2015 (8) TMI 637 - HC - VAT and Sales Tax

Pre-Determination Deemed Waiver Appellant was informed that next date of hearing would be intimated later, but no subsequent date of hearing was indicated by commissioner Since Commissioner failed to make any determination within prescribed period, proposed determination as indicated by Appellant would have been deemed to be issued by Commissioner Whether tribunal was justified in holding that there was deemed waiver of application for pre-determination Held that - three conditions were to be satisfied for Commissioner having deemed to have issued determination in terms of Section 84(6) All three condition were not fulfilled in current case Admittedly, Appellant had already applied to transactions for determination of rate tax at 4% but failed to implements transaction which were subject matter of application as per Section 84 (6)(b) Therefore, commissioner could not be deemed to have issued proposed determination Tribunal was not right in holding that there was waiver of deemed application for predetermination Appellant would nevertheless not have been able to avail benefit of Section 84(6), since Appellant did not satisfy condition (b) under Section 84 (6) Determination of tax and interest by VATO upheld, but levy of penalty and corresponding interest on such penalty amount set aside Petition disposed of. Classification of DSCs Fixation of Taxation rate Whether Tribunal was right in holding that Digital Still Image Video camera was not classified and covered by Entry No.41 or 41A clause 15 and that there was deemed waiver of application for pre-determination Held that - (1st April 2005 to 7th August 2005) Term IT products has been described to include computers, peripherals etc but not DSCs which were distinct species as apparent from Entry 8525 40 listed in ITA Legislature did not included DSCs in Entry 41 till 29th November 2005 Prior to change brought DSCs were not part of IT products Entry as it read could not be said to have included DSCs Therefore impugned order of AT upholding determination of VAT and interest thereon not interfered with AT was right in holding that DSCs was not classified and covered by Entry No 41 or 41A Decided partially in favour of Assesse. (30th November 2005 to 31st December 2007) Bracket preceding words other than in Item 15 of Entry 41 A, closing with bracket after words digital still image video cameras was certainly unique to Delhi statute Brackets really do not serve any particular purpose To accept brackets as they are and to try to make some sense out of it would result in acknowledging that DSCs belong to species of transmission apparatus which it obviously was not DSCs were not transmission apparatus and therefore brackets could not have brought out unintended result of excluding such equipment, viz., DSCs from first item viz., transmission apparatus Therefore correct way to read Article 15 in Entry 41A to DVAT Act was to read it without two brackets and to read it in manner that item digital still image video cameras was not excluded from ambit of Entry 15 Thus period between 30th November 2005 to 31st December 2007, Appellant would be liable to pay 4% tax and not 12.5% on turnover of sales of DSCs Decision of Tribunal and VATO hereby set aside Neither interest nor penalty would be liable to be paid Decided in favour of Assesse.

Summary

Issues Involved:
1. Classification of Digital Still Image Video Cameras (DSCs) under VAT.
2. Deemed waiver of the application for pre-determination.
3. Justification of levy of penalty and interest.

Detailed Analysis:

1. Classification of Digital Still Image Video Cameras (DSCs) under VAT:
Period 1st April 2005 to 7th August 2005:
- The Appellant paid tax for DSCs at 4%, claiming they were covered under Entry 41 of Schedule III of the DVAT Act.
- Entry 41 included IT products such as computers, telephones, and wireless equipment, but did not explicitly mention DSCs.
- The Appellant argued that DSCs should be classified as IT products based on the Information Technology Agreement (ITA) of the WTO, which included DSCs under tariff heading 8525 40.
- The AT held that DSCs were not covered under Entry 41 as IT products, relying on the Karnataka High Court's decision in Diebold Systems (P) Ltd. v. Commissioner of CT, which emphasized the common parlance test for interpreting VAT entries.
- The Court upheld the AT's decision, stating that DSCs were not included in Entry 41 during this period.

Period 30th November 2005 to 31st December 2007:
- An amendment to Entry 41A included "digital still image video cameras" under the Central Excise Tariff heading 8525.
- The AT interpreted the entry to exclude DSCs from the main category of "transmission apparatus."
- The Court found that the addition of brackets in the entry was unintended and led to an absurd interpretation.
- The correct interpretation, without the brackets, included DSCs as IT products under Entry 41A.
- The Court held that for this period, DSCs were eligible for 4% VAT, not 12.5%.

2. Deemed Waiver of the Application for Pre-Determination:
- The Appellant filed an application on 8th August 2005 for determination of the VAT rate on DSCs.
- Under Section 84(6) of the DVAT Act, if the Commissioner fails to decide within six months, the proposed determination by the taxpayer is deemed accepted.
- The AT held that the Appellant waived the deemed determination by filing another application on 6th July 2008.
- The Court disagreed, stating that merely filing another application did not constitute a waiver.
- However, the Appellant did not satisfy condition (b) of Section 84(6), which required implementing the transaction in the manner described in the application after the Commissioner's failure to decide.
- Therefore, the Appellant could not benefit from the deemed determination provision.

3. Justification of Levy of Penalty and Interest:
Period 1st April 2005 to 7th August 2005:
- The VATO assessed a higher tax rate of 12.5% and imposed penalties and interest for the period.
- The Court upheld the determination of tax and interest but set aside the penalty, recognizing the Appellant's bona fide belief in charging 4% VAT.

Period 30th November 2005 to 31st December 2007:
- The Court set aside the demand for differential tax, interest, and penalty, as it held that DSCs were correctly taxed at 4% VAT.

Summary of Conclusions:
1. For the period 1st April 2005 to 7th August 2005, the Appellant cannot benefit from the deemed determination provision.
2. DSCs do not fall within the ambit of IT products under Entry 41 for the period 1st April 2005 to 7th August 2005.
3. The Appellant is required to pay interest but not the penalty for the period 1st April 2005 to 7th August 2005.
4. For the period 30th November 2005 to 31st December 2007, DSCs are subject to 4% VAT, not 12.5%.
5. The demand for differential tax, interest, and penalty for the period 30th November 2005 to 31st December 2007 is set aside.

Disposition:
- The appeals are disposed of with no order as to costs.