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VAT / Sales Tax - Case Laws
Showing 281 to 300 of 629 Records
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2020 (7) TMI 1
Bidding of attached Property - priority of charge over the secured assets - Section 26E of the SARFAESI Act - HELD THAT:- The writ application bringing it to the notice of the respondent No.1 i.e. the Commercial Tax Officer (4) – Ahmedabad that the subject property was a secured asset of the respondent No.2 – Bank of India under the SARFAESI Act. Being a secured asset under the provisions of the SARFAESI Act, the respondent No.2 cannot claim preference over the subject property for the purpose of recovery of the dues towards tax. It is not in dispute that the first charge was created in favour of the bank and the bank, in exercise of its powers under the SARFAESI Act, put the subject property to auction. All these developments took place way back in the year 2015. The disputed entry No.16521 came to be mutated on 24th January 2017 for showing the attachment over the subject property.
The respondents Nos.3 and 4 are directed to delete the entry No.16521 mutated and certified in the village form No.6 of village : Vejalpur. The respondents Nos.3 and 4 shall act accordingly on the certified copy of this order being produced before them by the writ applicants. For the purpose of recovery of the dues from the erstwhile owner towards VAT, it shall be open for the concerned authority to take appropriate legal steps as available in law.
Application allowed.
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2020 (6) TMI 826
Relevant date for calculation of interest - date from which, the simple interest at the rate of 8% per annum, in terms of Section 33(2) of the Goa Value Added Tax Act, 2005 (the said Act ) becomes payable, on the amount refundable under the provisions of the said Act - it was held by Bombay High Court that upon obtaining necessary sanction under Rule 30 of the said Rules beyond the period of 90 days from the date of the order of refund, or from the date of application for refund under Section 10(3) of the said Act, the Authorities cannot avoid payment of interest upon expiry of this period, on the specious plea that actual refund cannot be made without sanction under Rule 30 of the said Rules.
HELD THAT:- There are no ground to interfere with the impugned order(s) passed by the High Court. The special leave petition is, accordingly, dismissed.
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2020 (6) TMI 788
Refund claim - petitioner has repeatedly requested the respondent authorities to grant him refund as claimed - HELD THAT:- In opinion of this Court, interest of justice would be served if the authorities are directed to consider all pending applications filed by the petitioner and examine whether the petitioner is entitled to refund of the claim. Such decision shall be taken in accordance with law as expeditiously as possible within a period of four weeks from the date of receipt of the present order.
This Court has not expressed any opinion on such application filed by the petitioner and the same shall be considered by the authorities as directed by this Court on its own merits - Petition disposed off.
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2020 (6) TMI 777
Validity of Garnishee Order - CIRP proceedings are ongoing - failure to deposit taxes by Banks for the period from 2011-12 & 2012-13 - direction to Banks to pay into Government's treasury, on account of tax / penalty due under the JVAT Act - resolution plan approved.
HELD THAT:- Applications seeking exemption from filing Official Translation and Certified Copy of the impugned order are allowed.
Issue notice.
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2020 (6) TMI 717
Review of Suspension Order - HELD THAT:- The Supreme Court in the matter of U.P. RAJYA KRISHI UTPADAN MANDI PARISHAD VERSUS SANJIV RAJAN [1993 (3) TMI 364 - SUPREME COURT] has held that the order of suspension should not ordinarily be interfered with unless it has been passed mala-fide and without there being even a prima facie evidence connecting the delinquent with the misconduct in question.
In the matter of UNION OF INDIA (UOI) AND ORS. VERSUS ASHOK KUMAR AGGARWAL [2013 (11) TMI 1767 - SUPREME COURT], Hon’ble Supreme Court considering the scope of judicial review in interference of the suspension order has held that it is not ordinarily open to Court to interfere with the suspension order as it is within exclusive domain of competent authority who can review its suspension order and revoke it. Making the scope of interference clear it has been held that where charges are baseless, mala-fide or vindictive and are framed only to keep delinquent employee out of the job, a case for judicial review is made out.
A perusal of the charge sheet reveals that there are as many as three charges and only one charge relates to the death of four persons due to the poisonous liquor consumption. Other two charges relate to the other dereliction of duties by the Respondent No. 4. Learned Single Judge appears to have lost sight of the said charge sheet while passing the order under challenge and observing that no departmental enquiry was contemplated against the writ petitioner.
If the Respondent No. 4 is entitled to continue at the same place where he was posted at the time of passing the suspension order and committing the alleged misconduct? - HELD THAT:- Permitting a delinquent employee to continue at the same place where the Departmental enquiry is held and misconduct is committed, may not be in the interest of the administration or in public interest, therefore, even if the employee concerned is not placed under suspension, then ordinarily it is in the public interest and interest of the administration and also in the interest of fair and transparent enquiry that the employee concerned is transferred from that place. Even otherwise it lies exclusively within the domain of the administration to decide as per the administrative exigency to post or transfer a particular person at a particular place - the direction of the learned Single Judge to post the Respondent No. 4at the same place where he was posted prior to suspension and transfer the appellant in WA 593/2020 to some other place cannot be sustained.
Whether learned Single Judge is justified in making observation on merits of the charge which is levelled against the Respondent No. 4? - HELD THAT:- The findings given by learned Single Judge on merits of the charge in favour of the Respondent No. 4 were not warranted because the finding in respect of the charge will be recorded by the enquiry officer/competent authority on conclusion of departmental enquiry, therefore, at this stage the Respondent No. 4 cannot be given a clean chit especially when the entire material is not before the court.
The writ appeals partially allowed by affirming the direction of the learned Single Judge to the extent it relates to quashing the order of suspension but we are unable to sustain the direction of the learned Single Judge permitting the delinquent Respondent No. 4 to continue at the present place of posting and to transfer or give posting to the appellant in WA No.593/2020 to some other place, hence it is set aside.
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2020 (6) TMI 685
Interpretation of Statute - Section 7-A of the Tamil Nadu General Sales Tax Act, 1959 - Levy of Purchase Tax - purchase turnover, with respect to the purchase of empty bottles from unregistered dealers under bought note - Clarifications dated 09.11.1989 and 27.12.2000 - HELD THAT:- For applicability of Section 7-A (1) of the Act, all the six ingredients need to be cumulatively satisfied. The ingredient (6) has three alternatives viz., the dealer has either (a) consumed or used the goods in question in the manufacture of other goods for sale or otherwise, or (b) has disposed of such goods in any manner other than by way of sale in the State, or (c) has despatched or carried them to a place outside the State except as a direct result of sale or purchase in the course of inter-State trade or commerce. It is not in dispute that clauses (b) or (c) of this ingredient are not attracted in this case, for the entire manufactured Beer/IMFL, after bottling, having been sold by the assessee only to the Tamil Nadu State Marketing Corporation Limited (TASMAC) within the State of Tamil Nadu.
There are no hesitation in concluding that the bottles in question have neither been consumed in manufacture of Beer/IMFL nor they could be said to have been used in such manufacture of Beer/IMFL. Hence, elements (i) and (iii) pertaining to clause (a) of sub-section (1) of Section 7-A of the Act do not exist in this case.
The purchase tax under Section 7-A of the Act is leviable on the purchase turnover of empty bottles purchased by the assessee in the course of its business of manufacture and sale of Beer and IMFL - the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars dated 09.11.1989 and 27.12.2000 which do not stand in conformity with the statutory provision as also declaration of law by the Courts.
The appeal is partly allowed by holding that the purchase turnover of the empty bottles purchased by the assessee from the unregistered dealers under bought note is exigible to purchase tax under Section 7-A of the Tamil Nadu Act; and the assessee cannot escape such liability on the strength of the Clarifications/Circulars dated 09.11.1989 and 27.12.2000.
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2020 (6) TMI 684
Principles of Natural Justice - non-service of notice but assessment order served - suppression of sales turnover on the basis of electricity consumed during the assessment year in question - case of petitioner is that the respondent before making revised assessment, has not provided reasonable opportunity to the petitioner to furnish the books of accounts maintained for the relevant year - HELD THAT:- It is also an undisputed fact that the respondent, while passing the revised assessment order, has not verified the books of accounts maintained by the petitioner for the relevant year - It is well settled that the electricity consumption cannot be adopted as the sole basis for rejecting the accounts of the assessee and for making an estimate of the taxable turnover of the assessee.
The matter is remanded back to the respondent for fresh consideration. Though it is stated that the petitioner already filed a detailed objections on 23.01.2013, it is open to them to file their objections afresh, along with the required documents viz., books of accounts maintained by them, etc., within a period of two weeks from the date of receipt of a copy of this order - Appeal allowed by way of remand.
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2020 (6) TMI 683
Levy of VAT - certain defects and estimated visible loss and invisible loss - reversal of ITC for exempted sales - HELD THAT:- Since the refund order is relating to the assessment year 2011-12, the second respondent shall decide the issue afresh, after issuing show cause notice to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objection. Such notice be issued by the second respondent within a period of four weeks from the date of receipt of a copy of this order. On receipt of such notice, the petitioner shall submit their objections along with the required documents, if any, within a period of two weeks thereafter.
The second respondent shall consider the same and pass appropriate orders, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of four weeks therefrom - Petition allowed by way of remand.
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2020 (6) TMI 682
Reversal of ITC - alleged invisible loss - validity of circular dated 20.10.2011 - HELD THAT:- Since the notice issued is relating to the assessment year 2012-13, the second respondent / Assessing Officer shall decide the issue afresh, after issuing show cause notice to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objections. Such notice be issued by the second respondent within a period of four weeks from the date of receipt of a copy of this order.
The second respondent shall consider the same and pass appropriate orders, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner, within a period of four weeks therefrom.
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2020 (6) TMI 681
Levy of VAT - 4% on the invisible loss at 5% of yarn purchase and on the sales of cutting waste and rejected export garments at 0.5% - HELD THAT:- Since the assessment orders are relating to the years 2006-07 and 2007-08, the respondent / Assessing Officer shall decide the issue afresh, after issuing show cause notices to the petitioner clearly setting out the circumstances under which they propose to revise or call upon the petitioner to reverse refund sanctioned and after receiving their objections. Such notices be issued by the respondent within a period of four weeks from the date of receipt of a copy of this order. On receipt of such notices, the petitioner shall submit their objections along with the required documents, if any, within a period of two weeks thereafter.
Petition allowed.
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2020 (6) TMI 591
Levy of VAT - Inter-state Branch Transfer - petitioner contends that there is no element of sale involved in this transaction and the petitioner was not liable to pay any tax on it and did not report it in its CST-VI returns - HELD THAT:- The petitioner had raised substantial contentions both on law and on facts and the 1st respondent ought to have provided a personal hearing after the COVID-19 pandemic situation resolves to enable the petitioner to submit the documentary evidence regarding its defence that the turnover of ₹ 40,68,01,526/- relates to inter-State purchase of goods under inter-State branch transfer and there is no element of sale involved in it - there has been denial of opportunity to the petitioner by the 1st respondent in view of the COVID-19 pandemic and the consequent lockdown and therefore, the impugned order of Assessment dt.31.03.2020 is vitiated.
The matter is remitted back to the 1st respondent to determine afresh after affording hearing to the petitioner within two (2) months - Petition allowed by way of remand.
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2020 (6) TMI 590
Violation of Principles of Natural Justice - petitioner was denied a fair opportunity of being heard even on merits - baseless presumption that petitioner had effected sale of its assets to ‘MHPL’ at Book Value and that there is no sale as a ‘going concern’ - HELD THAT:- It is not in dispute that the 1st respondent issued show-cause notice dt.12.02.2020 proposing to levy additional VAT of ₹ 82,04,233/- for the periods 2014-15 to 2017-18 (up to June, 2017) and gave a mere seven (07) days’ time to the petitioner to file a reply - In such a short time, it is not possible for the petitioner to file all the documentary evidence and also file a detailed reply covering a period of more than five (05) years. It is not in dispute that petitioner filed a letter dt.20.02.2020 seeking additional time of two (02) months to file objections to gather the various tax invoices from 2014-15 and also to seek legal advice in the matter.
There is no material filed by the respondents to show that the endorsement allegedly made on 28.02.2020 by him (which is referred to in the impugned order) was, in fact, served on the petitioner at all - the time granted to the petitioner was too short and there has been a clear violation of principles of natural justice and denial of fair opportunity to the petitioner of being heard.
The matter is remitted to the 1st respondent to pass a fresh order in accordance with law within three (03) months - Petition allowed by way of remand.
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2020 (6) TMI 551
Maintainability of appeal - failure to make pre-deposit as per Section 62(5) of the Punjab Value Added Tax Act, 2005 - request for waiver of pre-deposit - HELD THAT:- The petitioner had exercised the right of appeal which is subject to the condition. The mere fact that its account has been declared as Non- Performing Asset would not empower the Appellate Authority to waive off pre-deposit - The petitioner has failed to make out any case for interference under Article 226 of the Constitution of India.
Petition dismissed.
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2020 (6) TMI 550
Maintainability of Review Petition - time limitation - no sufficient ground has been given in the Application for condonation of delay - HELD THAT:- There is limitation prescribed for six months for filing the review application. Even thereafter, for more than 500 days, the review application was not filed. The issuance of notice in the remand proceedings by the Assessing Authority itself cannot be a ground for condoning the delay. The issue that the assessment was not finalised within the reasonable time is not a pure question of law but would depend upon the factual aspect of each case.
In the present case, apart from six months prescribed limitation, there is delay of 505 days, the explanation put forth is not worth acceptance.
Appeal dismissed.
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2020 (6) TMI 549
Classification of goods - Black Disinfectant Fluid (BDF) - whether covered by Entry 25 of Schedule C of HVAT Act and is therefore leviable to tax at concessional rate as Schedule C item, whereas the Entry 25 of the HVAT Act deals with specific items and BDF does not found mentioned therein - HELD THAT:- The conclusion arrived at by the Tribunal is in consonance with common parlance test. The assessee produced letter dated 7.1.2016 received from the Assistant State Drug Controller, Haryana under the Right to Information Act,2005. The letter stated that BDF is manufactured under Schedule O of the 1940 Act and falls in the category of 'drugs' defined in Section 3(b) of the said Act. The information is provided by the official of the office dealing with the said product and issuing licence under the 1940 Act for manufacture of BDF - There is no contradiction by the State to the contention that BDF is used as a disinfectant to sterilize houses, hospitals, veterinary hospitals etc. and that the product is also applied to the wounds of animals to kill maggots, worms etc. in the wounds.
The case of the appellant is that BDF be treated to be covered under the residuary entry. The contention lacks merit. Resort to residuary entry can only be made if the product is not covered under a specific Entry - BDF is covered under Entry 25 of Schedule C of the 2003 Act.
No interference is called for in the order of the Tribunal - Appeal dismissed.
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2020 (6) TMI 548
Rate of tax - classification of goods - sales of ‘sports shoes’ and ‘sports apparel’ - whether taxable under Entry 46 and Entry 52 of IV Schedule respectively, or they fall under the residuary entry falling under V Schedule? - HELD THAT:- The term ‘Footwear’ in Entry 46 of IV Schedule includes ‘sports shoes’ and the D.C.T.O.- II (Enforcement Wing) could not have held that they fall under residuary entry under V Schedule, and he ought to have held that they fall under Entry 46 of IV Schedule; and the Tribunal was right in not only relying on the certificates of the suppliers that the shoes were made of plastic but also on the Government Memo dt.17.10.2008 holding that ‘moulded plastic footwear’ described in Entry 46 also includes not only the ‘footwear’ of one moulded plastic piece but also more than one piece moulded and joined together. When the Department authorities did not make any product verification, they could not have changed the classification of the ‘sports shoes’ from Entry 46 in Schedule IV, which they had been doing for the previous ten years, to the residuary Entry in V Schedule.
Sports Apparel - HELD THAT:- The word ‘garments’ in Entry 52 of IV Schedule is of wide import and ‘sports apparel’ would fall under the said entry and the Tribunal did not commit any error in taking that view.
Revision dismissed.
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2020 (6) TMI 547
Rate of Tax - Instrument Cooling Fan - whether taxed under the heading Schedule-II(B)-3 taking it to be a part of larger equipment for communication, or under the residuary clause, taking it to be an electrical equipment - justification of the reassessment proceedings by the Revenue Authorities and the orders passed therein.
HELD THAT:- The powers which have been given to the Commissioner for opening a reassessment even beyond a period of “three years” under sub-section 4 of Section 29 of the Act, where the Commissioner can initiate reassessment proceedings on his own or when he is satisfied with the reasons recorded by the Assessing Authority. In the present case the reassessment proceeding has been initiated on the basis of the reasons recorded by the Assessing Authority. The Assessing Authority had to assign reasons under sub-section (1) of Section 29 of the Act, which is grounded on the basic foundation of “reasons to believe” - the net result would be that even if the reassessment proceedings under the VAT Act can be initiated on the basis of a “change of opinion” of the Revenue Authorities, this must first satisfy the jurisprudence foundation contained in sub-section (1) of Section 29 of the Act, which is that the Authority must have “reasons to believe”, that such an reassessment should be done. This can only be done when he gives a clear cut finding and reasons as to why reassessment is being done. If he has “reason to believe” then he can change his opinion. But reasons must come first.
There is no rebuttal of the petitioner’s claim at any level that the product which he is selling is only a part of telecommunication system and although it is a cooling fan, it cannot be used in any other way but for cooling a telecommunication system. It is hence a part of telecommunication system, though independently it may still be classified for other purposes as an “electric good” - The provision which the petitioner relies upon is Sl. No. 3 of Schedule II (B) of the Uttarakhand Value Added Tax Act, 2005, which relates to a telecommunication system and then it gives a break up of the same and finally adds “and parts thereof”. Being a part of a telecommunication system an “instrument cooling fan” has to be taxed under this clause at 4.5%.
It is a settled principle of law that if an item or entry clearly comes under one of the Schedules given in the fiscal law, where the rate of tax is to be determined, then it should not be relegated to the residuary clause. In this case the goods in question is categorically a part of telecommunication equipment and therefore it could have been charged only under entry no. 3 of Schedule II and not under the residuary clause.
Petition allowed.
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2020 (6) TMI 546
VAT on sale of Duty Entitlement Pass Book (DEPB) - Transaction took place in Tamil Nadu or Maharashtra - Ascertained goods or not - It is the petitioners' case that the asset in question constitutes specific and ascertained goods. Mr.Haribabu however, points out that the DEPB is categorised in Entry 70/Part B/ First Schedule to the Act as intangible goods along with copyright, patent and REP licence and is thus, according to him, unascertained - HELD THAT:- Explanation (V)(a)(i) provides that the sale or purchase of specified/ascertained goods shall be deemed to have taken place in the State if the goods are within the State at the time when the contract of sale or purchase is entered into. 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 sole argument of the Revenue is that the petitioner is an exporter, exporting and importing from the Tuticorin Port. Clause 4.3.4 of the Foreign Trade Policy containing the DEPB Scheme makes it clear that the passbook is issued only in regard to a specified Port, which in this case is Tuticorin. This then is the only nexus which the State of Tamil Nadu has to the transaction in question and in my considered view, is insufficient to bring the transaction to tax in Tamil Nadu.
In the present case, we are concerned with a tangible asset, insofar as the right in connection with the export has been reduced to a passbook, constituting specified goods - The categories of specific/ascertained goods and unascertained/future goods are separate and distinct from tangible and intangible goods. The assets may be tangible or intangible on the one hand, also simultaneously being specific/unascertained on the other.
Petition allowed.
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2020 (6) TMI 522
Adjustment of amount to be refunded with the dues under CST for arrears of tax for the assessment years - HELD THAT:- The present writ petition is pending for last 7 years before this court. During the interregnum the petitioner has fallen in arrears of tax for the above mentioned assessment years under the Central Sales Tax Act, 1956. Therefore, there are no reasons to grant relief to the petitioner at the stage as these appeals itself can be directed to be disposed by the Sales Tax Appellae Tribunal, Coimbatore within a period of 6 months from date of this order.
The respondent shall refund the amount forthwith after due adjustments of any tax if any that may be due from the petitioner - Petition disposed off.
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2020 (6) TMI 498
Whether the Tribunal was right in upholding the alleged stock variation merely for reason that departmental delivery notes were not issued?
HELD THAT:- The Tribunal erroneously deleted such additions made on the ground that addition would be taken care of in that made with respect to suppression. The addition made on the basis of the stock variation, to cover probable omissions and suppression is only that up to September of the assessment year; till which date the assessee had not been using departmental delivery notes. The under-valuation is insofar as the months from October to March of the assessment year.
Computing the figures from the table available in the assessment order, the total products sent on departmental delivery note had a value of ₹ 3,50,01,765/- between October and March. The sale conceded as disclosed in the list available in the assessment year is ₹ 3,21,54,750/-. The difference comes to ₹ 28,47,015/-. The addition hence could be only of ₹ 28,47,015/-. In the facts and circumstances, we do not think there need be any further addition on lower sales reported, other than the difference arrived at from the value disclosed and the sale conceded - we affirm the addition to the turnover of ₹ 4,08,81,975/- with an equal addition as also the purchase return of ₹ 65,10,575/- and the under-valuation of sale coming to ₹ 28,47,015/-.
The Assessing Officer is directed to modify the assessment order - revision allowed.
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