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VAT / Sales Tax - Case Laws
Showing 81 to 100 of 629 Records
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2020 (11) TMI 577
Principles of natural justice - Validity of Assessment Order - no personal hearing afforded to the petitioner prior to completion of assessment - HELD THAT:- The petitioner has not been afforded an opportunity of personal hearing prior to completion of assessment, the impugned order of assessment is set aside. The petitioner will appear before the respondent officer on Thursday, the 26th of November, 2020 at 10.30 a.m. without awaiting any further notice along with yet another copy of the documents relied upon by it in regard to its claim of ITC. Any material in relation to third party details obtained from the Departmental website and proposed to be relied upon by the authority shall be made available to the petitioner prior to completion of assessment. After consideration of the same and after hearing the petitioner in person, an order of assessment shall be passed de novo within a period of six (6) weeks thereafter.
Petition disposed off.
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2020 (11) TMI 576
Reversal of ITC - the assessment are sought to be re-opened and the ITC availed by the dealers are directed to be reversed, when a mismatch occurs - Demand of Differential amount alongwith interest and penalty - HELD THAT:- A batch of Writ Petitions filed by similarly placed persons on this aspect of the matter came up for consideration before this Court in M/S. JKM GRAPHICS SOLUTIONS PRIVATE LIMITED VERSUS THE COMMERCIAL TAX OFFICER [2017 (3) TMI 536 - MADRAS HIGH COURT] where it was held that this Court is fully convinced that the procedure adopted by the respondent, Assessing Officers in all these cases are half baked attempts, which have not yielded results and these cases are before this Court or before the Appellate Authorities and all that the Assessing Officers can record is that they have issued show cause notices or passed orders reversing the Input Tax Credit with no appreciable impact on the revenue collection.
The concerned assessing officer shall issue fresh show cause notice with all required details in respect of levy of tax for mismatch invoices and the Petitioner shall be entitled to submit its explanation within the prescribed time. It is made clear that the Petitioner shall not be entitled to raise any plea of limitation when the fresh show cause notice is issued - petition allowed.
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2020 (11) TMI 553
Principles of Natural Justice - sufficient opportunity to show cause against the re-assessment not provided - levy of tax on interstate stock transfer and sales made locally in other States, which cannot be subjected to levy of tax in the State of Karnataka - levy of tax on subsidy received by the petitioner from the Central Government - Nutrients Based Subsidy Scheme (NBS Scheme) - HELD THAT:- The essential premise for the petitioner’s case, apart from the question whether there could be levy of tax on subsidy granted to the petitioner based on the aforesaid two schemes, is whether there could be a levy on interstate stock transfer and sales made locally in other States. This question incontrovertibly has not been examined and it would be imperative for the authorities to consider the same as it relates to the very jurisdiction to levy taxes on such stocks impacting the reassessment. Further, if the petitioner succeeds in this regard, the impugned order would have to be modified. As such, the impugned order will have to be set aside on this ground remanding the matter for reconsideration by the Deputy Commissioner of Commercial Taxes [the third respondent].
Furthermore, the other contention on behalf of the petitioner that there cannot be a levy of tax on subsidy availed by the petitioner will perforce have to be considered in the light of the dictum by the Hon’ble Supreme Court in the decision of NEYVELI LIGNITE CORPORATION LTD. VERSUS COMMERCIAL TAX OFFICER, CUDDALORE AND ANOTHER (AND OTHER APPEALS AND CASES) [2001 (9) TMI 926 - SUPREME COURT] and the other contentions of the petitioner. The distinction attempted on the ground that the provisions of the KVAT Act are different from the provisions of similar enactment in the State of Tamil Nadu and Kerala would not be permissible if the Hon’ble Supreme Court in similar set of circumstances has decided the question in favour of an entity that has received subsidy.
The impugned order passed by the third respondent is set aside and the matter remanded to the third respondent for reconsideration - petition allowed in part by way of remand.
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2020 (11) TMI 525
Settlement of arrears outstanding - KGST Act - applicability of amnesty scheme - petitioner contends that the amnesty scheme is separately applicable to the various statutes mentioned therein and the petitioner cannot be compelled to opt for the amnesty under enactments other than the one he has chosen for settlement under the scheme - HELD THAT:- The statutory provision which deals with the amnesty scheme makes it applicable to outstanding dues under various statutes such as the Kerala Value Added Tax Act, Central Sales Tax Act, Tax on luxuries Act, Kerala Surcharges Act, Kerala Agricultural Income Tax Act and the Kerala General Sales Tax Act.
A perusal of the scheme, as also the circular relied on by the respondent, would also indicate that arrears under the various enactments are separately dealt with. For instance, in the case of dues under the KGST Act, the amnesty scheme is made applicable only for outstanding dues prior to the period 1.4.2005 and it is clarified that in case of arrears from 1.4.2005 to 31.03.2020, the principal amount and interest shall be paid subject to there being a full waiver of penalty. The scheme therefore indicates that it is all the outstanding dues pertaining to a particular legislation that have to be cleared together, while availing the benefit of the amnesty scheme.
In the instant case, it is not in dispute that there are no other outstanding dues from the petitioner under the KGST Act and what has been offered for settlement under the amnesty scheme is the entire dues pertaining to the petitioner under the KGST Act.
The 2nd respondent assessing authority is directed to accept the application of the petitioner for settling arrears under the KGST Act, in terms of Section 23(B) of the said Act - petition allowed.
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2020 (11) TMI 510
Refund of amount deposited as pre-deposit - Proceedings under Delhi Sales Tax Act, 1975 - HELD THAT:- This petitioner preferred the refund application which is at Annexure P-5 to the memo of this writ petition. Thereafter, representations was also made before the Commissioner of State, GST, for refund (Annexure P-6). These refund applications have not been scrutinized and decided by the respondent, and therefore it is submitted by learned counsel for the petitioner that suitable directions be given to concerned respondent-authority to decide the refund application in accordance with law, rules and regulations within a time bound schedule, and make the required payment along with statutory interest.
Respondent no. 2 is directed to decide the application for refund of the amount along with statutory interest, which is at Annexure P-5 to the memo of this writ petition, in accordance with law - petition disposed off.
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2020 (11) TMI 509
Refund of Input Tax Credit - amount to be carried forward by way of TRAN-1 Return - HELD THAT:- This petitioner has preferred the writ petition for directions to the respondent to pay ₹ 3,14,284/- for the input tax credit alongwith interest under Section 38 of Delhi Value Added Tax Act, 2004. There is also alternative prayer for allowing the aforesaid amount i.e. ₹ 3,14,284/- to be carried forward by way of TRAN-1 Return.
The concerned respondents-authorities are directed to decide the application of this petitioner for refund of input tax credit for ₹ 3,14,284/- in accordance with law, rules, regulations and government policies applicable to the facts of the case. The respondent authorities will also keep in mind the decision rendered in W.P, if applicable, and will also keep in mind the alternative prayers in this writ petition.
Petition disposed off.
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2020 (11) TMI 394
Permission for withdrawal of petition - alternative remedy of appeal - TNVAT Act - HELD THAT:- When it is pointed out that the Petitioner has got an effective alternative remedy to prefer appeal against that order under Section 51 of TNVAT Act, within a period of 30 days from the date of its receipt before the jurisdictional Appellate Authority as mentioned in the note in the impugned order itself, Learned Counsel for the Petitioner seeks permission of this Court to withdraw the Writ Petition with liberty to resort to the aforesaid procedure. He has sent a confirmatory e-mail dated 06.10.2020 to that effect, which is placed on record.
The Writ Petition is dismissed as withdrawn granting such liberty.
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2020 (11) TMI 393
Rectification of mistake - error apparent on the face of record - application was dismissed on the short ground that the petitioner ought to have filed an appeal as permitted by this Court in the earlier round of litigation, and the application filed under Section 84, according to the Assessing Officer, was not maintainable - Whether the filing of Section 84 application by the petitioner despite being permitted to file an appeal in the earlier round of litigation is correct and permissible? - Principles of Natural Justice.
Whether the filing of Section 84 application by the petitioner despite being permitted to file an appeal in the earlier round of litigation is correct and permissible? - HELD THAT:- There is no serious contest to the position that once a challenge under Article 226 of the Constitution of India is rejected and the petitioner/assessee relegated to statutory remedy, it is at liberty to avail of any statutory remedy under the Act, be it appeal, revision or any other. Thus, resort to Section 84 by the petitioner is not misconceived and rejection of Section 84 application by the Assessing Officer solely on the ground that only an appeal should have been filed is erroneous. This issue is answered in favour of the petitioner.
Whether the impugned order is vitiated by violation of the principles of natural justice? - HELD THAT:- There are no disputes in the facts and all facts as are necessary for the adjudication of the issues on merits are available on record having been filed both by the petitioner as well as by the Department before me. Thus, while accepting the argument that the impugned order is contrary to the principles of natural justice, I refrain from setting aside the order and granting the limited relief of remand and proceed to adjudicate the legal issues raised, on merits.
What is the proper scheme of tax deduction under the provisions of the TNVAT Act and whether the scheme has been followed/applied properly in the present case? - HELD THAT:- The impugned assessment and demand made upon the petitioner relates to the period 2016-17, wherein the Assessing Officer proceeds on the basis that no Form S has been received by the petitioner and hence all remittances made ought to have been subject to tax deduction at source - the Officer has entirely lost sight of the scheme of tax deduction under Section 13 as the three certificates issued by R2 would show that Simplex has the benefit of Form S certificates for the entirety of the contract value.
The impugned order cannot, be holistically appreciated without noticing the totality of facts involved, which also includes the order of assessment dated 28.05.2019. In the light of the three certificates in Form S dated 28.08.2014, 06.05.2015 and 24.06.2016, there is no justification whatsoever for R1 to have passed order of assessment dated 28.05.2019 for the period 2016-17 or the impugned order dated 23.01.2020 - Answered in favor of petitioner.
Whether the order dated 28.05.2019 has been passed under Section 13 or under Section 27 of the TNVAT Act? - HELD THAT:- While hearing the appeal, the Appellate Authority dismissed the same on the sole ground that the issue involved therein related to tax deduction at source under Section 13 of the Act, which could not be the subject matter of assessment under Section 27 of the Act amenable to appeal under Section 51 of the Act. The appeal was dismissed as not maintainable.
While issues on tax deduction would form part of an order of assessment and the computation thereof, as applicable to assessees/dealers under Sections 22 to 27 and amenable to appeal under Section 51 and 52, issues of non-deduction in the case of a non-dealer/non-assessee under the provisions of the Act would form part of an order under Section 13(4) amenable to revision under Section 54 - This issue is answered in favour of the petitioner.
Petition allowed.
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2020 (11) TMI 348
Time Limitation for issuing notices and assessment order - Amendment of Section 42 brought vide notification dated 13.11.2016 having a retrospective effect - whether period of limitation as provided in Section 25 or rule 58 will be applicable and would give cause to the State to issue notice by commencing the proceedings or otherwise? - HELD THAT:- The time limit prescribed vide amendment was, from five years, extended to six years as per the amendment brought in 2017 in v the judgment in Baiju A.A & Others v. State Tax Officer [2019 (12) TMI 469 - KERALA HIGH COURT]. In view of the judgment, the amendment, extendimg period of limitation has been held to be prospective in nature and Assessment proceedings ,initiated after expiry of 5 years, were held to be beyond limitation. The question which is to be seen by this Court is that the amendment of Section 42 brought vide notification dated 13.11.2016 having a retrospective effect, whether period of limitation as provided in Section 25 or rule 58 will be applicable and would give cause to the State to issue notice by commencing the proceedings or otherwise.
The time limits specified in Rule 58(20) of KVAT Rules offer a safe guarding factor to define the limits of power under Section 42(3) of the Act. Meaning thereby, it would not be proper to re-open assessments to bring the tax escaped turnover, which cannot be exercised in a manner that prejudicially affect an assessee, who would not be in a position to meet the charge against him for want of books of accounts and other relevant material - petition allowed.
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2020 (11) TMI 281
Reopening of assessment - Assessment for escaped turnover - time limitation - Section 25(1) read with Section 42(3) of the KVAT Act - assessment year 2013-2014 - HELD THAT:- Under the provisions of Section 25(1), as amended by Kerala Finance Act, 2017, and before repeal of KVAT Act on 22.06.2017, six year period of limitation for reopening assessments cannot be relied upon to issue preassessment notices in cases, where by 31.03.2017, five year period for re-opening assessments under the unamended provisions of Section 25(1) had already expired - In the case of BAIJU A.A. AND OTHERS VERSUS STATE TAX OFFICER, STATE OF KERALA AND OTHERS [2019 (12) TMI 469 - KERALA HIGH COURT], this Court declared that the amendments to Section 25 of the KVAT Act, through the Kerala Finance Act, 2018 are illegal and unconstitutional inasmuch as they were beyond the legislative competence of the State Legislature.
In the instant case, the period of limitation with respect to the assessment year 2013-14 had expired on 31.03.2019 - therefore, Ext.P1 notice dated 18.01.2020 issued under Section 25(1) read with Section 42(3) of the KVAT Act, for the assessment year 2013-14, proposing to carryout assessment for escaped turnover, is clearly barred by limitation.
It is declared that the assessment in respect of which the period of limitation for re-opening under Section 25 of the KVAT Act was to expire by 31.03.2019 cannot be re-opened on 18.01.2020 by issuing Ext.P1 notice - petition disposed off.
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2020 (11) TMI 280
Levy of Penalty - Section 10 (b) of CST Act - “class of goods” being exempted from payment of tax, when such goods are permitted to be purchased as per the list annexed to the Certificate of Registration - the learned Government Advocate submits that the authorities under the Act be granted liberty to verify the issue as to whether the goods purchased by the respondent are included in the Registration Certificates of the respondent.
HELD THAT:- Application disposed off.
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2020 (11) TMI 279
Time Limitation - discrepancies and defects in the books of accounts - Validity of assessment order - TNVAT Act.
Time Limitation - case of petitioners is that orders of deemed assessment under Section 22(2) of the Act have been passed and as such, the impugned orders are barred by limitation insofar as they have been passed beyond the time limit stipulated under Section 27 of the Act - HELD THAT:- The proceedings initiating an assessment should commence prior to the date of expiry of limitation. In the present case, notices initiating proceedings for revision of assessments have admittedly been issued on 17.02.2017 in all cases, before the expiry of the period of limitation. This argument is thus rejected.
Defects in the books of accounts - the argument of Mr.Shaffiq is to the effect that all material particulars as required by Rule 10(6)(b)(i)(B) of the Tamil Nadu Value Added Tax Rules, 2007, have not been supplied, particularly a certificate evidencing receipt of goods returned within a period of six months from date of sale - HELD THAT:- It was incumbent on the part of the Officer to have tabulated the materials filed by the assessee in the first instance and compare the same with the requirements of the aforesaid Rule and thereafter come to a conclusion as to whether the Rule stands satisfied. This exercise has not been done and the Officer merely rejects the petitioner’s contention on the assumption that there is a failure to produce documentary evidence in support of the claim of sales/returns.
The exercise of reconciliation has not been conducted in the manner as required by law. The impugned assessments are thus set aside. The petitioner will appear before the Assessing Officer on Monday, the 7th December, 2020 at 10.30 a.m., without awaiting any further notice in this regard, with all relevant particulars in support of its claim of sales returns and orders of assessment de novo on this aspect shall be passed within a period of four (4) weeks from 07.12.2020, in accordance with law.
Petition disposed off.
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2020 (11) TMI 191
Maintainability of appeal - waiver of pre-deposit - appeal was dismissed by the Deputy Excise and Taxation Commissioner (Admin), Ludhiana Division, Ludhiana on the ground that the petitioner was directed to deposit 10% of the total demand instead of 25% under Section 62(5) of the PVAT Act by 21.03.2017 - HELD THAT:- It was observed that the petitioner was having remedy under Article 226 of the Constitution of India for seeking any relaxation or waiving off the amount for hearing of the appeal. No doubt, any specific ground has not been taken for showing the financial hardship but it has been mentioned in second prayer that due to financial loss in business, the petitioner could not deposit the amount of 25% as pre-deposit. During the course of arguments, it has been submitted by learned counsel for the petitioner that the petitioner would deposit 10% of the total demand as directed by the Appellate Authority, in case, his appeal is heard on merits. Although, as per provisions of Section 62(5) of the PVAT Act, no appeal can be entertained unless the same is accompanied by satisfactory proof of the prior minimum payment of twenty-five percent of the total amount of additional demand created, penalty and interest, if any.
By considering the interest of justice and also the fact that the petitioner is ready to deposit 10% as pre-deposit instead of 25% of the total demand before the Appellate Authority within some reasonable period for deciding his appeal on merits - petition disposed off by directing the petitioner to file an appeal within a period of two weeks from the date of receipt of certified copy of the order and respondent No.2 i.e the Deputy Excise and Taxation Commissioner (Admin), Ludhiana Division, Ludhiana is directed to entertain the appeal and to decide the same in accordance with law within a period of four weeks thereafter on depositing of 10% of the total demand.
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2020 (11) TMI 190
Rejection of rectification of Form F - direction to the respondents to issue Form ‘F’ for period May 2017 to March 2018 - HELD THAT:- This Court is of the view that no useful purpose would be served by keeping the petition pending. Consequently, this Court directs the respondent no.2 to allow the amendment sought for by the petitioner in its return of Assessment Year 2017-18. However, this direction shall remain suspended till the Civil Appeals pending before the Supreme Court, taken note of hereinabove, are decided and this direction shall abide by the decision that the Supreme Court renders.
Petition disposed off.
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2020 (11) TMI 155
Levy of Interest on belated payment of tax - belated filing of returns - Section 24(3) of the TNGST Act read with Section 9(2-A) of the Central Sales Tax Act, 1956 - HELD THAT:- As per Section 24(3- A) of TNGST Act, a dealer who files the prescribed return, after the expiry of the prescribed period, but within 10 days from the expiry thereof is required to pay interest at 2% of the tax payable for every month or part thereof. It is abundantly clear that the liability to pay interest under Section 24(3-A) is triggered if the return is not filed on the prescribed date - However, this provision applies only if the return is filed belatedly but within 10 days from the expiry of the prescribed period. The prescribed period in these cases is the 12th of the succeeding calendar month and the learned Additional Government Pleader does not dispute the fact that the returns were filed on or before the 20th of the succeeding calendar month, which is within 10 days from the prescribed last date. Therefore, Section 24(3-A) undoubtedly applies to these cases. On account of the above position, we conclude that the apposite provision, in this case, is Section 24(3-A) rather than Section 24(3).
Once Section 24(3-A) is held to be applicable, the challenge to the impugned orders is not sustainable and these orders are not liable to be interfered with except to the limited extent of holding that the relevant provision in these cases is Section 24(3-A) and not Section 24(3). In this regard, the settled position is that an order is not vitiated merely because a wrong provision of law is cited therein provided the relevant statute contains an appropriate provision for such purpose.
The writ petitions are disposed of by affirming the liability to pay interest, albeit in terms of Section 24(3-A) of the TNGST Act read with the relevant provision of the CST Act, where applicable.
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2020 (11) TMI 154
Vires of Bihar Entry of Goods into Local Area for Consumption, Use or Sale Therein (Amendment and Validation) Act, 2008 - ex-parte assessment order - It is the argument of the petitioner that the schedule under the amendment Act, 2007 wholly substituted the schedule under the principal Act, which also meant that all notifications prescribing rate of tax for the scheduled goods stood repealed - HELD THAT:- SO 95 dated July 31, 2008 which prescribes that the said Notifications were to come into force with effect from April 1, 2008 is merely clarificatory in nature and in any event would not supersede or substitute the earlier Notifications, i.e. SO 92, SO 159; or SO 99.
It is a settled principle of law that fiscal statutes need to be interpreted and applied strictly and the benefit of doubt, if at all, would enure in favour of the assessee. However, it is equally settled that if the assessee is liable to be subjected to incidence of taxation, then he must abide by and be dutiful in paying the tax, expeditiously, and in accordance with law - Upon perusal of the impugned assessment order dated August 25, 2011 passed by the Assistant Commissioner of Commercial Taxes, Gopalganj Circle, Gopalganj, which according to Shri Vikash Kumar, the learned counsel for the Revenue, is not placed fully on record, we notice that he same was passed in the absence of the assessee and was ex parte in nature.
The order appears to have been passed without proper application of mind. Even the order passed by the Revisional Authority, running into one and a half pages, to say the least, is cryptic in nature, not even referring to, much less dealing with the contentions raised by the petitioner.
The Assessing Officer shall pass a fresh order with respect to the assessment in issue, i.e., assessment years 2006-07 and 2007-08 - Petition allowed by way of remand.
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2020 (11) TMI 80
Time Limitation for completion of assessment - though the assessees sought the limitation period to be limited to four years as has been prescribed under sub-rules (7) and (8) of Rule 6 of the CST Rules, the decisions thought it fit to refer to the General Sales Tax laws applicable in the State, thus enlarging the period of limitation from that available in the Rules - HELD THAT:- Section 9 enables the levy and collection of tax and penalties exercising all or any of the powers conferred on the Department under the General Sales Tax law of the State, which is subject to the other provisions of the CST Act and the Rules framed there under - Under the KGST regime as was applicable till the year 2004-2005, there was a finalization of assessment contemplated after the return is filed. Under the KVAT regime, which came into force from 01.04.2005, on filing of return, there is a self assessment under Section 21, which deems the assessment to have been completed on the receipt of the return.
The limitation provided is not from the date of finalization of assessment, but from the closure of the year to which the tax relates. Even a rectification of mistake can only be within three years of the expiry of the year to which the tax relates. In that context, it would not have been the intention of the executive Government to enable an assessment at any time after the return is filed when the rules provide a limitation period of re-opening either for determination of turnover or for revising the rate of tax or even for rectification of a mistake. We would have in that context found the reasonable time to be four years.
Rule 6(5) does not provide for a period of limitation and when the General Sales Tax law provided a period of five years for re-opening an assessment which is deemed to be completed under Section 21, the same applies under the CST Act and the Rules. We cannot but observe that though Section 25 of the KVAT Act provides for re-opening of the completed assessment under Section 21, under the CST Rules the limitation provided for reopening of assessment on the ground of escaped assessment is four years.
For the year 2005-06 and 2006-07, the notices issued under Section 6(5) were just prior to the close of the 8th year, i.e., respectively on 13.02.2014 and 19.03.2015. For the year 2007-08, notice was issued on 20.03.2015, just prior to the close of the 7th year - Decided in favour of the assessee and against the Department.
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2020 (11) TMI 79
Best Judgement assessment - suppression of turnover - TNGST Act - HELD THAT:- Both the reassessment orders for the Assessment Years 2002-03 and 2003-04 emanates from the inspection conducted in the petitioner's place of business between 08.10.2003 and 14.10.2004. Apparently, the inspection relates to the Assessment Year 2003-04. However, the reports that emanated from the inspection has been applied to the Assessment Year 2002-2003 also, which cannot be countenanced.
In the present case, though the Assessing Officer were originally of the view that D3 proposals can be deviated and inspite of the fact that this Court had directed the Assessing Authority to independently take a view in the issues, the first respondent had, without any doubt, strictly adhered to the D3 proposals and the orders of rejection passed by the second respondent to the deviation proposals and came to a conclusion in the impugned orders.
There are force in the submissions of the learned Senior counsel that during the original assessment, the first respondent, Assessing Authority had admitted that the day book, ledger, purchase bills, etc., were produced by the petitioner. Likewise, in the first deviation report forwarded by the first respondent for the Assessment Year 2002-03 dated 17.06.2008, the remarks of the processing officer evidences inspection of the stock statement register, which was maintained to monitor the day-to-day productions, purchases, sales and stock production. In the second deviation report of the first respondent for the Assessment Year 2002-03 dated 14.01.2011, it is recorded that the accounts of the dealers for the year 2002-03 were checked. Accordingly, the first respondent had verified every aspect of the issue relating to the turnover of the dealers and hence the submissions of the learned Government Advocate that the dealers have failed to produce the relevant records during the impugned assessment proceedings, cannot be the sole ground in rejecting the petitioner's claim.
Penalty - HELD THAT:- There was sales suppressions and the consequential levy of tax, the respondent had also levied penalty under Section 16(2)(c), as well as, Section 23 of the TNVAT Act. Now, that this Court has held that the impugned orders itself cannot be sustained, the consequential penalty also requires to be set aside.
Petition allowed.
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2020 (11) TMI 78
GST Compensation - primordial submission made by the learned counsel for the petitioner is that in the light of Sub-section [1] of Section 7, the compensation payable under the Act to any State during the transition period, is mandatory and as such, the 1st respondent is under obligation to pay the compensation to the State of Tamil Nadu without any loss of time, especially, in the light of the onset and thick spread of COVID- 19 pandemic virus - HELD THAT:- The Goods and Services Tax [Compensation to States] Act, 2017, does not deal and speak about the consequences of non-compliance of the time line stipulated under Subsection [2] of Section 7 of the said Act and therefore, it can be construed only as directory and not mandatory. It is not as if the 1st respondent is not going to compensate the States, in the light of the above cited provisions and whatever difficulties faced by the Government of Tamil Nadu in lieu of the economic melt down due to COVID-19 pandemic virus, may have equal application to the Union of India also.
This Court is of the considered view that positive direction sought for by the petitioner cannot be granted - Petition dismissed.
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2020 (11) TMI 25
Recovery of arrears of Sales Tax - inter-State sales turnover against 'C' Forms - time limitation - principles of natural justice - HELD THAT:- The recovery notices are of October 2014. The time limit prescribed vide amendment was, from five years, extended to six years as per the amendment brought in 2017.
On account of a retrospective operation of newly introduced provision, assessee would not be in a position to adduce material to defend against an allegation of suppressed / escaped turnover. No doubt, retrospective operation of Section 42(3) would entail into reopening of assessments completed years back and assessee would not have relevant books of accounts and other records to defend the case against alleged escaped turnover. As per Rule 58(20) of KVAT Rules, assessee is required to maintain the books for a period of five years from the end of assessment year in question or two years from the date of disposal of the appeal or revision arising out of such assessment or from the date of completion of any other provisions under the Act connected with such assessment appeal or revision, whichever is later. Fixing of a reasonable period would have to be read in determining what reasonable should be. The oral scheme of KVAT Act in the interest of ensuring certainty in tax matters and also the necessity to interpret the provisions in the manner is to avoid unconstitutional results such as unreasonablness, unfairness and arbitrariness of statutory provisions.
The time limits specified in Rule 58(20) of KVAT Rules offer a safe guarding factor to define the limits of power under Section 42(3) of the Act. Meaning thereby, it would not be proper to re-open assessments to bring the tax escaped turnover, which cannot be exercised in a manner that prejudicially affect an assessee, who would not be in a position to meet the charge against him for want of books of accounts and other relevant material - petition allowed.
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