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VAT / Sales Tax - Case Laws
Showing 101 to 120 of 629 Records
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2020 (11) TMI 20
Reopening of assessment - Interest Subsidy - Submissions were made that the Tax Board came to the conclusion that the department could not exercise powers under Section 26 of the RVAT Act, 2003 as the said power was not available under the RIPS, 2003 and also came to the conclusion on merits of the dispute that the amount of ‘partial exemption received by the assessee’ was not part of ‘payable tax’ and, therefore, basis for raising the demand was also quashed - it was submitted that the entire basis for reassessment is non-existent as the assessee was rightly allowed the subsidy and the interpretation sought to be placed on the term ‘tax payable’ by including the amount of ‘partial exemption’ granted under the CST Act cannot be sustained.
HELD THAT:- The facts are not in dispute, whereby, initially under the RIPS, 2003 the orders were passed determining the amount of subsidy to the respondent assessee by orders dated 1/12/2012, 27/2/2013, 29/3/2013 and 21/6/2013 for four quarters beginning from 1/4/2011 and ending with 31/3/2012. Whereafter, a notice under Section 26 of the RVAT Act, 2003, which pertains to escaped assessment was issued on 27/5/2016 and after hearing the assessee, the Commercial Taxes Officer, Special Circle-II, Bhilwara by its order dated 22/6/2016 came to the conclusion that the assessee was allowed excess subsidy based on its interpretation of the words ‘tax payable’ in the Scheme and consequently raised the demand along with interest.
It was determined that the amount of ‘partial exemption’ granted under the CST Act was not ‘tax payable’ - It is not in dispute that the RIPS, 2003 did not contain any provision for reopening the orders passed under the Scheme or for their rectification. The only provisions which dealt with variation of the orders were for review and appeal under Clause 12, whereby, SLSC and DLSC were empowered to review their decisions and SLSC was made appellate authority and power of revision was given to the State Government under Clause 13, whereby, it could suo moto or otherwise review an order passed by the Screening Committee.
The law on the aspect is well settled that if the right of the assessing authority to reopen the assessment is barred under the law for the time being in force, no subsequent enlargement of right can revive such right in the absence of express words or necessary intendment - the apparent exercise of power by the assessing officer under Section 26 of the RVAT Act, 2003 for reopening the order passed in absence of any enabling power cannot be sustained.
Once this Court has also come to the conclusion regarding lack of jurisdiction in the assessing authority to pass the assessment order, the determination made by the Tax Board on merits, loses its significance. Therefore, in the circumstances of the case, it is left open for the petitioner department to agitate the issue, as determined by the Tax Board, in an appropriate case and to that extent, as this Court has not dealt with the aspect on merits, it would always be open for the petitioner department to raise and agitate the issue, if the occasion arises.
Revision petition dismissed.
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2020 (11) TMI 18
Rectification of Mistake - reconciliation of the Transit Pass for the Assessment Year 2014-15 - HELD THAT:- Earlier when the petitioner had challenged the proceedings of the respondent herein for the Assessment Year 2015-16 in W.P.Nos.285 and 286 of 2017, this Court, by an interim order dated 06.11.2019, had permitted the petitioner to appear before the respondent herein with the documents, pursuant to which, there was a reconciliation and the copy of the communication sent to the petitioner was produced before the learned Judge. Accordingly, this Court, by an order dated 06.12.2019, was of the view that there was substantial progress and the reconciliation exercise has resulted in reduction of tax exposure drastically and thereby remanded back the matter to the respondent for de novo consideration, after taking into account, the outcome of the reconciliation exercise.
Petition allowed by way of remand.
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2020 (10) TMI 1315
Maintainability of petition - availability of alternative remedy of appeal - condonation of delay in filing such appeal for an extended period of 30 days - Section 51 of TNVAT Act - HELD THAT:- The Petitioner was entitled to prefer appeal against that order under Section 51 of TNVAT Act, within a period of 30 days from the date of its receipt before the Appellate Authority, who has been empowered to condone delay in filing such appeal for an extended period of 30 days, if sufficient cause for not preferring appeal within that period is made out. However, the Petitioner did not prefer any such appeal before the Appellate Authority, but has instead filed this Writ Petition on 10.07.2018 challenging the order passed by the Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order.
The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority.
Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter - petition dismissed.
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2020 (10) TMI 1298
Principles of natural justice - no effective opportunity has been granted to the petitioner - HELD THAT:- The impugned order of assessment is thus bad in law insofar as no effective opportunity has been granted to the petitioner and the same is thus set aside.
Let the impugned order of assessment dated 24.01.2020 be treated as a show cause notice in response to which, the petitioner will file a preliminary reply within a period of four weeks from today without awaiting any further notice in this regard. If a reply is received from the petitioner within four (4) weeks, proceedings for assessment shall be taken up, the petitioner heard and an order of assessment be passed denovo in accordance with law.
Petition disposed off.
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2020 (10) TMI 1288
Concessional rate of tax - inter-state sales - sale of goods effected to the Lakshadweep Islands through a dealer authorized by the Lakshadweep Administration - deduction permissible on damaged goods - there is no allegation of unaccounted sale or stock difference - Section 6(1) of the KVAT Act and Rule 12C of the KVAT Rules - HELD THAT:- What is produced along with it is an Application to Export made by the dealer to the Port Officer at Calicut. The Application to Export is not a document similar to a shipping bill. It does not evidence the movement of goods from the Port at Calicut to Lakshadweep. It is at best a desire expressed by the purchasing dealer, the fulfillment of which is the essence of the concession granted. Further, it has to be noticed that though there is a recital in Form No.42 that the purchasing dealer is recognized by the Administrator, UT of Lakshadweep, there is nothing produced to evidence the same - there can be no concessional rate claimed by the revision petitioner on the facts of these years since there is no document produced which could prove the movement of goods to the Islands, as would a shipping bill - issue regarding concessional rate of tax, is answered against the assessee and in favour of the revenue.
Allowance claimed on the damaged goods - HELD THAT:- Despite the stock details having been tabulated in the Annexures produced, as the learned Government Pleader alertly points out, the claim was not substantiated with records, ledgers or books of accounts before the fact finding authorities - the fact finding authorities, including the Tribunal has recorded that nothing is produced to substantiate the claim. Even then, 50% of what was claimed was allowed presumably on realisation of the basis of such damage occasioned for reason of lumping of cement due to exposure to natural elements - the issue is not answered, for it being not a question of law.
Petition disposed off.
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2020 (10) TMI 1274
Maintainability of petition - availability of alternative remedy of appeal - levy of penalty u/s 16(2)(d) the Tamil Nadu General Sales Tax Act, 1959 - HELD THAT:- The Petitioner was entitled to prefer appeal against that order under Section 31 of TNGST Act, within a period of 30 days from the date of its receipt before the Appellate Authority, who has been empowered to condone delay in filing such appeal for an extended period of 30 days, if sufficient cause for not preferring appeal within that period is made out. However, the Petitioner did not prefer any such appeal before the Appellate Authority, but has instead filed this Writ Petition, challenging the order passed by the Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order.
The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority.
Petition dismissed.
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2020 (10) TMI 1271
Cancellation of registration of petitioner - error had occurred while filing the return online on the GST portal - HELD THAT:- Since the learned standing counsel appears on behalf of respondent, no formal issue need be issued but sufficient copies of the writ petition be furnished to the standing counsel.
Notice on respondent nos. 1 and 3 be sent by registered-post within one(1) week from today. Till the returnable date, the cancellation of registration vide order dated 31.11.2019 is stayed.
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2020 (10) TMI 1261
Offence of demanding and accepting the bribe amount - charges against the writ petitioner established beyond reasonable doubt or not - illegal gratification or not - case of the writ petitioner is a fair case for exoneration from the charges - HELD THAT:- This Court has to endorse the fact that the judiciary also is not exempted from corrupt practices. The conscious of this Court would not permit, if this Court fails to mention the increasing corrupt practices in Judiciary Department as well as in Court premises. Justice requires equal treatment of all the citizen and consistency in the justice delivery system. Corrupt practices in the judicial system can never be tolerated. It is worser than that of the corruption in public departments. Judicial remedy being the last resort to the common man, effective, efficient and impartial judicial system inconsonance with the constitutional, philosophy and ethos are to be achieved. Building confidence in the minds of the citizen on the judiciary system is the constitutional mandate. Doubts in the minds of citizen will lead to destruction of the constitutional principles. Undoubtedly, judiciary has to strengthen its vigilance wing and the prevailing vigilance system in the judiciary is insufficient to crush the corrupt practices.
The administrator must have a heart and spirit to take the issues in a right manner and attempts are to be made sincerely to develop an effective and efficient system.
The charges against the writ petitioner are proved both before the Tribunal for Disciplinary Proceedings, Tirunelveli and the finding recorded by the Tribunal are considered by the respondents in their order and as such there is no infirmity or perversity in imposing punishment on the writ petitioner - Petition dismissed.
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2020 (10) TMI 1248
Validity of revised proposition notice dated 16.03.2020 issued by respondent No.3 under Section 39(1) of Karnataka Value Added Tax, 2003 - during the pendency of the writ petition, respondent No.3-Deputy Commissioner has passed an order dated 25.09.2020 confirming the amount demanded in the impugned revised proposition notice issued at Annexure-A - HELD THAT:- The writ petition is dismissed as having become infructuous.
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2020 (10) TMI 1241
Maintainability of petition - challenge against assessment order - Petitioner was entitled to prefer appeal against that order, but the Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent - HELD THAT:- There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. In this context, it has to be recapitulated here that the Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction where it was held that It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute.
This Court does not express any view on the correctness or otherwise on the merits of the controversy involved in the matter - Petition dismissed.
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2020 (10) TMI 1235
Maintainability of appeal - Petitioner did not prefer any appeal before the Appellate Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order - Rejection of application for revision of liability of tax - HELD THAT:- The Hon'ble Supreme Court of India in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority.
Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter - petition dismissed.
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2020 (10) TMI 1233
Maintainability of appeal - Petitioner did not prefer any appeal before the Appellate Authority, but has instead filed this Petition challenging the order passed by the Respondent beyond the maximum limitation period of 60 days from the date of receipt of copy of that order - HELD THAT:- The Hon'ble Supreme Court of India in Assistant Commissioner (CT) LTU, Kakinada -vs- Glaxo Smith Kline Consumer Health Care Limited [2020 (5) TMI 149 - SUPREME COURT] has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the concerned Appellate Authority. Having regard to that legal position, it is not possible for this Court to express any view on the correctness or otherwise on the merits of the controversy involved in the matter.
The Writ Petition, which cannot be entertained, is dismissed.
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2020 (10) TMI 1227
Maintainability of petition - Petitioner did not prefer any appeal (inspite of being available) before that Revisional Authority, but has instead filed this Writ Petition challenging the order passed by the Respondent - HELD THAT:- There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute. In this context, it must be recapitulated here that the Hon'ble Supreme Court of India in ASSISTANT COLLECTOR OF CENTRAL EXCISE, CHANDAN NAGAR VERSUS DUNLOP INDIA LIMITED AND OTHER [1984 (11) TMI 63 - SUPREME COURT] has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction and held that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters.
This Court does not express any view on the correctness or otherwise on the merits of the factual controversies involved in the matter - Petition dismissed.
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2020 (10) TMI 1226
Principles of Natural Justice - non-service of impugned order - case of petitioner is that it was only when coercive recovery proceedings were initiated on 26.09.2019 that he came to be aware of the passing of the assessment order - TNVAT Act - HELD THAT:- The records were called for to ascertain the veracity or otherwise of the above submission. Compilation dated 08.09.2020 contains a copy of a statement recorded at the time of inspection dated 20.10.2014 as document No.1. This reveals that the petitioner as well as his father, J.Tezoram, were in the premises during the visit. Pre-assessment notice dated 11.06.2015 appears to have been received on the same day by an individual who has signed and affixed the seal of the petitioner entity. However it is unclear as to who the person is who has received the notice - Order of assessment dated 10.09.2015 has been returned as ‘refused’ and postal cover with the aforesaid endorsement is available. The order of assessment has been served to two different addresses, and while the first order has been returned as ‘refused’, the second has been returned as ‘left’. Both acknowledgments have been placed at pages-15 and 21 of the compilation. Service is thus complete.
In view of the petitioners’ insistence that the entity is not presently functioning, revenue was directed to make a visit of the premises and file a report. An e-mail dated 07.10.2020 from the Assistant Commissioner (ST), N.S.C. Bose Road, Assessment Circle annexing photographs of the functioning entity has been received and placed on record evidencing that the assessee/petitioner entity is carrying on the same business as before from the same address and location.
There are no justification whatsoever to entertain this writ petition as the delay between 2015 and today stands unexplained. In fact, the explanation of the petitioner in regard to the delay is found to be factually incorrect - petition dismissed.
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2020 (10) TMI 1062
Compounding of offences - penalty proceedings - Whether the Assessing Officer was justified in adopting a gross profit higher than that conceded in the returns and books and accounts on the mere ground of compounding having been made of the offence detected by the Intelligence Wing?
HELD THAT:- The Assessing Officer ought to have looked at the total number of brands sold by the assessee and the ones which are in higher demand. This would have indicated whether the 13 brands, the gross profit of which was adopted by the Intelligence officer, were the most moving brands in the Bar of the dealer. The Assessing Officer ought to have applied his mind and not adopted the findings in the penalty proceedings as conclusive.
As to the stock variation having resulted only an equal addition; the Assessing Officer could have made a further addition for the variations undetected, which were probable. Having not done that, the State cannot argue that the enhancement of gross profit is also taking into account the stock variation; which reasoning, in any event, is not available in the order of the Assessing Officer.
The question of law has to be answered in favour of the assessee and against the Department - Revision allowed.
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2020 (10) TMI 1061
Eligibility for Sales Tax Exemption - time limitation - exemptions to industrial units or reduction in tax, payable on the sale or purchase - non-submission of loan document before due dates - HELD THAT:- The pith and substance of the contention of the respondents, throughout from Exts.P12, P19, P21 and 22 had been that the petitioner did not fulfill the conditions of not having submitted an application for loan before 1.1.2000 and the land having purchased on 1.12.2001 entailing into dis-entitlement of exemption, in my view is wholly preposterous and fallacious, much less erroneous that neither the District level Committee nor the State Level Committee noticed the documents and the submissions of the petitioner, extensively.
The Hon'ble Supreme Court in a matter of similar nature Pepsico India Holdings P.Ltd. case [2009 (5) TMI 529 - SUPREME COURT], while applying the question of interpretation of the notification observed that the notification dated 3.11.1999 was issued in terms of an industrial policy; whereto exemption was to be granted for a period of seven years and it was observed that obtaining of provisional registration in respect of SSI unit was sufficient.
It is deemed appropriate to fix the time line in taking the decision, which is fixed as forty five (45) days from the date of receipt of certified copy of this judgment - petition allowed.
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2020 (10) TMI 1060
Denial of issuance of Form-‘C’ by the concerned authority - benefit of concessional rate of tax - purchase of High Speed Diesel - HELD THAT:- There is nothing to prejudice the review petitioners. This Court had only set aside the circular dated 11.10.2017, issued by the State of Jharkhand in its Commercial Taxes Department, denying the issuance of Form-'C', to the writ petitioners and as a necessary consequence thereof, held the writ petitioners entitle to refund of the tax deposited by them. Since it was brought to the notice of this Court that pursuant to the Form-‘C’ issued in obedience of the interim orders passed by this Court, provisional credit notes had also been issued to the writ petitioners by the review petitioner Oil Company, we made it clear that the provisional credit notes shall be given effect to, and in any case, if the CST has been deposited to the State Exchequer, the respective Oil Companies shall be entitled to claim the refund thereof.
There is no occasion for review of the Judgment and Order dated 28.8.2019 passed by this Court in W.P.(C) No. 6048 of 2017 and the analogous matters, rather, if the refund of the CST deposited to the State Exchequer in the State of West Bengal is refused by the State authorities of West Bengal, it is open to the writ petitioners or even to the review petitioners to approach the appropriate forum for the required relief. We only want to make it clear that so far as the State of Jharkhand is concerned, in paragraph-27 of our Judgment, we have already given the liberty even to the review petitioners to claim the refund from the authorities concerned, if the amount of CST had already been deposited by them in the State Exchequer.
Review application dismissed.
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2020 (10) TMI 1059
Benefit of exemption - use of firewood as fuel or as Raw Material - demand of additional tax against the petitioner in the assessment under Section 12(4) of the Orissa Sales Tax Act - whether exemption from taxation granted to sale of firewood can be extended to sale of firewood to be used as raw material for manufacturing of paper?
HELD THAT:- Entry of Firewood at serial no. 13B of the Schedule to the exemption notification No. 20206-CTA-14/76F dated the 23rd April, 1976 intended the such firewood to be used as fuel and not as a raw material for manufacturing of paper. Once the firewood is put to any other use than as fuel, it would not be entitled to exemption of tax. It is trite that an exemption notification has to be construed strictly. A person claiming exemption provision to relieve him of tax liability must explain clearly that he is covered by the relevant provision. Unlike ordinary taxing statute, in the event of ambiguity, an exemption clause or provision has to be construed in favour of revenue.
There are no merits in this revision petition so as to warrant any interference - revision petition dismissed.
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2020 (10) TMI 1003
Stay on Attachment of Bank Account of petitioner - taxability of Extra Neutral Alcohol (ENA) and Rectified Spirit - levy of VAT or GST? - HELD THAT:- As an interim measure that the impugned notice dated 30th September, 2020 provisionally attaching the bank account of the petitioner shall be stayed subject to petitioner furnishing bank guarantee of a nationalized bank to the extent of 50% of the differential amount i.e., the difference between the amount of GST paid and the amount of VAT quantified, to respondent No.2 within three weeks from today.
Stand over to 3rd December, 2020 for further consideration.
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2020 (10) TMI 956
Exemption from payment of entry tax - certificate granted to the petitioner under the Madhya Pradesh Udyog Nivesh Samvardhan Sahayta Yojna, 2004 and 2010 - contention of the petitioner is that the petitioner Company is engaged in the manufacturing of technical textile, chemicals, engineering, plastics packaging films, refrigerant gases at various locations in India and overseas - HELD THAT:- The respondents have carried out the reassessment only in respect of five assessment years ie., 2004-05, 2006- 07 and 2011-12 to 2012-13 and exemption has been granted only in respect of five assessment years. The respondents ought to have re-assessed the assessment years w.e.f. 2007- 08 to 2010-11 also. The petitioner has submitted more than a dozen of applications to the Commissioner for granting exemption in respect of the remaining years and the Commissioner does have the power u/S. 47 of the M. P. VAT Act.
The Commissioner is having a power of suo-moto revision also and this power could have been exercised by the Commissioner keeping in view Sec.5 of the Limitation Act. Thus, it is wrong on the part of the State Government to state that the statute does not provide for reopening of cases which are time barred even though reasonable explanation is provided - In the present case, as the exemption certificate has been granted in the year 2017 only, the petitioner was justified in immediately approaching the Authorities for grant of exemption and his request could not have been turned in the manner and method it has been done by the respondents.
The inaction on the part of the Department is bad in law. The assessment orders passed by the Department for four years ie., 2007-08, 2008-09, 2009-10 and 2010-11 deserves to be set aside and are accordingly hereby set aside.
It is nobody's case that the exemption certificate has been withdrawn or was erroneously granted and the respondent State has admitted grant of exemption certificate and, therefore, once exemption certificate was granted, the Department cannot take advantage of technicalities, especially when the certificate itself was granted in the year 2017 with retrospective effect.
The respondents are directed to confer all benefits to the petitioner in terms of the Entry Tax Exemption Certificate dated 13/7/2017 and as a consequence the impugned assessment orders for four years ie., 2007-08, 2008-09, 2009-10 and 2010-11 are set aside - Petition allowed.
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