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VAT / Sales Tax - Case Laws
Showing 241 to 260 of 629 Records
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2020 (8) TMI 28
Validity of assessment order - time limitation for completion of Best Judgement Assessment - contention is that in as much as the petitioner has a period till 31st of December, following the end of the financial year, for preferring the annual returns, the said period must also been seen as the date from which alone the respondents could proceed to complete the best judgment assessment, under Section 62 of the Act - HELD THAT:- The reference to Section 44 of the Act, in Section 62, is only for the purpose of determining the five year period within which the assessing officer has to complete the best judgment assessment. It does not mandate that the steps for completing the best judgment assessment should be initiated only after 31st December, following the end of the financial year, in which the default as regards filing of monthly returns occured. Section 62 of the Act must be seen as enabling an Assessing Officer to proceed to assess the tax liability of a person, who has not furnished the returns inter alia under Section 39, even after service of notice under Section 46, on best judgment basis, and thereafter issue the assessment order within a period of five years from the date indicated under Section 44 for furnishing of the annual returns. Hence, while the best judgment assessment can be done immediately after detection of the failure to file the returns despite service of notice, the outer time limit for completing the best judgment assessment is five years from the date specified under Section 44 of the Act.
In the instant case, it is not in dispute that the petitioner did not furnish a valid return within 30 days from the service of the assessment orders under Section 62(1) of the Act. That being the case, it would follow that the petitioner cannot obtain the benefit under Section 62(2) of the Act, for deeming the assessment orders already passed on best judgment basis as withdrawn.
The writ petition in its challenge to the assessment orders therefore fails and is dismissed.
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2020 (8) TMI 27
Refund of excess collection of tax - payment of tax at higher rate, in the absence of Form ‘C - Section 9A of the CST Act - inter-state trade and commerce - HELD THAT:- When the assessee has sold the goods on the price, which is inclusive of tax, the turnover is to be calculated as per the formula provided in Section 8A of the CST. In the facts of the case the rate of CST applicable for the goods supplied by the respondent-assessee is 4%. Therefore, 4% tax is required to be applied on the turnover as calculated under Section 8A of the CST Act. As observed above, the respondent-assessee deposited the CST at the rate of 10%/12.5% by making reverse working of the turnover under Section 8A of the CST Act. The correct amount of tax payable would be therefore, much less than what the respondent-assessee has deposited. This has resulted into the excess amount of tax deposited by the respondent-assessee amounting to Rs. ₹ 1,81,49,641/-.
Moreover, on perusal of the facts on record and as per the findings of fact given by the Tribunal, it cannot be said that that the respondent-assessee has collected the excess amount of CST from its buyer/receiver of the goods.
In the facts of the present case, the respondent-assessee cannot be said to have collected the CST at the rate of 10% or 12% from its buyers/receiver of the goods in view of the contract of fixed price, there is no question of passing over the same to its buyer in view of the aforesaid decisions of the Apex Court in the case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] - Even otherwise the provisions of the CST Act do not contemplate any power to forfeiture of refund by the Revenue.
Thus, as held by the decision of the Supreme Court in the case of KHEMKA & CO. (AGENCIES) PVT. LTD. VERSUS STATE OF MAHARASHTRA & STATE OF MYSORE VERSUS GULDAS NARASAPPA THIMMAIAH OIL MILLS [1975 (2) TMI 91 - SUPREME COURT], the provisions of Section 31 of the VAT Act enabling the Assessing Officer to forfeit the excess amount of tax deposited by the assessee cannot be applied to the provision of the CST Act.
The Appeal deserves to be dismissed and re-framed questions of law are answered in favour of the assessee and against the Revenue - Appeal dismissed.
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2020 (7) TMI 806
Validity of assessment order - Best assessment order - concessional rate of tax as per Section 3(4) of TNVAT Act - HELD THAT:- The grounds raised by the petitioner, are factually in nature and do not fall under any of the exceptions for them to over look the appellate remedy and invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. It is settled proposition of law that barring a few exceptions, this Court will not entertainn a Writ Petition on grounds touching upon the errors on the facts. The petitioner has not raised any exceptional grounds for this Court to invoke its extraordinary jurisdiction and thereby interfere with the impugned proceedings. Nevertheless, since this Court is of the view that the grounds requires consideration, it would be appropriate to grant liberty to the petitioner to challenge the impugned proceedings before the Appellate Authority.
The petitioner is granted liberty to file an appeal as against the impugned proceedings dated 13.01.2016, within 30 days from the date of receipt of a copy of this order - The Writ Petition is disposed of.
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2020 (7) TMI 797
Validity of assessment order - seeking time for filing of C-Forms in order to avail concessional rate of tax on inter-State sales - HELD THAT:- The matter is remitted back to the 1st respondent for fresh consideration; the petitioner is granted six weeks time from the date of receipt of a copy of this order to submit relevant documents and file objections to the show-cause notices.
Petition allowed by way of remand.
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2020 (7) TMI 779
Refund of certain amounts of tax deposited - seeking abatement of all other proceedings pending before different authorities in respect of certain transactions - Section 57 of the UP VAT Act - HELD THAT:- The submission that the writ would avoid multiplicity of proceedings is of no avail as all proceedings initiated against the petitioner arise from separate cause of actions and require to be considered and decided independently whereupon the petitioner may avail the statutory remedies against the orders so passed therein.
The reliance placed on certain interim orders of this Court passed in petitions of other parties is of no consequence as the challenge therein were in respect of certain notices whereas in the present case after notices, assessment order and even an order in appeal has been passed. Thus, this case is distinguishable on facts from the orders cited.
The writ petition is dismissed on the ground of alternative remedy.
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2020 (7) TMI 756
Adjustment of refund amounts due towards the amounts found payable under the Amnesty Scheme - refund under Kerala VAT Act - HELD THAT:- Although it is the specific case of the learned Government Pleader that, under the Amnesty Scheme, there is no provision for an adjustment of refund amounts towards amounts found payable by an applicant seeking the benefit of Amnesty Scheme, the adjustment in question does not in any manner offend the Amnesty Scheme or do violence to its language.
The department has not preferred any appeal against the said order so as to cast any doubt on the entitlement of the petitioner for the refund amount. In that scenario, when amounts are liable to be paid by the petitioner to the department for the purposes of getting the benefit of the Amnesty Scheme, an adjustment of the refund amounts due to the petitioner towards whatever amount is found payable by the petitioner, would not in any manner offend the terms of the Scheme because it is simply an adjustment towards the payment to be made under the Scheme.
Petition allowed.
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2020 (7) TMI 743
Continuation of proceedings after the end of the assessment year - section 29(6) of UP VAT Act - HELD THAT:- When the First Appeal was being heard and the applicant's case was that no proceeding against him could be continued as per section 29(6) of the Act, then a complete stay of the recovery ought to have been there.
Under such circumstances, it is being provided that while the First Appeal would be heard and decided within a period of four months from the date of presentation of this order, the disputed demand as was being made by the Department shall remain stayed for a period of four months or till the disposal of the First Appeal, whichever is earlier.
Revision disposed off.
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2020 (7) TMI 738
Violation of principles of natural justice - Validity of assessment order - TNVAT Act - non-production of various documents - HELD THAT:- Ms. Dhanamadhiri was directed to produce the records to establish service of notice upon the petitioner prior to completion of assessment - while confirming that she is unable to produce the records, since the assessment files are in Tiruppur, she states, on instructions, that the notices do not appear to have been sent by Registered Post/Speed Post, but only via ordinary post. She would thus fairly state that another opportunity of hearing may be extended to the petitioner to ensure adherence to the principles of natural justice.
The respondent is directed to redo the assessment and complete the same on merits and in accordance with law - Petition allowed by way of remand.
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2020 (7) TMI 676
Jurisdiction - Withholding of refund - Refund of pre-deposit amount alongwith the interest - the impugned order was passed by the Sales Tax Officer - HELD THAT:- This petition deserves to be allowed on the sole ground that the impugned order was passed by the Sales Tax Officer, who had no authority to withhold the amount under Section 39 of the VAT Act.
A plain reading of Section 39 of the VAT Act stipulates that the power is vested in the Commissioner to withhold the refund upon recording an opinion that the revenue would be adversely affected and that too after affording due opportunity to the assessee - In the present case, there is no order passed by the Commissioner recording his satisfaction and since there is no order of the Commissioner, there is no question of affording any opportunity. The Sales Tax Officer has no authority to withhold the amount under Section 39 of the VAT Act. At the best he could have referred the matter to the Commissioner for taking appropriate decision, if he was of the view that the revenue would be adversely affected. That having not been done, the order of the Sales Tax Officer dated 18.10.2019, impugned in the present petition (Annexure-A), cannot be sustained.
Normally, an opportunity would be given to the Commissioner to pass an order, but since no such power has been exercised by the Commissioner for the last 5 years, today we are not inclined to grant such liberty.
Whether appropriate direction for refund would be given or not - no appeal had been filed before the Supreme Court - HELD THAT:- As per the impugned order, till that date, no appeal had been filed before the Supreme Court. Further the petitioner had succeeded before the Tribunal in August, 2015. The Department took two years to file appeal before the High Court which was dismissed in October, 2018. Thereafter, much later the Department has simply submitted an appeal before Supreme Court on 05.03.2020 and Dairy No.9032 of 2020 was allotted and till date no further progress has been made in the said appeal. Admittedly, the Commissioner has not exercised the powers - the refund should forthwith be made to the petitioner along with admissible interest permissible under law from the date of deposit till the date of actual payment.
The impugned order passed by the respondent No.2 is hereby quashed and set aside with further direction to the respondents to refund the amount of ₹ 15 lakhs along with statutory interest within a period of two weeks from the date of production of the certified copy of this order - petition allowed.
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2020 (7) TMI 675
Principles of natural justice - service of notice - Concessional rate of tax - inter-state sales - entire turnover covered by C-Forms - rate of tax applicable under Section 8(1) of the CST Act - HELD THAT:- There has been a grave violation of principles of natural justice in as much as the personal hearing notice dt.30.03.2020 was served at 7.15 p.m. through e-mail and the impugned assessment order was passed on the very next day i.e 31.3.2020 when there was a lockdown prevalent on account of COVID-19 pandemic situation and the petitioner was disabled from availing the personal hearing offered by the 1st respondent.
The matter is remitted back to the 1st respondent for fresh consideration - Petition allowed by way of remand.
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2020 (7) TMI 674
Completion of assessment - levy of tax on gross and net turnovers - taxability under CST Act - Petitioner contended that the turnover that had been declared in the monthly VAT 200 returns were the service charges, which the petitioner received in the State of Telangana, on which the petitioner is paying service tax under the Finance Act, 1994 - HELD THAT:- When the petitioner had specifically raised a contention that the petitioner has no turnover, which is taxable under the CST Act, 1956, and what was declared by it in the monthly VAT returns is service tax, which the petitioner is receiving in the State of Telangana for allowing Telecom Operators to use the tower facilities erected by it in the State, on which the petitioner was paying service tax under the Finance Act, 1994, the 1st respondent is expected to advert to the said contentions and deal with it in the impugned assessment order. However, the 1st respondent has not done so, while passing the impugned assessment order.
The matter is remitted back to the 1st respondent to consider afresh the objections filed by the petitioner - Petition allowed by way of remand.
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2020 (7) TMI 673
Validity of Section 4(8) of the Telangana VAT Act, 2005 read with Section 2(28) Explanation (iv) - Section 65(105)(O) of the Finance Act, 1994, vires to Entry 54 of List II of the VII Schedule to Article 14 and Articles 19(1)(g) and 245 of the Constitution of India - validity of Audit Assessment Proceedings - time limitation.
HELD THAT:- The impugned assessment proceedings dt.13.03.2020 for the tax period 2013-14 to 2016-17 passed by the 1st respondent is set aside - the matter is remitted back to the 1st respondent for fresh consideration; the 1st respondent shall permit the petitioner to file additional objections to the notice dt.23.01.2020 issued by the 1st respondent, if the petitioner so desires; afford a personal hearing to the petitioner; and then the 1st respondent shall pass a reasoned order in accordance with law and communicate it to the petitioner.
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2020 (7) TMI 672
Reversal of Input Tax Credit - alleged mismatch between the particulars circulated by the petitioner and the particulars available in the selling/purchasers return of turnover - periods 2010-11 to 2015-16 - TNVAT Act - HELD THAT:- This issue had been considered by this Court in M/s. JKM Graphics Solutions Private Limited V. Commercial Tax Officer [2017 (3) TMI 536 - MADRAS HIGH COURT] and the Court had directed that a suitable central mechanism be evolved within the Department to delve into various aspects of mismatch. Pursuant thereto, a Circular was issued by the Commissioner bearing No.3 of 2019 (Q1/39643/2018 dated 18.01.2019), wherein at paragraph (c) the Commissioner directs the Authorities to keep assessments involving the issue of mismatch in abeyance, however issuing pre-assessment notices in time in order that the assessments are kept alive until such time the central mechanism is put in place.
There is no justification for the Assessing Officer in the present matters to have finalized the assessments themselves, being clearly contrary to the directive of the Commissioner. Hence, the impugned orders of assessment are set aside.
Petition allowed.
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2020 (7) TMI 671
Reversal of Input Tax Credit - levy of penalty - discounts received by the petitioner from the supplying dealers - packing materials purchased by the petitioner from local registered dealers - TNVAT Act.
Reversal of ITC on discounts received by the petitioner from the supplying dealers - HELD THAT:- Since Section 19(20) which has been invoked to deny the benefit of ITC, has itself been inserted only with effect from 19.08.2010. Though a Division Bench of this Court had initially held that the provision would operate retrospectively and impact prior assessment periods as well, the Supreme Court in the case of JJAYAM & CO. VERSUS ASSISTANT COMMISSIONER & ANR. [2016 (9) TMI 408 - SUPREME COURT] reversed the aforesaid conclusion of this Court confirming the position that Section 19(20) would operate only from the date of its insertion, prospectively, i.e., from 19th August, 2010.
Thus the provision could not have been invoked in the present case, for the period, viz. 2008-09 - The invocation of Section 19(20) in the present case is thus not in order and to this extent, the assessment is quashed. Penalty levied under Section 27(4) to this extent is also quashed.
Reversal of ITC in regard to packing materials - HELD THAT:- The petitioner has specifically challenged this reversal relying on the provisions of Section 19(2)(ii) of the Act, which permits the grant of input tax on packing materials, containers and label and other materials used for packing goods. This ground has not been referred to or adjudicated upon by the Appellate Authority and hence, the order of the first respondent is quashed and the matter remitted to the files of the Assessing Officer to be redone de novo after taking into account the submissions of the assessee, in accordance with law.
Petition disposed off.
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2020 (7) TMI 651
Concessional rate of tax - Issuance of C-Form - purchase of High Speed Diesel - inter-State purchase - HELD THAT:- The first respondent is directed to dispose of the on-line application dated 03.02.2020 and the subsequent application dated 06.02.2020 sent by registered post by the petitioner, on merits and in accordance with law and also in the light of the aforesaid decisions rendered by this Court, within a period of four weeks from the date of uploading the copy of this order in the website.
Petition disposed off.
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2020 (7) TMI 617
Rejection of application filed under the Amnesty Scheme introduced by Section 31A of the Kerala Value Added Tax Act, 2003 - rejected on the ground that there is an appeal intended by the State from the order of the first appellate authority - Circular No.2/2020 - HELD THAT:- There is no ambiguity in the provision which introduced the Amnesty Scheme. It provides for settlement of all pending tax dues and even the tax applicable, with reference to a penalty imposed where there is no best judgment assessment made or contemplated. The requirement is, filing of an application before the dates specified and the withdrawal of the appeals filed by the assessee.
There is no requirement of a specific provision requiring the State to withdraw the appeal filed, since the settlement arrived at on the basis of the statutory provision is binding on the Department. Here we emphasize sub-section (2), which contemplates cases in which revenue recovery proceedings have already been initiated; which proceedings have to be withdrawn when the matter is settled under Section 31A. That the State's appeal would be rendered infructuous on a settlement arrived at under Section 31A is an inevitable consequence on deposit of amounts determined under sub-section (7) - there is no power given to the State to reject an application and the requirement under sub-section (7); on the filing of an application, is determination of the amounts due as tax, and other amounts, and intimation for the purpose of settlement in installments not exceeding six and not travelling beyond 31.03.2020.
Circular No.2/2020, which was issued on the basis of an Amnesty Scheme introduced in the year 2020. There was a specific contemplation of cases in which appeals have been filed by the State, wherein the requirement is to make settlement on the basis of the demand raised in the original assessment order.
There are no reason to interfere with the impugned judgments of the learned Single Judge - appeal dismissed.
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2020 (7) TMI 584
Amendment in returns of second quarter - recovery of alleged tax - civil appeals pending before Supreme Court - HELD THAT:- This Court is of the view that no useful purpose would be served by keeping the petition pending. Consequently, it directs respondent no. 1 to allow the amendment sought by the petitioner in its return of 2nd Quarter for the Financial Year 2015-16 vide application dated 16th June, 2019. However, this direction shall remain suspended till the Civil Appeals pending before the Supreme Court, are decided and this direction shall abide by the decision that the Supreme Court renders.
Petition disposed off.
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2020 (7) TMI 583
Principles of Natural Justice - petitioner did not avail opportunity of personal hearing - HELD THAT:- Whether or not the petitioner availed the opportunity of personal hearing, it is the duty of the 1st respondent, as appellate authority, to deal with the contentions raised in the grounds of appeal filed by petitioner and the 1st respondent could not have rejected the appeal only on the ground that personal hearing opportunity was not availed by the petitioner.
The appeal filed by the petitioner before the 1st respondent is restored to the file of the 1st respondent.
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2020 (7) TMI 582
Principles of Natural Justice - contention urged by the learned counsel for the petitioner is that Exhibit P8 order is bad, since it was issued after the period prescribed under Section 25(1) of the KVAT Act - HELD THAT:- As per Section 25(1) of the KVAT Act, the assessing authority can, within five years from the last date of the year to which the return relates, proceed to determine, to the best of its judgment the turnover which has escaped assessment to tax or has been underassessed - In the instant case, the petitioner has not disputed the fact that the assessee was issued with Exhibit P4 notice dated 21.11.2011, which was well within the period prescribed under Section 25(1). The assessing officer having thus proceeded to determine the tax which had escaped assessment, the challenge against Exhibit P8 assessment order on the premise that it was passed after the five year period stipulated in Section 25(1) cannot be countenanced.
There is no reason for this Court to interfere with Exhibit P8 order, particularly since the petitioner has approached this Court without exhausting the statutory remedies - petition dismissed.
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2020 (7) TMI 553
Principles of natural justice - service of assessment order - contention of the petitioner is to the effect that no orders of assessment have been passed and hence the demands are non-est and invalid - HELD THAT:- Though the orders of assessment appear to have been dispatched, they have been returned and hence have not been served upon the assessee. Learned counsel for the petitioner confirms that copies of the orders of assessment have been received by him now and the same will be duly handed over to the petitioner as well.
In the light of the position that the orders of assessment giving rise to the impugned demands admittedly have not been served upon the petitioner, the impugned recovery notice has no legs to stand and is hence quashed. The interim stay of recovery granted on 15.07.2020 will continue for a period of four (4) weeks from today to enable the petitioner to take such action as it may be inclined as against the orders of assessment.
Petition disposed off.
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