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VAT / Sales Tax - Case Laws
Showing 121 to 140 of 27514 Records
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2024 (8) TMI 3
Recovery of non-paid dues of Sales Tax departmentFirst charge over the property in question - Secured Creditor or the State / Central Government (Crowns debt) - HELD THAT:- What is undisputed fact in each of the petitions is that all the petitioners herein are bonafide purchasers of various properties which were put to auction upon default in repayment of loan committed by their predecessors in title. Therefore, under the proceedings under the SARFAESI Act, the properties were put to auction pursuant to a charge which was created in favour of the respective Bank and the petitioners having been the successful bidder, had paid the bid amount and purchased the property as successful bidder.
The charge of the Secured Creditor will precede over the charge of an Unsecured Creditor (Crowns Date). In the instant case, the submission of learned AGP Mr. Trivedi that the State and its authorities have rightly rejected the application for mutation of entry of the petitioners in respect of the property in question cannot be accepted. Further, as far as the submission of delay is concerned, the same also cannot be accepted for the reason that the petitioners are the bonafide purchasers of the property in question by way of auction or from successful auction purchaser and they have invested huge amount in the property, they have acquired the title of the property by way of Sale Certificate, they are the holder of the title in respect of property in question as on today.
The respondent authorities are directed to mutate the names of each of the petitioners in the revenue record by quashing and setting aside any attachment / charge over the property in question by the State or its authorities as there was a first charge of the respondent Bank in each of the petitions - Petition allowed.
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2024 (7) TMI 1547
Priority of the charge of the respondent State over the sale proceeds realized by the respondent no. 6-Bank on sale of the secured assets - recovery of outstanding dues of the borrower under Section 13(2) and 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with the Security Interest (Enforcement) Rules, 2002 - Liability of the auction purchaser to discharge statutory dues - Validity and subsistence of statutory charge post-auction sale.
Whether the charge mutated in the revenue records by the Sales Tax/ VAT Department as per provision of Section 48 of the VAT Act would continue even after the auction sale conducted by the respondent no. 6 Bank while exercising the powers under the provision of Securitisation Act and Securitisation Rules or not?
HELD THAT:- The Division Bench of this Court in case of Kalupur Commercial Cooperative Bank [2019 (9) TMI 1018 - GUJARAT HIGH COURT] after analyzing provisions of Section 31B of the RDB Act and provisions of Section 26E of the SARFAESI Act with regard to the preferential right of the State to recover the debts over the other creditors held 'The language of Section 48 of the VAT Act is plain and simple and the phrase 'any amount payable by a dealer or any other person on account of tax, interest or penalty' therein assumes significance. The amount could be said to be payable by a dealer on account of tax, interest or penalty once the same is assessed in the assessment proceedings and the amount is determined accordingly by the authority concerned. Without any assessment proceedings, the amount cannot be determined, and if the amount is yet to be determined, then prior to such determination there cannot be any application of Section 48 of the VAT Act.'
The Full Bench of the Bombay High Court has therefore rightly held that Section 31B of the RBD Act can only be invoked when there is determination of debt due and payable as provided under the RDB Act with the intervention of the Court and in that scenario, it was observed with regard to the decision of this Court in case of Kalupur Commercial Cooperative Bank.
The secured creditor with a view to recover its dues after taking possession of secured assets under Section 13(4) of the SARFAESI Act is required to follow the procedure prescribed in Rule 8 and Rule 9 of the Securitisation Rules for conducting the auction sale. As per the Clause (f) of Sub-Rule 7 of the Rule 8, the secured creditor is required to disclose as a part of terms and conditions which are necessary for a purchaser to know the nature and value of the property. The respondent no. 6-Bank which is secured creditor is therefore bound by the provision of Rule 8 (7)(f) of the Rules to disclose the nature and value of the property - In absence of such disclosure by the secured creditor made in the auction sale notice, as a part of terms and conditions of the sale and only mentioning “as is where is, whatever basis” is not sufficient so as to enable the participants in the auction sale to put to notice about the charge subsisting on the property which is put to auction sale.
The auction purchaser shall not be duty bound to make any payment, even if the charge subsist over the property, except what is stated in the sale agreement or sale deed executed between the parties.
It would be useful to refer to provisions of Section 100 of the Transfer of Property Act as extracted herein above which provides for the ‘charge’ which means that where immovable property of one person is by act of parties or operation of law made security for payment of money to another and transaction does not amount to a mortgage, the latter person is said to have a charge on the property and all the provisions would apply which applied to simple mortgage would apply to the charge. Therefore, once the secured creditor has realised its dues by sale of the property, then further charge would not subsist over such property as the entire value of the property would stand realised.
In such circumstances, the question, therefore would arise as to whether the respondent State would be entitled to recover any amount from the Bank, having the priority over the charge for sale consideration which was realized on the sale of the property, as the property once sold, then charge would be shifted to the sale consideration realized and therefore it would be between the respondent State and the secured creditor as to who will have first right to recover such sale consideration. It may happen that even though the secured creditor may have the first charge over the property and respondent State might have sold the property then in that circumstances also the question would arise whether the secured creditor would be entitled to recover such sale consideration from the State Authority by virtue of first charge over the property - In such circumstances, as held by this Court in case of Kalupur Commercial Cooperative Bank and as per the decision of the Full Bench of the Bombay High Court, the secured creditor would have the first charge in view of the priority of the charge as prescribed in Section 26E of the SARFAESI Act and Section 31B of the RBD Act as the case maybe.
Now the question would arise whether the subsequent decision of the Hon’ble Apex Court in case of Rainbow Papers Ltd. [2022 (9) TMI 317 - SUPREME COURT] would be applicable to the issue as to the priority of the charge of the secured creditor visa-vis the provision of Section 48 of the VAT Act or not as in the said decision the Hon’ble Apex Court has considered the provisions of the IBC vis-a-vis the provision of Section 48 of the VAT Act. It would be therefore necessary to revisit the provisions of IBC as extracted herein above to ascertain whether the contention of the respondent State that in view of the decision of the Hon’ble Apex Court in case of Rainbow Papers Ltd, the decision of this Court in case of Kalupur Commercial Cooperative Bank requires relook or not.
From the above observations of the Hon’ble Apex Court, it is clear that the Apex Court has considered the provisions of Section 53 of the IBC vis-a-vis Section 48 of the VAT Act and has come to the conclusion that Section 53 of the IBC does not override the provisions of Section 48 of the VAT Act and outstanding dues of the State Act as per the provisions of Section 48 of the VAT Act would be at pari passu with the dues of the secured creditor as provided under Section 53(1)(d)(2).
Thus, the charge in respect of the property in question created for sales tax dues or VAT dues is of no avail and has no efficacy in law in view of the provisions of SARFAESI Act and the RDB Act. The property in question was sold by respondent no. 6-Bank under the provisions of SARFAESI Act and the petitioners were successful purchasers and the sale certificate is issued and sale deed is also executed by which the petitioners have become absolute owners of the property and therefore considering the existing position of law, the charge created by the respondent State over the property in question in the year 2018, cannot be sustained and is accordingly quashed and set aside and as a consequence the mutation entries in revenue records also stands deleted.
Petition allowed.
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2024 (7) TMI 1392
Challenge to revisional order - assessment proceedings for the financial year 2006-07, barred on grounds of limitation in view of Section 33 of the TVAT Act having been undertaken on 15/18.11.2012 i.e. after five years - assessment order and reassessment order are based upon audit reports which are presumptuous in nature or not - formation of independent opinion or not - levy of penalty without a proper show cause notice in terms of Section 45 (6) of the TVAT Act, 2004.
HELD THAT:- The reassessment order dated 14.05.2019 passed on a previous remand by the revisional authority vide order dated 16.08.2016 has once again been set aside taking into account all the grounds urged by the petitioner by the impugned order dated 06.02.2024 and once again the matter has been remanded for reassessment. As such, the issues being canvassed before this Court are not open in that sense. The Assessing Authority has to apply its mind to all the grounds both of law and facts being raised by the petitioner in respect of each of the financial years in question.
Since a ground of limitation has been taken so far as the assessment proceedings of the financial year 2006-07 is concerned, the Assessing Authority shall determine the question of limitation first upon hearing the assessee and only if he is satisfied that the assessment exercise carried out for the financial year 2006-07 is not barred by limitation in terms of Section 33 of the TVAT Act, he would proceed to determine other grounds raised on merits so far as that financial year is concerned.
It is deemed proper to direct the Assessing Authority to conclude the exercise within a period of three months from the date of receipt of copy of this order - petition disposed off.
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2024 (7) TMI 1391
Decision of appeal ex-parte - whether in absence of counsel of the revisionist/appellant, the Commercial Tax Tribunal can proceed to consider and decide the appeal 'ex parte' in absence of the revisionist/appellant? - violation of principles of natural justice - HELD THAT:- This Court is of the considered view that where the appellant does not appear before the Tribunal, the appeal should be dismissed for want of prosecution rather than deciding the same on merits. Proviso to Rule 63 (4) of the U.P. Value Added Tax Rules, 2008 provides that if despite proper service of the notice either party is not present, the appeal may be heard and decided ex parte.
The aforesaid proviso though on the face of it provides that in absence of a party to the proceedings, the appeal can be decided by the Tribunal on merits, but the word 'ex parte' used in the proviso can be interpreted as "want of appearance on behalf of the opposite party/defendant" and not the appellant/plaintiff - the word 'ex parte' can be given its natural meaning as appearing in the Code of Civil Procedure and certainly the Tribunal can proceed to consider and decide the case ex parte in a situation where only the appellant appears, but the respondent/State does not appear, while in a case, where the appellant does not appear, the only consequence of such a situation would be to dismiss the appeal for want of prosecution and not to enter and decide the case on merits of the controversy.
The other concern raised was that there is no provision for setting aside the ex parte order in such a situation where the Tribunal proceeds to allow the appeal ex parte in absence of the defendant. In this regard, reliance was placed upon a judgement of a Coordinate Bench of this Court passed in M/s Ram Sewak Coal Depot, Deori, Mirzapur Vs. The Commissioner of Trade Tax, U.P, Lucknow [2003 (2) TMI 457 - ALLAHABAD HIGH COURT], wherein interpreting the provisions of Section 22 of the U.P. Value Added Tax Act, 2008, which is pari materia with provision of Section 31 of the U.P. Value Added Tax Act, 2008, which provides for rectification, this Court has held that wherein an appeal is decided ex parte, it shall be open for moving an application for rectification of such a situation. Accordingly, adequate reasons are given for the defendant for non appearance and judgement is rendered ex parte, but recall of order, exercise of rectification has been provided under Section 31 of the U.P. Value Added Tax Act, 2008.
The impugned order dated 07.09.2017, whereby the Tribunal has proceeded to decide the appeal preferred by the revisionist in his absence, is held to be illegal and arbitrary and accordingly set aside and the matter is remitted back to the Tribunal to decide the matter afresh after affording an opportunity of hearing to the parties - Revision disposed off.
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2024 (7) TMI 1352
Deemed sale or not - supply of 'goods' defined under Section 2(h) (iii) [should have been sub-clause (ii)] and 2(h) (iv) of the GST Act - it was held by High Court that 'it is found that no transfer of right to use the goods provided by the assessee to the contractors for constructing, erecting or laying out the power grids, sub-stations and transmission lines for the assessee.' - HELD THAT:- No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India.
The Special Leave Petitions are, accordingly, dismissed.
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2024 (7) TMI 1309
Challenge to attachment orders - Priorty charge over dues - Respondent No. 2 (The Deputy Commissioner of Sales Tax) will have priority charge over the secured assets sold by Petitioner bank (secured creditor) under the SARFAESI Act or not - HELD THAT:- Section 26E of the SARFAESI Act very clearly mentions that the secured creditors shall be paid in priority over all other debts and taxes. In the present proceedings it is Petitioner Bank who has registered its claim against the secured assets with CERSAI earlier i.e. 4/10/2022, in view of the law as laid down by the Full Bench of this Court, in Jalgaon Janta Sahakari Bank Ltd. [2024 (5) TMI 188 - BOMBAY HIGH COURT] and as per Section 26E of the SARFAESI Act, the Petitioner Bank (secured creditor) will have priority over the revenues and taxes of the State Government.
The present Writ Petition filed by Petitioner Bank (secured creditor) deserves to be allowed - the Respondent No. 2 (the Deputy Commissioner of Sales Tax, Pune) would be free to take such steps as they deem fit against the Respondent No.6 for recovery of Sales Tax dues as per law.
Petition allowed.
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2024 (7) TMI 1114
Exemption in relation to a turn-over - time limitation - contention of the petitioner is that the concerned F Forms relating to the disputed turn-over had been misplaced and could not be placed before the Assessing Officer in time - whether this Court can direct the 1st respondent-Assessing Authority to furnish a certified copy of the assessment order to enable the petitioner to file an appeal at this stage or whether the said filing of the appeal is now barred by limitation? - HELD THAT:- The period for passing the assessment order for the year 2015-2016 ended on 31.03.2020. The petitioner, which is a large Multi-National Company, cannot plead ignorance of the law or that the petitioner is awaiting an order despite the fact that the period for completing assessment had lapsed. Further, the contention, that the petitioner was under the impression that no demand was raised against the petitioner, cannot be accepted as such a conclusion could have been drawn only if an assessment order had been passed and served on the petitioner. The fact that the first step taken by the petitioner for the purpose of filing was only in June, 2022 when an application was made for a certified copy of the assessment order also militates against the version set up by the petitioner.
The arguments that the service of the order by e-mail would not be proper service under Rule 64 of the Rules does not stand in view of the amendment to the said Rule. Further, the contention that service on the e-mail ID of the petitioner would not amount to proper service as the e-mail ID was inactive also cannot be accepted as it would be the duty of the petitioner to inform the Assessing Officer of any change in the e-mail ID.
There are no reason to intervene or interfere in this case - the present Writ Petition is accordingly dismissed.
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2024 (7) TMI 1070
Rejection of application of recall of the order - assessment year 2009-2010 - application has been made after a period of 7 years without considering the reasons stated by the petitioner for filing the delay application for rectification - non-application of mind - violation of principles of natural justice - HELD THAT:- In the present case, it is abundantly clear that none of the grounds raise even considered by the Tribunal and therefore the impugned order suffers for non-application of mind and accordingly arbitrary.
This aspect of the matter has already been decided by coordinate Bench of this Court in the case of M/s Ram Sewak Coal Depot [2003 (2) TMI 457 - ALLAHABAD HIGH COURT], where it was held that 'it is held that the Trade Tax Tribunal has jurisdiction to set aside an ex parte order and re-hear the matter. There being no express provision to that effect does not inhibit the Tribunal in any manner to recall the said judgment.'
In the present case also the petitioner has also taken the ground that he was never communicated the order passed by the Tribunal and therefore he was never aware about the order dated 16.03.2017 and it is only on the initiation of the recovery proceedings he came to know about the said order and accordingly he moved an application for rectification which is accordingly rejected by impugned order dated 30.03.2024.
The impugned orders suffer from non-application of mind inasmuch as the ground taken by the petitioner have not been considered and dealt with accordingly the impugned order dated 30.03.2024 is set aside. The matter is remitted to the Commercial Trade Tax Tribunal to decide the application of the petitioner afresh in accordance with law - revision allowed by way of remand.
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2024 (7) TMI 1038
Cancellation of penalty u/s 47 (6) of the Kerala Value Added Tax Act - cancellation of additions made in the assessment order pertaining to the respondent assessee for the assessment year 2012-2013, based on the penalty order passed by the Intelligence Officer - HELD THAT:- These OT. Revision Petitions at the instance of the State must necessarily fail. The Appellate Tribunal in the order impugned in these revision petitions clearly finds as a matter of fact that the consignment that was detained was accompanied by valid transport documents such as the invoice and the checkpost declarations in Form 8F. The Tribunal also found that the assessee had immediately after the goods were detained, produced the statutory declarations in Form 16 to demonstrate that the goods that were being transported were for the own use of the assessee. In contrast to this, nothing has been produced before us that would suggest that the assesee was engaged in any trading activity during the assessment year 2012-2013.
The finding of the Appellate Tribunal, based on the documents available before it, that there was no intention on the part of the assessee to evade payment of tax is legally sustainable - It is apparent, therefore, that while obtaining the goods from outside the State, the assessee did not get the benefit of a lower rate of tax. Thus, in conclusion, it is that the impugned order of the Tribunal that sets aside the penalty order and assessment order, does not require any interference in these revision petitions.
These Revision Petitions fail and are accordingly dismissed.
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2024 (7) TMI 993
Disallowance of belated claim of Input Tax Credit - disallowance on the ground that, such belated claims for the Input Tax Credit could not be entertained - applicability of Section 10 (3) of the KVAT Act - State Appellate Tribunal allowed the claim - HELD THAT:- In the present case, taking note of the law laid down by the Division Bench in the BHARAT EARTH MOVERS LIMITED VERSUS THE STATE OF KARNATAKA REPRESENTED BY THE COMMISSIONER OF COMMERCIAL TAXES BANGALORE [2023 (1) TMI 341 - KARNATAKA HIGH COURT] clearly holding that the right to claim Input Tax Credit is a indefeasible right and no time limit is prescribed under Section 10 (3) of the KVAT Act for availing Input Tax Credit, no exception could be taken for entertaining belated claims.
There are no question of law arising that requires admission of the revision petition - revision disposed off.
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2024 (7) TMI 862
Refund of tax with interest for the year 2011-2012 - adjustment of refund with the demand of tax for the earlier period - Settlement Scheme for the year 2010-2011 - HELD THAT:- There is no dispute that Petitioner’s liability under the Settlement Scheme is Rs. 8,46,84,821/- as against which the Respondents have recovered from the Petitioner Rs. 19,16,74,501/- thereby resulting into excess collection by Respondents to the extent of Rs. 10,69,89,606/-. The excess arose because on 13th May 2019, Petitioner, under the Settlement Scheme, paid Rs. 8,46,84,821/- and subsequently on 23rd May 2019, Respondents, without any authority of law, adjusted the refund for the year 2011-2012 amounting to Rs. 10,69,89,606/- against the demand for the year 2010-2011 which did not exist. This has not been disputed by Respondents. Therefore, even on this count, the claim of Petitioner for refund of Rs. 10,69,89,606/- is justified since it is a settled position that the State authorities cannot retain the excess amount which is not in accordance with law and same would be violative of Article 265 of the Constitution of India.
On a reading Section 11 of the Settlement Scheme, the defect notice is issued when there is a shortfall in making the payment and not when an applicant has paid the correct amount. In the instant case, on a perusal of the defect notice it states that requisite amount payable is Rs. 66,17,057/-, whereas Petitioner has paid Rs. 8,46,84,821/- which is excess payment and not short payment. Therefore, even on this count, defect notice is contrary to Section 11 of the Settlement Scheme.
Reliance placed by Respondents on Section 18 of the Settlement Scheme for not granting the refund is also misconceived. Section 18 provides that under no circumstances, shall the applicant be entitled to get refund of the amount paid under the Settlement Scheme. In the instant case, Petitioner is not seeking refund of Rs. 8,46,84,821/- which is the undisputed amount paid under the Settlement Scheme, but is seeking a refund of Rs. 10,69,89,606/- which is refund for the year 2011-2012 arising out of the appeal order for the said year and not an amount paid under the Settlement Scheme.
There are no force in the submissions of Respondents to withhold the refund amount for the year 2011-2012 - Respondents are directed to refund to Petitioner a sum of Rs. 10,69,89,606/- alongwith interest at 6% per annum as per Section 52 read with Rule 88 of the MVAT Rules from 1st June 2019 till the date of payment.
Petition disposed off.
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2024 (7) TMI 813
Classification of goods - Rejection of petition - writ petitions by relegating the appellant to avail the statutory remedy by way of appeal before the Appellate Assistant Commissioner under Section 51 of the Tamil Nadu Value Added Tax Act, 2006 - challenge to assessment order - violation of principles of natural justice.
Whether the “Autoclaved Aerated Concrete block” known as (AAC Blocks) would fall under Entry 22 of part B of First Schedule to the TNVAT Act as claimed by the appellant or under Entry 15 of Part C of the First Schedule of the TNVAT as proposed by the revenue? - HELD THAT:- There is merit in the submission of the appellant that the impugned order suffers from violation of principles of natural justice inasmuch as the impugned order has been passed confirming the levy under residuary entry viz., Entry 69 of Part C of the First Schedule to the TNVAT Act, an entry different from that which was proposed in the notice dated 17.04.2023 - the assessment orders insofar as they classify the AAC Blocks sold by the appellant under the residuary entry viz, Entry 69 of Part C of First Schedule to the TNVAT Act marks a departure from the Show cause notice.
Notice is not an empty formality but a mandatory requirement intended to put the assessee on notice of the reason on the basis of which the revenue intends to assess. It is trite law that a notice must contain the reasons to which the noticee is required to respond - it is essential to disclose the reasons to enable the noticee to give a reply/ response, for it is rudimentary that the noticee should be made aware of all that which influence the decision maker and which he has to meet. If the reasons which are set out in the notice to which the noticee is required to respond and the reasons contained in the order are different, the issuance of the notice would fail to serve its purpose and would be reduced to an empty formality. That means, it would neither qualify as a notice nor serve the object of issuance of notice.
Thus, an order made in departure of the show cause notice without putting the assessee on notice cannot be sustained as the same is in violation of principles of natural justice and thus cannot be sustained - the impugned orders of assessment suffer from the above vice and thus cannot be sustained - appeal disposed off.
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2024 (7) TMI 752
Challenge to award passed by the sole Arbitrator - Section 34 of the Arbitration and Conciliation Act, 1996 - whether the Arbitrator committed a perversity or acted beyond jurisdiction in passing the arbitral award and/or whether the impugned award is ex facie illegal and/or opposed to public policy or otherwise comes within the ambit of Section 34 of the 1996 Act? - HELD THAT:- The crucial factor which was required to be taken into consideration was whether the claimant was able to prove that it had kept ready the said materials at the relevant point of time. Not even an iota of evidence in that regard has been discussed by the arbitrator. In fact, it has been admitted by the claimant in paragraph no. 19 of the statement of claim that it would be ready to supply the balance quantity, if given the opportunity, in four months - in the absence of any proof as to the claimant having kept the materials ready, there does not arise any question of loss being suffered by the claimant for refusal of the award-debtor to receive the same.
It is well-settled that the very premise of arbitration is the consensus and concurrence between the parties to refer specific disputes to arbitration. The arbitrator is a creature of contract and as such, is bound by the terms of the agreement between the parties. Thus, being specifically debarred by the agreement and/or falling outside the purview of the agreement, the awards on the above components are categorically vitiated under Section 34(2)(a)(iv) of the 1996 Act, as well as by patent illegality as envisaged in Sub-section (2-A) of Section 34.
It has been held by the Supreme Court and this Court time and again that the award of the arbitrator in violation of a bar contained in the contract has to be held as one beyond his jurisdiction, requiring interference by the Court.
The impugned award passed by the learned Arbitrator dated September 24, 2020 is set aside - application allowed.
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2024 (7) TMI 677
Rejection of appeal - rejection of books of accounts - best judgement assessment - it was held by High Court that 'Once, the finding of fact with regard to variation of stocks has not been challenged which was also basis for rejecting the books of accounts and make the best judgment assessment, therefore impugned order cannot said to be bad in the eye of law.'
HELD THAT:- No case for interference is made out in exercise of the jurisdiction under Article 136 of the Constitution of India.
The Special Leave Petition is accordingly dismissed.
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2024 (7) TMI 615
Refund of cash deposit - seeking release of seized vehicle and goods - HELD THAT:- Since, there appears to be certain doubts as regards what was paid by the respondent at the first instance and what was deposited, we are of the view that the matter should be re-examined by the learned Tribunal. However, it is made clear that the amount of Rs. 18,00,000/- was only by way of a security deposit and a pre-condition for release of the seized articles. Therefore, the revenue cannot take a stand that a sum of Rs. 10,00,000/-, which was made as a cash deposit out of Rs. 18,00,000/- is a payment.
The matter is remanded back to the learned Tribunal to consider the aspect with regard to the payment of penalty, whether the same would be also covered under the SOD and other related matters - Petition disposed off by way of remand.
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2024 (7) TMI 540
Branch transfers - inter-state sale or not - sale of explosives by the appellant to the subsidiaries of Coal India Limited [Coal India] in the State of Jharkhand and the State of West Bengal - branch transfer of the goods by the appellant to its depots/branch offices in the State of Jharkhand and the State of West Bengal - whether the movement of the packaged explosives from the manufacturing unit of the appellant at Nagpur in the State of Maharashtra to the branch offices/depots of the appellant in the State of Jharkhand and the State of West Bengal have resulted in a sale taking place during the course of inter-state trade or commerce pursuant to the Running Contract entered between Coal India?.
HELD THAT:- The appellant is merely stock transferring the goods to its depots and it is only when the subsidiaries of Coal India place indents on the appellant and the goods are supplied by the appellant that the sale takes place. The sale does not take place on the basis of the Running Contract dated 28.11.2008. It cannot, therefore, be said that the movement of packaged explosives from the manufacturing unit of the appellant at Nagpur in the State of Maharashtra to the depots of the appellant in the State of Jharkhand and the State of West Bengal has resulted in a sale taking place during the course of inter-state trade or commerce. It is clearly a case of branch transfer of goods by the appellant to its depots in the States of Jharkhand and West Bengal.
The impugned order dated 26.09.2017 passed by the Maharashtra Sales Tax Tribunal, therefore, cannot be sustained and is set aside - Appeal allowed.
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2024 (7) TMI 466
Issuance of refund voucher with interest payable to the respondent herein under Section 24(4) of the TNGST Act - HELD THAT:- On perusal of the materials available on record, it is seen that though the appellant had issued a refund voucher on 01.06.2005, subsequently, a revised order has been passed by the appellant on 16.12.2005, before the writ petition filed by the respondent came to be disposed of and as per the revised order, the respondent was liable to pay a sum of Rs. 419.00 towards resale tax and a sum of Rs. 210.00 towards penalty. However, the said factum was not brought to the notice of the learned Single Judge at the time of disposing of the writ petition.
The order passed by the learned Single Judge is liable to be set aside - Appeal allowed.
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2024 (7) TMI 465
Violation of principles of natural justice - Challenge to assessment order - non-furnishing of documents - failure to file any reply - Assessment Years 2006-2007 & 2007-2008 - HELD THAT:- There is manifest violation of principles of natural justice inasmuch as the petitioner has produced documents along with the reply dated 13.02.2019. These have not been considered. Instead, the petitioner has been blamed for not producing purchase invoices. In case, any shortcoming was noticed in the documents filed by the petitioner, the petitioner could have been called upon to produce such documents such as purchase invoices. However, in the impugned order, the shortcoming has been pointed out for the first time.
The impugned Assessment Orders are set aside and the cases are remitted back to the second respondent to pass fresh orders on merits within a period of 3 months from the date of disposal of this order - Petition disposed off by way of remand.
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2024 (7) TMI 464
Benefit of Amnesty Scheme for waiver of penalty - Benefits under Vera Samadhan Yojana, 2019 - release of bank attachment - refund of the amount wrongly recovered pursuant to the intimation letter - HELD THAT:- The benefit of the Amnesty Scheme is available for waiver of interest and penalty. However, the Scheme also provides that no refund would be issued qua interest or penalty which is already deposited by the applicant. Therefore, the petitioner is not entitled to the refund of interest but so far as the penalty is concerned, the petitioner was entitled for the waiver thereof. The respondent authorities however invoking the Clause 4.5 by misinterpreting the object of the Scheme to give waiver of interest and if the amount of tax is deposited by the assessee. According to the respondent-authority, only the outstanding amount is to be seen which pertains to the penalty and therefore as per Clause 4.5 of the Amnesty Scheme, the petitioner was directed to deposit 20% of the penalty.
The petitioner however, intimated the respondent-authority that as the petitioner has already paid tax and interest before assessment order was passed, the petitioner is not liable to deposit any amount of the penalty as required by the intimation letter. However, the respondent-authority rejected the application of the petitioner for the benefit of the Amnesty Scheme as the petitioner did not deposit the amount as required by the intimation letter.
The respondents have committed error while rejecting the application under Amnesty Scheme as the petitioner has already paid amount of tax and interest prior to passing of the order of assessment and prior to the announcement of the Scheme. Therefore, reliance placed by the respondent authority on Clause 4.5 of read with Clause 8 of the Scheme would not be applicable as the petitioner is entitled to the waiver of interest and penalty under the Scheme on having paid the entire amount of tax considering the fact that the petitioner had challenged the assessment order comprising of tax, interest and penalty. The petitioner is therefore entitled to the waiver of the penalty as per the provisions of the Scheme accordingly. As the petitioner is not entitled to the Amnesty Scheme alternative prayer with regard to restoration of the second appeal before the Tribunal would not survive.
The impugned Assessment Orders and notices issued by respondent No. 3 are hereby quashed and set aside - petition allowed.
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2024 (7) TMI 463
Recovery of the outstanding dues of the company from the Director - lifting of corporate veil - HELD THAT:- The issue of recovery of the outstanding dues of the company from the Director is no more re integra in view of the decision by this Court in the case of M.R. CHOKSI VERSUS STATE OF GUJARAT [2004 (6) TMI 642 - GUJARAT HIGH COURT], wherein 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.'
In view of the above settled legal position, the impugned notice dated 7th March 2023 for recovery of outstanding dues of the company from the petitioner is hereby quashed and set aside and the respondents are restrained from initiating proceedings against the petitioner from his personal property for recovery of the outstanding dues of the company in which the petitioner was a Director.
Petition disposed off.
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9911796707
