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VAT and Sales Tax - Case Laws
Showing 81 to 100 of 100 Records
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2018 (3) TMI 544
Liability of purchase tax - cocoon - Whether the Tribunal has erred in holding the revisionist liable to tax under Section 3-AAAA on the purchase of cocoon from Resham Directorate of the Government of U.P. in view of notification dated 14.11.1995 by which silk-yarn has been exempted from tax u/s 4 of the Trade-tax Act, 1948?
Held that: - It is an admitted factual position that the revisionist is not a producer of cocoon, therefore, not covered by the proviso to Section 2(c) of the Act, 1948.
In exercise of the powers under clause (a) of Section 4 of the Uttar Pradesh Trade Tax Act, 1948 (U.P. Act No.15 of 1948), the Governor is pleased to direct that with effect from February 26, 2000 no tax under the said Act shall be payable on the sale of pure silk, silk fabric, silk mixed cloth and silk yarn.
The words used in clause (iii) of the proviso to Section 3-AAAA are ''in the same form and condition in which he had purchased them' thus only in such an eventuality, that is, if the Revisionist sold the cocoon purchased by it, as cocoon, it would escape the rigour of the charging provision, but this is not the case here.
The memo of Second Appeal filed by the revisionist before the Tribunal is not on record so as to enable the Court to ascertain as to whether this plea was raised before it or not. Nevertheless, it being an important aspect which is required to be considered, therefore, it needs to be considered by the Tribunal.
The Tribunal shall proceed to decide the Appeals, which stand restored - the impugned order is set aside.
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2018 (3) TMI 543
Rejection of books of accounts - rejection on the ground that the assessee had filed to maintain stock books in respect of the raw material as well as products obtained at every stock of production - liability to tax - Held that: - The manufacturer liable to pay tax under the act is required to maintain stock books in respect of raw materials, as well as products obtained at every stage of production, unless exempted under the proviso. The maintenance of stock books would have a direct co-relation with the manufacturing process, as to maintain records of movement of raw material as well as finished products.
The Tribunal has not specifically reversed the finding of first appellate authority in that regard. Though the Tribunal has come to the conclusion that proper movement of stock is not maintained, but there is no discussion in the order of tribunal specifying the process, as also the stages of production to record movement of stocks.
Decided in favor of assessee.
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2018 (3) TMI 542
Principle of mutuality - activities undertaken by the Association amounting to works contract - penalty - Held that: - The Association is an entity registered under the Societies Registration Act, 1860 - No proceedings, whatsoever, is pending against the petitioner, who is a member of the Association. In the absence of any proceedings against the petitioner, it was unnecessary for the petitioner to file an affidavit in the nature of Ext.P1 before the first respondent and it was unnecessary for the first respondent to issue a notice in the nature of Ext.P2 to the petitioner - petition dismissed - decided against petitioner.
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2018 (3) TMI 541
Condonation of delay of 1530 days in filing the revision - Held that: - the revisionist has not given sufficient reasons to condone the delay of 1530 days in filing the revision - application for COD dismissed.
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2018 (3) TMI 236
Amnesty Scheme - proceedings u/s 29 of The HVAT Act, 2003 - Held that: - As per clause-8 on acceptance of the application for Amnesty, the dealer was required to withdraw all appeals within 15 days of acceptance order. Learned counsel for the petitioner contended that appeal cannot be filed against the impugned order because of clause-8 of the Amnesty Scheme. The dispute survives only with regard to liability created on the petitioner for work contract.
In the impugned order, the petitioner has been held liable as a developer to a liability of ₹ 53,96,78,860/- for which the petitioner has discharged his liability by paying a lump-sum under the Amnesty scheme. The petitioner would be required to comply with the provisions of Section 33(5) of the Act only with regard to the balance payment i.e. ₹ 27,66,08,864/-.
Petition disposed off.
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2018 (3) TMI 235
Claiming benefit of exemption notification issued under old act even after introduction of VAT Act - Correctness of Notification dated 14th November, 2000 - only reason to deny benefit of exemption notification is that rate of tax is different between the two Act, and therefore, the notification dated 14.11.2000 is inconsistent with the Act of 2008 - Whether the Tribunal is justified in holding that notification dated 14th November, 2000 issued by the State of Uttar Pradesh is inconsistent with U.P. VAT Act, and therefore, not saved under Section 81 thereof?
Held that: - A taxing statute ordinarily provides for the transaction to be taxed, the rate of tax and the incidence of tax. In an exemption notification of the kind in hand i.e. notification dated 14.11.2000, the transaction itself is exempted from liability to pay tax. The rate of tax, which otherwise would be payable, is not a relevant factor when the Government decides to exempt a transaction itself from payment of tax - In the present case, the transfer by a Bus owner to the UPSRTC of the right to use a Bus under any contract, is the goods specified in the schedule, and thus to be exempted from the applicability of tax. Such a notification would not become inconsistent only because the right of tax payable for the transaction in the Act of 2008 is different from the rates specified in the Act of 1948.
In Central Indian Machinery Manufacturing Co. Ltd. Vs. State of M.P. and another, [1997 (1) TMI 549 - SUPREME COURT], a question arose regarding continuance of notification under a repealed Act on the ground that a deduction of 10% towards statutory allowance was contemplated in lieu of cost of repair etc. from the gross annual letting value. The High Court had observed that for such reasons, the notification issued under the repeal Act would not become wholly inconsistent with the new Act.
Notification dated 14.11.2000, issued under the Act of 1948, is not inconsistent with the Act of 2008, and therefore, the notification would continue to subsist and would be deemed to have been issued under the Act of 2008, by virtue of Section 81(2)(a).
Revision allowed - decided in favor of assessee.
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2018 (3) TMI 162
Rate of tax - uniform rate of tax or different rate of tax on purchase of goods for use in the works contract - rate applicable prior to 1 April 2006 when Section 4(1)(c) was introduced by an amendment into the KVAT Act 2003 - Held that: - There can be no manner of doubt that even prior to 1 April 2006 works contracts were exigible to the levy of tax. The charging section, Section 3, mandates that “the tax shall be levied on every sale of goods”. The expression ‘sale’ in Section 2(29) means ‘every transfer of the property in goods’ including ‘a transfer of property in goods (whether as goods or in some other form) involved in the execution of works contract’.
Section 4 prescribes the rate of tax. - The expression ‘other goods’ in Section 4(1)(b) evidently means those goods which are not governed by Section 4(1)(a) - where goods are specifically covered by clauses (i), (ii), or (iii) of Section 4(1)(a), recourse to the residual provisions of Section 4(1)(b) would not be available. To allow a residual provision to consume the specific would be to invert the intent of the legislature. The state wants us to do just that.
In Gannon Dunkerly & Co [1992 (11) TMI 254 - SUPREME COURT OF INDIA], this Court held that it is permissible for the State legislatures to prescribe a uniform rate of tax for all goods involved in the execution of works contracts, even though different rates of tax are prescribed for the sale of such goods.
The exigibility to tax is not (as it cannot be) dependent on the state prescribing a uniform rate of tax for goods involved in works contracts. That the KVAT Act 2003 did not provide a uniform rate of tax prior to 01.04.2006 on goods involved in the execution of works contract also becomes apparent when we read the amendment which introduced Section 4(1)(c) by Act 4 of 2006. As a result of the amendment, the legislature provided that the rate of tax in respect of the transfer of property in goods involved in the execution of a works contract would be as provided in the Sixth Schedule. The Sixth Schedule elucidates works contracts of various descriptions and elucidates the associated rates of tax for each distinct category.
By way of abundant caution, that issues of a factual nature, will fall for adjudication in the course of assessment proceedings. It was open to state legislatures to provide uniform rates of tax on goods involved in the execution of works contracts. Many state legislatures did so. The Karnataka legislature did so with effect from 1.4.2006, not earlier.
We are unable to accept the submission of the State that upto 31 March 2006. Section 4(1)(b) envisaged a uniform rate for the transfer of goods involved in the execution of a works contract.
Appeal dismissed - decided against appellant.
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2018 (3) TMI 161
Export sale - Whether the 'export sale' will also be a 'sale' which does not attract the levy of tax under Section 3(4) of the Act? - 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 - tax revision dismissed.
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2018 (3) TMI 160
Validity of assessment order - adjustment of input tax credit - Section 19 (2) of the TNVAT Act read with Rule 10 (7) (c) of the TNVAT Rules, 2007 - Held that: - when Section 19 (17) provides that, if the ITC determined by the Assessing Officer for a year exceeds tax liability for that year, the excess can be adjusted against any outstanding tax due from the dealer/assessee The word 'any' has significance. The petitioner, being the registered dealer, both under the TNVAT Act and CST Act, would be entitled to adjust the ITC and for such liability under the CST Act - petition allowed - decided in favor of petitioner.
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2018 (3) TMI 159
Recovery of tax dues - Whether the writ petitioner is a bona fide purchaser of the property and would be protected from the proceedings under the Revenue Recovery Act, and under Section 24 (A) of the Tamil Nadu General Sales Tax Act, 1959?
Held that: - the encumbrance certificate does not reveal the charge created over the property and there is nothing to infer that the appellant / writ petitioner and his vendor with an intention to defraud the tax payable to the first respondent colluded with each other and effected transfer of the property. The business conducted by the vendor of the writ petitioner was actually closed on 01.04.2002 and the property had been purchased by the writ petitioner only in the year 2004. Therefore, it cannot be said that he had actual or constructive notice of the charge created over the property for payment of arrears of sales tax in respect of the business conducted by his vendor.
Even though a charge is created on the properties on the finalisation of the assessment of tax and a demand is raised, the same would not preclude the bona fide purchaser from seeking protection under Section 24 (A) of the Act.
It cannot be said that there was willful abstention or gross negligence in making any enquiry that would tantamount to a notice under Section 3 of the Transfer of Property Act, and the appellant / writ petitioner is a bona fide purchaser for value.
Petition allowed - decided in favor of petitioner.
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2018 (3) TMI 158
Imposition of VAT - sale of “Manually Operated Sprayers” - Held that: - this Court is satisfied that the said question need not be straightaway decided by this Court, as there is no sufficient material on record to embark upon such enquiry as to the nature of commodity dealt with in the present case or decide the question of interpretation about the said commodity falling under the Entry described in the Notification dated 31.3.2010 as “Agricultural Sprayers” or “Manually Operated Agricultural Implements” covered by First Schedule of the Act. Such question deserves to be first decided by the Head of the Department, viz., the learned Commissioner under Section 59(4) of the Act - petition disposed off.
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2018 (3) TMI 157
Inter-state sales - sandalwood - Form-C - challenge to levy of Tamil Nadu value added tax - Held that: - identical issue decided in the case of Surya Vinayaka Industries Limited and Others Versus District Forest Officer, Salem Division, Salem and Another [2012 (11) TMI 1054 - MADRAS HIGH COURT], where it was held that Merely because, the petitioner transported the goods outside the State will not bring the transaction within the ambit of the inter state sale - petition dismissed - decided against petitioner.
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2018 (3) TMI 90
Rectification of mistake - specific case of the petitioner is that the determination of the amount payable by them made in terms of Ext.P2 order is incorrect - Held that: - In so far as the correctness of Ext.P5 order is the subject matter of the appeal preferred by the petitioner against the same, it may not be appropriate for this Court to go into the merits of the matter. But, on the materials on record, it appears prima facie to this Court that the computation of the liability of the petitioner in terms of Ext.P5 order is incorrect - petition allowed.
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2018 (3) TMI 89
Maintainability of petition - Input tax credit - Fleet Management Charges - Held that: - this Court is of the opinion that the writ petition against the re-assessment order under Section 39(1) of the KVAT Act, 2003 directly cannot be filed before this Court under Article 226 of the Constitution of India by-passing the effective alternative remedies by way of Appeals available to the assessee under the provisions of the KVAT Act, 2003 - petition dismissed being not maintainable.
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2018 (3) TMI 88
Validity of Re-assessment proceedings - Section 39(2) of the KVAT Act, 2003 - time limitation - Held that: - this Court is of the opinion that the Re-assessment proceedings u/s 39(2) of the Act on further evidence and information coming to the notice of the prescribed authority is permitted by Section 39(2) of the Act, which clearly envisages of a second or multiple Re-assessments after the initial Re-assessment order is passed u/s.39(1) of the Act.
The overlapping proceedings of Re-assessment envisaged u/s 39(2) of the Act, whether it can be dissected for the purpose of Section 40(3) of the Act or not is a mixed question of facts of law. What is effect of the stay order granted by the Tribunal on 23.01.2013 on such further Re-assessment proceedings is a question which is yet to be adjudicated by the concerned authorities of the Department, the Assessing Authority being at the first instance and the two Appellate Authorities being the later two levels of Appellate forums provided in the Act.
Petition disposed off as pre-mature.
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2018 (3) TMI 87
Condonation of delay in filing appeal - Delay has occurred due to the process of getting opinion from the Commissioner's Office - Held that: - the appeal has been filed well beyond the further period of 90 days over and above the initial 90 days period, as provided under Section 60 (1) of the Tamil Nadu Value Added Tax Act, 2006 - tax case revision dismissed.
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2018 (3) TMI 74
Principles of Natural Justice - order passed after the death of the assessee / appellant - The case of the first petitioner is that she had no knowledge about Exts.P1 to P3 orders and the decision taken by the appellate authority on the appeals preferred by K.F.Francis against the said orders - KVAT Act - Held that: - Rule 76 of the Rules says that since nobody got himself/herself impleaded as additional appellant in the appeals preferred by K.F.Francis on his death within the time stipulated, the said appeals were abated. Rule 77 of the Rules provides for application to set aside the abatement in a case of this nature. The said Rule also provides that provisions contained in Section 5 of the Limitation Act applies to the application under Rule 77 of the Rules - in the absence of any material to indicate that the first petitioner was aware of the pendency of the appeals at the time of the death of her husband, the first petitioner shall be given an opportunity to file applications to get herself impleaded and set aside the abatement of the appeals preferred against Ext.P1 to P3 orders.
Petition allowed permitting the first petitioner to prefer applications for impleading and set aside the abatement of the appeals preferred against Exts.P1 to P3 orders - the first petitioner shall be given an opportunity to file applications to get herself impleaded and set aside the abatement of the appeals preferred against Ext.P1 to P3 orders.
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2018 (3) TMI 3
Demand of Interest on account of the alleged delayed payment - Held that: - once the petitioner has been permitted to pay the arrears in instalments, in compliance of the order, dated 27.08.2004, made in W.P(MD)No.787 of 2004 and in the absence of any challenge made to the said order and thereby it has reached its finality, the impugned demand notice with regard to levy of interest, in the considered opinion of this Court, is unsustainable.
This Court, on an independent application of mind to the materials placed, is of the considered view that there is no infirmity or error apparent in the reasons assigned by the learned Judge for allowing the writ petition and finds no merit in the writ appeal - appeal dismissed.
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2018 (3) TMI 2
Maintainability of petition - completion of reassessment proceedings - By the impugned Endorsements Annexure-A1 dated 17.01.2018 and Annexure-A2 dated 01.02.2018 respectively, the 3rd Respondent-Deputy Commissioner of Commercial Taxes (Audit & Recovery)-5, Mangalore, has called upon the petitioner to appear before it within a period of seven days thereof and conclude the reassessment proceedings for the aforesaid Four Assessment Years.
Held that: - this Court is of the opinion that since the competent Appellate Authority namely, ‘CSTAA’ is seized of the pending appeal of the petitioner-assessee along with the stay application also, on which no interim orders are said to be passed as of now, entertaining the present writ petition at this stage would be premature and the petitioner ought to have approached the said Tribunal itself for grant of appropriate interim orders in the matter and so that the multiplicity of the proceedings on account of the Respondent-Department now seeking to conclude the reassessment proceedings and pass fresh orders in pursuance of the said impugned remand order of the KAT which is under challenge before the CSTAA could be avoided.
The writ petition is disposed of with a liberty and direction to the petitioner-company to approach the said ‘CSTAA’ for appropriate orders in the pending appeal.
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2018 (3) TMI 1
Jurisdiction - petitioner submitted 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] - Held that: - considering the fact that the Assessing Officer has to re-do the assessment, in view of the above 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 - petition allowed by way of remand.
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