2011 (3) TMI 1697 - HC - VAT and Sales Tax

Summary

Issues involved: Provisional assessment of demand u/s 2(M) read with Section 3 (F) of the Trade Tax Act for the Assessment Year 2010-11, grant of partial stay against demand, distinction in modus operandi from Raheja Development Corporation case, legal position on tax imposition for construction work not on behalf of prospective purchasers, entry tax levy, granting of interim stay orders, authority's view on demand merits, granting of complete stay in certain cases, lack of findings on merits in stay orders, direction for expeditious appeal decision, stay on balance tax demand with security provision.

Provisional Assessment and Demand: The revisionist, a builder engaged in constructing houses, faced a provisional assessment order raising demand for the transfer of material used in construction as sale to prospective purchasers for various months of the Assessment Year 2010-11. Challenges were made before the First Appellate Authority and Tribunal, resulting in partial stay against the demand. Revisionist contended that the demand had no legal basis and sought complete stay to prevent irreparable loss and business impact.

Legal Position on Tax Imposition: Revisionist argued that their modus operandi, where constructions were not on behalf of purchasers but transferred after construction, differed from the Raheja Development Corporation case. Citing a previous decision by the Apex Court and a Division Bench, it was contended that tax imposition for construction not on behalf of prospective purchasers was not valid under Section 2(M) read with Section 3 (F) of the Trade Tax Act.

Entry Tax Levy: The issue of entry tax levy was highlighted, with numerous writ petitions and revisions pending in the High Court. Reference was made to leading cases where entry tax realization had been stayed upon furnishing security, indicating the complexity and significance of this matter.

Granting of Interim Stay Orders: The Apex Court's stance on granting interim stay orders was discussed, emphasizing the need to assess the merits of demands before requiring payment. Previous decisions of the High Court were cited where complete stay had been granted in certain cases with specific directions, underscoring the importance of evaluating each case individually.

Direction for Appeal Decision: The judgment directed the First Appellate Authority to decide the revisionist's appeals on merits promptly, preferably within a month. A stay on the balance tax demand was granted for six weeks or until appeal disposal, subject to the revisionist providing security other than cash or bank guarantee for the disputed amount within two weeks.

Conclusion: The revisions were disposed of with the directive for expeditious appeal decision and provision for stay on the balance tax demand with security. The judgment aimed to ensure a fair assessment of the revisionist's case while protecting the interests of both the revenue and the revisionist.