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VAT / Sales Tax - Case Laws
Showing 101 to 120 of 27514 Records
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2024 (8) TMI 709
Denial of claim for concessional rate of tax and claim for sales returns - no C Forms to support the claim for concessional rate of tax - claim of the petitioner rejected on the ground that the claim for sales return had not been made within the time contemplated under the statute - differential demand of tax on the petitioner - it was held by Supreme Court that 'The questions of law raised in this revision petition have to be answered in favour of the revenue and against the assessee' - HELD THAT:- It is not required to interfere with the impugned judgment and order passed by the High Court.
Hence, the Special Leave Petition is dismissed.
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2024 (8) TMI 708
Classification of goods - tinted glass sheets - to be taxed as “goods or wares made of glass” under the Notification No.5784 dated 07.09.1981 being Entry No.IV or as unclassified item - it was held by Supreme Court that 'There is no vagueness in the notification dated 07.09.1981 and the entry No. 4 is clear and unambiguous namely it has brought within the sweep “all goods and wares made of glass” exigible to tax but not including “plain glass panes” and the exemption being the creation of the statute itself, it has to be construed strictly and even if there is any vagueness in the exemption clause must go to the benefit of the revenue.'
HELD THAT:- No case for review of the judgment dated 09.10.2023 is made out - The review petitions are, accordingly, dismissed.
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2024 (8) TMI 707
Confirmation of tax being the turnover assessed by the Assessing Authority under section 7A for nonproduction of sale bill - disallownace of turnover by the Assessing Authority on the export sales claimed by the dealer - burden to proof - levy of penalty.
Whether the tax of Rs. 5,80,905/- being the turnover assessed by the Assessing Authority under section 7A for nonproduction of sale bill and confirmed by the Appellate Assistant Commissioner is correct? - HELD THAT:- Section 10 of the TNGST Act, 1959 is entitled 'Burden of proof' and states that for the purpose of assessment of tax under the Act the burden of proving that any transaction or any turnover of a dealer is not liable to tax, shall lie on such dealer. The provision goes on to enumerate the consequence of non-discharge of the burden imposed stating that in the case of a claim of second sale, if an assessee is unable to prove that the goods have already been subjected to tax, he will be deemed to be a first seller/first purchaser. The full onus of this burden falls on the petitioner and has, admittedly, not been discharged in this case - the conclusion of the Tribunal to the effect that the levy of purchase tax is warranted in the absence of any material to support the petitioner's stand contains no infirmity and we confirm the same.
Whether the turnover of Rs. 8,68,432/- disallowed by the Assessing Authority on the export sales claimed by the dealer and confirmed by the Appellate Assistant Commissioner is correct? - HELD THAT:- There is a mismatch between the products purchased by the petitioner and those exported. Even if one were to take a stand that the hosiery yarn purchased by the petitioner had been utilised in the manufacture of the mens shorts that had been ultimately exported, there is no bifurcation available between the export turnover relating to mens shorts and the tops - the addition is confirmed.
Whether the levy of penalty of Rs. 85,133/- by the Assessing Authority and confirmed by the Appellate Assistant Commissioner is correct? - HELD THAT:- Though learned counsel for the petitioner would submit that levy of penalty is excessive, the levy is a percentage of the disputed tax alone - there are no avenue to intervene in the levy of penalty and thus confirm the same.
This Writ Petition is dismissed.
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2024 (8) TMI 591
Declination by High Court to entertain the writ petitions filed by the respondents for challenging the assessment orders - relegated to the remedy of statutory appeal - objection of the appellants is to that part of the impugned order by which till the disposal of the appeal, the High Court granted interim relief subject to respondents’ depositing 25% of the disputed tax within eight weeks - HELD THAT:- The appellants are right to the extent that the High Court could not have granted interim relief which will operate till the disposal of the appeals which were likely to be filed by the respondents.
Grant of interim relief is something which should have been left by the High Court to the Appellate Authorities. At highest, the High Court could have granted interim relief for a limited duration to enable the respondents to prefer an appeal and seek appropriate interim relief therein.
Though the approach of the High Court of granting interim relief till disposal of the appeal, not approved on facts, the impugned orders are not interfered with - appeals are disposed of.
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2024 (8) TMI 590
Non-compliance of the order of pre-deposit - second appeal dismissed on the ground of non-payment of pre-deposit amount at the rate of 20% of the tax amount - HELD THAT:- Considering the audited balance-sheet of the appellant for the year ended on 31st March, 2018 wherein cash balance is shown at Rs.31,961.60 and there being no fixed assets available with the appellant, interest of justice would be meet if the appellant is directed to deposit Rs.10.00 lakh within a period of four weeks from today.
On condition of deposit of Rs.10.00 lakh within four weeks, the impugned order passed by the Tribunal as well as the first appellate authority are hereby quashed and set aside and the matter is remanded back to the first appellate authority to consider the same on merits.
Appeal disposed off.
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2024 (8) TMI 589
Denial of Concessional rate of tax on the price of diesel which is used in the process of manufacture of taxable goods against a certificate prescribed by the Commissioner - benefit of Notification issued by the State of U.P. dated 10.08.2017 - concession could not be availed by the revisionist due to want of certificate of the Commissioner as prescribed therein.
Whether the process of manufacturing commences from Cane Purchase Centre or after the sugarcane reaches the factory premises? - HELD THAT:- The issue is no longer res-integra and a Coordinate Bench of this Court in the case of TRIVENI ENGINEERING & INDUSTRIES LTD. VERSUS COMMISSIONER, TRADE TAX [2014 (1) TMI 1619 - ALLAHABAD HIGH COURT] has extensively dealt this aspect and held that 'In the present case, sugarcane in its entirety cannot be purchased by sugar factory at its factory premises and under law, it is bound to purchase from the farmers at cane purchase centres. For manufacturing of sugar, crushing of surgarcane is an integral part and for that purpose, sugarcane has to be transported from its place of storage or where it has been purchased to the point of crushing pit where it has to be off loaded for crushing. To my mind, this is integrally connected part of process of manufacturing of sugar and therefore diesel purchased against Form-C if used for cane procurement from centres to factory, it would not amount to violation of purpose for which the said diesel was purchased.'
Thus, undoubtedly, the transportation of sugarcane from the Cane Purchase Centre to the Factory Premises is included in the term 'manufacture' of sugar and the Tribunal has not correctly appreciated the controversy and has clearly erred in law.
Benefit obtained by the revisionist under the Notification dated 07.12.2019 which according to the State Advised Price, the revisionist was also given 42 paisa per quintal per kilometer to a limit of Rs. 8.35 p per quintal for transportation of the sugarcane from the Cane Purchase Centre to the Factory Premises - HELD THAT:- The benefit granted by Notification dated 07.12.2019 clearly confines to the industrial units who are engaged in manufacture of sugar after purchasing sugarcane from the farmers where benefits of transportation from the Cane Purchase Centre to the Factory Gate was provided, while by Notification dated 10.08.2017. Benefit for concessional rate of tax was provided to all the industrial units for the purpose of manufacture of taxable goods. Clearly even if the revisionist has received benefit under the Notification dated 07.12.2019 he cannot be denied the benefits under Notification dated 10.08.2017 inasmuch as there is no provision for excluding the revisionist for being granted benefit under the said Notification, and no such restrictions could be placed.
Had it been the intention of the Government to deny the benefit of the Notification dated 10.08.2017 in light of the fact that the sugar industrial units are already obtaining benefits under Notification dated 07.12.2019, the said facts would have been clearly mentioned in the Notification dated 10.08.2017. In absence of any restrictive clause in the Notification dated 10.08.2017, the Tribunal as well as the Commissioner, Commercial Tax had erred in interpreting and restricting the interpretation of the Notification dated 10.08.2017 in its application to the sugar manufacturing units.
This Court is of the considered view that Commissioner, Commercial Tax as well as Commercial Tax Tribunal both have erred in interpreting the provisions of Notification dated 10.08.2017, according this Court is of the considered view that the revisionist clearly falls within the ambit of provisions contained in the aforesaid notification and was entitled to the benefit for purchase of diesel at the concessional rate of tax as prescribed therein.
Revision allowed.
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2024 (8) TMI 519
Reopening the assessment based on subsequent judgment on the ground that in the judgment of Mohd. Ikram Khan the transaction in question was held to be amenable to tax - HELD THAT:- It is clear that at the time when the original assessment order was passed, it was duly considered by the Assessing Authority that the petitioner had replaced the spare parts of the vehicle during the period of warranty and such replacement of spare parts during the aforesaid period, the assessee was not liable to tax and consequently granted the exemption.
This legal ground was clearly reversed by the Supreme Court in the facts of the present case and the transaction where the revisionist had been given a credit note from the manufacturer for replacing spare parts during the period of warranty came within the ambit of sale and amenable to tax. The question herein as to whether the said assessment could have been reopened in light of the aforesaid judgment. This aspect of the matter has been duly considered by this Court in the case of M/S SAMSUNG INDIA ELECTRONICS PVT. LTD. VERSUS STATE OF U.P. AND 2 OTHERS [2016 (12) TMI 630 - ALLAHABAD HIGH COURT] has held 'a subsequent judgment cannot be used to reopen assessments or disturb past assessments which have been concluded.'
The reopening of proceedings of completed assessment in question is rendered bad and colourable exercise of power and without jurisdiction. It is also clear that once the assessment has become final, it should not be reopened on the basis of subsequent judgment of the Supreme Court.
This Court is of the view that further reassessment have been initiated on the basis of subsequent judgment of the Apex Court which cannot be used to reopen assessment or disturbed to pass assessment which have been concluded. The department cannot be authorized to reopen assessment, which stood closed on the basis of law as and it stood at the relevant time.
The writ petition is allowed.
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2024 (8) TMI 470
Maintainability of petition - availability of alternative efficacious statutory remedy under Section 62 of the KVAT Act, 2003 - authority of officers to make a sudden visit - HELD THAT:- The facts are sufficiently stated and do not require reiteration. The petitioner contends M/s. Three 1st Enterprises and Trishul Bar and Restaurant are different entities. The Tax Officers could not have made a sudden visit. The objection is also raised about the authority of the Tax Officers to make a sudden visit. Several contentions are urged regarding the identity of the petitioner and that of the Trishul Bar and Restaurant. It is a disputed question of fact.
In general, the disputed question of fact is not investigated in a proceeding under Article 226 of the Constitution of India. As far as the endorsement issued by the Commercial Tax Officer, seeking the production of books of accounts, the petitioner has an alternative efficacious statutory remedy before the jurisdictional Joint Commissioner of Appeals by filing an appeal as per the provisions of the Act. Hence, the petitioner is at liberty to avail the statutory remedy. The time spent before this court shall be excluded.
The Writ Petition is disposed of, directing the petitioner to avail statutory remedy as provided under law.
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2024 (8) TMI 392
Statutory interpretation of Entry 41 to Schedule II of the Act - classification of Boro-Plus Antiseptic Cream (BPAC) - to be treated as a medicated ointment and covered under entry no. 41 of Schedule II Part (A) - HELD THAT:- In the case of Sardar Gurmej Singh [1959 (9) TMI 71 - SUPREME COURT], the Hon’ble Supreme Court shed light on the importance of interpreting legislative provisions as a whole, ensuring that both inclusive and exclusive clauses are harmonised. This aspect in particular is indispensable when it comes to understanding Entry 41, where the conjunction “but” introduces an exception, which specifically includes medicated ointments regardless of the exclusion of other similar products.
A careful construction of Entry 41 showcases a deliberate legislative intent to classify products based on their medicinal properties and usage, establishing that specific therapeutic items are included for beneficial tax treatment. The clear separation of excluded and included items brings out the distinct nature and purpose of the products, with “medicated ointments” being recognised for their essential therapeutic roles.
Even though antiseptic creams are excluded from Entry 41, medicated ointments would be included due to the use of the word “but”. The word “but” is a clear indication that the legislature intended to include, as an exception, medical ointment, even though certain medicated ointments may be categorised as antiseptic creams. If a product is more than just an antiseptic cream and qualifies as a medicated ointment, it will be included in Entry 41.
Whether BPAC is to be classified as a medicated ointment or not? - HELD THAT:- The onus was on the Revenue to disprove the Respondent’s claim and establish that BPAC is solely an antiseptic cream. To meet this burden, the Revisionist needed to provide compelling evidence that BPAC’s primary and exclusive function was antiseptic in nature. This required a detailed analysis and presentation of the product’s composition and therapeutic effects, demonstrating that any additional benefits were either negligible or ancillary to its antiseptic properties. However, the Revisionist failed to provide such evidence. The absence of contrary evidence from the Revisionist means that the Tribunal’s findings, based on the Respondent’s robust evidence, stand unchallenged and are not perverse. This failure underscores the critical importance of meeting the burden of proof in legal and regulatory disputes.
In Dilip Kumar [2018 (7) TMI 1826 - SUPREME COURT], the Hon’ble Supreme Court highlighted the distinction between provisions relating to chargeability and exemption. The Hon’ble Supreme Court further espoused that even if two views are possible in interpreting a charging section, the one favouring the Assessee needs to be adopted.
The Supreme Court, in National Cereal’s case [2005 (3) TMI 448 - SUPREME COURT], has clearly held that the onus to prove the chargeability of a particular item in a provision other than the provision chosen by the Assessee falls squarely on the revenue. In our present case, the revenue’s argument that the inclusion of medicated ointment as a drug and cosmetic under Entry 41 of Schedule 11 of the Act is an exemption is completely misplaced. It is to be noted that whether BPAC falls within Entry 41 is in relation to chargeability in a particular schedule and not that of an exemption. It is trite law that an item would be classified as a residuary item only when it does not fall in any other classification. In the present case, using tools of interpretation, the Tribunal has categorically held that BPAC would fall within Entry 41 of Schedule II. The burden of proof was upon the revenue to indicate that the said classification made by the Tribunal was absolutely incorrect and without any basis in law.
It is well settled that the Tribunal is the last fact-finding body and that this Court, in revision, would not go into an enquiry with regard to the factual aspects that have been decided by the Tribunal. In the exercise of revisional jurisdiction, the High Court has a limited mandate. The scope of revisional jurisdictional, is primarily focused on questions of law, jurisdictional errors, or procedural irregularities. The High Court, in a revision petition, must refrain from engaging in a de novo inquiry into factual matters already adjudicated upon by the Tribunal unless compelling grounds warranting such intervention are made.
The concept of perversity in legal contexts refers to a situation where a decision or finding is so unreasonable or contrary to the evidence that no reasonable person could have arrived at it. When dealing with administrative and judicial reviews, including tax and regulatory matters, perversity is a crucial ground upon which decisions can be challenged or revised. However, for perversity to be successfully invoked, certain legal thresholds and evidentiary standards must be met - Simply disagreeing with the Tribunal’s decision without substantiating such disagreement with concrete evidence or legal arguments does not meet the threshold for invoking perversity.
In Cadbury India [2019 (6) TMI 1132 - UTTARAKHAND HIGH COURT], the lack of sufficient evidence presented by the Assessee necessitated further examination and led to the remanding of the case. The tribunal needed a more comprehensive evidentiary basis to make an informed decision about the classification of the goods in question. Consequently, the High Court’s decision to remand the matter was appropriate in that context, aiming to ensure that all relevant facts and evidence were adequately considered. In the instant case, however, the Tribunal’s decision was not made in a vacuum but was grounded in substantial and persuasive evidence that supported the classification of BPAC as a medicated ointment. The Respondent had established beyond doubt that BPAC is a medicated ointment, and no contrary evidence was presented by the Revisionist to challenge this classification effectively. The principles of judicial efficiency and finality also argue against remanding a matter when the evidence has been thoroughly considered and no new facts have emerged to challenge the established findings.
There are no reason to interfere with the findings of the Tribunal, and accordingly, the instant revision petitions are dismissed.
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2024 (8) TMI 391
Challenge to assessment orders - whether sponsorship receipts constitute “payment for admission to entertainment”?
Did the pre-amended Section 2 (m) of the Delhi Entertainment and Betting Tax Act, 1966 cover sponsorship of fashion shows and sporting events so as to extend the incidence of tax under Section 6? - HELD THAT:- Section 6 of the Entertainment Tax Act is the charging provision. There is also no dispute that sub-Section (1) of Section 6 gives a clue as to the nature of the tax, i.e., the taxable event. Thus, the expression “payments for admission to any entertainment” characterises what would be a taxable event for levy of Entertainment tax, save and except those services referred to in Section 7 which are accessed for entertainment. Section 7, amongst other things, refers to cable network, video, and DTH services - A careful perusal of Section 2 (m) of the Entertainment Tax Act would show that it is an inclusive definition and adverts to payments made by a person to gain access to either the seats or other accommodation in any form made available in a place of entertainment or payments made to gain access to entertainment or even payments made in connection with entertainment as a condition for attending or continuing to attend the entertainment event. The modes of payment are illustrative as the definition is inclusive and not exhaustive. Therefore, a circumstance where a person gets physical access to a place of entertainment by paying money for seats or accommodation provided therein is an aspect covered in sub-Clause (i) of Clause (m) of Section 2.
The contention put forth on behalf of GNCTD that Explanation 2 appended to Section 2 (m) was clarificatory, which is why it was triggered retrospectively, has no merit.
Whether the introduction of Explanation 2, with retrospective effect by the amendment in 2012, is contrary to Article 14 of the Constitution, or is it merely clarificatory? - HELD THAT:- Explanation 2 was not clarificatory, imposition of Entertainment Tax on goods supplied, services rendered, and amounts paid by sponsors, that too since 01.04.1998 [almost the date when Entertainment Tax Act was first brought into force], for which no provision was made, by the organisers/proprietors, would indeed, be burdensome and onerous. This is especially so when seen against the backdrop of the admitted fact that entities such as FDCI were given a 100% exemption from tax levy from 2002-2007, while for 2008-2009, the exemption was 50%.
Does the levy of tax (on sponsorship) under the Act fail by reason of [the] absence of a specific charging provision? - HELD THAT:- Section 6 of the Entertainment Tax Act remained unamended after the introduction of Explanation 2 - Unlike the amendments made for DTH, video service, and cable TV network, no such attempt was made for sponsorships.
The imposition of a tax on sponsorship under the Entertainment Tax Act must fail in the absence of a specific charging provision.
Does the Act contain a mechanism for assessment and collection of tax on such sponsorships, if it validly levies the tax, or is such mechanism absent? - HELD THAT:- Rule 11 of the 1997 Rules prescribes Forms 5 and 6 for ticketed and non-ticketed events, respectively. Form 5 does not reference sponsors or sponsorships, while Form 6 seeks information on sponsors for non-ticketed events - the requirement to disclose information about sponsors in Form 6 does not imply that sponsorship receipts are subject to Entertainment Tax. The Act does not provide a separate machinery for assessing and collecting tax on sponsorships.
The Entertainment Tax Act does not contain a mechanism for assessing and collecting tax on sponsorships.
Petition allowed.
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2024 (8) TMI 256
Levy of penalty under Section 54(1)(14) of the U.P. Value Added Tax Act, 2008 - contravention of the provisions of Section 50 of the Act, 2008 - Form 38 remains unfilled - existence of mens rea/guilty mind - 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, and therefore the facts in the case of M/s Guljag Industries [2007 (8) TMI 344 - SUPREME COURT] are distinguishable in respect to the provisions of the Act, 2008 applicable in the State of Uttar Pradesh.
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 also 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.
This Court finds no merit in the contention raised by learned Standing Counsel appearing on behalf of the revenue. The revision is accordingly allowed.
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2024 (8) TMI 255
Condonation of delay of 933 days in re-presenting the appeal - delay was not properly explained by the Commercial Taxes Department - HELD THAT:- As per Section 58(1)(a) of the TNVAT Act, 2006, any officer prescribed by the Government or any person objecting to an order passed by the Appellate Deputy Commissioner under Sub-Section (3) of Section 51 of the Act, or by the Appellate Joint Commissioner under Sub-Section (3) of Section 52 of the Act, or by the Joint Commissioner under Sub- Section (1) of Section 53 of the Act, may appeal against such order to the Appellate Tribunal, within a period of 120 days, in the case of an officer so prescribed by Government.
It is to be noted that out of 933 days, the delay of almost 365 days can be attributed to the lockdown imposed by the Government due to the outbreak of Covid-19 Pandemic in 2020 with effect from 24.03.2020, leaving 568 days (933 – 365).
A reading of Regulation 7(3) of the Tamil Nadu Value Added Tax Appellate Tribunal Regulations, 2011 indicates that there is no restriction in time. The second respondent Secretary is required merely to consider whether there is sufficient cause for the delay to cure the defects before re-presenting the appeal within time - The copy of the affidavit filed by the Commercial Tax Department in support of the Miscellaneous Application for condonation of delay of 933 days in re-presenting the appeal, has also not been filed by the petitioner before this Court.
There are no error in the impugned order. The respondent was not under any impediment while condoning the delay of 568 days excluding the 365 days during the Covid-19 Pandemic as the Commercial Tax Department is overburdened with litigations and it is not easy to adhere the time lines - petition dismissed.
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2024 (8) TMI 198
Interpretation of "purchase price" under Section 2(18) of the Gujarat Value Added Tax Act, 2003 (GVAT Act) - Exclusion of value added tax paid on purchases for computing "taxable turnover of purchases" under section 11(3)(b) of Gujarat Value Added Tax Act, 2003? - purchases on which value added tax is neither claimed nor granted are required to be excluded for computing "taxable turnover of purchases" under section 11(3)(b) of the Act or not - HELD THAT:- The first and foremost duty of the Court is to read the statute as it is and if the words therein are clear and unambiguous then only one meaning can be inferred. The Courts are bound to give effect to the said meaning irrespective of the consequences so far as the taxation statutes are concerned. Article 265 of the Constitution of India, 1950 prohibits the State from extracting tax from the citizens without the authority of law. The tax statutes have to be interpreted strictly which means that the legislature mandates taxing certain persons in certain circumstances which cannot be expanded or interpreted to include those who were not intended or comprehended.
The assessee is not to be taxed without clear words and, for that purpose, the same must be according to the natural construction of the words which have been used in that statute. These words have to be read as it is and thus cannot be added or substituted which may give a meaning other than what is expressed in the provision.
In the light of the definition as provided for under Section 2(18) of the GVAT Act, it becomes obvious that the definition is enumerative and exhaustive. The use of the word “means” denote the intention of the legislature to restrict the scope of the “purchase price” to the categories enumerated in the definition itself. The purchase price, therefore, would be the amount of valuable consideration paid or payable for any purchase which would include amount of duties, levied or leviable under the two acts as has been provided for in this Section apart from the other charges as expounded therein. The scope has been limited to the two Acts mentioned in the Section itself.
The cogent reading of sub-Section (18) of Section 2 which defines ‘purchase price’, sub- Section 32 of Section 2 which defines ‘turnover of purchases’, and Section 11 of the GVAT Act which deals with entitlement to the tax credit, would lead to only one conclusion, that the purchase price would not include purchases on which no value added tax was claimed nor granted and the component of value added tax stood already paid on purchases. Accordingly, the taxable turnover of purchases would have to be calculated after deducting both the components as has been detailed aforesaid.
Thus, the calculation of taxable turnover of the purchases and reduction value of purchases on which no tax credit was claimed nor granted, and component of value added tax already paid on purchases, was rightly excluded from the total turnover of the Respondent dealer while computing his tax liability under Section 11(3)(b) of the GVAT Act.
The order passed by the Tribunal as has been upheld vide the impugned judgment of the High Court being in accordance with law calls for no interference and therefore, the appeals deserve dismissal - appeal dismissed.
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2024 (8) TMI 197
Challenge to assessment order - jurisdiction of Respondent No.2, the Deputy Commissioner of State Tax exercising the jurisdiction under the Maharashtra Value Added Tax Act, 2002 - HELD THAT:- Under Section 23 (2) of the MVAT Act, the Commissioner should first form an opinion that it is necessary or expedient to ensure that return is correct and complete, and after he forms such an opinion he requires to produce any documents then he shall give notice describing therein the documents which are required to be produced. If one sees the show cause notice it does not mention which are the documents that are required to be produced.
The show cause notice is issued in a printed format with only the period and the date and time filled up. It does not give details of the information or documents required to be furnished notwithstanding the fact that Petitioner has vide its letter dated 6th January 2024 furnished the documents. Without even referring to those documents, a letter has been issued on 11th March 2024, simply calling upon Petitioner to submit assessment compliance. What more was required to be furnished is not mentioned.
Before passing best judgment assessment, Section 23 (2) provides that if the registered dealer fails to comply with the terms of any notice issued under the sub-section, the Commissioner shall assess to the best of his judgment the amount of tax due from the assessee. The impugned order only refers to the letter dated 11th March 2024 in which letter, as noted earlier and also in the show cause notice, no details of documents required to be produced have been given. Therefore, in the present case, pre-conditions required to pass best judgment assessment is not satisfied.
The impugned order dated 28th March 2024 is not sustainable. The same is hereby quashed and set aside. Consequently, the demand notice also dated 28th March 2024 is quashed and set aside - Petition allowed.
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2024 (8) TMI 147
Challenge to revenue recovery notices issued for recovery of amounts allegedly due from the appellant under the Kerala Value Added Tax Act (KVAT Act) and Central Sales Tax Act (CST Act) for various financial years - case of the appellant in the Writ Petition was that in respect of the tax dues under the CST Act and KVAT Act for various assessment years, he had opted for settlement in accordance with the Amnesty Scheme 2020 - HELD THAT:- It was open to the respondents to consider an adjustment of the refund amount due to the appellant towards the amounts due from him by way of settlement under the Amnesty Scheme. The reasons furnished by the respondents for not acceding to the request of the appellant are not legally sustainable.
The ends of justice would be met by adjusting the Amnesty amount of Rs.1,60,465/- from the Rs.5 lakhs that is due to the appellant by way of refund, and utilising the remaining amount for settlement of the dues outstanding from the appellant in the assessment years other than those that were opted for settlement under the 2020 Amnesty Scheme.
This Writ Appeal is allowed by setting aside the impugned judgment of the learned Single Judge, and by directing the respondents to deduct the amount of Rs.1,60,465/- from the amount of Rs.5 lakhs that is due to the appellant by way of refund and treat the dues for the assessment years opted for under the Amnesty Scheme 2020 as finally settled under the said Scheme - appeal disposed off.
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2024 (8) TMI 84
Refund of the amount claimed for the 4th quarter of assessment year 2016-17 and the first quarter of Assessment Year 2017-18 - Entitlement of the petitioner to interest on delayed refund under the DVAT Act - HELD THAT:- The Commissioner has powers to first apply such excess amount towards the recovery of any other amount due under the DVAT Act. Section 38 (3) (a) (i) & (ii) make it further clear that where the tax period for claiming the refund is one month, interest would accrue from the date one month elapses after the date of filing of the return or the date when the claim for refund is lodged. Where, however the dealer’s tax period for claiming the refund is a quarter, interest accrues two months after the return is filed or a claim for refund is made. If a notice is issued under Section 58 or an additional information is sought under Section 59, the refund will be carried forward to the next tax period as a tax credit.
If a notice is issued under Section 58 or an additional information is sought under Section 59, the refund will be carried forward to the next tax period as a tax credit.
Requirement to file DVAT-21 was considered by this Court in Flipkart India Private Limited Vs. Value Added Tax Officer [2023 (8) TMI 987 - DELHI HIGH COURT]. This Court had held that once a claim for refund stands embodied in the return itself, there is no obligation upon the assessee to file Form DVAT-21.
There is no material on record to indicate that Petitioner was in any manner responsible for the delay in processing of the refund. There is not even any such allegation in the Impugned Orders dated 11.04.2023 and 10.05.2023. In terms of the statutory time frame which stands constructed by Section 38 (3) (a) (ii) of the DVAT Act, the said amount had become refundable post 1st August 2017 and 29th September 2017 respectively. The proceedings undertaken thereafter i.e. issuance of notice under Section 59 (2) followed by Default Assessment Order dated 29.08.2020 are to be regarded as non-est in the eyes of law - Petitioner cannot be denied interest on the amount of interest withheld unjustifiably. Since the refund was withheld, assessee automatically becomes entitled to the interest under Section 42 (1) of the DVAT Act.
The petitioner is entitled for interest on refund and such claim cannot be defeated on the mere ground of investigation and involvement of legal issues, which ultimately came to be decided in favour of the petitioner by orders passed by the High Court - Admittedly, statutory rate of Interest is 6% by virtue of notification dated 30.11.2005. Accordingly, the Impugned orders dated 11.04.2023, 10.05.2023 & 03.10.2023 passed by the Respondents are set aside.
Petition allowed.
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2024 (8) TMI 83
Maintainability of petition - availability of alternative remedy - Challenge to Assessment Orders - petitioner was providing service to non-members - HELD THAT:- This Court had already passed an order dated 06.01.2022 in W.P.No.11607 of 2019 in the case of M/S. OOTACAMUND CLUB VERSUS THE PRINCIPAL COMMISSIONER OF GST & CENTRAL EXCISE, COIMBATORE [2022 (2) TMI 735 - MADRAS HIGH COURT] by following the decision of the Hon'ble Supreme Court in STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT]. A similar order was passed by this Court in RAILWAY OFFICERS CLUB VERSUS THE ADDITIONAL COMMISSIONER OF SERVICE TAX [2020 (2) TMI 119 - MADRAS HIGH COURT]. The above view has been followed by this Court in several cases.
It is not required to relegate the petitioner to file appeals before the Appellate Authority as no useful purpose will be served by relegating the petitioner to file appeals before the Appellate Authority under the provisions of the Tamil Nadu Value Added Tax Act, 2006.
The impugned orders are liable to be quashed and are quashed. Thus, these Writ Petitions are allowed.
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2024 (8) TMI 82
Challenge to Revision Assessment Orders and demand notices - petitioner filed Petitions under Section 84 of the Tamil Nadu Value Added Tax Act, 2006 to rectify the error in the Assessment Orders - HELD THAT:- The impugned Revision Assessment Orders indicate that the Department has issued summons to the three persons namely, Tvl.R.Suresh Kumar, Tvl.S.Saravanan and Tvl.Kaleeswari Agencies through RPAD on 04.07.2022, 08.08.2022 & 29.08.2022. Two of these persons have acknowledged having received the summons. Summons issued to one of them was returned with the remarks 'no such addressee at the address'.
The petitioner itself requested a voluntary arrangement for the cross-examination of these persons but failed to take any steps to bring them before the respondent. In my view, the petitioner's witnesses cannot be summoned by the Department. It is for the petitioner to bring them as witnesses. In any event, if the said witnesses are produced by the petitioner, it is for the Department to cross-examine them.
Be that as it may, since the petitioner had deposited a sum of Rs. 50,00,000/- as per direction of this Court, partial relief granted by quashing the impugned Revision Assessment Orders and remitting the case back to the respondent to pass fresh orders on merits subject to the petitioner producing the so-called persons as the petitioner's witnesses for cross-examination by the Department - Since the petitioner had already deposited a sum of Rs. 50,00,000/-, there shall be a further direction to the petitioner to deposit another sum of Rs. 25,00,000/- in three installments (Rs. 10,00,000/-, Rs. 10,00,000/- & Rs. 5,00,000/- respectively), within a period of three months from today.
There are 21 properties of the petitioner which have been attached pursuant to the impugned Revision Assessment Orders dated 14.03.2024. The respondent is directed to raise the order of attachment by restricting the order of attachment to cover the balance amount of tax due from the petitioner. The application shall be disposed of on merits within a period of 6 months thereafter.
Petition disposed off.
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2024 (8) TMI 5
Imposition of tax and penalty in respect of the belated filing of returns and the consequential reversal of Input Tax Credit (ITC) - HELD THAT:- On examining the impugned order, it is evident that the petitioner's contention was accepted with regard to the wrong claim of ITC after noticing that the dealer had rectified the error.
The respondent noticed that the returns for the month of March 2017 were filed belatedly on 02.08.2017. The order also records that the copy of the return was available on the web portal. The petitioner does not assert that the return was not filed on 02.08.2017 and that it was filed earlier. The turnover and other particulars were taken from the petitioner's returns while recording conclusions on this issue. Since the conclusion was based on a reasonable appraisal of the material, no interference is warranted as regards the tax component.
Penalty - HELD THAT:- The petitioner relied on the judgment of the Division Bench of this Court in M/S. SHREE LAXMI JEWELLERY LTD. VERSUS THE STATE OF TAMIL NADU, REP. BY THE JOINT COMMISSIONER (CT) , CHENNAI [2019 (3) TMI 297 - MADRAS HIGH COURT] for the proposition that sub-section (4) of Section 27 of the TNVAT Act should not be invoked merely on account of belated filing of return. In spite of placing this judgment before the respondent, there is no mention of such judgment or any consideration of such principle in the impugned order. To that extent, interference with the order is called for.
The petition is disposed of without any order as to costs by partly setting aside order dated 18.03.2024 only in so far as the imposition of penalty is concerned and remanding that aspect for reconsideration.
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2024 (8) TMI 4
Time limitation for issuance of notice for best judgment assessment - Necessity under the provisions of Section 28A of the Haryana General Sales Tax Act, 1973, to issue the notice for best judgement assessment u/s 28 (4) of Customs Act, 1962, within the period of five years - HELD THAT:- Section 28 prescribes procedure of assessment to be framed by Assessing Authority. As per 1973 Act, every dealer has to file quarterly returns which are followed by annual return. If the Assessing Officer finds that returns furnished in respect of any period are not correct and complete, he shall serve on such dealer a notice in the prescribed manner either to attend in person or to produce or cause to be produced any evidence which such dealer may rely in support of such returns. He after considering the evidence, as the dealer may produce, assess the amount of tax due from the dealer. Sub-section (4) of Section 28 provides that if a dealer, having furnished returns in respect of a period, fails to comply with the terms of notice issued under sub-section (2), the Assessing Authority shall, within five years after the expiry of such period, proceed to assess to the best of his judgment, the amount of tax due from the dealer. It is apt to notice here that Section 28 (4) of 1973 Act provides that Assessing Authority shall, within five years after the expiry of such period proceed to assess to the best of his judgment.
The Supreme Court in Indian Aluminium Cables Limited [1976 (9) TMI 144 - SUPREME COURT] interpreting Section 11 (4) of 1948 Act which was para materia with Section 28 (4) of 1973 Act has held that Assessing Authority shall take effective steps after serving notice under sub-section (2) in case of best judgment assessment. The Court further clarified that effective steps include notice to dealer intimating him that he is proceeding to assess to the best of his judgment and opportunity of personal hearing.
From the conjoint reading of Section 28A of 1973 Act and judgment of Supreme Court in Indian Aluminium Cables Limited, it is evident that Section 28A of 1973 Act, whereby requirement of second notice prior to proceeding with best judgment assessment and grant of opportunity of personal hearing has been dispensed with, was inserted to overcome judgment of Supreme Court.
The Assessing Authority before proceeding to frame best judgment assessment is not required to intimate the basis for arriving at best of judgment assessment or to take any other step for proceeding to assess. The Assessing Authority after issuing first notice may proceed to assess the best of judgment without second notice, without taking any other step, without intimating basis for arriving at best of judgment assessment, however, Assessing Authority is bound to proceed within the period of five years which has been specified under Section 28 (4) of 1973 Act - The legislature has used word “for” which makes it clear that for proceeding to assess to the best of judgment within five years, it shall not be necessary to intimate the basis for arriving at best of judgment or to take any other step.
Thus, Section 28A of 1973 Act has not obliterated requirement to proceed for best of judgment assessment within five years period as specified in Section 28 (4) of 1973 Act - The Assessing Authority is bound to issue notice within five years period prescribed under Section 28 (4) of 1973 Act for best judgment assessment.
The reference is answered in above terms and matter is remitted back to Tribunal to pass appropriate orders.
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