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VAT / Sales Tax - Case Laws
Showing 101 to 120 of 27658 Records
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2024 (12) TMI 1233
Levy of central sales tax on movement of goods from the manufacturing unit of the appellant situated in the State of Rajasthan to its depots in the State of Bihar and the State of Jharkhand - inter-state supply of goods or inter-state stock transfers? - HELD THAT:- A perusal of the facts of these four appeals and the facts of the fourteen appeals decided by the Tribunal on 21.10.2024 [2024 (10) TMI 1124 - CESTAT NEW DELHI] clearly show that they are similar. The Liquor Sourcing Policy framed by the State of Bihar and the Liquor Policy framed by the State of Jharkhand which came up for consideration in the decided appeals has also come up for consideration in these four appeals. The Master Agreement entered into between the appellant and the Corporation at Patna and the Master Agreement entered into between the appellant and the Corporation in Jharkhand are identical.
Demand set aside - Appeal allowed.
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2024 (12) TMI 1188
Challenge to attachment of bank and Demat accounts and the demand notice for recovery under the Maharashtra Land Revenue Code (MLRC) - opportunity of hearing was not provided - violation of principles of natural justice - HELD THAT:- It does appear that the impugned attachment orders and notices have been issued without disposal of the show-cause notices. The attachment orders do not refer to any final adjudication orders. These notices threaten the petitioners with serious civil consequences. Therefore, before taking such drastic action, the principles of natural justice and fair play had to be complied with. The impugned attachment notices and other notices warrant interference on this short ground.
In these cases, the respondents had themselves given the show cause notices to the petitioners. Accordingly, it was incumbent upon the respondents to dispose of the show cause notices in accordance with law before the impugned notices could have been taken.
Petition allowed.
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2024 (12) TMI 1187
Rate of tax - inter-state sales of safety equipment without the ‘C’ form - requirement to pay tax at the rate of 4% as per the entry 34 schedule (4) - HELD THAT:- On perusal of the record, it shows that the petitioner had paid tax in accordance with the schedule of the Act from the beginning and has never claimed any exemption through ‘C’ forms. Therefore, the question of submitting the ‘C’ forms for the goods in dispute does not arise. The authorities below and also the Appellate Tribunal, did not consider the petitioner’s case in its the proper prospective.
On perusal of the orders passed by the authorities and as well as the Tribunal, it is succinctly clear that without going into the aspect of rate of tax as against the goods dealt by the assessee of the authorities including the Tribunal must directed with the issue on hand and passed orders under challenge mulcting the assessee to pay tax at the rate of 14.5%, since he did not produce the ‘C’ forms. The furnishing of ‘C’ forms would arise only when the assessee is claiming exemption - But in the instant case he has paid tax as per the schedule appended to the Act for the goods viz., hand gloves.
In that view of the matter, the orders of the Tribunal and also the order of the Appellate Deputy Commissioner and Assessing Authority are set aside, and the matter is remanded to the Assessing Authority to take-up the assessment afresh and pass appropriate orders, after giving opportunity of being heard to the petitioner and the same has to be completed within a period of four weeks from the receipt of copy of this order - the Tax Revision is allowed.
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2024 (12) TMI 1130
Taxability - supply of PSC sleepers would amount to execution of a works contract or not - HELD THAT:- In K. Raheja Development Corporation vs. State of Karnataka [2005 (5) TMI 7 - SUPREME COURT], the Hon’ble Supreme Court was considering the taxability of a development agreement between land owners who had offered the land for construction of a multi-storied apartments and Commercial Complexes and the developer who took up construction, under this agreement. The Hon’ble Supreme Court after considering the definition of ‘works contract’, contained in the Karnataka Sales Tax Act, which is in pari materia with the definition contained in APGST Act, had held that an agreement for construction of apartments, for a valuable consideration or in installments would amount to a works contract.
In the present case, the petitioner is in regular manufacture of these sleepers which are supplied not only to Indian Railways but also to other dealers. Though the fact that the PSC Sleepers are made according to the specifications of Indian Railways, may be a significant factor which has to be taken into account, the fact remains that these sleepers are manufactured in the regular course of manufacture by the petitioner. In such circumstances, it may not be appropriate to conclude that the contract in question was a works contract and not a contract of sale.
In view of the non-exclusive nature of supply and in view of the facts mentioned above, this Writ Petition is allowed setting aside the Assessment Order dated 28.05.2009, passed by the Assessing Authority.
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2024 (12) TMI 1017
Time limitation - dismissal of application filed by the writ petitioner for condonation of delay of 655 days in filing appeal before the Tribunal - HELD THAT:- Considering the fact that the assessment is high-pitched assessment and the assessment was ex-parte since the petitioner did not appear and also taking note of the fact that though the final assessment order was passed on 27th February, 2018, till date, the same has remained a paper order and the Government has not been able to recover any tax, one more opportunity can be granted to the writ petitioner to pursue their appeal before the Senior Joint Commissioner, Commercial Taxes, Bally Circle provided the petitioner complies with the pre-deposit condition by paying 15% of the disputed tax.
The writ petition is allowed and the orders impugned are set aside including the order passed by the Senior Joint Commissioner, Bally Charge dated 6th July, 2018 subject to the condition that the petitioner pays 15% of the disputed tax, as required under Section 84 (1) of the Act within 30 days from the date of receipt of the server copy of this judgment and order.
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2024 (12) TMI 939
Realization of arrears of tax payable under the KGST Act - Validity of property transfer under the Income Tax Act, 1961, and the Kerala General Sales Tax Act, 1963 - void transfers or not - Impact of Section 281 of the Income Tax Act on property transfers - HELD THAT:- By virtue of the non-obstante clause, excludes the operation of “any other law in force” and creates a first charge on the property of the dealer. Therefore, with respect to the year 1995 onwards, there was a first charge with reference to the tax payable under the KGST Act. It is to be noticed that there is no corresponding provision creating the first charge under the I.T. Act. At the maximum, the provisions of Section 281 of the I.T. Act referred to above provide that certain transfers during the pendency of proceedings be void. Here, no such transfer has taken place, and instead, a charge is created on the properties of the deceased, with respect to the arrears/tax payable under the KGST Act. It is for the realization of such tax payable that the properties of the deceased are proceeded against after attaching them. Such properties are placed for public auction, and the properties are purchased by various individuals who, in turn, later sold those properties in favour of the petitioners herein.
The Income Tax Department may not be justified in contending that they can proceed against the properties in possession of the petitioners herein for realizing the arrears payable by the deceased Madhavan Pillai.
The judgment of the Apex Court in Connectwell Industries Private Limited [ 2020 (3) TMI 362 - SUPREME COURT] relied on by the learned counsel for the petitioners, wherein the Apex Court considering the claim made by the Income Tax Department over a property which was sold for recovery of arrears payable to the Bank by the Debt Recovery Tribunal held 'The High Court held that Rule 16(2) is applicable to this case on the ground that the actual sale took place after the order of attachment was passed by Respondent 4. The High Court failed to take into account the fact that the sale of the property was pursuant to the order passed by DRT with regard to the property over which a charge was already created prior to the issuance of notice on 11-2-2003. As the charge over the property was created much prior to the issuance of notice under Rule 2 of Schedule II to the Act by Respondent 4, we find force in the submissions made on behalf of the appellant.'
Thus, the Apex Court has noticed that there is no preference given to the tax payable under the I.T. Act, and hence, the charge created over the property earlier to the service of notice under the Second Schedule of the I.T. Act would dis-entitle the Income Tax Department from proceeding against the property in question.
Merely on account of the provisions under Section 281 of the Act, the ownership transfer to the petitioners herein cannot be declared as void by the Income Tax Officer or the Department. For that, they may have to institute a suit as was done in the case of mortgage effected in favour of the Kerala State Financial Corporation. Here, that is not done as against the petitioners and on the basis of the findings rendered earlier, the maintainability of such suits itself is doubtful.
The petitioners are entitled to succeed - these writ petitions are allowed by setting aside the impugned notices/proceedings and also declaring that the properties in possession of the petitioners cannot be proceeded against for realization of the arrears payable under the I.T. Act by the deceased Madhavan Pillai, proprietor of M/s. Mohandas Cashew Factory, Arakkal, Kollam District.
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2024 (12) TMI 938
Levy of penalty under Section 10(d) of the CST Act - Entitlement of reduced rates of tax on sales in the course of inter state trade is available by virtue of Section 8(1) read with Section 8(3)(b) of the CST Act - existence of mens rea or not - whether the imposition of penalty, is an act which is automatic upon there being a default of the conditions, enabling the levy of penalty as specified under Section 10 or whether it is incumbent upon the Department to establish a case for imposition of levy and the assessee can escape the levy of penalty by discharging the responsibilities/conditions, specified in Section 10 (d)? - HELD THAT:- It is clearly well settled that the provisions of penalty as prescribed in the various statutes have to be interpreted in the light of the language used in the said statutes. It is clearly well settled that where the penalty prescribed under a fiscal statute, is dependent on happening of particular act without anything else to be established, no necessity is to be established and the penalty is a natural consequence of the happening of that event, however, in the physical institute, if a penalty is prescribed dependent on factor as specified in the said statutes, the penalty can be imposed only on the happening of the said event and after observing the conditions as prescribed.
In the present case, the interpretation of Section 10(d) has come up for consideration before the Supreme Court in the judgment in COMMISSIONER OF SALES TAX, UP. VERSUS SANJIV FABRICS AND HARI OIL & GENERAL MILLS [2010 (9) TMI 461 - SUPREME COURT], and the Supreme Court has after considering the statutory provisions has held that it is essential that the mens rea be established. Even otherwise on the plain reading of Section 10(d) the phrase “reasonable cause” has been duly discharged by the revisionist by producing the certificate of an Engineer, thus necessary ingredient for levy of penalty have neither been alleged established or proved in the present case, as such, for the reasons recorded above, the order of penalty cannot be justified and is quashed. The questions are answered in favour of the revisionist.
Revision disposed off.
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2024 (12) TMI 937
Challenge to orders of the Tamil Nadu Sales Tax Appellate Tribunal, Chennai - second sale exemption on purchase of gingelly seeds - registered dealer or not - HELD THAT:- As per Section 10 of the TNGST Act, the burden of proof for proving any transaction that the dealer is not liable to tax shall lie on the dealer. As such, the burden was always on the dealer to prove the point of first sale.
In the instant case, the assessee had not discharged the burden of proof under Section 10 of the TNGST Act by proving the first sale. Further the finding of fact has been arrived at consistently by the authorities that the bills purchased from M/s.Sri Valli Traders cannot be accepted as they are not registered dealer, the bills produced also had been found to be manipulated and there had not been any actual movement of goods.
There are no error or illegality in the finding of fact arrived at by the Tribunal and accordingly, the Writ Petition is dismissed.
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2024 (12) TMI 936
Deletion of reversal of input tax credit - failure to take into account the relevant facts - taking into account the factors that are wholly irrelevant in deciding whether reversal is warranted in terms of Section 2(11) of the TNVAT Act 2006 - process engaged by the dealer comes within the purview of Section 2(11) of the TNVAT Act, 2006 or not - HELD THAT:- There are no reason to interfere with the impugned order passed by the Sales Tax Appellate Tribunal as it is a well considered order. There is no dispute that the respondent is engaged in bleaching of fabric and therefore is liable to pay tax under the provisions of the TNVAT Act, 2006. Consequently, input tax credit on the capital goods used for such process cannot be denied.
This Tax Case Revision is dismissed - the substantial questions of law raised in this revision are answered in favour of the assessee and against the Revenue.
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2024 (12) TMI 834
Nature of transfer of goods - Inter-state Sales or Branch Transfers - whether the interstate transfer of goods by the appellant from its factory in Coimbatore to its depot in Palakkad in Kerala during from 01.04.1996 to 28.08.1996 were inter-state sales or branch transfers? - HELD THAT:- The Sales Tax Appellate Tribunal recorded in the impugned order a finding that sales had occasioned the inter-state movement of goods and for that reason, central sales tax was payable. In view of the correspondence between the appellant and Argus recorded above which corresponded to the invoices, the finding in the impugned order agreed that sales occasioned the inter-state movement of goods under the disputed Forms F during the period 01.04.1996 to 28.08.1996. In respect of the transfers made during the rest of the AY, the order of assessment has already been set aside in the impugned order.
The impugned order is correct and proper and needs to be upheld.
The alternative prayer of the appellant is that if the demand of CST is upheld, an order may be issued under section 22 (1B) of the CST Act directing the State of Kerala to transfer the refundable amount which the appellant had paid as sales tax on the disputed transactions to the State of Tamil Nadu - In this case, while the amount of Central Sales Tax payable to the state of Tamil Nadu is Rs. 1,44,069/- (for Assessment Year 1996-1997) on the goods transferred from Tamil Nadu to Kerala, details of the sales tax claimed to have been paid in Kerala are not available. Therefore, it is not possible to pass an order under section 22(1B).
The impugned order is upheld - appeal dismissed.
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2024 (12) TMI 463
Imposition of luxury tax - Liability of the petitioner to tax for the medical bed facility under the Kerala Tax on Luxuries Act, 1976 - imposition of penalty under Section 17A of the Act - justification for completion of assessment by estimating the receipts for the purpose of assessment.
Is the petitioner liable to tax with reference to the medical bed facility provided by it, under the statute? - HELD THAT:- Ultimately, what is to be looked into is as to whether the facility provided is a necessary requirement of an average member of the society. There cannot be any dispute that even without the aid of the medical bed provided by the petitioner, an expecting mother can give birth.
This Court also notices the judgment of a Division Bench of this court in RAJAH HEALTHY ACRES (P) LTD. VERSUS STATE OF KERALA, THE SECRETARY (TAXES) , GOVERNMENT OF KERALA, THE COMMISSIONER, COMMERCIAL TAXES, INSPECTING ASSISTANT COMMISSIONER (INVESTIGATION BRANCH) , INTELLIGENCE OFFICER (IB) [2017 (1) TMI 581 - KERALA HIGH COURT] wherein the challenge against the provisions of the Act providing for levy of tax on receipts in hospitals was considered. The Division Bench of this Court held 'the word 'luxury' has been defined in the Act itself and, therefore, that definition would prevail and it is competent on the part of the legislature to give it a wide meaning so as to take in all such experience which ministers comfort or pleasure. This is completely and wholly within the competence of the Legislature to enact upon under Entry 62 of the VII Schedule of the Constitution, the matter being intrinsically and irreparably related to 'luxuries' as obtaining in the said Entry.'
Thus, ultimately what is taxed under the statute is the experience of luxury as regards the accommodation/ amenities in the hospital. There cannot be any challenge against an assessment with reference to the afore activity - the petitioner is liable to tax on the charges collected as against the medical beds provided by it.
If the answer to the above question is in the affirmative, is the imposition of penalty under Section 17A of the Act justified? - HELD THAT:- On a perusal of the impugned orders of penalty, it is seen that the petitioner was proceeding on the bona fide belief with reference to its non-liability as against the receipts for the use of the medical beds. The fact that what is being imposed is a penalty shows that unless and until mens rea is established, no penalty can be levied. There cannot be any contumacious conduct on account of the non-inclusion of the afore amounts in the return - the imposition of penalty, which is the subject matter of challenge in W.P.(C) No. 36848 of 2017 can only be declared as illegal.
Is the completion of assessment by estimating the receipts for the purpose of assessment, justified? - HELD THAT:- The amount of the alleged suppression as regards the receipts for the medical beds, already quantified in the penalty orders, was the basis for the finalisation of the assessment. Further additions on account of the afore receipts while finalising the assessments cannot be sustained since the actual receipts, which were not included in the returns, have already been quantified. When that be so, the further additions towards omissions and suppressions in Ext. P8 to P10 orders cannot be sustained.
The petitions are disposed off.
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2024 (12) TMI 462
Reversal of input tax credit pursuant to cancellation of selling / purchasing registration - HELD THAT:- The law on this aspect has been settled by the Division Bench of this Court, rendered in the case of Sahyadri Industries Ltd. vs. State of Tamil Nadu [2023 (4) TMI 912 - MADRAS HIGH COURT] where it was held that 'it was incumbent on the part of a registered dealer like petitioner-appellants availing input tax credit to prove that indeed a transaction of “sale” had taken place. They should not only preserve but also produce collateral evidence in the form of transport documents, such lorry receipts or consignment note, etc. When called upon failing which it cannot be said they have discharged the burden of proof required to be discharged under Section 17(2) of the T.N. Vat Act, 2006.'
The ratio of the said decision will apply to the facts of this case. Under thes circumstances, the impugned order is set aside and the matter remitted back to the Assessing Officer in light of the decision of this Court rendered in the case of Sahyadri Industries Ltd. - The respondent herein is entitled to produce all documents and is also entitled to file a detailed submission to the notices that were issued prior to the order dated 22.07.2015.
Appeal disposed off.
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2024 (12) TMI 401
Rejection of applications moved by the petitioner for one time settlement of outstanding dues under the Haryana One Time Settlement of Outstanding Dues Act, 2017 and Haryana One Time Settlement Scheme for Recovery of Outstanding Dues, 2023 - whether merely because the High Court had while declining interim relief, made observations that all the proceedings taken by the respondents and deposits made by the petitioner, would be subject to final order of this Court, can it be said that the entire amount was a disputed tax? - HELD THAT:- The petitioner’s claim that the amount, which it has deposited in the category of disputed tax, may be considered for considering the OTS application is wholly misconceived and cannot be sustained. The mere stating of this Court that all the payments which the petitioner has to make would be subject to final outcome ‘is merely a reiterating the theory of lis pendens’. Since the petitioner was not granted any interim relief, the amount has to be treated to be admitted tax to be paid by the petitioner in full.
It is also noticed that if ultimately the petitioner’s writ petition is dismissed, it would be the amount which has been already assessed that the petitioner would have to deposit and in One Time Settlement also the same would, therefore, be considered. However, if the writ petition is allowed, the petitioner can always claim refund.
The decision of the authorities, in rejecting the application on the basis of the amount being less than what was required to be paid, cannot be said to be unjustified or illegal. The petitioner would be well advised to deposit the remaining amount, if it so wants to further pursue the OTS application treating it as an ‘admitted tax’.
All the writ petitions are dismissed.
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2024 (12) TMI 342
Challenge to assessment order - taxation on digital photography - works contract with photography is a service contract or not - HELD THAT:- On perusal of the impugned order of assessment, this Court finds that no reply was even submitted by the petitioner pursuant to the order passed by the Appellate authority, nor has any appeal been filed against the order of the Appellate Authority before the Tribunal, insofar as it found that the petitioner is liable to tax in respect of photography. Since the question of liability to tax on photography is decided in the affirmative, the question that remains is the quantum of tax, which would depend on the value of materials involved in the execution of works contract. The same is essentially a question of fact, which is appropriate for the Appellate Authority to decide.
Liberty is granted to the petitioner to file an appeal before the Appellate Authority, if so advised, on the limited ground, of determining the extent of the value of the materials involved in the execution of works contract, within a period of three (3) weeks from the date of receipt of a copy of this order.
The Writ Petition stands disposed of.
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2024 (12) TMI 268
Rejection of refund claims filed by the Respondent for the refund of Input Tax Credit under Section 18(3) of Tamil Nadu Value Added Tax Act, 2006 - refund claims were filed beyond 180 days from the date of expiry of period prescribed - HELD THAT:- As per Section 18(3) of the Tamil Nadu Value Added Tax Act, 2006, a refund claim had to be made within a period of 180 days from the date of accrual of such Input Tax Credit and not from the date of zero rate sales during the period in dispute - Similarly, under Rule 11(2) of the Tamil Nadu Value Added Tax Rules, 2007, as it stood during the period in dispute, a dealer who has effected zero rated sales as is contemplated under Section 18(1) of the Tamil Nadu Value Added Tax Act, 2006 could file a refund claim in electronic form W from accrual of such claim.
In this case admittedly there are no records to indicate that returns were assessed and therefore the accrual of refund of such Input Tax Credit cannot be said to have arisen either on the date of purchase of the inputs or on the date of export that is Zero Rated Sales as defined in Section 2(44) of the Tamil Nadu Value Added Tax Act, 2006 or within 180 days of the actual export during the period in dispute.
The export incentives in the form of refund of Input Tax Credit should not be denied and ought not to be denied as export bring precious foreign exchange to the country. These export incentives were conceived of and are being given at the time when the country was facing shortage of foreign currency when foreign exchange reserves were depleted impelling the Parliament as also the State Legislatures to boost exports in a bid to usher the foreign exchange into the country.
Question of restrictions if any statutorily can be said to have been put in a place only after 2010 pursuant to amendment to Section 18(3) of the Tamil Nadu Value Added Tax Act, 2006 vide Amendment Act 9 of 2010 with effect from 1st April 2010 as notified by G.O.Ms.No.24AA dated 02.03.2010 and amendment to Rule 11(2) of the Tamil Nadu Value Added Tax Rules, 2007 vide Notification No.SRO A-11/2010 dated 06.04.2010 with effect from the date of amendment to Section 18(3) of the Tamil Nadu Value Added Tax Act, 2006.
There are no error in the order passed by the learned Single Judge - petition by the Revenue dismissed.
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2024 (12) TMI 219
Maintainability of petition - availability of alternative remedy - Attempt to make misleading statements and omitting to make statements that are required in such matters in the context of the availability of alternate remedies - Section 26 of the Maharashtra Value Added Tax Act, 2002 - HELD THAT:- Since the Petitioner is being relegated to avail of the alternate remedy, it is clarified that all contentions of the Petitioner and the Respondents on merits are kept open.
At this stage, learned counsel for the Petitioner states that the appeal will be filed within four weeks after paying the costs. Suppose such an appeal is indeed filed within four weeks after complying with all the preconditions required under the law and paying the costs. In that case, the Appellate Authority should entertain the appeal on merits without adverting to the limitation issue. This is because the Petitioner instituted this Petition within the limitation period prescribed for instituting appeal.
The Petition is disposed of.
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2024 (12) TMI 218
Challenge to assessment order - wrongful availing of input tax credit - HELD THAT:- A reading of the two counter affidavits and also letter of the petitioner which has been enclosed at Page No.27 seems to indicate that the said letter was sent on 25.12.2014 which accompany an acknowledgement in the Letter Delivery Book which is also dated 25.12.2014. It is highly implausible for the petitioner to have undelivered such a letter on 25.12.2014 as the said date is a holiday it being Christmas day and also highly unlikely an acknowledgement also would not have been given on 25.12.2014 being a holiday. Therefore, prima facie there are indications that there is no truth in the submissions of the petitioner that on 25.12.2014, a letter would have been issued by the petitioner and acknowledged by the respondent in the petitioner's Letter Delivery Book on the same day.
Therefore, the challenge to the impugned order on the ground that the petitioner had surrendered the registration under TNVAT Act, 2006 and CST Act, 1956 cannot be accepted. In any event, whether indeed transaction was carried out by the petitioner during the period in dispute in the year 2016-2017 or not is to be verified from the electronic file and IP address which the Department will have in its possession.
This Writ Petition is disposed of by directing the respondents to verify as it from which IP address the transactions were made by for filing returns in the name of the petitioner, during the period in dispute which has facilitated wrongful availing of the input tax credit and passing thereof to unscrupulous dealers.
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2024 (12) TMI 217
Recovery of dues of the Company from a deceased director's estate - Request to lift the attachment over the subject property - HELD THAT:- It is not in dispute that the husband of petitioner had resigned on 07.02.2013 and has expired on 11.08.2017 whereas, the recovery proceedings were initiated after the death of the husband of the petitioner in the month of June, 2018. It also emerges from the record that the first recovery notice under Section 152 of the Bombay Land Revenue Code 1879 was issued on 07.08.2018 which is placed on record along with the additional affidavit at page 111 of the petition by the respondent.
On perusal of provisions of Sub-Section (3) of Section 53 of the VAT Act read with Section 18 of the CST Act, it is clear that the recovery proceedings can be initiated upon the Director of the Company in liquidation, when the Director proves that non-recovery cannot be attributed to any gross negligence, misfeasance or breach of trust on his part. It is therefore necessary to give an opportunity of hearing to the Director whereas, in the facts of the case, the Director i.e. the husband of the petitioner had expired on 11.08.2017 which is much prior to the issuance of the initiation of the recovery proceedings. Moreover, in case of the C.V. Cherian [2012 (3) TMI 372 - GUJARAT HIGH COURT] it is held that 'As regards the faint plea of lifting the corporate veil, as per the settled legal position, the corporate veil is not to be lifted lightly. It is only when there is strong factual foundation for lifting the corporate veil that the question of examining the applicability of the principle of lifting such veil would be required to be examined. In neither of the two petitions raising the controversy, the authorities have passed any specific order fastening the liability on the Directors personally, much less any factual foundation has been laid to invoke the doctrine of lifting the corporate veil. Hence it is not necessary to dilate on the said principle any further.'
The impugned recovery proceedings including the order of recovery certificate as well as the order of attachment issued by the respondents-authorities to recover the outstanding dues of the Company in default M/s. Oren Kitchen Appliances Pvt. Ltd. are not sustainable in eye of law and are accordingly quashed and set aside - Petition allowed.
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2024 (12) TMI 4
Rejection of prayer of the petitioners for representation by their advocate - challenge to quash CR Case - Prosecution proceedings against the Partners of the Firm for evasion of Tax - HELD THAT:- From the record of proceeding, it is seen that having registered the C.R. case, a summon has already been issued to the petitioner and the petitioner had entered appearance through the learned counsel before the learned trial Court below. Though it is contended in this petition, the prayer for representation of the petitioner is disallowed, the order sheets annexed along with this petition donot disclose anything to that effect rather the order sheet reflects that the petitioner’s application for adjournment and for his absence was duly considered by the learned trial Court below by order dated 13.12.2012.
This Court has also perused the complaint filed by the authorities as recorded hereinabove, and reading of the aforesaid materials if taken on its face value discloses the offences as alleged inasmuch as this Court in exercise of its power under Section 482 of Cr.P.C. cannot go into the factual dispute and allegation as raised in the present case more particularly, when such facts are not admitted by the Taxation department.
The criminal petition stands dismissed. Interim order, if any, passed earlier stands vacated - LCR be returned back.
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2024 (11) TMI 1440
Maintainability of a writ petition under Article 226 of the Constitution of India in the case at hand - Challenge to proceedings by which the dealership should be terminated - petitioner was not the person running the retail outlet - violation of the principles of natural justice.
Is the petitioner entitled to maintain a writ petition under Article 226 of the Constitution of India in the case at hand? - HELD THAT:- In N.G.Projects Ltd. [2022 (3) TMI 1589 - SUPREME COURT], the Apex Court was considering the rejection of a bid pursuant to a tender invited by the Road Construction Department, Jharkhand. Considering the afore situation, the Apex Court held that the writ court should refrain itself from endorsing the decision over the decision taken as to whether or not to accept the bid of a tenderer, especially when the courts do not have the expertise to examine the terms and conditions of the present day economic activities of the State. The Apex Court also cautioned that the courts should not find fault with a magnifying glass in its hand; rather, the courts are only to examine whether the decision-making process is correct. In my opinion, the afore judgment cannot be applied to the facts and circumstances of the case at hand, insofar as, here, the petitioner is complaining of the absence of procedural fairness since, according to her, there is violation of the principles of natural justice. The Apex Court, in the afore judgment, has also held that the High Court can examine whether the decision-making process is one in tune with the known principles of administrative law.
Insofar as the allegation raised by the petitioner is with reference to the violation of the principles of natural justice at the hands of the 1st respondent herein, which is admittedly an instrumentality of the State, the petitioner is justified in approaching this Court under Article 226 of the Constitution of India.
Is there any violation of the principles of natural justice in the case at hand? - HELD THAT:- The fundamental rule that the “one who decide must hear” may not be strictly applied to “institutional hearing”. In that case, ultimately this Court found that a hearing to be provided by the Commissioner of Commercial Taxes with reference to Section 59A(2) of the KGST Act was not institutional but personal. It is in the afore circumstances that this Court interfered with the impugned order therein and directed reconsideration of the issue.
A reference to the agreement entered into between the petitioner and the respondent Corporation is also to be made. The petitioner has produced the said agreement as Ext. P1 along with this writ petition. It is seen that the agreement is entered into between the “Indian Oil Corporation” and the petitioner herein. A reading of the said agreement would also show that the appointment of the petitioner as the dealer is effected by the “Corporation.” It is only that on behalf of the Corporation, a designated Manager is signing the agreement. The petitioner, being the dealer, is to act according to the said terms and conditions, not to the detriment of the Corporation and also not against the terms and conditions thereof. Under clause 56 of the agreement, the respondent Corporation is granted liberty to terminate the agreement in question. Thus, it is seen that the petitioner is entering into the agreement with the respondent Corporation and is also continuing to act on the basis of the covenants of the said agreement, set out by the Corporation. Ultimately, the termination also takes place at the hands of the “Corporation”, and it is only that the Corporation is being represented by its officials.
This Court notices that the impugned order at Ext. P2 is issued for and on behalf of the Indian Oil Corporation Limited and it is only that the same is communicated/signed by the State Head. A detailed procedure has already been noticed and is provided with respect to the hearing granted and the manner in which the decision is arrived at. In my opinion, it is a case of institutional hearing and the rules of natural justice, to the extent applicable, have been followed in the matter. Merely because the hearing has been extended by the then State Head and the impugned order issued by the current State Head that may not be a reason for upsetting the impugned order.
Is any prejudice caused to the petitioner on account of the violation of principles of natural justice, if there is any? - HELD THAT:- There is no violation of the principles of natural justice in the case at hand. On account of the above, there is no requirement to consider this question posed.
Conclusion - The writ petition was maintainable under Article 226 of the Constitution of India due to the alleged violation of natural justice. However, the Court found no violation of natural justice in the issuance of the termination order, as the hearing process was institutional. The Court emphasized that in institutional decision-making, the rule that the one who hears must also decide does not strictly apply.
Petition dismissed.
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9911796707
