|
Advanced Search Options
VAT / Sales Tax - Case Laws
Showing 221 to 240 of 629 Records
-
2020 (8) TMI 341
Principles of Natural Justice - it is contended that the order is contrary to binding precedent of the superior officer in the Petitioner’s own case for the earlier Assessment Years 2013-14 and 2014-15 - transactions of sale of nickel-cobalt by the Petitioner either to customers within Arshiya FTWZ or to DTA units within Arshiya FTWZ of goods - HELD THAT:- The transaction of sale of nickel-cobalt by the Petitioner either to customers within the Arshiya FTWZ or to DTA units within the Arshiya FTWZ are under consideration for levy of VAT for all the three assessment years, 2013-14, 2014-15 and 2015-16. The Appellate Orders for Assessment Years 201314 and 2014-15, subject matter of review by the higher authorities, have neither been stayed nor modified.
Whether or not, this is a sale in the course of import, is not an issue we would like to go into at this stage, nor are we making any observations on the merits of this case. We are also not commenting on the allegations/ counter allegations with respect to the appeal sought to be filed or on the issue of pre-deposit or, for that matter, whether the view taken by the Appellate Authority for Assessment Years 2013-14 and 201415 was right. It is sufficient for us to observe that the two sets of facts i.e. facts of the present case and facts in the case of Assessment Years 2013-14 and 2014-15, are apparently identical and once there is a finding on identical transactions given by the Appellate Authority in respect of two Assessment Years in the case of an Assessee, unless that is set aside or the order is suspended by a competent court or authority, Respondent No.3 Adjudicating Authority was bound to follow the orders of the Appellate Authority for Assessment Years 2013-14 and 2014-15 for the Assessment Year 2015-2016.
The Impugned Order consisting of Assessment order dated 20th March, 2020 and the notice of demand and remand the proceedings back to Respondent No.3 Deputy Commissioner of State Tax, for denovo consideration in accordance with law and after hearing the Petitioner and considering its submissions and passing a speaking order in line with the aforesaid observations and keeping in mind the principles of judicial discipline and binding precedent that require subordinate authorities to follow the orders of the higher appellate authorities - Petition allowed.
-
2020 (8) TMI 339
Levy of tax at the rate of 12.5% on the entire taxable turn over - reversal of the Input Tax Credit - benefit of presumptive tax scheme - petitioner is eligible for the assessment under Section 3 (4) (b) of the Tamil Nadu Value Added Tax Act - HELD THAT:- The amendment to Section 3(4) of the TNVAT Act would have to be applied retrospectively - The revised assessment order giving a prospective effect to Section 3 (4) b from 01.04.2012, may not be correct. Accordingly, the proceedings itself requires to be reconsidered by the respondent.
The impugned order of the respondent is hereby set aside and the matter is remanded back to the respondent for fresh consideration - Petition allowed by way of remand.
-
2020 (8) TMI 291
Maintainability of appeal - Failure to make pre-deposit - HELD THAT:- The requisite amount to be paid towards the pre-deposit is to the tune of ₹ 4,36,28,894/- being 20% of the assessed liability. We are informed that the department has been able to recover more than ₹ 1.00 crore in this regard. The learned counsel appearing for the writ applicant makes a statement that his client would deposit an additional amount of ₹ 60,00,000/- within a period of two weeks from today.
The appellate orders dated 3-7-2020 passed by the respondent No.2 are hereby quashed and set aside and the appeals are restored to their original files on the condition that the writ applicant shall deposit an amount of ₹ 60.00 lakhs with the respondent No.2 within a period of two weeks from today - Application allowed.
-
2020 (8) TMI 290
Levy of Luxury Tax - houseboat at Kottayam taken on lease and is registered - time limitation - tax had been paid for the houseboat at Kottayam - HELD THAT:- It is to be noted that permission to pay tax as per Exhibit P2 was issued on 1.6.2011 and Exhibit P1 lease agreement is dated 6.6.2011. Since a doubt had arisen as to whether the houseboat registered in the name of the petitioner's husband at Kottayam and the houseboat of the petitioner, which is the subject matter of proceedings under Exhibit P3 are different, the learned counsel for the petitioner was required to produce evidence that the very same houseboat was registered at Kottayam - the contention is liable to be rejected, since Exhibit P1 can only be a self serving document, created with the intention of misleading the authorities and this Court.
Time Limitation - HELD THAT:- As rightly contended by the learned Senior Government Pleader, the bar of limitation would apply only if the petitioner is an assessee registered in accordance with the provisions of the Act. Having clandestinely operated the houseboat without registration to avoid payment of tax, the petitioner cannot wriggle out of the tax liability by raising the plea of limitation.
The conduct of the petitioner in having attempted to mislead this Court on the strength of Exhibit P1 agreement is deprecated in the strongest terms. The petitioner is absolved from payment of cost only because of the forthright submissions made by the learned counsel for the petitioner - Petition dismissed.
-
2020 (8) TMI 289
Validity of assessment order - deemed assessment - principles of natural justice - time limitation - HELD THAT:- Respondent would defend the impugned order stating that the present impugned proceedings had been initiated only pursuant to the order of this Court and would thus survive, particularly since, according to her, there had been no challenge on the aspect of limitation at the first instance. The second limb of the submission is factually incorrect, where the petitioner has specifically raised the bar of limitation - Fairly, she does not dispute the legal position that in terms of Section 9(2) of the CST Act, the provisions of TNVAT Act would apply in matter of assessments relating to CST as well.
Thus, 'assessment' in Section 9(2) includes reference to a deemed assessment and the timelines set out for the bar of limitation under TNVAT Act would apply with equal force in matters of CST.
Petition allowed.
-
2020 (8) TMI 223
Best Judgement Assessment - incomplete or defective form-H - levy of penalty - reversal of input tax credit - levy of tax on certain export and pre-export sales - HELD THAT:- When the first respondent had chosen to assess the petitioner to the best of Judgment under Section 27(1) of the Act, there is a duty cast on them to indicate the proposal to the assessee in the show cause notices. It is not in dispute that such proposals were not made in the prior notices. As such, the consequent impugned order itself cannot be sustained - Furthermore, when the first respondent was of the view that the Form-H submitted by the petitioner was incomplete or defective in nature, in all fairness, the first respondent ought to have returned the same to the petitioner for rectification instead of rejecting the same.
The matter is remanded back to the first respondent for passing fresh orders, after giving due opportunity to the assessee - Petition allowed by way of remand.
-
2020 (8) TMI 222
Refund of tax collected from the seller of diesel and deposited with the respondent-authorities, in the absence of C-Forms - Non-issuance of C-forms - purchase of diesel at concessional rate - CST Act, 1956 - denial to issue forms on the ground that after introduction of the GST regime, the registration certificates of the dealers such as the writ applicant, automatically stood cancelled and they were not eligible for making purchases of diesel against C form declarations - HELD THAT:- The issue raised in the present litigation is squarely covered by a decision of a Coordinate Bench of this Court in the case of J.K. CEMENT LTD. VERSUS STATE OF GUJARAT [2020 (3) TMI 140 - GUJARAT HIGH COURT] where it was held that in the absence of ‘C’ forms having been issued by the Rajasthan authorities, the respondent authorities have collected excess tax from the seller-Reliance Industries Limited, who in turn has collected the same from the petitioners. Once the Rajasthan authorities issue C forms against the sales made by Reliance Industries Limited to the petitioners and the petitioners produce the requisite documents/forms before the respondent authorities, the respondent authorities are required to process such claim within twelve weeks of the same being made in writing by the petitioners.
The respondents are directed to forthwith process the refund claim of the writ applicant and grant the refund of the tax amount collected from the writ applicant and deposited by the seller in accordance with law within a period of twelve weeks of the receipt of a copy of this judgment - Application allowed.
-
2020 (8) TMI 221
Validity of Assessment Order - concessional rate of tax - export sales in the course of import (High-Sea Sales) - allegation that the transactions were not supported by any documentary evidence - Section 5(2) of the Central Sales Tax Act, 1956 - HELD THAT:- It was the duty of the 1st respondent to refer to the documents submitted by the petitioner along with its replies dt.06.07.2019 and 09.07.2019 (Exs.P.2 and P.3) and the failure of the 1st respondent to do so before passing of the impugned order vitiates the said impugned order.
The impugned Assessment Order passed by the 1st respondent under the Central Sales Tax with reference to the period April, 2015 to March, 2016 is set aside - the matter is remitted to the 1st respondent for fresh consideration - petition allowed by way of remand.
-
2020 (8) TMI 220
Classification of goods - inter-State sales on rexin cloth, Tarpauline cloth and PVC cloth - whether classified under Section 8(2) of the Central Sales Tax Act read with Entry-86 in the IV Schedule of the Telangana VAT, 2005 or classified as “cotton connected fabrics/ man-made fabrics” covered by G.O.Ms.No.2328?
HELD THAT:- A reading of the impugned revisional order passed by the 3rd respondent indicates that there is no reference in the said order to the request made by the petitioner on 29.03.2020 through e-mail for grant of time to attend the personal hearing for the year 2012-13. Admittedly, at that point of time, there was a lockdown declared by the Central Government and the State Government which was in force and naturally the petitioner would be disabled from attending the personal hearing before the 3rd respondent. The 3rd respondent, therefore, ought to have adjourned the matter - But, apparently, since the limitation was going to expire for making Revision by 30.03.2020, the impugned Assessment Order was passed by the 3rd respondent.
The respondent are unable to explain why the impugned revisional order passed by the 3rd respondent contains no reasons and he frankly admitted that in view of the limitation getting expired for Revision by 30.03.2020, the 3rd respondent passed the revisional order without affording a personal hearing to the petitioner though the petitioner requested for the same on 29.03.2020 through email.
The impugned revisional order passed by the 3rd respondent as well as the consequential order passed by the 5th respondent are both set aside - the matter is remanded to the 3rd respondent to pass a fresh revisional order - petition allowed by way of remand.
-
2020 (8) TMI 219
Validity of Estimation of turnover - estimation made purely on assumptions and presumptions and not on the basis of any material - HELD THAT:- There is no material available to the Assessing Officer as to any brand having been sold at a higher rate than that disclosed in the bills. What was before the Assessing Officer was only the actual invoices from which two of the highest in the respective licensed premises were picked up to compute the average for the purpose of estimation. We do not think that the Assessing Officer adopted a rational basis for making such estimation when admittedly the assessee had sold different brands which have different purchase value; as seen from the sale value disclosed in the sale invoices. The assessee sells liquor on retail, after purchasing the same from the Kerala State Beverages Corporation. The purchase value cannot be a reference to decide on the assessee's sale price since the assessee offers a premises for the customer to consume alcohol.
The estimation has been made on mere surmises and conjectures. There is absolutely no rational basis to reject the books of accounts and the estimation made has no nexus to the nature of the business and transactions carried out in the two licensed premises of the assessee - revision allowed - decided in favor of assessee.
-
2020 (8) TMI 218
Demand and computation of belated payment of tax - TNVAT Act - availability of transition of the entry tax to credit ledger - petitioner has filed a TRAN 1 Declaration under GST - HELD THAT:- Let a computation of interest under Section 42(3) of Act be furnished to the petitioner forthwith - The petitioner will either effect payment of the interest if the computation found to be in order or file its objections/response to the computation of interest furnished to it, including the request for interest on the available credit.
Petition disposed off.
-
2020 (8) TMI 180
Recovery of tax arrears from the Directors - Resignation from the post of Directors - respondent company wound up - HELD THAT:- Section 19(b) of the Tamil Nadu General Sales Tax Act as well as Section 18 of the Central Sales Tax Act makes, such of those Directors of the Company at the time of winding up, liable for the tax imposed. The said provisions would apply only if a Company had wound up and the Directors, who held the status during the time of winding up of the Company, could be held liable for the tax liability.
In the present case, all the petitioners, who held the status of a Director of the fifth respondent Company, had resigned much prior to the assessment years, when the Sales Tax arrears were due or the winding up of the Company. As such, by no stretch of imagination, can the petitioners herein be deemed to be the Directors of the fifth respondent Company at the relevant point of time, when the tax liability arose. There is absolutely no justification in the tax recovery proceedings initiated by the first respondent as to how these petitioners are otherwise liable.
A Writ of Prohibition is hereby issued, prohibiting the respondents from taking any proceedings against the petitioners herein for recovery of the sales tax arrears of M/s. Mothercare India Ltd., / fifth respondent herein - Petition allowed.
-
2020 (8) TMI 163
Refund alongwith interest - petitioner states that the respondents have not issued the refund due to the petitioner although the assessments of the petitioner up to 30th June, 2017 under Central Sales Tax Act, 1956 have been finalised.
HELD THAT:- The present writ petition is disposed of with a direction to the respondents to decide the petitioner’s refund application along-with interest within ten days in accordance with law.
Issue notice.
-
2020 (8) TMI 161
Principles of Natural Justice - violation was sought to be corrected by permitting the petitioner to approach the Assessing Officer within one week from date of receipt of a copy of that order - copy application made after a period of six months from the date passing of the order - mismatch between the turnover disclosed in the returns filed by the petitioner and those in the annexures of the selling/purchasing dealers - benefit of Circular No.3 of 2019 rejected - HELD THAT:- The learned Single Judge has opined that no opportunity was extended to the petitioner to substantiate the turnover reported by him in the revised returns to correct which, an opportunity was directed to be extended to the petitioner. Neither the petitioner nor the Department has availed of this opportunity as extended by the court, and there has been considerable delay on the part of both the parties - the impugned orders is set aside with a direction to the Assessing Officer to redo the assessments de novo and in accordance with law taking note of the revised returns filed by the petitioner under cover of letter dated 26.03.2015 and bearing in mind the directions of the Commissioner in Circular No.3 of 2019.
Petition disposed off.
-
2020 (8) TMI 160
Maintainability of appeal - refusal to exercise discretion under Article 226 for reason of efficacious alternative statutory remedies - the original penalty order issued on the basis of an inspection was set aside in a statutory revision by the 3rd respondent and remanded for fresh consideration - HELD THAT:- The 3rd respondent Commissioner would, on an appeal being filed, immediately constitute another Deputy Commissioner as the appellate authority for consideration of this particular appeal, if the very same person who passed the impugned order is now the Appellate Commissioner - The appellant would be entitled to raise that contention before the First Appellate Authority or the recovery Officer if any such recovery is attempted.
Appeal disposed off.
-
2020 (8) TMI 136
Reopening of assessment - levy of tax on turnover - tax on sale of Duty of Entitlement Pass Book (DEPB) - it was claimed that since the relevant exports have been transacted at Chennai, the transfer of DEPB credit had to be in Tamil Nadu - HELD THAT:- The object of DEPB scheme is to neutralize the incidence of customs duty of the import content of the export product. The neutralization is granted by way of grant of duty credit against the export product, thereby enabling the exporter to claim set-off of the customs duty component at the time of import. The petitioner was granted the DEPB under the provisions of the MVAT Act at Mumbai and the sale and delivery of the pass book was completed in Maharashtra - Section 2(33) of the Tamil Nadu Value Added Tax Act restricts levy of tax on sales that takes place outside the State of Tamil Nadu. The petitioner's right to claim set-off had originated by grant of the DEPB in the State of Maharashtra and delivered for sale in Maharashtra. The petitioner was also subjected to sales tax in the State of Maharashtra.
The issue with regard to respondent's right to levy tax for a sale that takes place outside the state of Tamil Nadu was the subject matter in PREMIER MARINE PRODUCTS VERSUS THE ASSISTANT COMMISSIONER (CT) (ADDITIONAL) [2020 (6) TMI 546 - MADRAS HIGH COURT], whereby this Court, had answered the issue in favour of the assessee, by holding that there being no dispute on the position that the goods in question, the DEPB, and additionally, the seller as well as the buyer were all located in Bombay at the time when the transaction in question was finalised, the turnover from the transaction is liable to tax only in Maharashtra.
The aforesaid order is self explanatory. As such, the respondent herein will not have jurisdiction to levy tax on sale of a Duty Entitlement Pass Book for a sale and delivery, which was completed in Maharastra. As such, the levy of tax itself is liable to be quashed.
Petition allowed - decided in favor of petitioner.
-
2020 (8) TMI 135
Validity of assessment order - appeal dismissed in default - benefits of the limitation as per provisions of Section 25(1) of KVAT Act - HELD THAT:- Appeals preferred against the assessment orders Exts.P1 to P3 and appeals Exts.P4 to P6 were filed have been dismissed in default vide order dated 16.03.2020 Exts.P9 to P11 - Section 55(5) of the Kerala erstwhile Act, 2003 do not specifically envisage any said provisions for appellate authority to dismiss appeal in default but said provisions as contended by the Government Pleader empowers the appellate authority to pass such an order it may deem appropriate.
Nothing prevented officer to follow principles of natural justice which are conspicuously absent from the impugned order as it reflects only of affording two opportunities - It is also matter of concern that during the period when the appeals were taken up and dismissed in default there was already a threat of Corona Virus/COVID- 19 pandemic though the lock down only began on 24.03.2020 with a lock down of one day on 22.03.2020.
Matter is remitted and ordered to be revisited at the level of first appellate authority to hear the appeals afresh in accordance with law, after affording an opportunity of hearing - appeal allowed by way of remand.
-
2020 (8) TMI 108
Constitutional validity of Section 3(1A) of the Kerala Surcharge on Taxes Act, 1957 - Levy of surcharge on sales and purchase taxes - additional levies on the “big chains” coming into the “retail sector” - HELD THAT:- It is by now a settled law that the surcharge is in the nature of tax and that being so, levy of surcharge is not only violative of Article 301, but unconstitutional, unless similar levy of surcharge is also imposed on goods manufactured or produced in the State of Kerala. Section 3(1A) does not satisfy the first limitation prescribed under Article 304(a), i.e., similar levy on dealers engaged in sale of local goods and the second limitation permitting the State to levy a tax under Article 304(a) to be not discriminatory - The levy should not create any discrimination between the goods so imported or manufactured and produced. State Government in the matter of levy of taxes cannot discriminate between the goods imported from other States and manufactured or produced within the State levying such tax.
The whole doctrine of classification is based upon the distinction and on a well known fact that the circumstances which govern one set of the persons and objects may not necessarily be the same governing the other set of persons - there is no illegality or perversity in the order of the learned single Judge to form a different opinion than the one held.
Appeal dismissed.
-
2020 (8) TMI 76
Service of notice - time limitation - Escaped assessment of tax - escaped turnover - stand of the respondent is that the surprise inspection held in the business premises of the petitioner revealed certain suppressions - Section 27 (1) (a) of the TNVAT Act, 2006 - HELD THAT:- The stand of the learned Special Government Pleader is that since the surprise inspection took place in the year 2016, this Court ought not to compute the limitation period from 30.06.2012. I am not able to agree. Even according to the respondent, the inspection took place in the year 2015; nothing stopped the respondent from taking action for assessing the escaped turnover immediately thereafter. Even if the respondent had taken action in the year 2016-2017 that would have been within the limitation period. Not having done so, the issuance of notice on 28.08.2018 after the expiry of six years limitation period, is not justifiable.
The impugned proceedings in this Writ Petition stands quashed only on the ground of limitation - Petition allowed.
-
2020 (8) TMI 42
Assessment in the name of merged company - Violation of Principles of Natural Justice - service of SCN - SCN was allegedly issued by the 1st respondent proposing to levy tax on turnover of ₹ 31,21,764/- allegedly for inter-State sales effected by MAPL, but the petitioner contends that it did not receive it - Levy of turnover tax - inter-State sales - HELD THAT:- The impugned assessment order has been passed by the 1st respondent on 23.09.2020 with respect to the assessee, MAPL. But, MAPL had been merged with the petitioner, MEPL vide order dt.03.05.2017 of the NCLT, Hyderabad w.e.f. 01.04.2015. This fact had been informed by the petitioner by e-mail dt.26.11.2019 to the 1st respondent enclosing copy of the order of the NCLT - the 1st respondent, who is the Assessing Officer of the MAPL, ought to have dropped further proceedings since the assessee was no longer in existence.
Also, there is no date of the show-cause said to have been given to MAPL mentioned in the impugned order, and the petitioner denies having received it and also the reminder notice dt.06.03.2020 mentioned in the impugned order. Thus, there is also a violation of principles of natural justice.
The turnover of MAPL, the amalgamated entity ought to be assessed in the name of the petitioner with whom it is merged. The assessment of the petitioner is admittedly alive before the 2nd respondent - the impugned Assessment Order passed by the 1st respondent in respect of MAPL is set aside - the 2nd respondent, who is the assessing authority of petitioner with whom MAPL has been merged is permitted to issue a show-cause notice to the petitioner in respect of turnover of the MAPL for the period April, 2015 to March, 2016 - petition allowed.
............
|
9911796707
