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VAT / Sales Tax - Case Laws
Showing 181 to 200 of 629 Records
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2020 (9) TMI 118
Power to increase the rate of tax (VAT) on Petrol and Diesel by way of Notification - grievance of the petitioner is that the amendment made under G.O.Ms.No.24 dated 27.05.2020 constitutes an excess of power insofar as the provision invoked, Section 31, only provides for the reduction of the tax rate by notification and not an increase, which is what has been done in the present case.
HELD THAT:- The rates of tax on petrol and diesel have been altered across the board and ostensibly, ‘in public interest’. The notification does not refer to or address a specific class of assesses/transactions and no conditions are imposed upon satisfaction of which the amended rate would apply. A general and omnibus alteration to the rate of tax of this nature would have to be effected only by way of amendment to the Schedule itself under Section 75 and not by issuance of a Notification under Section 31 of the PVAT Act - Though the 2017 amendment to the rate of petrol and diesel from 21.5% and 17.15% to 22.15% and 18.15% respectively was also only by way of Notification under Section 31 and was in force till the present impugned amendment, this does not per se invalidate a subsequent illegitimate and unauthorised levy.
Except for some differences in detail, the amendment of schedules in the VAT enactments extracted above, uniformly require that the notification for amendment once made, be placed before the House within the timeframes stipulated therein for deliberation and ratification. It was thus incumbent upon the respondents to have followed the proper procedure for amendment of schedules set out under Section 75 of the PVAT Act and the invocation of Section 31 in the above circumstances is contrary to law.
Impugned Notification quashed - Petition allowed.
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2020 (9) TMI 117
Exemption from payment of Sales-tax on sale of Finished Products under the Notification- S0 No.: 479 dt. 22.12.1995 and Notification-S 0 No.: 57 dt.02.03.2000 issued under the Industrial Policy, 1995 - petitioner fairly concedes that with the passage of time, present petition has become infructuous inasmuch as there is change with respect to the position of law - HELD THAT:- This issue can be agitated by the petitioner first with the appropriate authority and thereafter before the appropriate forum in accordance with law.
Petition disposed off.
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2020 (9) TMI 116
Stay of recovery of dues, pending the appeal - Principles of Natural Justice - ex-parte order - suo motu power of revision - exemption on turnover - stock transfers covered by F-Forms - HELD THAT:- In XEROX INDIA LTD. VERSUS GOVERNMENT OF AP. AND OTHERS [2007 (8) TMI 697 - ANDHRA PRADESH HIGH COURT], it was held that while deciding the application for stay, the authority was exercising quasi-judicial function, and therefore even though he was not expected to pass a judgment like a regular court, it was his bounden duty to record some reasons indicating the application of mind to the factors which are relevant for passing or refusing an order of stay in the matter of levy and collection of taxes and an order which is silent on consideration of the relevant factors is liable to be set aside.
When substantial rights of parties are involved, it is not open to the 1st respondent to (i) mention wrong facts while dealing with stay application filed by the petitioner. (ii) ignore the points urged by the petitioner for seeking stay of collection of tax and (iii) dismiss the say application without giving any valid reasons, why the petitioner is not entitled to grant stay pending appeal before the Telangana State VAT Appellate Tribunal.
Petition allowed.
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2020 (9) TMI 115
Valuation - allegation that the freight charges and pumping charges have been separately shown in the invoices without including the sale and sale price - Levy of tax and penalty - Rule 8(2) of TNVAT Rules 2006 - HELD THAT:- Hon'ble Division Bench of this Court, in a recent decision M/S. LARSEN & TOUBRO LIMITED VERSUS STATE OF TAMIL NADU REP. BY THE JOINT COMMISSIONER (CT) [2019 (1) TMI 711 - MADRAS HIGH COURT] had held that the cost of freight and delivery or cost of transportation cannot be included in the sale price, where they are separately charged and when the freight charges and pumping charges have been separately shown in the invoices without including the same in the cost of the goods, the tax cannot be levied on the same. This clarification of the Division Bench was made pursuant to the impugned orders passed in the present writ petitions, which has not been brought to the notice of the authorities.
Petition disposed off.
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2020 (9) TMI 114
Validity of assessment order - time limitation - period of limitation for making assessment expired - HELD THAT:- Lockdown on account of COVID-19 pandemic commenced in Hyderabad from 21-03-2020 and continued upto first week of July, 2020. These factors undoubtedly disabled the petitioner from filing objections to the show cause notice issued by 1st respondent for production of records and books of accounts - Therefore when the representative of the petitioner met the officials of the 1st respondent on 10-06-2020 requesting further time, the same ought to have been taken into account by 1st respondent and adequate time should have granted to the petitioner to file objections and produce records and books of account.
It is unfortunate that even the request of the petitioner through e.mail dt.01-06-2020 to the Office of the Commercial Tax Department requesting them to provide new login credentials in the VAT portal to retrieve the information uploaded by the petitioner such as monthly returns and supporting documents, was not acted upon by the respondents.
There has been a gross violation of principles of natural justice, which has caused serious prejudice to the petitioner - the matter is remitted back to the 1st respondent for fresh consideration - Petition allowed by way of remand.
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2020 (9) TMI 113
Power to condone the delay in filing of refund application - Whether the power to condone the delay in filing an application for refund under Section 13 of the Kerala Value Added Tax Act, 2003 is regulated by the prescription under Rule 47 of the Kerala Value Added Tax Rules, 2005 or only to be considered by the Deputy Commissioner under Section 20A of the Act?
HELD THAT:- Section 20A has been brought in by an amendment made to the KVAT Act with effect from 01.04.2008. Section 20A is an enabling provision, where the Deputy Commissioner has been conferred with the power to condone the delay in applications for refund under the Act and the Rules if limitation is provided. This enabling provision would be applicable only in circumstances where no other officer has been specifically conferred with the power to condone the delay in filing an application for refund. Section 13 speaks of refund being permitted 'in such manner and subject to such conditions as has been prescribed'. The prescription as found in Rule 47 specifically empowers the Assessing Officer to condone the delay in filing the statement (application) or other documents referred to in clauses (i) to (iv). When a clear prescription has been made as per the statutory provision, Section 20A has no application and in such circumstances, the Deputy Commissioner cannot usurp the powers of the Assessing Officer who has been conferred with the power to condone delay in filing applications.
Section 20A, in view of the conferment of power to condone delay, by the statutory rules, on the Assessing Officer, is inapplicable to the applications made under Section 13.
Decided in favor of assessee.
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2020 (9) TMI 48
Maintainability of petition - exemption from payment of Sales-tax on sale of Finished Products - Notification-S. O. No.478 & S.O.No. 479 both dt. 22.12.1995 - HELD THAT:- This issue can be agitated by the petitioner first with the appropriate authority and thereafter before the appropriate forum in accordance with law.
Petition disposed off.
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2020 (9) TMI 47
Validity of assessment proceedings - proceedings made on the basis of the Audit Reports/Inspection Proposals proceeded from the Enforcement Wing or from ISIC Authorities - applicability of Circular No.3 dated 18.01.2019 - HELD THAT:- The Commissioner of State Tax, Chennai had issued Circular No.3 dated 18.01.2019, empowering the Assessing Authority to deviate from the proposals, without seeking for approval from the Enforcement Wing/ISIC Authorities - the Circular has empowered the Assessing Officers to henceforth independently deal with the assessment without being influenced by the proposals of the higher officials.
In view of Circular No.3 dated 18.01.2019 issued by the Commissioner of State Tax, Chennai, the impugned proceeding in this Writ Petition, which proceeds on the basis of the proposals/reports of the Enforcement Wing/ISIC, is set aside and consequently, the matter is remanded back to the Assessing Officer - Petition allowed by way of remand.
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2020 (9) TMI 46
Issuance of “C” forms - purchase of High Speed Diesel from the suppliers in other States - Central Sales Tax Act, 1956 r/w. The Central Sales Tax (Registration and Turnover) Rules, 1957 - HELD THAT:- The Hon'ble Division Bench in the case of THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] had clearly directed the State and the Revenue Authorities not to restrict the use of “C” Forms for their inter-State purchases of six commodities by the assessees and other registered dealers at concessional rate of tax and they are further directed to permit online downloading of such declaration in “C” Forms to such dealers. The circular letter of the Commissioner dated 31.05.2018 was quashed and the Hon'ble Division Bench also set aside the consequential notices and proceedings initiated against all the assessees throughout the State of Tamil Nadu.
Petition allowed.
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2020 (9) TMI 45
Nature of transaction - Sales or works contract - Remittal of assessment order - Rectification of error - Section 84 of the Tamil Nadu Value Added Tax Act, 2006 - HELD THAT:- Clearly what has been done is a remittal of the assessment to the file of the Assessing Officer with a direction to redo the assessment in the light of the guidelines set out by the Supreme Court in M/S. KONE ELEVATOR INDIA PVT. LTD. VERSUS STATE OF TAMIL NADU AND OTHERS [2014 (5) TMI 265 - SUPREME COURT], the contract and other documentation inter se the parties and the terms of the contracts that governed the transactions - In compliance thereof, a pre-assessment was issued to the petitioner wherein the Assessing Authority proposed to complete the assessment based on the findings of the minority judgment in M/S. KONE ELEVATOR INDIA PVT. LTD. VERSUS STATE OF TAMIL NADU AND OTHERS [2014 (5) TMI 265 - SUPREME COURT]. Since the Officer referred specifically to paragraph 140 of the judgment, the petitioner objected to the notice, pointing out that what had been referred to in the notice was the minority view and not the majority view. It is relevant to note that no evidence was produced, by way of contracts or other documentation to support the petitioners’ case that the transactions constituted works contract only.
The issue canvassed before me relates to the interpretation of the contract as well as other documents entered into inter se the petitioner and its customers which do not appear to even be part of the record of the assessing officer. It is only upon such examination that one could conclude as to whether the transaction is question would constitute a works contract or a direct sale. The Assessing Authority, in the present case, has come to the conclusion that the transaction is a sale and the sole argument advanced by learned counsel for the petitioner is that, in coming to this conclusion, what has been applied is the minority view in the Kone Elevator (India) Pvt. Ltd and not the majority view.
The only point repeatedly canvassed both before the Authorities as well as before this Court is that the judgment of the Hon’ble Supreme Court (majority view) must be applied to the transaction in issue. This cannot be accepted for the mere asking. It is for the petitioner to establish its case and produce enough factual particulars to support the conclusion that the nature of the transaction is a works contract and not a sale. This exercise has not been undertaken. In the absence of any supporting material (contracts, invoices etc.), the conclusion of the authority was that the transactions in issue cannot simply be compared to, or equated with the transaction of supply of lifts by Kone Elevators.
The petitioner may not agree with the conclusion that the Assessing Authority has arrived at. However, it is not for this Court sitting in writ jurisdiction to review the materials relating to the transactions engaged in by the petitioner and come to its own view and it is thus only appropriate that the petitioner approach the appellate authority by way of appeal.
While expressing no view whatsoever on merits, that is, whether the transactions in issue are liable to be classified as ‘works contract’ or ‘sale’, I am not of the view that this is a fit matter for interference under Article 226 of the Constitution of India and permit the petitioner to file a statutory appeal. An appeal, if filed within a period of four weeks from today, will be entertained by the first Appellate Authority without reference to any limitation, but subject to all other statutory conditions - Petition disposed off.
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2020 (9) TMI 4
Validity of assessment order - principles of natural justice - request for cross-examination of the Customs Broker as well as bank officials denied - High value imports - bank accounts of petitioner or not - rectification order - section 84 of TNVAT Act - HELD THAT:- According to the petitioner, the other banks were also visited by the Deputy Director, who had come to the same conclusion with respect to those banks as well and thereafter, the proceedings were dropped by the Income Tax Department. This assumption is drawn from the fact that nothing transpired after 2015 in this regard - This assumption does not appear to be correct in the light of the report of the Assistant Director of Income Tax Department (Investigation) dated 16.08.2017 issued after the orders of this Court.
Clearly, the proceedings before the Income Tax Department are still at large. The result of the same or any progress in that regard is unknown as the Income tax Department is not a party to the writ petitions and neither has the petitioner placed on record any other document in this regard post August 2017 - No counters have been filed by the respondents, despite sufficient opportunities having been extended to them.
This matter cannot be adjourned but to be proceeded on the basis of the facts available on record. A perusal of the impugned orders indicates that the directions of this Court in the first round of litigation have not been taken into account in proper perspective in finalizing the assessments - This Court had specifically directed that a proper enquiry be made by the Assessing Officer, which would not only include examination of all materials procured from the Customs and the Income Tax Department, but also on an independent application of mind of those materials and a proper and effective opportunity being extended to the petitioner to substantiate his repeated contention that he is unconnected with the import transactions.
The impugned assessments have not been framed in a proper manner - the impugned assessments are set aside and the Assessing Officer directed to redo the same denovo after hearing the petitioner, supplying the documents sought for by him and extending an opportunity of cross examination to him. This exercise shall be completed within a period of eight (8) weeks from date of uploading of this order.
Petition allowed.
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2020 (9) TMI 3
Levy of penalty - non-filing of returns - invocation of Section 10 of the Tamil Nadu Tax on Entry of Goods Into Local Areas Act, 2001 r/w Section 12(3) of Tamil Nadu General Sales Tax Act 1959 - Opportunity of personal hearing not provided - principles of natural justice - HELD THAT:- It is not the case of the department that the petitioner is a regular importer of these goods or that the petitioner had been trading in them. Therefore, non-filing of returns may not really mutter much in a case of this nature. It is true that there was omission on the part of the petitioner in making a declaration at the relevant point of time. But then, the fact remains that immediately after it was pointed out, the petitioner had promptly remitted the entry tax in question. The petitioner had not even challenged the stand of the respondent.
The core argument is that penalty can be levied only if non-payment of tax was willful - It is well settled that levy of penalty involves a penal element. Therefore, the element of mensrea should be recorded to be present. In this case, no such finding can be discerned in the orders impugned in the writ petitions - We are living in pandemic times. But the respondent has shown considerable speed in concluding the entire proceedings. The pre-assessment notice was issued on 12.06.2020. The reply was given on 24.06.2020. The impugned order came to be passed on 29.06.2020. Even personal hearing was not afforded to the petitioner.
Petition allowed - decided in favor of petitioner.
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2020 (8) TMI 935
Refund claim alongwith interest - non-compliance with the direction to decide the claim for aforesaid refund along with interest as early as possible practicably within a period of eight weeks - HELD THAT:- The respondent is directed to supply copies of the order dated 14th August, 2020 to the Court Masters as well as to the learned counsel for the petitioner during the course of day. The undertaking given by respondent with regard to payment to the petitioner is accepted by this Court and the respondent is held bound by the same.
The present writ petition is disposed of with liberty to the petitioner to challenge the order dated 14th August, 2020 refusing grant of interest to the petitioner, by filing appropriate proceedings in accordance with law. All rights and contentions of the parties are left open.
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2020 (8) TMI 900
Principles of natural justice - grant of opportunity of hearing, when request is received in writing from the person chargeable with tax or penalty, or where any adverse decision is contemplated against such person - Section 75(4) of the Tamil Nadu Goods and Service Tax Act 2017 - HELD THAT:- A reading of Section 75(4) of TNGST Act shows that after the explanation is received from the writ petitioners, the authority must apply their mind and if they contemplate an adverse decision, then they must provide an opportunity of hearing. Therefore, issuing a personal hearing notice even prior to the receipt of the explanation cannot be said to be compliance of the aforesaid statutory requirements. That stage would arise only after the authority prima facie considers the explanation and contemplates an adverse decision.
Since there is a clear violation of the aforesaid requirement, the orders impugned in the writ petitions stand quashed and the writ petitions are allowed. The matters are remitted to the file of the respondents to pass orders afresh in accordance with law - appeal allowed by way of remand.
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2020 (8) TMI 894
Seeking waiver of interest, penalty and the amount towards non-productions of 'C' forms - HELD THAT:- Insofar as the favourable recommendation towards waiver of the interest and penalty, the petitioner herein may not have any further grievance, since the same is under active consideration before the Waiver Committee. Hence, it would be appropriate to close these writ petitions, insofar as these two heads are concerned, with liberty to the petitioner to challenge any adverse findings made by the Waiver Committee, in this regard.
Refusal to recommend the waiver of the amount relating to non-submission of 'C' forms - HELD THAT:- The BIFR order dated 17.10.2008 in paragraph 10.(B)8 has ordered for exemption in favour of the company from all penalties, penal charges, including interest, interest on interest etc., and all other levies of such nature levied or leviable for late payments of sales tax, late filing of returns etc. As such, the department may not be justified in rejecting such a finding of the BIFR, on the ground that there is no proof to support the loss of records and thereby defy the orders of BIFR - Even assuming that such records are available, the department may not have any option except, to exempt the company for such an amount, which pertains to the non-submission of 'C' forms, in view of the orders of BIFR. In this regard, if the petitioner is granted liberty to approach the Government with a representation seeking for such a waiver, the ends of justice could be secured.
The petitioner is granted liberty to make a representation to the first respondent seeking for waiver of the amount of ₹ 80,42,027/- relating to non-submission of 'C' forms for the years 1994-95, 1995-96, 1998-99 and 2000-2001 and on receipt of such a representation, the first respondent shall consider the same and take appropriate course of action - Petition disposed off.
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2020 (8) TMI 784
Principles of natural justice - enhancement of tax - opportunity of hearing was not given to the assessee before enhancing the tax - sub-section 6 of Section 53 of the Uttarakhand Value Added Tax, 2005 - HELD THAT:- The impugned order of the tribunal does not indicate that any opportunity was given to the assessee of being heard before enhancing the tax. Hence, on this point alone and without going into the merits, it would be just and necessary if the statutory requirement of law is complied with by granting an opportunity to the assessee.
The order dated 13.09.2011 passed by learned Commercial Tax Tribunal in Second Appeal No. 76 of 2011 is set-aside only to the extent of enhancing the liability. The tribunal shall give an opportunity of hearing to the revisionist with regard to the proposal to increase the tax and thereafter pass an appropriate order, in accordance with law.
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2020 (8) TMI 783
Levy of penalty - misuse of form-C issued to the applicant-assessee - violation of Section 10A read with Section 10(b) of the Central Sales Tax Act - HELD THAT:- The show cause notice issued by the department indicated various items that did not form part of form-C. A reply was furnished by the assessee for each one of those items. It was narrated that the said items were used for the purposes of manufacturing of the goods in question. The various items that were referred to were explained by the assessee through his reply to the show cause notice.
Once the appellate authority comes to the conclusion that there was a bona fide belief of the assessee then an absolute relief should have been granted. Granting a limited relief only in relation to certain articles, in our considered view, was not appropriate. Therefore, non consideration of the request of the assessee to completely waive the penalty in our considered view is inappropriate.
The question is answered, against the revenue and in favour of the assessee.
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2020 (8) TMI 782
Levy of penalty under clause (vii) of sub-section (1) of Section 58 of the VAT ACT - Non-payment of CST - HELD THAT:- We do not find it appropriate to entertain these revisions. Even otherwise, we do take judicial notice that the pandemic that prevails in the country and the huge burden on respondent and others. We are also aware of the fact that the delayed payment made by the assessee also included the interest for the said period. Therefore, there is no financial loss that accrued to the revenue. It is only a penalty for belated payment that has been imposed.
We find no good ground to entertain these revisions. We make it clear that this is purely on the facts and law of the present case and shall not act as a precedent - Revision dismissed.
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2020 (8) TMI 781
Restoration of assessment order - levy of purchase tax - Gold Jewellery - transfer of property or not - section 7 A of the TNGST Act 1959 - HELD THAT:- The writ petition filed by the assessee dealer deserves to be allowed and the order of the learned assessing authority as well as the tribunal uphelding the levy of purchase tax under section 7-A of the Act is liable to be set aside.
There is no doubt that except in the case of purchase or sale made by unregistered dealers, in the circumstances, that on such sale, no tax is payable under section 3 or 4 of the Act, the liability of purchase tax is not attracted. Unless there is a basic contract of sale or purchase involved in the matter, mere loan, deposit, hypothecation of goods, cannot amount to sale or purchase, attracting levy of purchase tax under section 7A of the Act. From the Memorandum of Understanding or Agreements between the parties, we do not see even the use of the word 'sale' or 'purchase' in the same. On the contrary, the terms of the agreement clearly and explicitly bear out a deposit or borrowal of the gold jewellery between the parties - Neither any advance is taken by the depositors of gold jewellery, nor any price, as such, is shown to have been paid by the assessee to such depositors or relatives of such gold jewellery. Therefore, the elements of transfer of property and passing on of the consideration for the same are completely absent in the present case. Therefore the said transaction cannot amount to a sale or purchase of gold jewellery of such relatives of the assessee to him.
The provisions of Section 7A of the Act, are not at all attracted in the present case. The learned tribunal with respects, seems to have hurried in arriving at a conclusion of purchase in the present case, but, no such case of actual user of goods or no such user of the gold jewellery by the dealer, has even been noted in the present case during the year in question.
Petition allowed.
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2020 (8) TMI 780
Waiver of sales tax - validity of impugned G.O.(Ms).No.107 dated 02.08.2016 - It is the case of the petitioner that it has not collected tax for the period between 03.02.1983 and 31.01.1985, and therefore its case should be considered favourably - period between 03.02.1983 and 31.01.1985 covering the Assessment Years 1983-84 & 1984-85.
HELD THAT:- The impugned G.O. has been passed merely based on records, but without any discussion on the representation of the petitioner and the communication of the principal secretary/Commissioner of Commercial tax in G.O.Ms.No.157, Commercial Taxes and Religious Endowment Department dated 22.04.1996 - The introduction of Entry 150 pre-dated the 46th amendment to the Constitution of India pursuant to which Sub-clause (29-A) was incorporated under Article 366 to the constitution of India, w.e.f. 02.02.1983. By virtue of the aforesaid amendment, the definition on tax of sale or purchase of goods was for first time introduced in the Constitution. Sub-Clause (f) to the Clause (29-A) to Article 366 introduced a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.
The Entry 150 of the TNGST, 1959 was struck down. Later its validity was upheld by the Hon'ble Supreme Court. The Government of Tamilnadu also issued G.O.Ms.No.140 dated 11.06.1999 and granted waiver on the condition that the Hotelier/registered dealer had not collected the tax from the consumers. This was modified by the Tamil Nadu Taxation Special Tribunal. The fact that the petitioner had also been given the exemption for the between 01.02.1985 and 24.03.1989 during the period when Entry 150 was declared as ultravires, is a factor to be considered by the 1st respondent while passing orders if indeed the petitioner had not collected tax.
Since the impugned G.O has been passed without considering the submission of the petitioner, the 1st respondent is directed to consider the plea of the petitioner and to pass a fresh order after hearing the petitioner, within a period of three months from the date of receipt of a copy of this order - petition disposed off.
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