Home Case Index All Cases VAT and Sales Tax VAT and Sales Tax + HC VAT and Sales Tax - 2020 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (2) TMI 1250 - HC - VAT and Sales TaxMaintainability of remand assessment order - applicability of time limitation in passing order - according to the petitioner’s case, no hearing was given to the petitioner on that date and the order was passed beyond the period of two years, but has been ante-dated as 16.02.2015, in order to bring it within the period of limitation of two years - sale of excavators, cranes and its spare parts which are the earth moving machineries, which are claimed to be ‘capital goods’ - rate of tax on the impugned goods was in dispute - Section 42(2) of the JVAT Act. HELD THAT:- Section 42(2) of the JVAT Act clearly shows that when the matter was remanded to the Assessing Authority by order dated 19.02.2013, as contained in Annexure-7 to the writ application, the re-assessment order had to be passed on or before 19.02.2015 - In the present case, the re-assessment order has been shown to have been passed on 16.02.2015. There are force in the claim of the petitioner Company, inasmuch as, if by order dated 27.01.2015 the matter was fixed for 14.02.2015, there was no occasion for showing the next date of hearing as 14.02.2015/16.02.2015. This could have been done only in the event that 14.02.2015 was a non-working day for some reason, and thereafter the first working day was 16.02.2015, which is not the case here and neither stated in the order-sheet. If the matter was heard on 14.02.2015, there is nothing on record to show that it had been heard on that date, and if it was actually heard on 16.02.2015, there is nothing on record to show that the matter was ever fixed for hearing on 16.02.2015 - we cannot, but accept the plea of the learned counsel for the petitioner that this is an ante-dated order to cover up the period of limitation, which fact has not been specifically denied even in the counter-affidavit filed on behalf of the State, though specifically averred in paragraphs 37 to 55 of the writ application. The contention of the learned counsel for the State that the goods in question were not the capital goods prior to 06.03.2007, is not prima facie acceptable to us. After 06.03.2007, there is specific entry in Schedule-II, Part-B, Entry-25 to the Act, which gives the description of the capital goods liable to tax @ 4% and this includes “Such as Excavator Hydraulic Excavators clampshell, Drojline, Rock Breakers, Mini Excavators, Crawler, Cranes, Wheeled Cranes, Wheel-loaders, Front end loaders, Shovels, Breakhoc & Articulated Cranes and all other similar implements and machineries in this category - A plain reading of definition of Capital Goods shows that capital goods includes, machinery, equipment, apparatus, tools, appliances, also used for mining purposes, and prima facie it appears that the goods in question in the present case, i.e., excavators, cranes and its spare parts which are the earth moving machineries, would come within the expression machinery, equipment, apparatus, tools and appliances, used for the mining purposes. The impugned order dated 16.02.2015 passed by the Assessing Authority cannot be sustained in the eyes of law being void ab initio. Consequently, the revisional order dated 04.10.2018 passed by the Revisional Authority also, cannot be sustained in the eyes of law - Application allowed.
|