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VAT / Sales Tax - Case Laws
Showing 421 to 440 of 629 Records
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2020 (3) TMI 1091
Principles of Natural Justice - Validity of assessment order - main ground of attack by the petitioner is that no opportunity was granted to the petitioner for production of documentary evidence before the authority for passing appropriate orders - HELD THAT:- Admittedly, the cause of action for issuing the pre-revision notices was on the basis of the proposal submitted by the Enforcement Wing Officials, pursuant to an inspection conducted in the place of business of the petitioner. When the petitioner submitted their objections to the pre-revision notices, the Assessing Officer has to independently adjudicate the matter and he shall not be influenced by the directions issued by the Enforcement Wing Officials. But he has not done so in this case.
Further, no reasonable opportunity was provided to the petitioner for production of necessary documentary evidence before the authority for passing appropriate orders, as per Section 27(2) of the TNVAT Act.
This Court is inclined to set-aside the assessment orders dated 29.10.2015 and are set-aside accordingly. The matters are restored to the file of the Assessing Officer / first respondent - petition allowed by way of remand.
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2020 (3) TMI 1090
Audit of the business operations of the petitioner - Section 64 (4) of the TNVAT Act - Whether the inspection done by the second respondent, who is below the rank of Commissioner is against the provisions of law? - HELD THAT:- Section 64 (4) of the Act empowers the Commissioner to order for audit of any registered dealers and such audit is required to be done by an Officer not below the rank of Deputy Commercial Tax Officer and such responsibility cannot be delegated to others or usurped by others - In the case on hand, the Joint Commissioner (CT) Enforcement I, who is subordinate to the Commissioner, has ordered for audit, which is against the provisions of the Act. Based on the same, the first respondent has passed the impugned assessment orders, which are as rightly contended by the learned counsel for the petitioner, liable to be set-aside.
This Court is inclined to set-aside the impugned assessment orders and remit the matters back to the authority, for passing orders afresh, after providing due opportunity to the petitioner, for production of necessary accounts as well as filing proper objections - Petition allowed by way of remand.
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2020 (3) TMI 1051
Re-assessment of the proceedings u/s 17D of the Kerala General Sales Tax Act, 1963 - escaped turnover - method of fast track completion of assessment - time limitation - case of Revenue is that once Section 17(D) of the Act, 1963 do not envisage any period of limitation, the argument that the applicability of Section 19 of the Act, 1963 would not apply and impugned order noticing the escaped turn over cannot be said to be erroneous or barred by law of limitation - HELD THAT:- On perusal of the aforementioned provisions, particularly Section 19 of the Act, 1963 empowers the assessing authority may, at any time within five years from the expiry of the year to which the tax relates, proceed to determine the best of its judgement in respect of the turn over alleged to have escaped assessment to tax - There was an amendment in Section 17 whereby the assessment relating to year up to and including 2004-05 running as on 31st March, 2010 or to be completed on or before 31.03.2011.
However, in the instant case the Ext.P2 notice was issued on 20.11.2019 followed by an assessment order dated 14.12.2009 and Ext.P4 notice, Ext.P7 order commanding the petitioner to pay the penalty and interest under the KGST Act, 1963. There is no justification for this department or a material placed on record as per the provision of Section 17D, in the absence of any statutory period referred to Section 17D escaped assessment way of fast track assessment can be taken almost 14 years later. The reasonable period can be extended upto the period referred to other provisions regarding the escaped assessment under Section 19.
Even from perusal of the assessment order and the notice there is no reference to the additional material forming an opinion to undertake the fast track assessment.
Demand not sustainable - petition allowed.
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2020 (3) TMI 1050
Classification of goods - Mango Drink under the brand name “Slice” - whether fall under Entry 100D of Schedule-C of the HVAT Act or not? - taxable @ 12.5% or 5%? - HELD THAT:- An Entry similar to Entry 100-D came up for consideration before the Gauhati High Court in Pepsico India Holding Pvt. Ltd. v. State of Assam [2009 (4) TMI 853 - GAUHATI HIGH COURT]. This was in the context of classifying 'Potato Chips' sold under the brand name 'Lays' and 'Uncle Chips' under the Entry 80 Part A of the Second Schedule to the Assam Value Added Tax Act, 2003 (Assam VAT Act) - It was held that potato chips” manufactured and sold by the petitioner-company under the brand name “Lays” and “Uncle Chips” would be covered by entry 80 of Part A of the Second Schedule to the Assam Value Added Tax Act, 2003 during the relevant period.
This Court is satisfied that both the RA and Tribunal erred in holding that product in question i.e. 'Slice' is not covered under Entry 100-D of Schedule C to the HVAT Act. The impugned orders of the RA as well as the Tribunal are accordingly set aside. The question of law framed is answered in the negative i.e. in favour of Appellant/Assessee and against the Respondent.
Appeal allowed.
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2020 (3) TMI 1045
Attachment of property - CIRP proceedings - first charge over all the properties and assets in view of Section 48 of the Gujarat VAT Act, 2003 - lifting of attachment sought so that they can be put to sale by the liquidator and thereupon the sale proceedings be distributed under Section 53 of the I&B Code in order of priority prescribed - Section 48 of the Gujarat Value Added Tax Act, 2003 - HELD THAT:- Issue Notice to the respondents returnable on 16.01.2020.
In the meantime, pending the hearing and final disposal of the petition, the operation, implementation and execution of the impugned order dated 18.11.2019 passed in Misc. Application No. 2357 of 2019 in Company Petition (IB) No. 1514 (MB)/2017 is stayed.
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2020 (3) TMI 997
Levy of Luxury Tax - concealment of sales - suo-moto power of revision - Sections 36 (1) of the AGST Act and 82 (1) of the AVAT Act - HELD THAT:- Considering the view taken by the appellate authority as regards the acceptance of the seized documents for the purpose of the assessments made and the view taken by the revisional authority and the learned Assam Board of Revenue that the petitioner assessee failed to provide the required evidence to arrive at a conclusion that the information contained in the seized documents were related to some other hotel and were procured for the purpose of making a sale projection, we are required to examine whether the view taken by the appellate authority in the order dated 29.01.2015 can be termed to be ‘erroneous order’ and ‘prejudicial to the interests of the revenue’.
From the point of view whether there was any incorrect assumption of facts or incorrect application of law by the appellate authority in respect of the seized documents, we take note of that the appellate authority had rejected the seized documents by accepting the statement of the Manager (F & A) of the petitioner assessee that the information contained therein relates to some other hotel and were obtained for the purpose of making a sales projection of the hotel before a financial institution. No further evidence had been brought in by the petitioner assessee that the information contained in the seized documents were of some other hotel and if yes, as to of which hotel, nor any evidence had been brought in that it was used for the purpose for making a sales projection before any financial institution for obtaining a loan - Merely because a stand was taken by the assessee, the burden of proof would not shift to the department. In such view, it would have to be construed that there was an incorrect assumption of facts by the appellate authority.
The two circumstances required to exist for the purpose of invoking the suo-moto revisional power under Sections 36 (1) of the AGST Act and 82 (1) of the AVAT Act are present in the instant case and therefore we do not find any infirmity in the exercise of any suo-moto power by the Addl. Commissioner of Taxes in the order 28.10.2015.
The contention of the petitioner assessee that in view of the provisions of Section 33(2)(b), providing for an appeal by the Commissioner against the appellate order, the suo-moto power of revision against such appellate order would not be maintainable, is liable to be rejected.
Revision dismissed.
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2020 (3) TMI 996
Refund of differential tax - Input tax credit - rate of tax on LNG - situation post GST regime - It is the case of the petitioners that prior to coming into force of Goods and Service Tax regime in India, LNG was taxable under the Act 2003 at the rate of 15%, the IOCL-respondent No.3 charged tax at the rate of 15% on sales of LNG to the petitioners. The petitioners under the VAT Act were entitled to claim input tax credit of the tax so charged by the IOCL after reduction at the rate of 4% under Section 11(3) (b)(iii) of the Act 2003.
HELD THAT:- The petitioners are entitled to get refund of amount of tax paid by it at the rate of 9% when the respondent No.3 has collected the tax at the rate of 15% instead of 6% as per remission order dated 05.09.2017 from the respondent-State.
The petitions succeeds and are accordingly allowed - the respondents are directed to process refund claim of the petitioners for refund of the 9% tax amount collected from the petitioners and deposited by the respondent No.3 IOCL within a period of three months from the date of receipt of copy of the writ of this judgment.
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2020 (3) TMI 995
Requirement of extra amount of Central Sales Tax - non-issuance of C-Form - Form-C was not issued by the HEC Ltd., to the petitioner Company, for the reason that the same was not supplied to HEC Ltd., by the State Government - HELD THAT:- Since the amount of ₹ 30,00,000/-(thirty lacs) has already been deposited, which is kept in the custody of this Court, we direct the Registrar General of this Court to make the payment of ₹ 28,61,893/- in favour of the petitioner Company, who in turn, shall deposit the said amount being the assessed differential amount of CST in the Government Treasury, within the period of ten days after receiving the cheque / draft. The remaining amount shall be refunded back by the Registrar General of this Court to the respondent HEC Ltd.
Further it is made clear that since the petitioner Company is not at fault in making the delay in deposit of the CST, no interest shall be levied from the petitioner and ultimately, if it is found that Form-C could not be given to the HEC Ltd., by the State Government for any valid reason, the liability to pay the interest, if any, shall be of the respondent HEC Ltd., only. In case, Form-C is issued by the State Government to the respondent HEC Ltd., this respondent shall be entitled to the refund of the aforesaid amount of ₹ 28,61,893/- from the State Government itself.
Application allowed.
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2020 (3) TMI 994
Rejection C-Form - sale and purchase of building material i.e. Rori, Bajri, Sand etc. - C-Form rejected on the ground that single form was submitted for transaction of whole year 2008-09 - HELD THAT:- The Tribunal has correctly interpreted scheme of the Act and denied benefit of single C Form for the entire year.
Tribunal has considered judgment of Calcutta High Court in the case of Cipla Ltd. [2013 (1) TMI 702 - CALCUTTA HIGH COURT] which is basis of present appeal - Calcutta High Court has dealt with question of form 'F' whereas present matter relates to form 'C' and provisions relating to both forms are not identical.
Appeal dismissed.
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2020 (3) TMI 828
Valuation - disallowance of deduction of target based discount - Vires of Section 9 (5) of the Jharkhand Value Added Tax Act, 2005 - amendment made in the year 2011 in the section - validity of retrospective effect given to this provision with effect from 1.4.2010 - Jharkhand VAT Act - HELD THAT:- The submission of learned counsel for the State that in the matters of economic concerns, the Court should not generally interfere, as the laws relating to economic activities should be viewed with greater latitude than laws touching civil rights, and the State must be left with wide latitude in devising ways and means of fiscal or regulatory measures, does not apply in the present case, as in this case, the constitutionality of Section 9(5) of the JVAT Act and the legislative competence of State Legislature in bringing sub-Section (5) in Section 9 of the JVAT Act, is challenged, on the ground that the same is beyond the legislative competence of the State, as in garb of Entry-54 List-II of Seventh Schedule of the Constitution of India, any transaction could not be added in Article 366(29A) of the Constitution of India, treating the same to be sale by a deeming fiction, even though, it is not a sale, within the meaning of Sale of Goods Act, or does not fall within the Article 366(29A) of the Constitution of India.
The law is well settled in this regard right from Gannon Dunkerley’s case [ 1958 (4) TMI 42 - SUPREME COURT ], in the year 1959, to Bharat Sanchar Nigam’s case [ 2006 (3) TMI 1 - SUPREME COURT ], and Rajasthan Chemists Association’s case [ 2006 (7) TMI 17 - SUPREME COURT ], in the year 2006, wherein the Hon’ble Apex Court has dealt with the several earlier decisions and has come to the conclusion that in order to levy tax on sale, the transactions must fall within any of the clauses of Article 366 (29A) of the Constitution of India, or within the meaning of the Sales of Goods Act, for the purpose of levy of sales tax. In absence thereof, the Provincial Legislature cannot, in the purported exercise of its power to levy tax on sales or purchases of goods, tax even such transactions, which are not sales or purchases, by merely enacting that they shall be deemed to be sales or purchases by the dealers.
In the present case, we find that the State Government has exceeded its legislative competence and has in that effort, treated the trade discounts / incentives as taxable transactions, treating them to be sale by a deeming fiction by bringing sub-Section (5) in Section 9 of the JVAT Act, and has thus sought to make such transactions taxable, which are in addition to the transactions described under Article 366(29A) of the Constitution of India, which the State Government could not do, and admittedly, prior to bringing of Section 9(5) of the JVAT Act, into the Statute Book, such transactions were never being subjected to tax under the JVAT Act.
Thus, by bringing Section 9(5) in the JVAT Act into the Statute Book, the dealers have been put to a disadvantageous position, which was not there, prior to the amendment made in the year 2011, and this putting the dealers into a disadvantageous position was not within the legislative competence of the State Legislature - Though it is well settled that this Court should not interfere into the fiscal legislations, and the laws, relating to economic activities should be viewed with greater latitude than the laws touching civil rights, and even if there are possibilities of abuse, that cannot in itself be a ground for invalidating the legislation, but since the State action is not within the competence of the State Legislature, this Court has no option, but to strike down the action of the State Legislature, which was beyond its legislative competence.
There are no difficulty in holding that Section 9(5) of the JVAT Act, brought into force by amendment in the JVAT Act in the year 2011, is beyond the legislative competence of the State Legislature, and the same is ultra vires Article 246(1) of the Constitution of India, and cannot be sustained in the eyes of law - Accordingly, sub-Section (5) of Section 9 of the JVAT Act, as it stood with effect from 1.4.2010 to 30.06.2017 in the Statute Book, is hereby, held to be ultra vires, and accordingly, it has to be treated as if never existing in the Statute Book.
Petition allowed.
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2020 (3) TMI 827
Question arisen for consideration is whether the meaning can be expanded to include manufacture of otherwise goods for purposes of petitioner obtaining ‘From C’ on concessional purchase of HSD?
By consent list on 26th March, 2020 under same heading.
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2020 (3) TMI 826
Initiation of proceedings under Section 21(2) of Trade Tax Act - assessing authority came to the conclusion that entire transaction of sale of food grains to Assam was at the instance of the revisionist, thereafter, added the said turnover to the account of the revisionist - HELD THAT:- In the instant revisions, the revisionists has reiterated the same grounds which have been raised by him before the first appellate authority as well as the Tribunal. The assessing authority considering the fact that bank draft of ₹ 6 lacs was prepared at the behest of the revisionist adding the turnover of M/s Shanker Traders to the turnover of the revisionist. The only submission challenging the said finding is that the revisionist does not have an account with the Union Bank of India. In this regard, the argument of the revisionist is not convincing and liable to be rejected, as there is no requirement that a person has to be an account holder only then he can have a bank draft prepared. It is open for anyone to deposit the requisite fee and have demand draft/bankers' cheque prepared.
There is no material or evidence to set aside the findings recorded by the Tribunal. Sufficient reasons have been stated and considered by the Tribunal which are available on record. The bank draft was made at the behest of the revisionist and his name finds mention in the papers including the builty. The revisionist cannot resile from the facts which have been recorded by the Tribunal and, therefore, there is no material on which the findings of Tribunal can be interfered.
Revision dismissed.
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2020 (3) TMI 825
Imposition of penalty u/s54 (1) (14) of the Trade tax act - dispute related only to pressure horns which according to the Authority are not used in tractors but are used in other vehicles like car, three wheeler etc. - HELD THAT:- In the instant revision no material has been produced by the revenue from which it could be determined that the finding of the Tribunal is contrary to record or perverse and that pressure horns cannot be used in auto tractors and that the levy of the penalty was justified.
The Tribunal, has held that the pressure horns which were being transported were for use in the tractors, and no attempt has been made nor any material placed before us to upset the said finding recorded by the Tribunal, and therefore we find no infirmity with the findings recorded by the Tribunal.
Revision dismissed.
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2020 (3) TMI 824
Benefit of Form-D - Tribunal rejected the claim of the revisionist on the ground that since the matter relates to assessment year 1998-99 and submitted Form 3D after a period of two years as prescribed under the Act and therefore the benefit of the same cannot be granted to the revisionist - HELD THAT:- It is admitted case that the revisionist did not filed form 3-D before the assessing authority and the same were furnished subsequent to the passing of the assessment order. The Tribunal has recorded the fact that Form 3-D was submitted by means of an application under Section 12B of the Act before the Tribunal for acceptance of the said Form and to grant benefit of the same to the revisionist. The Tribunal has recorded a finding that form 3-D was pertaining to assessment year 2002-03, where as the assessment pertains to the year 1998-99 and therefore Forms have been procured by the revisionist after two years of the assessment, therefore, benefit of the same cannot be granted to the revisionist.
Revision dismissed.
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2020 (3) TMI 823
Levy of penalty u/s 54(1)(14) of U.P. Value Added Tax Act, 2008 - import of goods from outside the State - Form 38 had certain unfilled (blank) column - existenc eof mens rea or not - contravention of the provisions of Section 50 of the Act, 2008 - HELD THAT:- In the instant case it is admitted fact that the respondent had duly applied for and obtained Form 38 for import of goods and the Column 6 of the said Form was left blank on account of negligence of the respondent. It is only on account of non filling of Column nos. 2 to 6, penalty has been imposed upon the respondent. It has been submitted on behalf of the respondent that there was no intention to evade tax and the driver of the vehicle carrying the goods was carrying all the relevant documents including the bill/challan/bilty etc. from which the details of goods being carried on the vehicle could have been verified by the officer concerned and therefore there was no occasion for the assessing officer to pass penalty order, inasmuch as there was no intention on the part of the assesee to evade tax.
The vehicle was accompanied by Form 38 and all other documents were being carried along with other documents and only due to human error column would remain unfilled. It was the duty of the Officer managing the Check Post who after discovering that some column of Form 38 found unfilled should have filled the same himself in the light of Circular dated 03.02.2009 and should have allowed the vehicle to proceed alongwith the goods. It is undisputed that the goods transported were the same which were mentioned in the various documents (bill/builty/challan etc.) carried by the driver of the vehicle.
Revision dismissed.
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2020 (3) TMI 822
Imposition of penalty u/s 54(1)(14) of the U.P. Value Added Tax Act, 2008 - contravention of the provisions of Section 50 of the Act, 2008 - existence of mens rea or not - HELD THAT:- Perusal sub Section 6 of Section 28A itself indicates that penalty can be imposed only after giving opportunity of being heard that the goods were being so transported in an attempt to evade payment of tax due or likely to be due under the Act and therefore mens rea becomes essential ingredient.
Non-filling up of column no. 6 i.e. not mentioning of bill / cash memo / chalan / invoice number may lead to an inference that in case of non-checking of goods the declaration form may be re-used for importing goods of same quantity, weight and value to evade payment of tax but it cannot be the sole ground to impose penalty under Section 54(1)(14) of the Act, 2008. Satisfaction has to be recorded after giving opportunity to the dealer / person and after considering all the relevant materials / evidences on record that there was an intention to evade payment of tax. The guilty mind is necessary to be established to impose penalty under Section 54(1)(14) of the Act, 2008.
In the present case, the vehicle was accompanied by Form 38 and all other documents were being carried along with other documents and only due to human error column would remain unfilled. It was the duty of the Officer managing the Check Post who after discovering that some column of Form 38 found unfilled should have filled the same himself in the light of Circular dated 03.02.2009 and should have allowed the vehicle to proceed alongwith the goods. It is undisputed that the goods transported were the same which were mentioned in the various documents (bill/builty/challan etc.) carried by the driver of the vehicle.
Revision dismissed.
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2020 (3) TMI 821
Imposition of penalty u/s 54(1)(14) of the U.P. Value Added Added Tax Act - blank From-38 - Whether under the facts and circumstances of the case, the Commercial Tax Tribunal was legally justified in deleting the penalty levied under Section 54(1)(14) of the U.P. Value Added Tax Act?
HELD THAT:- The aforesaid question of law is infact a question of fact and the Tribunal being last forum for recording the findings of fact has given finding of fact that there was no intention on the part of the respondent to evade tax and therefore, the Tribunal has allowed the appeal of the respondent - This Court has perused the order of the Tribunal and do not find any infirmity in the same and no interference is required by this Court. The question raised by the revisionist is infact a question of fact and the same is accordingly decided in favour of the respondent and against the Revenue/revisionist.
Revision dismissed.
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2020 (3) TMI 820
Imposition of penalty u/s 54 (1) (14) of the U.P. Value Added Tax Act, 2008 - intent to evade tax - Learned counsel for the Revenue submitted that since Form 38 was filed with magic ink and, therefore, there was intention to evade tax - HELD THAT:- Concededly, at the time of interception of goods, other documents, namely invoices and bilty were also found. These documents were in order. Even Form 38 was found to be duly filled up evidencing the transaction under which the goods were being imported. The assessee had duly produced his books of accounts in which the transaction in question is duly accounted for. In such circumstances, merely on assumption that Form 38 could be re-used, the Assessing Officer was not justified in imposting penalty.
Revision dismissed.
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2020 (3) TMI 819
Best Judgement assessment - enhancement of taxable turnover - rejection of books of accounts - Section 8-A of the U.P. Trade Tax Act, 1948 as well as under Section 7(1)(2) of the Central Sales Tax Act - HELD THAT:- The Commercial Tax Tribunal, while passing the impugned order has recorded a fact that even previously in the year 1995-96, the books of accounts were rejected and the best judgment assessment was carried out. The findings of the Special Investigation team for the assessment year 1996-97 with regard to the fact that no books of account were found and no manufacturing activity was carried out no explanation for the same was given by the revisionist either before the authorities below of before this Court. The Tribunal has looked into all the aspects of the matter and considered the ground raised by the revisionist and has rightly upheld the rejection of the books of account of the revisionist and the assessment order passed by the Assessing Authority.
The tribunal has also considered all the fact that the revisionist was a registered dealer with U.P. Khadi and Gramodyog Board and was supplying goods to Khadi Gramodyog. The findings recorded that the large amount of iron procured which was used in manufacturing was sham and such large quantity of iron could not have been procured which also does not tally with the output of the revisionist and after considering the entire proceedings the Tribunal has rightly upheld the rejection of books of account by the Assessing Authority and the same requires no interference.
Revision dismissed.
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2020 (3) TMI 818
Validity of ex-parte assessment order - intra-state sales - applicability of provisions of Section 6-A of the Act, 1956 - HELD THAT:- It is undisputed that the goods were transported from Allahabad to Calcutta. It is also admitted that for transportation of the said goods Form-F was issued by the dealer in Calcutta, the assessing authority on the basis of the above mentioned facts passed the assessment order in exercise of power under Section 21 of the Act, 1948 was done only on account of the subsequent developments and report submitted by the S.I.B. The said report of S.I.B clearly indicated that the revisionists had in fact sold the goods in question in Calcutta himself and that the provisions of Section 6-A of the Act, 1956 were not applicable in this case.
The authorities were of the view that there was clear evasion of tax and second appellate order was passed. The only defect with the assessment order as has been mentioned by the counsel for the revisionist is that at best the said transaction would be inter state sale rather than intra state sale. He submits that the entire proceedings are based on a solitary material/evidence/ the report of S.I.B. If the report of S.I.B. is to be believed than the transaction was an inter state sale, the goods emanating from Allahabad were to be sold in Calcutta - It is undisputed that the report of S.I.B. clearly indicates that the goods were sold in Calcutta and the provisions of the Act, 1956 would be applicable rather than provisions of the Act, 1948.
The matter is remanded to the tribunal to hear the revisionist only for the purpose of remanding the same to the appropriate assessing authority to assess the tax imposed on the revisionist on the basis of the admitted claim of the transaction - Petition allowed by way of remand.
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