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VAT / Sales Tax - Case Laws
Showing 381 to 400 of 629 Records
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2020 (4) TMI 336
Maintainability of appeal - appeal was dismissed on the ground of time limitation - contention raised before this Court is that the Assessee was not served with the impugned assessment order in time and he applied for a certified copy and upon receipt of the same, he filed the appeal - HELD THAT:- The learned Appellate Authorities ought to have decided the appeal on merits. Appeal is a valuable statutory right of the Assessee and the power of the Appellate Authority are co-extensive with that of the Assessing Authority and being fact finding authorities, the Appellate Authorities should not have shirked their responsibilities and decided the case on merits.
The present writ petition is allowed by setting aside the impugned orders passed by the Authorities below and restore the matter to the First Appellate Authority to decide the appeal afresh in accordance with law, after affording reasonable opportunity to both the parties, within a period of six months from today - petition allowed by way of remand.
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2020 (4) TMI 307
Ex-parte order passed by the Special Committee rejecting the application since the application was filed beyond the period of limitation of 3 years - Return of seized goods or in the alternative furnish xerox copies of the records seized - manufacture and sale of Poultry feed which was exempted in terms of Entry No.57 of Part B of the Third Schedule of TNGST Act, 1959 - Since, the petitioner claimed to be exempted dealer, the petitioner claims that the petitioner had not maintained proper records - HELD THAT:- Powers vested with the 1st respondent include the powers to set aside orders impugned before it or direct the Assessing Officer to make a fresh assessment and/or pass fresh order in such manner as may be directed. Thus, power has been given to the 1st respondent to examine the issue without any inhibition of limitations prescribed under the Act where an assessee was unable to participate in the proceeding or appropriate order from an Assessing Officer - Though the impugned order of the 1strespondent adverts to be proceedings which was challenged before it, it fails to address the core issue before it.
Since the petitioner did not get to participate in the hearing and an ex parte order came to be passed by the 2nd respondent, the petitioner deserves an opportunity of being heard - 2nd respondent is therefore directed to pass appropriate orders on merits within a period of three months from date of receipt of a copy of this order.
Petition disposed off.
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2020 (4) TMI 306
Ab initio cancellation of the registration certificate of the appellant - It is claimed that the basis of the allegations and grounds neither made out nor established in the original order - Gujarat VAT Act - CST Act - principles of natural justice - HELD THAT:- Sub-section (5) of section 27 of the GVAT Act empowers the Commissioner to cancel the certificate of registration from such date as may be specified by him. On a plain reading of the sub-section, it appears that it is permissible for the Commissioner to cancel the registration even with retrospective effect - Thus under sub-section (5) of section 27 of the GVAT Act, the Commissioner is empowered to cancel the certificate of registration from such date as may be specified by him; under clause (1) of sub-se
Since sub-section (5) of section 27 of the GVAT Act does not contain the words “from a date not earlier than the date of the order”, this is a clear indication of the legislative intent, not to curtail the date of cancellation of registration to the date of the order of cancellation of registration. In other words, sub-section (5) of section 27 of the GVAT Act permits the Commissioner to cancel the certificate of registration even with retrospective effect.
This court is of the considered view that in case of non-payment of tax dues, the registration may be cancelled prospectively from the date of the order or at best from the date of violation; but not ab initio from the date of grant of registration or any date prior to the violation of the statutory provision. The registration of a dealer cannot be cancelled retrospectively to even include the period where the transactions were legal and valid and there was no violation in terms of any of the clauses contained in sub-section (5) of section 27 of the GVAT Act. While cancelling the registration of a dealer, the authority should consider the nature of the violation as well as the effect that the cancellation of the registration has, not only on the dealer but on all other dealers who have dealt with him. In case of mere non-payment of assessed tax dues, there is no illegality in the transactions entered into by the parties, and hence, the concerned authority should exercise discretion accordingly, and if it finds on facts that a case for cancellation is made out, it may cancel the registration prospectively.
Thus, the Tribunal was not justified in confirming ab initio cancellation of the registration certificate of the appellant.
Whether the Gujarat Value Added Tax Tribunal was justified in holding that the judgment of this court in the case of State of Gujarat v. Nageshi Enterprise, [2016 (12) TMI 886 - GUJARAT HIGH COURT], wherein the dealer had specifically admitted that he was not entitled to input tax credit, would be applicable to the facts of present case? - HELD THAT:- The decision of this court in State of Gujarat v. Nageshi Enterprise has been rendered in the peculiar facts of the said case wherein the dealer had specifically admitted that he was not entitled to input tax credit, whereas in the facts of the present case, the appellant has challenged the tax, interest and penalty till the stage of second appeal, and there is no admission on its part that the transactions in question were invalid. Question No.2 is also, therefore, required to be answered in favour of the appellant and against the respondent, namely, that the Tribunal was not justified in holding that the decision of this court in the case of State of Gujarat v. Nageshi Enterprise would be applicable to the facts of the appellant.
Whether the Gujarat Value Added Tax Tribunal was justified in confirming the order of the first appellate authority confirming the cancellation of registration certificate of the appellant on the basis of the allegations and grounds neither made out nor established in the original order cancelling the registration certificate? - HELD THAT:- In the facts of the present case, no notice in Form 503 has been issued to the appellant prior to the first appellate authority taking into consideration the material which did not form part of the material before the Commercial Tax Officer. Moreover, this court is of the opinion that the provisions of sub-rule (1) of rule 57 of the GVAT Rules would be applicable to assessment proceedings wherein the appellate authority is of the opinion that the demand is required to be enhanced or the penalty is not proportionate to the default. In a case of cancellation of registration pursuant to a show cause notice, the appellate authority cannot travel beyond the grounds stated in the show cause notice and expand the scope of the proceedings by placing reliance upon additional material, which was not relevant to the grounds stated in the show cause notice.
The Tribunal, in the impugned order, has failed to consider the scope of the proceedings before it and has upheld the order passed by the first appellate authority on the grounds which were extraneous to the show cause notice. Moreover, as discussed hereinabove, the Tribunal has thoroughly misunderstood the facts of the case while holding that appellant had accepted that the purchases were not genuine. The Tribunal was, therefore, not justified in upholding the order passed by the first appellate authority whereby it had confirmed the order of cancellation of the registration certificate of the appellant - Answered in favour of the appellant and against the revenue.
Appeal allowed - decided in favor of appellant.
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2020 (4) TMI 272
Validity of assessment order - CST Act - period 2006-07 - inter-state sales or not - filing of Form 'C' Declarations - HELD THAT:- The impugned order is flawed on two aspects. Firstly, though the respondent has extracted the entire objections as part of the order itself, he concludes that the transactions would only be domestic sales notwithstanding that 'C' Form Declarations have been filed. He notes the position that the delivery address is out of State, but still persists in his conclusion that the sales are only domestic. The transactions have not been examined in detail as directed by the first Appellate Authority. The petitioner has placed on record at pages 18 to 87 of the typed set of papers, documents such as, purchase invoice and challans in relation to the transactions at issue, which are stated to be part of the records before the Assessing Officer.
It was thus incumbent upon the Authority to examine the transactions minutely and then come to a decision as to whether the transactions were domestic transactions inter se the petitioner and the vendor or inter state sales. This exercise has not been done - It was also incumbent upon the Assessing Authority to have granted an effective opportunity of personal hearing.
Petition allowed by way of remand.
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2020 (4) TMI 271
Principles of natural justice - inter-state sale or not - respondent has justified the impugned order on the ground that though notice was issued to the petitioner, the petitioner did not file any reply and therefore, the impugned order came to be passed - HELD THAT:- Notice dated 19.01.2012 was issued after the inspection was carried on 17.08.2004 by the enforcement wing of the Commercial Tax Department and records were seized from the petitioner’s factory and its depot in Pondicherry. After the records were ceased, notices were issued on 19.01.2012 - Meanwhile, TNVAT Act, 2006 came into forced substituted to the TNGST Act, 1959. As per Section 12-C of the TNGST Act, the respondent was required to complete the assessment based on the returns already filed, without insisting on documents or the presence of dealer.
As per Section 12-C of the TNGST Act, 1959, the respondent ought to have passed a deemed assessment order based on the returns filed by the petitioner. The said assessment can be re-opened under the provisions of the TNGST Act, 1959 read with Section 88 of the TNVAT Act, 2006 - without passing a deemed assessment order under Section 12-C of the TNGST Act, 1959, the respondent has straight away issued a pre-assessment notice dated 19.01.2012 to the petitioner based on the inspection carried out by he enforcement official on 17.08.2004 for the Assessment Year 2004- 05.
The notice dated 19.01.2012 issued to the petitioner was in order though it relied on the findings of the investigation of the enforcement wing in 2004 as there were enough materials for the respondent to re-open the assessment for escaped turnover - petitioner ought to have participated in the said proceeding and given a proper reply to the said notice. However, the petitioner failed to file a reply.
The case is remitted back to the respondent to pass a fresh order in accordance with law - petition allowed by way of remand.
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2020 (4) TMI 238
Imposition of penalty u/s 67(1) of the Kerala VAT Act, 2003 - violation of principles of natural justice - HELD THAT:- An opportunity of personal hearing was offered in Exts.P8 and P9 notice, on 17.01.2019. But the appellants submitted adjournment applications seeking three week's time, on the premise that they are trying to file the returns and to remit the tax due, in the meanwhile. It was also stated that the Charted Accountant of the appellant is not in station to prepare the documents and to appear for the hearing. Evidently, the 1st respondent adjourned the hearing to 31.01.2019, on accepting the request of the appellant. But on 31.01.2019 also, the appellant submitted applications for adjournment stating the very same reasons.
We are not in a position to hold that, the observations contained in the impugned order that the appellant had failed to submit any objections, is factually incorrect. As a consequence, we find no reason to disagree with the learned Single Judge on the findings with respect to the above said aspects - Appeal dismissed.
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2020 (4) TMI 237
Intra-state transaction or Inter state sale - transaction of the assesses when the seeds have been procured from the farmers for their onward transmission for certification and other processes to its Kota plant - HELD THAT:- The procurement of such seeds is taxable within the State of U. P. It has been admitted that the farmers are paid 90 percent of the price at the stage of when the said transaction takes place and the remaining amount is paid depending upon the quality of certification of the seeds issued by the unit at Kota. The Tribunal has rightly held that this aspect of the transaction culminated in the State of U. P. wherein the procurement of the said seeds takes place from the farmers by the assessee through their contractor is an intra-State sale which is totally covered by the provisions of Trade Tax Act.
There is no infirmity with the order of the Tribunal which has delved into all the aspects including various contracts and determined that sale of seeds by farmers is taxable in U.P. - There is no material on record which can lead this Court to take a different view other than taken by them. There is no reason to interfere with the same.
Revision dismissed.
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2020 (4) TMI 236
Imposition of penalty - Appealable order u/s 67 of the Kerala Value Added Tax Act - principles of natural justice - HELD THAT:- The references in the assessment order to the opportunity of hearing on 23.4.2018, 10.5.2018 and 31.01.2019, the submission of the petitioner cannot be even suggested for the reason that the notices are dated 18.12.2018. The aforementioned arguments are not able to cut ice in view of the reference as it was pertaining to the opportunity given after issuance of notice dated 10.4.2018 for production of books of accounts and the date of opportunity of hearing was after the notice dated 18.12.2018.
There are no justification in this writ petition to bring the matter within the realm of judicial review to form an opinion that the principles of natural justice were flouted - petition dismissed.
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2020 (4) TMI 192
Inter-state transaction or not - providing of foundation seeds to the farmers, supervision of its growing and dispatch from U.P. to Kota in the State of Rajasthan - whether the transaction cannot be treated as purchase within the State of U.P., since the process of purchase was completed in Kota in the State of Rajasthan when the processing and testing of the seeds was complete in Kota and thereafter it was accepted by the applicant company? - HELD THAT:- Undoubtedly, from a perusal of the record as well as various documents annexed by the revisionist it is clear that procurement of such seeds is taxable within the State of U.P. It has been admitted that the farmers are paid 90 percent of the price at the stage when the said transaction takes place and the remaining amount is paid depending upon the quality of certificate issued by the unit at Kota - The Tribunal has rightly held that this aspect of the transaction culminated in the State of U.P. wherein the procurement of the said seeds takes place from the farmers by the assessee/through their contractor is an intra-State sale which is totally covered by the provisions of Trade Tax Act.
There is no infirmity with the order of the Tribunal which has delved into all the aspects including various contracts and determined that sale of seeds by farmers is taxable in Uttar Pradesh - No other fact or argument was placed before this Court which could persuade this Court for interfering with the order passed by the Tribunal.
Revision dismissed.
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2020 (4) TMI 169
Issuance of SCN challanged - Error in the returns - TNVAT Act - HELD THAT:- This Court is not inclined to interfere in the impugned notice for three reasons. One is it is in the nature of SCN. There are no exceptional circumstances for interference at the SCN stage - The second reason is that writ petitioner in any case availed of the hearing in person, orders are awaited and the third reason is that there is latches on the part of the writ petitioner as the impugned notice is dated 25.02.2019, but the instant writ petition has been filed in this Court only on 29.07.2019, more than five months later that too after availing opportunity of being heard in person.
Tthis Court is of the considered view that challenge to the impugned notice is bereft of merits - Petition dismissed.
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2020 (4) TMI 143
Validity of assessment order - mismatch of transactions as per the returns of the petitioner when compared with the returns of the selling dealers - TNVAT Act - The issue on merits, prima facie, stands covered by a decision of this Court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] issued by the Special Commissioner, Commercial Taxes instructing the Assessing Officers to keep all issues of mismatch in abeyance till the constitution of a proper internal mechanism within the Commercial Taxes Department to address such matters.
The impugned orders are set aside and the Assessing Authority is directed to take up the assessments of two periods, viz, 2014-15 and 2015-16 to be re-done de novo in line with Circular No. 3 of 2019 dated 18.01.2019 issued by the Special Commissioner after issuance of notice to the petitioner and affording an opportunity of personal hearing - petition disposed off.
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2020 (4) TMI 142
Validity of assessment order - TNVAT Act - Officer has simply confirmed the assessment proposals without even a discussion as to the objections raised and responded to earlier - violation of principles of natural justice - HELD THAT:- Objections have been filed by the petitioner on 03.09.2018 in response to a pre-assessment proposal dated 24.08.2018 that have been extracted in full in the impunged order. The Assessing Authority appears to have issued one more notice on 14.09.2018, to which admittedly the petitioner did not reply. Thereafter, the Officer has simply confirmed the assessment proposals without even a discussion as to the objections raised and responded to earlier. It is evident from a reading of the impugned order that principles of natural justice stand violated. The impugned order is cryptic, non-speaking and non-application of mind is writ large thereupon.
There are laches on the part of the petitioner as well who has filed the Writ Petition only now challenging an order passed in August, 2019 - the petitioner shall appear before the Assessing Authority on Friday, the 20th of March, 2020 at 10.0 a.m. without expecting any further notice in this regard along with proof of payment of 10% of the demand. If the condition is found to have been complied with, proceedings for assessment shall be taken up de novo and after hearing the petitioner, an order of assessment shall be passed within four (4) weeks from 20.03.2020.
Petition disposed off.
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2020 (4) TMI 141
Input tax credit - Denial of ITC in the hands of purchasing dealer or recovery from the seller for failure to deposit the tax - right to claim input tax credit against his out put tax credit under the provisions of 19(1) of the Act - HELD THAT:- Prior to amendment and substitution of proviso under Section 19(1) of the Act, with effect from 29.1.2016, the period in question, is covered by the pre-amendment position of law and since the proviso (1) to section 19, which is prior to 29.1.2016, only requires the registered dealer namely, the purchasing dealer to establish that the tax due on such purchase has been paid by him in the manner prescribes, this fact was duly proved by the purchasing dealer in the present case and the assessing authority himself has noted the said fact, therefore, there was no question of denying the input tax credit in the hands of the purchasing dealer against out put dealer, in terms of 19(1) of the Act, as it stood for the period in question 2009-2010. Such giving of input tax credit in the hands of purchasing dealer, however does not deprive Revenue authorities to proceed against the selling dealer M/s Tvl.Classic Enterprises, to recover the tax paid by the Purchasing dealer.
In the present case, for non-deposit of due tax collected form the purchasing dealer M/s.Vinayaga Agencies, the Revenue is therefore free to hold enquiry against the selling dealer and collect the Revenue from the selling dealer, which money in the hands of selling dealer, is held in trust for the State by the selling dealer. It is not the case of the Revenue before us that the selling dealer in the present case is a non- existent or a ghost dealer. The identity and registration of the selling dealer and the fact that he collected the tax from the purchasing dealer in question are duly proved on record and are not disputed.
The respondent are directed to allow the ITC in the hands of purchasing dealer under Section 19(1) of the Act - appeal dismissed.
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2020 (4) TMI 140
Principles of natural justice - rate of tax - inter-state transactions - Air Compressor Pump and Spares - concessional rate denied for want of Form C - case of petitioner is that the respondent committed gross violation of principles of natural justice, since no notice was issued, enabling the petitioner to show cause or explain in person on the action of the respondent in having levied 12.5% tax on transactions that were inter-state in character for want of declarations in Form C.
HELD THAT:- In terms of Section 22 (4) of the Act, the only recourse available to the respondent is to frame a best judgment assessment. In the case on hand, the respondent had accepted the figures of turnover as furnished in the returns filed by the petitioner, but computed the tax at 12.5% on interstate transactions for want of Form C declarations.
Since no notice was issued enabling the petitioner to show cause or explain in person on the action of the respondent in having levied 12.5% tax on transactions that were interstate in character for want of declarations in Form C, this Court is of the opinion that the impugned order has no legs to stand.
The impugned order dated 19.09.2013 passed by the respondent is directed to be treated as notice for which the petitioner shall file objections within two weeks from the date of receipt of a copy of this order - petition disposed off.
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2020 (4) TMI 139
Best Judgement assessment - Merely on the basis, that at that time of the said inspection, the books of account were not found, the SIB Officers made an assessment on the basis of best judgment and raised a tax demand of ₹ 2,36,934.00 - HELD THAT:- It is not quite correct on the behalf of the learned counsel for the revisionist to submit that the assessment has been made solely on the basis or presumption that the books of account were not available.
The decision of Chawlas Bricks Fields [2000 (7) TMI 999 - ALLAHABAD HIGH COURT] is on a different facts situation wherein it was only on the ground that the books of account were not available that the presumption was raised. However, in the present case it would indicate that non-availability of books of account has not been taken as a ground rather it was something which was seen and found at the time of survey, that is loading of oil cake in vehicle and the same did not match with the account books upon which the assessment has been made - Therefore, the aforesaid decision does not come to the rescue of the revisionist.
As far as the other submission is concerned, the revisionist was not provided with the copy of SIB report. It will be relevant to mention that the same also does not merit consideration for the reason that this plea was neither raised by the revisionist at any point of time before the authorities nor before the appellate court below, accordingly this plea is being raised for the first time which does not countenance merit.
This Court is of the opinion that there is no merit in the aforesaid revision and it is liable to be dismissed - Revision dismissed - decided against revisionist.
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2020 (4) TMI 138
Registration of petitioner - Section 61 of Rajasthan Vat Act - time limitation - HELD THAT:- Suffice it to say that the Form-14 notices relied upon by Mr. Mathur, which were issued to the assessee after the survey made in the year 2016, were for the purpose of providing it an opportunity to show cause and adduce evidence against the facts discovered during survey proceedings. It was clearly intimated in these notices that failure to furnish the information/documents without sufficient cause wound render the assessee liable to prosecution and penalty under Section 64 of the Rajasthan Vat Act - Finally, after assessing the entire facts, the Assistant Commissioner, Administration, issued an order dated 13.03.2018 directing initiation of proceedings and registration of a case under Section 61 (2) of the Vat Act against the appellant. It may be noted here that the order dated 13.03.2018 passed by the Assistant Commissioner, Administration, was never assailed by the petitioner in the writ petition.
We are totally in conformity with the view expressed by the learned Single Bench that the limitation for initiating proceedings would commence only after the assessing authority arrived at a conclusion regarding the evasion/avoidance of tax - Appeal dismissed.
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2020 (4) TMI 137
Concessional rate of tax - C-Forms - inter-state purchase of High Speed Diesel Oil for use in the mining and for captive power plant start-up for manufacture of cement at their cement factory - HELD THAT:- In the M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT], this Court allowed the writ petitions filed by the assessees and directed the Revenue to permit the petitioners assessees to download 'C' forms. It is not in dispute (as submitted by the learned counsel for Revenue) that though an intra Court appeal has been preferred against Ramco Cements matter with a delay of three days, the same remains unnumbered as of today. In other words, Ramco Cements authored by a Hon'ble Judge of this Court is holding the field as of today - Post Ramco Cements matter, a similar situation came up before another Hon'ble Single Judge in M/S. SOUTHERN COTSPINNERS COIMBATORE PRIVATE LIMITED REPRESENTED BY ITS MANAGING DIRECTOR, MR. S.V. DEVARAJAN VERSUS THE STATE OF TAMIL NADU, REPRESENTED BY THE SECRETARY TO GOVERNMENT COMMERCIAL TAXES DEPARTMENT, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) , CHENNAI [2019 (6) TMI 490 - MADRAS HIGH COURT] and the same came to be disposed of on 26.04.2019. In the said order, learned Single Judge held that till such time the order of Ramco Cements is either stayed or reversed it is incumbent upon all Assessing Authorities within the State of Tamil Nadu to apply the rationale and the principle laid down in Ramco Cements with regard to pending assessments. This position is not disputed.
In the light of the trajectory, which this matter has taken at the admission stage, it follows as a natural sequitur that instant writ petition stands allowed - Petition allowed.
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2020 (4) TMI 136
Vires of definition of dealer - validity of Section 2(15)(ix) and explanation 1 of Section 2 (33(vi)) of Tamil Nadu Value Added Tax Act 2006 - According to the petitioner, the club does not fall within the definition of dealer under Section 2(15)(ix) of the TNVAT 2006, as there is no sale of any goods in the form of food, refreshments and drinks by the petitioner to its members - HELD THAT:- By the virtue of the powers conferred under Article 246A, the Parliament brought in the Central Goods and Service Tax Act, 2017 and the Integrated Goods and Services Tax Act,2017. By the introduction of the Central Goods and Service Tax Act, 2017 and the Integrated Goods and Services Tax Act,2017, the Tamil Nadu Value Added Tax 2006, has been repealed. Section 174 of the Central Goods and Service Tax Act, is the repeal and saving clause - Mere apprehension of the petitioner does not persuade us to go into vires of the Section 2(15)(ix) and explanation 1 of Section 2 (33(vi), of Tamil Nadu Value Added Tax Act, 2006, which stands repealed. This exercise at this juncture would be only academic in nature. If and when action is taken against the petitioner, it is also open to the petitioner to take appropriate steps in accordance with law.
Petition dismissed.
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2020 (4) TMI 135
Rejection of benefits/incentives admissible under the Bihar Industrial Incentive Policy, 2011 - rejection on grounds ‘that their proposal does not have the approval of the Competent Authority’ - HELD THAT:- The entire gamut of arguments revolves around the bogie raised by the respondent Industries department through the Director, Industries as regarding lack of approval to the proposals of the petitioners for grant of incentives under the ‘Industrial Policy, 2011’ by the Competent Authority which, according to the respondent authorities in the Industries department, would be the Head of the Government as manifest from their stand present at paragraph 12 of the counter affidavit which I have reproduced above and which understanding of the Industries department is in view of the stipulations present at paragraph 2.2 of the Notification No.128 dated 16.01.2006 issued under the ‘Industrial Policy, 2006’ - The fallacy in the objections raised and the absolute lack of foundation for obstructing the incentives admissible to these petitioners under the ‘Industrial Policy, 2011’ can be understood by the circumstances discussed hereinafter which is borne from the records of the proceedings.
Where the ‘Industrial Policy, 2011’ itself is providing for the manner of consideration and disposal of the claims raised by the industrial units and is followed by a series of resolutions taken and orders passed by the State Government in its Industries department as demonstrated above and where there is no dispute that the proposals of these petitioners have the sanction of the Competent Authority under the ‘Industrial Policy, 2011’ as manifest from the enclosures to the respective writ petitions and which stands noted in the argument of learned counsel for the petitioners, where was the occasion for the Director, Industries to put a spanner by raising a bogie of nongrant of approval by the Competent Authority in reference to Clause 2.2 of the resolution dated 16.01.2006 which confirmingly was issued to implement the ‘Industrial Policy, 2006’ and has not been saved by the ‘Industrial Policy, 2011’.
In view of the legal position so settled by the Supreme Court, the orders passed by the Director, Industries impugned in the respective writ petitions are rendered whimsical, lacking application of mind and bereft of reasons. It is rather unfortunate that even when the respondents do not adversely comment on the eligibility of the petitioners to draw incentive under the ‘Industrial Policy, 2011’, it is simply by raising a bogie of lack of approval by the Competent Authority that they seek to deprive the benefits to these petitioners even when there is no contest on the approval granted by the State Investment Promotion Board in terms of Clause 14 of the ‘Industrial Policy, 2011’ to these petitioners.
State Government in its Industries department and the Commercial Taxes department directed to ensure that every incentive to which the 3 petitioners are found entitled under the ‘Industrial Policy, 2011’ shall be accorded to them within a maximum period of 3 months from today without either raising technicalities of approval or on the issue of change in payment procedure as raised by the Commercial Taxes department for in my opinion, the two arms of the State Government have to act within the stipulation present in ‘Industrial Policy, 2011’ for according benefits to these petitioners and not allow to these petitioners to either run around the corridors of the respective department or to approach this Court again specially where their admissibility to the incentives is not in question.
Petition allowed.
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2020 (4) TMI 74
Imposition of penalty u/s 47(6) of the Kerala Value Added Tax Act - only reason for imposing penalty by the Enquiring Authority is for not providing Form 8FA during transit - intent to evade tax or not - HELD THAT:- The Enquiry Authority had come to a clear finding that the goods happened to be intercepted during transit. If the goods had reached the go-down and books of account were not prepared in accordance with the bill of entry or transaction was not disclosed, there was no possibility of the department coming to know about the transaction unless the import documents are verified from the customs authority. Therefore as far as the declaration in Form 8FA is concerned, it is mandatory and if any transportation is not accompanied by the said Form, it is reasonable to conclude that there is an attempt to evade tax. It is not actual evasion of tax as contemplated in the books, but it is an attempt. Probably it might be an omission. But as far as the Department is concerned, the reasonable view that the Department could take is that there is an attempt to evade tax.
The Tribunal was justified in arriving at a conclusion that the appellate authority had committed error in setting aside the order of penalty. However, it is seen that double the amount of tax was imposed as penalty - The quantum of penalty is reduced.
Appeal allowed in part.
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9911796707
