it was held that The impugned order by way of revision of assessment should not have been passed without giving the assessee an opportunity of personal hearing. But since the same has been denied, the impugned order is hereby quashed.
Matter is remitted back to the Assessing Officer, to consider afresh, provide opportunity to the appellant, and pass order in accordance with law - petition allowed by way of remand.
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2018 (3) TMI 819
Reversal of input tax credit - assessment of escaped turnover - CST Act, 1956 - Penalty u/s 27(4) of the Act - Held that: - when exercise of reassessment, was resorted, under Section 27 of the Tamil Nadu VAT, 2006, the petitioner had already paid the tax and thus, there was no redetermination of tax, after making an enquiry, as contemplated under sub-Section 1 of Section 27 of the Tamil Nadu VAT Act, 2006 - the tax has been paid, even before the reassessment, under Section 27 (2) of the TANVAT Act, 2002. Though the Assistant Commissioner (CT), assessing Officer, has imposed the penalty, under Section 27 (4) of the TANVAT Act, the same has been reversed on appeal, by the Appellate Deputy Commissioner (CT), Chennai.
In Lingam and Sons Vs. State of Tamil Nadu [2009 (11) TMI 852 - MADRAS HIGH COURT] on identical issue it was held that Since cheque bearing No. 697629 dated January 7, 1998 for ₹ 14,905 was given by the assessee even on January 7, 1998, levy of penalty under section 12(3) of the Act is not justified.
Tax Case Revision Petitions are allowed
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2018 (3) TMI 818
Levy of tax on purchase of goods - the Assessing Authority found that the dealer has exported finished goods after using raw materials purchased against Form XVII and therefore, the Assessing Authority levied tax under Section 3(4) of the TNGST Act on a turnover of ₹ 1,06,000/- at the rate of 1% - Held that: - Following the decision of this Court in Tube Investment of India Ltd., v. State of Tamil Nadu [2010 (10) TMI 938 - MADRAS HIGH COURT], the Appellate Tribunal by its order dated 19.05.2014 allowed the appeal filed by the dealer stating that since the export sale is fully covered by the definition of sale under Section 2(n) read with Explanation 3(a) of the TNGST Act, the Assessing authority cannot levy tax under Section 3(4) of the Act - revision dismissed.
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2018 (3) TMI 817
Levy of tax - the Assessing Authority found that the dealer has exported finished goods after using raw materials purchased against Form XVII and therefore, the Assessing Authority levied tax under Section 3(4) of the TNGST Act on a turnover of ₹ 1,06,000/- at the rate of 1% - Held that: - Following the decision of this Court in Tube Investment of India Ltd., v. State of Tamil Nadu [2010 (10) TMI 938 - MADRAS HIGH COURT], the Appellate Tribunal by its order dated 19.05.2014 allowed the appeal filed by the dealer stating that since the export sale is fully covered by the definition of sale under Section 2(n) read with Explanation 3(a) of the TNGST Act, the Assessing authority cannot levy tax under Section 3(4) of the Act - revision dismissed.
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2018 (3) TMI 816
Whether in the facts and circumstances of the case, the Tribunal is legally correct in having held that the amendment made by insertion of new Section 2(aa) along with explanation to the TNAST, 1970 from 01.08.1996 cannot be applied for the year 1995 - 96 which such amendment was made to the Act was only declaratory in character in order to clarify the meaning or effect of such provision and that such Acts are always held to be retrospective?
Held that: - In Apollo Saline Pharmaceuticals vs. Commercial Tax Officer (Fac) [2001 (10) TMI 1100 - MADRAS HIGH COURT], a Hon'ble Division Bench of this court held that the order of the Tribunal to the extent it upholds levy of penalty for these years namely, 1987-88, 1988-89, 1989-90, 1990-91, 1991-92 and 1992-93 is set aside. The assessing authorities shall now hear the assessee with regard to the question of penalty in relation to assessment for these years and thereafter proceed to make appropriate orders - revision dismissed.
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2018 (3) TMI 815
Rate of tax - Un-interrupted Power Supply Systems (UPS) - Validity of clarification issued by the first respondent, dated 13.01.2006, in Clarification No.11/2006 - first respondent stated that the UPS with built in battery, or attached to batteries is also known as 'Inverter' and taxable at 16% under Entry No.5(i) of Part-E of the First Schedule to the TNGST Act, and if imported, it is taxable at 20% under Entry No.9 of 11th Schedule.
Held that: - the observation made in the impugned clarification that UPS is also known as ''Inverter'' is not substantiated by any material, and appears to be a personal opinion of the Authority. That apart, the clarification states that the UPS should be treated as Inverter, and taxable at 16% under Entry No.5(i) of Part – E of the First Schedule - This entry cannot made applicable, since it deals with Generators, Generating Sets, Transformers and Non-Electronic Voltage Stabilizers. Therefore, the impugned clarification is wholly flawed.
Though the articles are not authenticated, it gives a broad distinction between a UPS and Inverter. The subtle but relevant distinction, which has been shown is that UPS is used in the Desktop Computers, and provides power in the case of power-cut, and the Computer does not shut down, whereas, the Inverter is only a power back up solution, it converts Direct Current into battery current electricity, and mainly used to supply back up power for homes and offices, and cannot be used for a Computer system. That apart, there is a gross difference in back up time for both UPS and Inverter, apart from the circuitry difference.
The impugned clarification is incorrect and cannot be made applicable to the petitioner - petition allowed - decided in favor of petitioner.
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2018 (3) TMI 741
Validity of assessment order - TNGST Act - non-compliance of Rule 26(6)(a) and (b).
Held that: - The factual position which emerges from the material papers are that the petitioner was both consignment agent and del credere agent of Mr.Haldia Petrochemicals Limited and an agreement to the said effect was entered into on 01.07.2002. Having accepted that the petitioner is a del credere agent, they are bound to comply with the instructions as per Section 40(1) of the TNGST Act read with Rule 26(6)(a) of the Rules. Admittedly, the petitioner has not complied with or observed any of the conditions as contemplated under the Rule.
When the Court is convinced that the show cause notices are proper and the findings recorded in the impugned assessment orders are proper and the Court having tested the correctness of the impugned orders in these writ petitions and held that the contentions advanced by the petitioner do not merit consideration, it is left with no other option, except to affirm the impugned assessment orders.
The petitioner has not made out any case for interference with the impugned assessment orders and accordingly, the writ petitions fails - decided against petitioner.
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2018 (3) TMI 681
Inter-state sale - Form C - Whether the Appellate Tribunal is correct in law in confirming higher rate of tax on interstate sale covered by C Forms, uploaded in the website of the department and produced before the authorities below contrary to the provisions of CST Act?
Held that: - Though returns were submitted for the assessment years 2007-08 to 2010-11, the department has taken eight years to finalise the assessment for year 2007-08. No reasons have been assigned for the delay in passing assessment orders, within the financial year - To ascertain the cause shown in the appeals for not producing the 'C' form declarations for the assessment years 2007-08 to 2010-11, we directed the learned counsel for the petitioner to produce the appeal memorandums filed before the appellate authority.
In the case of State of H.P., and others v. Gujarat Ambuja Cement Ltd., and another [2005 (7) TMI 353 - SUPREME COURT OF INDIA], the Hon'ble Supreme Court while dealing with belated filing of statutory forms, held that if the appellate authority is satisfied that assessee was prevented by reasonable and sufficient cause which dis-enabled him to file the forms in time, it can be accepted. It can also be accepted as additional evidence in support of the claim for deduction. In the instant case, respondent No.1-company made a specific request before the revisional authority which was turned down. Therefore, the question of any non-compliance with the relevant statutes does not arise.
As in the case of assessment years 2011-12 to 2013-14, the matter is remanded to the Assessing Officer to proceed in accordance with the provisions of the Central Sales Tax Act, substantial question of law is answered in favour of the assessee - tax revision allowed.
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2018 (3) TMI 680
Revision of returns - willful omission or suppression with an intent to evade tax or not? - Held that: - the petitioner, on detecting an omission in the returns originally filed by it, came forward to rectify the defects, by expressing his readiness to pay the differential tax and interest in respect of the transactions that were omitted in the return that was originally filed. Since the petitioner voluntarily came forward to rectify the omissions and pay the differential tax, and the action of the petitioner is not pursuant to the detection of any suppression by the Department, the mere apprehension that, on the petitioner being permitted to pay the differential tax, he might lay claim to the input tax credit of tax paid on purchases that were not reported, cannot, in my view, be a ground to deny the petitioner the opportunity to come forward and rectify an anomaly in the returns, so as to ensure a compliance with the statutory provisions.
The petitioner in this case having established that he had approached the respondents, for correcting omissions in the returns filed by him for the assessment year 2011-12, before any proceedings were initiated against him for differential tax demands or for the imposition of any penalty for breach of any statutory provision, ought to be permitted to revise his returns to include the omissions noticed - petition allowed.
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2018 (3) TMI 597
Validity of assessment order - delay on the part of the appellate authority in deciding the appeal - Held that: - the writ petition is disposed of directing the appellate authority to consider and pass orders on the application for stay preferred by the petitioner in the appeal, within one month from the date of receipt of a copy of the judgment - petition disposed off.
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2018 (3) TMI 596
Purchase tax - Section 3(4) of TNGST Act - Form XVII - the respondent had purchased goods against Form XVII declarations and used the same in the manufacture of goods which were sold to a place outside the State - Held that: - identical issue decided in the case of Tube Investments of India Ltd. (Formerly known as M/s. TI Diamond Chain Ltd.) Versus The State of Tamil Nadu, represented by the Commercial Tax Officer [2010 (10) TMI 938 - MADRAS HIGH COURT], where it was held that Section 3(4) of the Act will have no application since situs of the export sales of the petitioners for the purpose of said Section was the State of Tamilnadu and by virtue of the said factual position, the applicability of Section 3(4) stands excluded for the exigibility of tax - revision dismissed.
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2018 (3) TMI 545
Discontinuance of benefit of exemption under CST - Sick Industrial Companies (Special Provisions) Act - the case of the petitioner–M/s. Rajshree Plastiwood Private Limited did not fall under the Policy of the State Government, and therefore, notification dated 21.04.2003 issued pursuant to the directions of the Board has not been continued - Held that: - After coming into force of SICA Repeal Act, 2003, as per notification dated 25.11.2016 (Annexure R/1), the proceedings pending before BIFR stands abated and interim order passed in favour of the petitioner stands automatically vacated by operation of law - The order dated 05.11.2007 passed by the BIFR was set aside by the AAIFR on 16.08.2010.
The petitioner is not entitled to get any relief as well as interim relief - petition dismissed.
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