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VAT / Sales Tax - Case Laws
Showing 1 to 20 of 27514 Records
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2024 (12) TMI 4
Rejection of prayer of the petitioners for representation by their advocate - challenge to quash CR Case - Prosecution proceedings against the Partners of the Firm for evasion of Tax - HELD THAT:- From the record of proceeding, it is seen that having registered the C.R. case, a summon has already been issued to the petitioner and the petitioner had entered appearance through the learned counsel before the learned trial Court below. Though it is contended in this petition, the prayer for representation of the petitioner is disallowed, the order sheets annexed along with this petition donot disclose anything to that effect rather the order sheet reflects that the petitioner’s application for adjournment and for his absence was duly considered by the learned trial Court below by order dated 13.12.2012.
This Court has also perused the complaint filed by the authorities as recorded hereinabove, and reading of the aforesaid materials if taken on its face value discloses the offences as alleged inasmuch as this Court in exercise of its power under Section 482 of Cr.P.C. cannot go into the factual dispute and allegation as raised in the present case more particularly, when such facts are not admitted by the Taxation department.
The criminal petition stands dismissed. Interim order, if any, passed earlier stands vacated - LCR be returned back.
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2024 (11) TMI 1337
Challenge to action of the respondents in freezing his saving bank accounts with the purpose to recover the VAT dues of M/s East Bourne World Cuisine Private Limited, where the petitioner was a former director - HELD THAT:- The company has itself filed an appeal before the appellate authority, which is still pending. It is also noticed that the company is functional and the petitioner is no more a director of the said company. In the circumstances, there was no occasion for the respondent to attach the bank accounts of the petitioner for recovery of its dues as against the concerned company.
A perusal of Section 83 (3) of Companies Act also reflect that the recovery from the director of a company can only be made when such a company has been wound up. Even under the Companies Act, 1956, the provision for recovery from the director is not available at the stage prior to winding up of the company - There is also no case of allegation of mismanagement of the company and in such circumstances also, the order would have to be obtained from the concerned NCLT.
The order of attachment of the saving accounts of the petitioner and the notice dated 12.02.2021 are quashed and set aside. The petitioner is held to be entitled to receive a sum of Rs. 1 lac as penal cost for wrongful attachment of his bank accounts putting him in unnecessary financial distress. The amount of Rs. 1 lac shall be paid by the respondent authorities and deposited in his bank account within two months, failing which interest @ 18% shall also be paid, which may be recovered from the concerned delinquent officer, who has arbitrarily issued attachment order without authority.
The writ petition is allowed.
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2024 (11) TMI 1336
Rectification application to recall earlier order - error apparent in the original order or not - HELD THAT:- Mistake of law is an interpretation of law which a particular Court may hold. However, merely because a different interpretation can be taken of the provisions of law, rectification application cannot be allowed to be entertained.
There has been a gross abuse of the process of the Court in passing the order dated 24.12.2007, and the same therefore, cannot be allowed to be sustained. The same is accordingly set aside.
The VAT appeal is allowed.
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2024 (11) TMI 1277
Imposition of condition relating to 'C' form over and above what has been contained in the Notification - Whether the Notification under Section 8(5) would run in parimeteria with the rates of tax stipulated in the Schedule and whether the conditions stipulated in Section 8(4) have to be read into the Notification itself? - HELD THAT:- Reference may be made to the decision of the Jharkhand High Court in TATA MOTORS LIMITED VERSUS STATE OF JHARKHAND AND OTHERS [2012 (9) TMI 911 - JHARKHAND HIGH COURT]. In that case, the benefit of reduced rate of tax per a Notification issued under Section 8(5) of the CST Act had been refused on the ground that the parties were unregistered dealers - In that case as well, the assessee has unfortunately not brought to the notice of the Bench the judgment in the case of DEPUTY COMMISSIONER OF SALES TAX VERSUS AYSHA HOSIERY FACTORY (P.) LTD. (AND OTHER APPEALS) [1992 (1) TMI 303 - SUPREME COURT] and what has been cited are the judgements STATE OF RAJASTHAN AND ANOTHER VERSUS SARVOTAM VEGETABLES PRODUCTS (AND OTHER APPEALS) [1996 (4) TMI 405 - SUPREME COURT] and several other judgments. However, and fortuitously for the assessee in that case, the High Court has been persuaded to make distinction between the applicability of a Section 8(5) Notification in the case of a transaction under Section 8(1) of the CST Act vis-a-vis a transaction under Section 8(2) of the CST Act.
In the former, the rate of tax stipulated is qua the registered dealer, whereas in the latter, the rate of tax stipulated is qua the unregistered dealer. In our respectful opinion, this distinction is one without a difference as Section 8(5) makes no distinction between its applicability qua a situation falling either in Section 8(1) or 8(2), unless the Notification under Section 8(5) itself makes such distinction, stipulating that the reduced rate is applicable only on transactions falling either under Section 8(1) or 8(2). In the Notification in question, it is an omnibus reduction of rate and there is no denial of rate to any specific category of transaction.
The impugned order of assessment is quashed and this Writ Petition is allowed.
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2024 (11) TMI 1276
Assessment of turnover under the Tamil Nadu General Sales Tax Act, 1959 for the periods 1996-97, 1997-98, and 1999-00 - inclusion of freight charges in the sale price of cement - HELD THAT:- None of the orders of assessment conduct an examination of the nature envisaged by the AAC in remand order dated 31.08.2000. No doubt, the assessing authority has attempted a cursory comparison of the transactions pre and post 05.10.1996 in the order for the period 1996 – 97, noting that the sale price was Rs. 84,975/- for 10 tonnes of white cement vide invoices upto 5.10.96 and Rs. 85,670/- for 10 tonnes vide invoice dated 26.11.1996.
It cannot be understood how the above figures support the department’s contention that there has been suppression of freight in the second invoice dated 26.11.1996 as that figure is, in fact, higher than the sale price pre 05.10.1996. As far as 1997 – 98 is concerned, there is no question of comparison, as all the transactions have taken place post 05.10.1996. In this case, there is reference to a single invoice dated 31.3.1995 and again, it cannot be appreciated how, based on this invoice, the assessing officer comes to the conclusion of suppression.
As far as 1998 – 99 is concerned, three invoices had been examined, one dated 31.3.1995, the second, a depot transfer invoice dated 17.02.1999 and the third, an invoice dated 14.02.1999. Learned Additional Government Pleader would draw attention to the fact that the depot transfer invoice relates only to a transfer between Kottayam and Coimbatore and was for a sum of Rs. 74,644/-. This price would, admittedly, not include a component of freight.
The object of Section 12A of the TNGST Act is to bring to tax turnover that, according to the authority, has been supressed by reduction of sale price in the accounts of an assessee. The suppression, in this case, is said to be the freight. An important factor in this matter is that the books of the petitioner have not been rejected and the assessments are based on the books. The admitted position is that the books reflect the component of freight charges and the cost of cement.
The impugned orders are set aside - these writ petitions are allowed.
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2024 (11) TMI 1076
Imposition of penalty u/s 22(5) of the TNVAT Act, 2006 - petitioner would submit that the petitioner has paid the tax immediately after the inspection for the assessment years and therefore, there was no question of any best judgment assessment involved in the present case - HELD THAT:- The petitioner cannot escape from the penal consequence under Section 22(5) of the TNVAT Act, 2006 merely because the tax was paid after inspection and before the assessment order dated 29.12.2017 was passed under Section 22(5) of the TNVAT Act, 2006. The question of filing a revised return on 31.07.2016 was also not available in view of the Rule 7(9) of the TNVAT Rules, 2007.
As per Rule 7(9) of the TNVAT Rules, 2007, only if a return was filed and the dealer finds any omission or error, he can file a revised return rectifying the omission or error within a period of six months from the last day of the relevant period to which the return relates. Revised return cannot be filed if the tax payable is unearthed on account of an inspection or audit or receipt of any other information or evidence by the assessing authority.
The question of self assessment on the so called return filed on 31.07.2016 cannot be countenanced. The provision of Section 22(5) of the TNVAT Act, 2006 is clear. The authorities have no discretion to either drop penalty where tax has been evaded. Even if no best judgment has been made, the tax payable by the petitioner after evasion was noticed during inspection has been admitted. The fact remains that the tax was not paid in time and tax has been paid pursuant to the inspection on 15.07.2016. The return that was purportedly filed on 31.07.2016 is not a return recognized under the provisions of TNVAT Rules, 2007. It was not return in the eye of law.
The decision rendered by the Hon'ble Supreme Court in the context of Section 16 of TNGST Act, 1959 which was followed by the Division Bench of this Court in Ram Sun Fabi Techs Case [2008 (11) TMI 645 - MADRAS HIGH COURT] cannot be applied to the facts of these cases as the provisions are different.
These Tax Case Revisions are dismissed.
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2024 (11) TMI 1039
Levy of purchase tax under Section 7-A of the Tamil Nadu General Sales Tax Act, 1959 during the Assessment Year 1994-1995 - defective parts that were collected from the customers by providing maintenance services to the customers / clients on behalf of the head office - HELD THAT:- A reading of sub-section (1) to Section 7-A of the Act makes it clear that the question of subjecting the respondent to purchase tax would arise only if there was a purchase of defective spare parts by the respondent from the customers / clients, question of involving Section 7-A of the TNGST Act, 1959 will apply.
In the present case, it cannot be said that the respondent was purchasing the defective spare parts from the customers / clients. All that, the respondent did was to replace the old defective parts with the new parts and gave a discounts on the replaced new parts to the customers.
Since there was no purchase of defective parts, question of levying purchase tax at the rate mentioned in Section 3 or Section 4 of TNGST Act, 1959 under Section 7-A of TNGST Act, 1959 does not arise - there are no merit in the challenge to the impugned order of the Tribunal - tax case dismissed.
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2024 (11) TMI 981
Allowing the claim of second sale exemption contrary to established facts that the so-called sellers were either non-existent or had not handled the goods - Deletion of consequential penalty under Section 12(5)(iii).
Whether the Tribunal was legally right in allowing the claim of second sale exemption despite the sellers being non-existent or not having handled the goods? - HELD THAT:- When the burden was on the dealer to prove the factum of second sale, the respondent had not discharged the burden of proving the actual first sale, for him to successfully claim the exemption on the ground of second sale. The Tribunal had erroneously shifted the burden from the dealer to the revenue, which is against Section 10 of the Act and had come to the conclusion that the revenue had not established by proving that the purchase of the respondent was a first sale.
Similar issue in M/S. MKR CASHEW EXPORTS VERSUS THE SECRETARY, TAMILNADU SALES TAX APPELLATE TRIBUNAL (MB) , CHENNAI, THE DEPUTY COMMERCIAL TAX OFFICER, PANRUTI (RURAL). [2024 (8) TMI 1485 - MADRAS HIGH COURT] where the dealer was not able to prove the factum of first sale to claim the exemption on the ground of second sale, as the burden of proof was on the assessee to prove the transaction.
Further, in A.S.Ganapathy Chettiar Vs. The State of Tamil Nadu [1976 (3) TMI 209 - MADRAS HIGH COURT], relied on by the learned Government Advocate for the appellant, the Division Bench of this Court has held that the burden of proving that there was an earlier taxable sale was on the assessee.
In view of the above decisions and the fact that the respondent dealer had failed to prove the transaction of the factum of first sale, the first question of law is answered in favour of the revenue and against the assessee.
Whether the deletion of the consequential penalty under Section 12(5)(iii) by the Tribunal is legally tenable? - HELD THAT:- In the instant case, the respondent had put forth a claim of second sales and further they submitted the documents, which on enquiry were found to be bogus and fictitious and the respondent had made no attempts to produce the documents through dealers before the authorities for confirmation of the alleged first sale. In view of our findings arrived at question No.1, the respondent, who is liable to pay tax had not filed any return for the assessment year 1982-83 and have wilfully suppressed taxable turnover and therefore, the Assessing Officer had rightly imposed the penalty under Section 12(5)(iii) of the Act - the decision of the Tribunal in deleting the penalty imposed by the Assessing Officer under Section 12(5)(iii) of the Act cannot be sustained. Under such circumstances, the second question of law is also answered in favour of the revenue and against the assessee.
The impugned order of the Tribunal is set aside and the assessment order as confirmed by the appellate authority stands restored - this Tax Case stands allowed.
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2024 (11) TMI 711
Challenge to order of the Sales Tax Appellate Tribunal (STAT/Tribunal) - rate of tax - quantification of penalty under Section 23 of TNGST Act - HELD THAT:- On the quantification itself, it is seen that it is an admitted position that the Circular is clarificatory and retrospective in nature. Thus, though it is dated 05.01.200,1 it would apply to all pending assessments, including the present assessment relating to the period 1998-99. The reason for issuance of the Circular appears to an incorrect thinking on the part of the assessing officers that the penalty under Section 23 of the Act must mandatorily of 150% only.
What the Commissioner has sought to clarify that the provision allows for discretion to be exercised by the assessing officer under Section 23 to levy penalty of a sum 'not exceeding one and a half times the tax payable'. Hence, the authorities may impose penalty at any rate upto amount from one to 150%. Despite the officer used to as a matter of rote and mechanically levy penalty only 150%.
The admitted position is that the levy of penalty is attracted qua the present proceedings. However, the officer has erred in not examining as to the quantification of the same and has proceed to automaticaly impose penalty at the rate of 150%. Hence, the matter stands remanded to the file of the assessing authority to determine only the quantification of penalty.
Petition allowed in part.
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2024 (11) TMI 662
Dismissal of appeal for want of compliance of pre-deposit order passed by it without considering the merits of the assessee’s case on the issue of pre-deposit - failure to appreciate that in view of the approval of input tax credit by the First Appellate Authority the entire tax demand become otiose - insistence for further payment towards pre-deposit and grant of any stay against recovery - HELD THAT:- It appears that the Tribunal ought to have taken into consideration the appellate order whereby, the brought forward towards Input Tax Credit of Rs. 1,12,01,251/- was permitted for the period under consideration i.e. 2014-15 and the appellant ought to have been directed to block such credit of Rs. 18,00,000/- out the said brought forward Input Tax Credit for consideration of the appeals on merits.
The appellant shall file an undertaking on affidavit before the Tribunal that the appellant shall not utilize the block Input Tax Credit amounting to Rs. 18,00,000/- from the input tax amounting to Rs. 1,12,01,251/- duly carried forward from Financial Year 2013-14 to 2014-15 which is available for utilization and shall not utilize such credit amount till the time the appeal is decided by the Tribunal - Upon filing such undertaking by the appellant before the Tribunal, the Tribunal shall hear the Second Appeal No. 813/2019 on merits.
In view of the disposal of the appeal, Civil Application as well Special Civil Application would not survive and the same are accordingly disposed of.
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2024 (11) TMI 606
Levy of luxury tax under Kerala Building Tax Act, 1975 - transfer of ownership of a portion of a residential building - HELD THAT:- The petitioner has not made out any case for grant of relief. It is not disputed before me that the residential building of the petitioner as it originally stood had an area in excess of the limits specified in Section 5A of the 1975 Act, and thus it was liable to the levy of luxury tax under that provision. The building was also duly assessed to luxury tax. According to the petitioner, the petitioner has also discharged the liability towards luxury tax, and in the year 2018 he transferred/settled a portion of the building in favour of his wife, therefore, the petitioner is no longer liable to pay luxury tax. This contention of the petitioner cannot be accepted.
As rightly pointed out by the learned Senior Government Pleader, if the contention of the learned counsel for the petitioner is accepted, any person who is liable to pay luxury tax under the provisions of Section 5A of the 1975 Act could escape from the liability by transferring a portion of the building to his/her spouse or a near relative. The fact remains that the entire building continues to be in the occupation and enjoyment of the petitioner, and such a device would amount to evasion of tax as distinguished from tax planning.
The device adopted by the petitioner was not an effort at tax planning; it was clearly an attempt to evade tax.
The petitioner is not entitled to the reliefs sought in the writ petition. The writ petition fails, and it is accordingly dismissed.
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2024 (11) TMI 543
Validity of the notices issued under Sections 84 and 27(1)(a) of the Tamil Nadu Value Added Tax Act, 2006 (TNVAT Act, 2006) - time limitation for revising assessment orders - HELD THAT:- As far as the limitation is concerned, it is sufficient if a notice is issued for revising the assessment in time. This Court earlier had an occasion to deal with the case of TVL. VICTUS DYEINGS VERSUS THE ASSISTANT COMMISSIONER (ST) [2019 (8) TMI 823 - MADRAS HIGH COURT] in the context of Section 27 of the TNVAT Act, 2006., wherein the dispute related to the Assessment Years 2007-08 to 2010-2011 respectively - As per proviso to Section 22(2) of the TNVAT Act, 2006 , the assessment years were deemed to have been completed on 30.06.2012. Thus, any proceedings to revise the assessment which is deemed to have been completed under proviso to Section 22(2) of the TNVAT Act, 2006 had to be completed within six years for the deemed assessment under Section 27 of the TNVAT Act, 2006.
It is a well settled principle of law that mere mentioning of a wrong provision or non-mentioning of a provision would not invalidate an order, if the court and/or statutory authority had the requisite jurisdiction therefor.
The notices that were issued on 23.07.2014 were also notices issued under Section 27(1)(a) of the TN VAT, Act, 2006. There was only a typographical error in the notices and they were supposed to be issued under Section 27(1)(a) of the TN VAT Act, 2006. The tenor of the notice also make it clear that they were issued for the purpose of revision of Assessment, though Section 84 of the TN VAT Act, 2006 can be invoked only to correct errors apparent face on record - The grounds raised by the petitioner on 12.09.2014 was rejected by the Assessing Officer stating that the powers under Section 84 of the Act could not be invoked for these Assessment Years namely 2010-11 and 2012-13 which culminated in orders dated 31.07.2014.
Having concluded that the notices issued in the year 2014 dated 23.07.2014 were indeed notices under Section 27(1)(a) of the TN VAT Act, it has to be held that the the Assessments completed by the second respondent dated 04.01.2021 , 31.12.2020 and on 07.01.2021 were within the period of limitation prescribed under Section 27(1)(a) of the TN VAT Act, 2006.
These writ petitions stand dismissed.
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2024 (11) TMI 396
Condonation of delay - revisions were beyond the period of limitation - non-submission of Form – C and Form – F - HELD THAT:- It is nobody's case that the respondent has not submitted Form – C & Form – F in support of its sales. The same Form – F was got verified from the Assessing Authority by the order of the first appellate authority, but still, the first appellate authority, instead of deciding the issue, has remanded the matter. Feeling aggrieved by the said order, cross-appeals were preferred, but the Tribunal, after detailed discussion and verification of the records, recorded a finding of fact in favour of the respondent, which has not been specifically challenged in the present revisions.
Thus, no interference is called for in both the revisions. No question of law arises in the present revisions - both the revisions are dismissed.
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2024 (11) TMI 395
Interpretation of statute - Section 18 (A) (5) of the CST Act - pre-deposit for admission of appeal and stay of recovery - HELD THAT:- It is found that the Appellate Authority was examining the case on an application under Section 18 (A) (5) of the CST Act, as is apparent from the first para of the order and proceeded to frame a question of law for the purpose of admission. But while passing the order, it has made a stay of recovery, subject to condition of depositing 10% of the tax due. The language may be a little misleading, but the very purpose is of depositing 10% of the tax due, as a pre-condition for admission in stay, which is in consonance with Section 18 (A) (5) of the CST Act.
Thus, it is clear that the admission of appeal would be subject to pre-deposit of 10% of the tax, which has been directed by the VAT Appellate Tribunal. The order, therefore, does not warrant any interference.
The writ petitions are dismissed.
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2024 (11) TMI 342
Challenge to orders - Wrongful typing of prayer - no order passed by any authority - HELD THAT:- It is not in dispute that the petitioner did not deposit any tax with the authorities of Himachal Pradesh despite the fact that it had been running its buses within its territory and thus, in this manner, it deprived the State of Himachal Pradesh of its legitimate amount of tax.
Once that be so, obviously, it would be liable to pay interest, for it is more than settled that a person or authority deprived of use of money to which one is legitimately entitled to has a right to be compensated for the deprivation, which may be called interest, compensation or damages. Reference in this regard can conveniently be made to the Constitution Bench judgment of the Hon’ble Supreme Court in SECRETARY, IRRIGATION DEPARTMENT, GOVT. OF ORISSA VERSUS GC. ROY [1991 (12) TMI 268 - SUPREME COURT].
The petitioner instead of assailing the orders passed by the authorities below, which are in consonance with the law, should have in fact moved the tax authorities in Punjab for the refund of the tax or a part thereof, that according to it had been paid by inadvertence or if the tax was wrongly paid, recovered or retained, it was there that the petitioner could have concomitantly invoked the doctrine/principles of unjust enrichment, equity, justice and good conscious - Having legally ordered to be recovered, that too, strictly in consonance with the provisions of the PGT Act, any other interpretation would lead to an incongruous conclusion, as the State cannot be deprived of its due share of tax and interest on the belated payment.
There are no merit in the petition and the same is accordingly dismissed. 50% of the amount deposited in the Registry of this Court is directed to be refunded to the State on furnishing its account number and the petitioner is directed to deposit the remaining 50% of the interest liability alongwith interest as payable under Section 12-A of the PGT Act if not already deposited in the Registry of this Court within a period of one month from today - petition disposed off.
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2024 (11) TMI 341
Challenge to Assessment orders passed under Section 27 of the TNVAT Act, 2006 - allegations against the petitioner was that the petitioner had availed input tax credit under Section 19 of the TNVAT Act, 2006 on the dealers whose registrations were cancelled - HELD THAT:- Having perused the notices that preceded the impugned order and the reply of the petitioner and the impugned orders, this is a fit case for quashing the impugned order and remitting the case back to the respondent to pass a fresh order on merits after furnishing copies of the orders cancelling the registration certificate of the respective dealers. This exercise may be carried out by the respondent within a period of 30 days from the date of receipt of a copy of this order. It is for the petitioner to thereafter file a fresh/additional reply within a period of 30 days thereafter. The impugned order which stands quashed shall be treated as addendum to the Show Cause Notice dated 05.07.2016.
The entire exercise shall be completed within a period of six months from the date of receipt of a copy of this order.
Petition allowed.
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2024 (11) TMI 284
Maintainability of appeal under Delhi Value Added Tax Act, 2004 - obligation to approach the Appellate Tribunal for drawing up a ‘statement of case’ for the consideration of this Court and that the appeals which have come to be directly instituted would not be maintainable - HELD THAT:- As is evident from a reading of Section 45 of the DST Act, a person desirous of challenging an order passed by the Appellate Tribunal, was required to submit a request to that Tribunal to refer a question of law arising out of such order for the consideration of the High Court. In terms of Section 45 (2), if the Appellate Tribunal were to refuse to state the case on forming the opinion that no question of law arose, both the dealer as well as the Commissioner stood enabled to apply to the High Court against such refusal.
The hierarchy of remedies as created under the DST Act, insofar as appeals are concerned, is essentially replicated and re-enacted by the DVAT Act. Under the DVAT Act, the assessee stands accorded the remedy of preferring an appeal to the Appellate Tribunal which stands constituted. The DVAT Act further enables an aggrieved person to approach the High Court by way of an appeal in respect of every order passed by the Appellate Tribunal. The appeal to the High Court, however, is subject to the appellant establishing that the case involves a ‘substantial question of law’.
The obligation to petition the Tribunal for drawal of a statement of case cannot be construed as a liability accrued or incurred. It was merely a matter of procedure and which did not impair the right of appeal. This more so since a referral by the Tribunal to draw a statement of case was subject to review and correction.
The appeals as instituted before this Court in accordance with Section 81 of the DVAT are, consequently, held to be maintainable - let these matters be listed on 17.12.2024.
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2024 (11) TMI 283
Challenge to reassessment order - disallowance of ITC - bone of contention in the case at hand is non production of books of accounts for the assessment period of 2010-11 - appeal is dismissed solely on the score that the appeal is preferred beyond period of limitation - HELD THAT:- The original order is passed without hearing the petitioner, and is in violation of principles of natural justice. In that light, the petitioner preferring an appeal after six years cannot be pointed against him, for the reason that original order was an ex parte order.
On the sole ground that the original order passed by Assistant Commissioner was without hearing the petitioner, as it was an ex parte order, it is deemed appropriate to set aside the order and remit the matter back to the hands of the Assistant Commissioner - writ petition is allowed by way of remand.
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2024 (11) TMI 282
Levy of Entry tax - benefit of the exemption notification dated 31.03.2000 - applicability of notification dated 18.12.2010 - notification dated 31.03.2000 was superseded by the notification dated 18.12.2010 or not - HELD THAT:- Under Section 11A of the KTEG Act, 1979, the State Government is entitled to exempt “specified class of persons” or “Class of dealers” or “Goods” or “Class of goods” or “All or any goods or class of goods” from the tax payable under the KTEG Act, 1979. A perusal of the notification dated 31.03.2000 shows that exemption was granted to “dealers with effect from 01.04.2000 from payment of tax on all kinds of Wind Mills Parts and Accessories thereof”, brought into a local area for consumption, use or sale therein.
A perusal of the supply contract between the petitioner and Gamesa shows that the price quoted by Gamesa included entry tax, if any, payable. There is nothing placed on record to establish that either the petitioner or Gamesa were registered as dealer under the provisions of the Act, 1979 when the supply contract was entered between the petitioner and Gamesa - the petitioner was not entitled to the benefit of the notification dated 31.03.2000 and claim exemption. This Court by Order dated 03-07-2024 called upon the petitioner to place on record the certificate issued by the Department of Energy, Government of Karnataka, certifying that the petitioner is a renewable energy project, its date of commencement, its date of commercial generation and its eligibility for exemption from tax. Unfortunately, the petitioner has failed to produce any of the above documents.
A perusal of the clauses of the supply contract establish beyond doubt that the petitioner and Gamesa were consensus-ad-idem over the liability of payment of entry tax, in as much as they agreed that the cost of WTGs included the entry tax, if any. The petitioner has also claimed the benefit of the notification dated 18.12.2010, when it filed its reply to the notice issued by the authorities under the KVAT Act, 2003. Therefore, the petitioner cannot now contend that it was entitled to claim the benefit of notification dated 31.03.2000 and claim total exemption from payment of entry tax.
Having regard to the Renewable Energy Project of State Government and the purpose of granting exemption from payment of entry tax, the petitioner is granted three months time from the date of receipt of a copy of this order, to comply with the prescribed procedure to claim the exemption. If the petitioner fails to avail the opportunity, the respondents are at liberty to proceed to recover the tax and interest payable by the petitioner in accordance with law.
This petition lacks merit and is dismissed.
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2024 (11) TMI 199
Jurisdiction to claim outstanding dues from petitioners regarding specific land - Priority of charge under the SARFAESI Act over the State's claim - HELD THAT:- This Court in the aforesaid decision in case of PARTNERS OF SIDDHESHWAR TAX FAB & ORS. VERSUS STATE OF GUJARAT & ORS. [2024 (7) TMI 1547 - GUJARAT HIGH COURT] has held 'Thus, the charge in respect of the property in question created for sales tax dues or VAT dues is of no avail and has no efficacy in law in view of the provisions of SARFAESI Act and the RDB Act. The property in question was sold by respondent no. 6-Bank under the provisions of SARFAESI Act and the petitioners were successful purchasers and the sale certificate is issued and sale deed is also executed by which the petitioners have become absolute owners of the property and therefore considering the existing position of law, the charge created by the respondent State over the property in question in the year 2018, cannot be sustained.'
Considering the above decision and the facts of the case, it is an undisputed fact of the case that the petitioner bank had created a prior charge in the year 2011 as against the charge created by the State in the year 2018. Therefore, the petitioner-Bank will have a prior charge over the property in question which is sold in auction in favour of petitioner no. 2 and accordingly, the impugned orders dated 26.09.2018 and 07.09.2019 are hereby quashed and set aside - petition allowed.
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9911796707
