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VAT / Sales Tax - Case Laws
Showing 141 to 160 of 27514 Records
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2024 (7) TMI 462
Liability of the petitioner to pay Turnover Tax (TOT) on sales to Oil Marketing Companies (OMCs) - whether the petitioner-ONGC is liable to pay TOT on the turnover of sale made to OMCs in view of the provisions of Section 10A read with entry No. 173 in schedule II of Section 49 (2) of the Act or not? - statutory exemption as per entry No. 173 under Section 49 (2) of the Gujarat Sales Tax Act, 1969 - HELD THAT:- The sale made by the petitioner-ONGC to oil marketing companies was exempted as per Entry No. 173 as notified by the Government in the year 1988 under Section 49 (2) of the Act granting exemption from payment of whole or any part of the tax payable under provisions of the Act which includes the TOT as per Section 2 (32) of the Act.
Section 10A inserted with Gujarat Sales Tax Amendment Act, 1988 provides for levy of TOT, however, in view of the contention of the petitioner that the provisions of Section 49 (2) would override the provisions of Section 10A as once the exemption is granted from the provisions of the levy tax under the Act, the TOT cannot be accepted even on the assumption that the turnover tax is a single point levy, however, single point levy of tax is provided in Section 9 of the Act for the declared goods and there is no provision for single point of levy of sales tax, general sales tax and TOT except for the declared goods.
On perusal of Section 10A, it appears that the turn over tax is leviable on the taxable turnover of taxable goods beyond a prescribed threshold and any dealer whose taxable turnover crosses the threshold at whatever stage was liable to pay TOT. As per Section 10A (2) (f) for the purpose of calculating amount of tax payable under Sub-section (1) of Section 10A i.e. TOT, the sales of goods wholly exempted payment of tax under Section 49 was to be deducted and not to be considered as a part of the taxable turnover for levy of the TOT but after the amendment with effect from 01.04.1993, clause (f) of Sub-section (2) of Section 10A was deleted and as a result of such amendment, the TOT would be payable on the sales of goods exempted under Section 49 of the Act so far as calculation of the taxable turnover of taxable goods under Section 10A was concerned.
The provision of Section 10A would be applicable on the goods which are taxable but for exemption granted under Sub- section (2) of Section 49. Therefore, the turnover of sales made by ONGC to OMCs which are otherwise exempted under Section 49 (2) of the Act would be considered as a taxable goods for the purpose of Section 10A to include in taxable turnover if the total turnover of the dealer exceeds Rs. 50 lakhs. Admittedly, the total turnover of ONGC is exceeding Rs. 50 lakhs and therefore, the taxable turnover would include the taxable goods irrespective of whether such goods are exempted vide entry No. 173 as per the notification issued pursuant to Section 49 (2) of the Act.
Thus, no interference is required to be made in the impugned order passed by the respondent No. 2 and the Tribunal - petition dismissed.
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2024 (7) TMI 461
Challenge to assessment order - non-furnishing of documents - HELD THAT:- It is noticed that the demand that was earlier confirmed has been now confirmed vide impugned order pursuant to the remand order dated 16.02.2023 pursuant to the alleged information gathered by the respondent from the common portal. Unless the information is furnished to the petitioner, the petitioner cannot be saddled with a liability.
The respondent is directed to furnish the necessary information to the petitioner as was ordered by the Deputy Appellate Commissioner vide order dated 16.02.2023 and thereafter proceed with the assessment - the impugned orders are quashed and the case is remitted back to the respondent to pass a fresh order on merits and in accordance with law as expeditiously as possible, preferably within a period of 6 months from the date of receipt of a copy of this order.
Petition allowed by way of remand.
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2024 (7) TMI 460
Challenge to notice of attachment of petitioner’s immovable property for recovery of tax under Andhra Pradesh General Sales Tax Act, 1957 - Section 27 of the Andhra Pradesh Revenue Recovery Act, 1864 R/w. Section 17-C of APGST Act, 1957 - HELD THAT:- Under Section 20 of the APGST Act there is power for the Commissioner to revise, if he finds that the proceedings or orders by the subordinate authorities are prejudicial to the interests of revenue. It is not the petitioner’s case that the Commissioner invoked its powers under Section 20 of the APGST Act, might be because the orders of the subordinate authorities were not prejudicial to the interest of revenue.
It is observed that the memo dated 28.07.2010 is not only without jurisdiction but is also prejudicial to the interest of revenue.
Petition dismissed.
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2024 (7) TMI 375
Refund of excess tax paid - non-issuance of C-Form declarations - belated issuance of C-Form declarations - HELD THAT:- This Court in case of J.K. CEMENT LTD. VERSUS STATE OF GUJARAT [2020 (3) TMI 140 - GUJARAT HIGH COURT] has held 'The respondents are directed to forthwith process the refund claims of the respective petitioners and grant refund of the tax amount collected from the petitioners and deposited by the seller in accordance with law within a period of twelve weeks of the receipt of a copy of this judgment.'
The aforesaid decision of this Court was upheld by the Hon’ble Supreme Court in STATE OF GUJARAT & ANR. VERSUS J.K. CEMENT LTD. [2021 (2) TMI 1228 - SC ORDER].
It is held that the petitioner is entitled to the refund of the excess payment of tax i.e. difference between 15% tax paid by the petitioner and 2% tax liable to be paid by the petitioner on furnishing of C-Form by the petitioner for purchase of natural gas from the Bharat Petroleum Corporation together with interest of Rs. 1,13,86,862/- paid by the Bharat Petroleum Corporation on behalf of the petitioner on the delayed payment of tax in view of the decision of this Court in case of J.K. Cement Limited which is upheld by the Hon'ble Supreme Court.
The respondents are therefore, directed to consider the refund application filed by the petitioner for the period 2017-18 and 2018-19 filed on 11.09.2023 to pass an order for amount of refund and interest claimed by the petitioner after verification of the C-Forms submitted by the petitioners with statutory interest payable under the provisions of the CST Act - Petition allowed.
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2024 (7) TMI 298
Credit of advance tax paid under Circular No.50/2006 to any amount paid in excess of 4% - stock-transfer of timber from one branch to another - HELD THAT:- A reading of the Circular will clearly indicate that the Circular was intended to ensure that there is no evasion of tax in respect of the goods specified in that Circular by collecting an advance tax at different rates for different goods as specified in the Circular at the Border Check Posts. It is thus clear that the tax collected in terms of the Circular is only an advance tax, which could be adjusted against the actual tax payable by a dealer while completing the assessment for the particular year.
In the facts of the present case, it is not disputed that there was no taxable transaction entered into by the petitioner, and the goods in question had only been stock transferred to the Branch Office of the petitioner at Pollachi. Section 13 of the KVAT Act deals with the refund of input tax credit in the case of export or inter-State sale.
A combined reading of the provisions of Circular No. 50/2006 and the definition of input tax in Section 2 (xxiii) of the KVAT Act indicates that the tax paid in terms of Circular No. 50/2006 cannot assume the character of input tax. Therefore, the provisions of Section 13 of the KVAT Act, on which the reliance was placed by the Officer to deny the claim for credit of the entire tax paid by the petitioner in respect of goods brought into the State and thereafter stock-transferred to Pollachi, will not apply in the facts and circumstances of the case.
Ext. P3 order, to the extent it denies credit to the entirety of the tax paid by the petitioner in terms of Circular No. 50/2006 and in respect of goods stock-transferred to Pollachi, cannot be sustained in law. It is declared that the petitioner will be entitled to the credit for the entire amount paid in terms of Circular No. 50/2006 for the goods in question which were stock- transferred to its Branch Office in Pollachi.
Petition allowed.
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2024 (7) TMI 297
Levy of luxury tax - charges received by the assessee from its customers out of the amounts paid to the Ayurveda Centre functioning in the premises of the hotel operated by it - charges received by the assessee from its customers out of the amounts paid to a Beauty Parlour functioning in the premises of the hotel operated by it - charges collected by the assessee from clients/customers for the use by the latter of the Convention Centre operated by it.
Levy of service tax on charges received by the assessee from its customers out of the amounts paid to the Ayurveda Centre functioning in the premises of the hotel operated by it - HELD THAT:- The invoices raised on the customers, for the services provided by the independent third persons, also show that the services were provided by them and not by the assessee hotel. No doubt, the petitioner has a case that there was an agreement between the assessee hotel and the independent third persons who were providing the service to customers, for sharing of the revenue earned by the latter - As rightly found by the Appellate Tribunal, the revenue sharing arrangement, between the assessee on the one hand and the independent third persons on the other, had to be seen as an arrangement providing for the receipt of rent by the assessee for letting out space within its hotel premises for the business activities of the independent third persons - it is found against the petitioner on the said issues by confirming the impugned order of the Tribunal.
Levy of luxury tax on the amounts received by the assessee for the use of the Convention Centre - HELD THAT:- There are force in the submission of the learned Senior Counsel for the assessee that prior to the amendment of Section 4(2)(c) of the Act, there was no levy envisaged for charges collected in connection with the use of a Convention Centre. The levy was introduced for the first time only through the amendment brought in through the Kerala Finance Act, 2006 with effect from 01.07.2006. Being an amendment to a substantive provision that introduced a new levy, the levy can operate only prospectively and not retrospectively - it is found against the petitioner-State on the issue of levy of luxury tax on the amounts received for use of the Convention Centre in the assessment years 2004-05 and 2005-06.
There are no reason to interfere with the orders of the Appellate Tribunal that are impugned in these Original Petitions - petition dismissed.
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2024 (7) TMI 102
Levy of Entry Tax under the Assam Entry Tax Act, 2008 - PET Reisin - PVC Granuels - challenge on levy on the ground that the said items are nowhere mentioned in the Schedule attached to the Assam Entry Tax Act, 2008 to make the same taxable.
Whether "PET Reisin" and "PVC Granuels" items can be considered as “chemicals” as stipulated at entry No. 51 of the Schedule to the Assam Entry Tax Act, 2008 and to make the same taxable or not?
HELD THAT:- It is well settled that when a taxing statute does not give statutory meaning to a word, that word should be given its popular meaning, i.e. the meaning which is attributed to it in common parlance by people who daily deal with it as consumers or dealers in the market - It is seen that though the Appellate Authority and the Revisional Authority have accepted and held that the items "PET Reisins and “PVC Granuels" are not found in a chemical shop or a chemists shop, the said Common Parlance Test is rejected in the present cases. It would not be that if the items "PET Reisins” and “PVC Granuels" are not found in a chemical shop or a chemists shop, ipso facto the common parlance test would apply. However, since the authorities have not made any attempt to apply the common parlance test in the attending facts of the matter as required to be done, such action cannot be countenanced.
In the present case, no definition is provided to “Chemicals” in the Assam Entry Tax Act, 2008. Therefore, for ascertaining the correct meaning of a fiscal entry the same should be construed as understood in common parlance or trade or commercial parlance.
In COLLECTOR OF CENTRAL EXCISE, KANPUR VERSUS KRISHNA CARBON PAPER CO. [1988 (9) TMI 50 - SUPREME COURT], the Hon’ble Supreme Court has held that it is well-settled that where no definition is provided in the statute itself for ascertaining the correct meaning of a fiscal entry, reference to a dictionary is not always safe. The correct guide in such a case is the context and the trade meaning. The trade meaning is that which is prevalent in that particular trade where such goods are known or traded if a special type of goods is the subject- matter of a fiscal entry, then that entry must be understood in the context of that particular trade, bearing in mind that particular word where, however, there is no evidence how the particular goods are understood in the particular market dealing with those goods then the meaning following from the particular statute at the particular time would be the decisive test. It is well-settled, as mentioned before, that where no definition is provided in the statute itself, as in this case, for ascertaining the correct meaning of a fiscal entry, reference to a dictionary is not always safe. The correct guide, it appears in such a case, is the context and the trade meaning.
Coming back to the present cases, under the Assam Entry Tax Act, 2008, at Entry 51, Chemicals have been specified, however, at Entry- 55e, 55f and 55g it specified the items Caustic Soda, Sodium Silicate, and Alum, which would be mean and understood as Chemicals. As no mentioned is made of “PET Reisin” and “PVC Granuels” and no definition of Chemical is given in the Statute, same have to be therefore, interpreted that “PET Reisin” and “PVC Granuels” are not Chemicals.
The common parlance/ user test would be applied. Thus, the items “PET Reisin” and “PVC Granuels” cannot be considered as Chemicals under Entry 51 of the Schedule attached to the Assam Entry Tax Act, 2008 - this court is persuaded to take a considered view that the items “PET Reisin” and “PVC Granuels” would not be classified or considered as Chemicals under Entry 51 of the Schedule attached to the Assam Entry Tax Act, 2008 by applying the common parlance/ user test.
The impugned assessment orders by the Assessing authority and impugned orders of the Appellate and revisional Authority are set aside and quashed on being not sustainable - Petition allowed.
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2024 (7) TMI 101
Disallowance of petitioner’s claim for deduction from the aggregate selling price under Section 5(2) of the Central Sales Tax Act, 1956 - privity of contract - HELD THAT:- In order to decide whether the provisions of Section 5(2) of the said Act can be made applicable it is not necessary that there should be a privity of contract between the foreign supplier and the ultimate consumer in India. Section 5(2) of the said Act does not prescribe that there has to be a privity of contract between the end user and the foreign supplier.
The aforesaid issue has been considered by the Hon’ble Supreme Court in the case of Commissioner of Delhi Value Added Tax [2016 (4) TMI 534 - SUPREME COURT] wherein the Hon’ble Supreme Court had clearly recorded that sale in course of imports do not require privity of contract between the foreign supplier and the ultimate consumer in India. In the judgment delivered by the Hon’ble Delhi High Court in the case of Abb Limited [2012 (10) TMI 185 - DELHI HIGH COURT], it has been observed that what is relevant consideration was to ascertain whether the movements of goods were integrally connected with the contract for their supply.
It would appear from Section 5(2) of the said Act that a sale or purchase of goods shall be deemed to take place in course of import of goods into the territory of India only if, the sale or purchase occasioned such import. This aspect needs consideration on exchange of affidavits especially when a finding has been returned by the Board that the import is not inextricably bound up with local sale.
The petitioner having been able to make out a prima facie case, the writ petition shall be heard. On the question of grant of interim protection, taking into account that the matter pertains to revenue and that on the petitioner’s own showing a sum equivalent to 5% of the taxable turnover working out to be Rs.1,68,53,080/- has been taxed under the said Act - Petition allowed by way of remand.
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2024 (7) TMI 4
Interest from the date of refund order in terms of Sec. 13A of Karnataka Sales Tax Act, 1957 - HELD THAT:- No question of law would arise for consideration in terms of Sec. 23 (1) of the Act. U/s 23 (1) of the Act, it is open for the petitioner to prefer petition to the High Court against the order of the Tribunal on the ground that the Tribunal has either failed to decide or decided erroneously any question of law. Admittedly, appeal filed against collection of excess tax is allowed by the first appellate authority under order dated 24.03.2012 and in terms of the said order, voucher is raised for refund on 20.09.2013.
In terms of Sec. 13A of the Act the petitioner herein would be entitled for interest in terms of Sec. 13A (b). The Tribunal where the petitioner had prayed to read down Sec. 13A of the Act, has rightly answered stating that it is outside the purview of the jurisdiction of the Tribunal and it was also outside the scope of the appeal.
There is no merit in any of the contentions raised by the petitioner - Petition dismissed.
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2024 (7) TMI 3
Challenge to assessment order - levy of interest in terms of the Section 22 of the AGST Act, 1993 - HELD THAT:- The Hon’ble Apex court in [2006 (11) TMI 323 - SUPREME COURT] remanded the matter to the assessing authority to resolve the factual controversy whether the appellate company had collected sales tax from consumers through various dealers on entire resale price and if the answer is yes, the appellant company would liable to deposit entire sales tax amount collected from the consumers along with 9% interest from the date of collecting the amount towards the sales tax. It is apposite to mention herein that the earlier assessments as well as the notices of demand were set aside by the Hon’ble Apex Court.
The initial notices were issued in the year 1996 in all the cases including the earlier litigations to produce books of accounts and records in connection with the purchase and sale of their products. Subsequently in the month of March 1996, the petitioner company was asked to show cause as to why penal action should not be initiated. Subsequently, assessment order was passed in the month of July 2001 and appeal challenging such assessment order by the appellate company were dismissed in the month of April 2002.
In the case in hand, the impugned assessment order shows that after the order of the Hon’ble Apex court, the balance due was nil. However, taking recourse to sub-section 3 of section 22, the interest was imposed on the ground that amount due was paid subsequent to its due date. To summarise it is the contention of the assessing authority that though after the order of the Hon’ble Apex court there was no balance due however, the entire due was paid subsequent to the date it has fallen due and therefore, interest was leviable under section 22(3) of the Act.
The impugned decisions to impose interest by the tax authorities are interfered with - petition disposed off.
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2024 (7) TMI 2
Validity of impugned Notice and impugned Endorsement - It is the grievance of the petitioner that despite non-expiry of the appeal period of three months ending on 22.04.2024, the respondent issued the impugned Notice dated 23.01.2024 followed by the impugned Endorsement dated 09.02.2024, which are illegal, arbitrary and same deserves to be quashed - Section 107 of the Karnataka Goods and Services Tax Act, 1971 - HELD THAT:- The impugned Notice dated 23.01.2024 and the impugned Endorsement dated 09.02.2024 issued by the respondent within the appeal period is clearly illegal and arbitrary and the same deserves to be quashed and necessary directions be issued to the petitioner and the appellate authority for the purposes of the appeal to be preferred by the petitioner. It is also relevant to state that waiver of the period of three (4) months from the date of the order to prefer an appeal is permissible only under Section 78 of the KGST Act and that too for the reasons to be recorded in writing by the proper Officer as to why said period of three (3) months is to be dispensed with and by assigning reasons that the respondent would not be in a position to recover the said amount from the petitioner.
In the instant case, the impugned Notice and Endorsement do not contain any such reasons for invocation of Section 78 of the KGST Act in the facts of the instant case and on this ground, also impugned Notice and Endorsement deserves to be quashed.
The impugned Notice dated 23.01.2024 -Annexure-A and the impugned Endorsement dated 09.02.2024 - Annexure-B issued by the respondent, are hereby quashed - Petition allowed.
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2024 (6) TMI 1172
Levy of purchase tax under Section 12 of the Tamil Nadu Value Added Tax Act, 2006 - validity of assessment order - HELD THAT:- A reading of the order dated 09.11.2022, rejecting the request of the petitioner for revision of the assessment made on 28.09.2022 reveals that the order has been passed in undue haste. The dispute pertains to the Assessment Years 2014-2015 and 2015-2016 and the amount involved are huge. For the Assessment Year 2014-2015, the tax amount is Rs. 91,46,490/- and the amount of tax involved for the Assessment Year 2015-2016 is Rs. 68,98,819/-.
The orders dated 09.11.2022, rejecting the Petition filed by the petitioner for revision of the orders dated 28.09.2022, is set aside, subject to the petitioner depositing 10% of the disputed tax before the second respondent in cash by way of D.D. within a period of 30 days from the date of receipt of copy of this order. The petitioner shall appear for personal hearing before the second respondent before fresh orders are passed.
Petition dispsoed off.
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2024 (6) TMI 1171
Violation of principles of natural justice - order passed without considering the Profit and Loss Account, Balance Sheets and the Ledger produced before him - HELD THAT:- There is no merit in the challenge to the impugned order in this Writ Petition, as the respondents cannot be found fault with for passing the impugned order. After the earlier order dated 30.05.2019, which was set aside by this Court vide order dated 08.04.2021, it was incumbent on the part of the petitioner to have got ready with the reply. Instead, the petitioner waited till the issuance of pre-revision notice dated 31.08.2021 and has merely submitted only copies of Ledger and Profit and Loss Account.
The petitioner should have filed a clear reply as to how there was no case made out by the respondents. That apart, in the counter affidavit, the second respondent has also stated that the petitioner has suppressed the turnover and that there is a tax liability, which has been confirmed vide the impugned order.
Petition dismissed.
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2024 (6) TMI 1170
Refund of amount paid under coercion - no order for demand is passed - HELD THAT:- On perusal of the facts, it is apparent that the respondents have not passed any order disposing of the refund applications dated 04.06.2021 and 24.09.2021.
Considering the affidavit in reply, it appears that there are disputed questions of facts with regard to service of notice and passing of the assessment order for the period for which refund is claimed by the petitioners. The affidavit in rejoinder filed by the petitioners also raises such disputes with regard to the contents of the affidavit in reply.
The petition is not entertained at this stage. The respondents are directed to pass appropriate order disposing of the aforesaid refund applications filed by the petitioners within a period of 12 weeks from the date of receipt of a copy of this order.
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2024 (6) TMI 1169
Levy of penalty - Rejection of benefit of Amnesty Scheme under the Vera Samadhan Yojna, 2019 - seeking directions to grant waiver of the penalty under the Amnesty Scheme on the basis of payment of tax and interest prior to passing of the assessment order - attachment of bank accounts - 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.
The petitioner under the bona fide belief that the petitioner already deposited the entire tax and interest and the order under challenge before the appellate authority was the assessment order comprising of tax interest and penalty and therefore as per Clause 4.5 of the Amnesty Scheme, the petitioner is not liable to deposit any penalty. The petitioner therefore did not deposit amount of penalty as intimated by the respondent-authority. 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.
Keeping in view the observation made by this Court in case of SAFAL DEVELOPERS AND ANOTHER VERSUS STATE OF GUJARAT AND ANOTHER [2016 (4) TMI 1310 - GUJARAT HIGH COURT]and considering the facts of the present case, we are of the opinion that 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 - 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.
Impugned Communication dated 11.03.2022 at Annexure-A as well as attachment order passed by the respondent-authorities are hereby quashed and set aside - petition allowed.
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2024 (6) TMI 1101
Correction of mistake in filing annual returns for the year 2014-15 - existence of provision to enable the filing of a revised copy of stock inventory as on 31-03- 2015 - HELD THAT:- The petitioner is entitled to an order permitting him to file / upload a revised stock statement as of 31-03- 2015. Sub-rule (4A) of Rule 22 of the 2005 Rules contemplate the filing of a revised return where the dealer detects any omission or mistake in the return submitted by him under sub rule (1) of Rule 22. Sub-rule (3) of Rule 22 deals with the documents that have to be uploaded by the dealer along with the return filed under sub-rule (1) of Rule 22.
In the facts of the present case the mistake on the part of the petitioner was that she uploaded the stock inventory as on 28-05-2015 instead of the stock inventory as on 31-03-2015 [which is the requirement under Rule 22 (3)(v) of the 2005 Rules].
This writ petition will stand disposed of directing the 2nd respondent to permit the petitioner to correct the copy of stock inventory (closing stock) as on 31-03- 2015 which was filed along with the annual returns submitted by the petitioner for the year 2014-15. Thereafter, the petitioner shall suitably reply to Exts. P6 to P8 notices.
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2024 (6) TMI 999
Classification - rate of tax - powers sprayer - falls under Schedule-I of the Rajasthan Value Added Tax Act, 2003 and taxable @ of 4% under Schedule-IV of Rajasthan Value Added Tax Act, 2003 or not? - item “sprayers including their parts and accessories” under S. No. 29 of the ordinary agricultural implements of Schedule-I of the Rajasthan Value Added Tax Act, 2003 would also include the “powers sprayers and its parts and accessories” or not.
Whether in the facts and circumstances of the case, the learned tax board has erred in law in holding that the item “powers sprayer” does not falls under Schedule-I of the Rajasthan Value Added Tax Act, 2003 and is, therefore, taxable @ of 4% under Schedule-IV of the above Act? - HELD THAT:- A bare perusal of the Schedule-I of the Act of 2003 makes it amply clear that there is no specific word like “power sprayers” in Schedule-I. S. No. 1 of Schedule-IV specifically states that the same is taxable. Apparently, the goods power sprayer do not fall under Schedule-I of the Act of 2003 and, therefore, is taxable under Schedule-IV of the above Act.
Whether in the facts and circumstances of the case, the learned tax board has erred in law in not appreciating the fact that item “sprayers including their parts and accessories” under S. No. 29 of the ordinary agricultural implements of Schedule-I of the Rajasthan Value Added Tax Act, 2003 would also include the “powers sprayers and its parts and accessories”? - HELD THAT:- Schedule-V provides for the goods taxable which are not covered in any other schedule under the Act or under any notification issued under Section 4 of the Act. Apparently, the goods in question i.e. “power sprayers” is not specifically included in any Schedule and, therefore, the goods “power sprayers” is taxable as per Schedule-IV and the parts and accessories thereof are taxable under Schedule-V.
The learned Tax Board has not committed any illegality while passing the impugned orders and, therefore, the present revision petitions are dismissed accordingly.
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2024 (6) TMI 998
Violation of principles of natural justice - whether the Commercial Taxes Officer erred in affording reasonable opportunity of being heard to the petitioner-assessee and as such the initial order is vitiated in law and its affirmation by the Tax Board is also against the mandate of law? - HELD THAT:- In the case on hand, it was not verified from the businessmen named in the “Sauda Noon Register” as to whether actually any transaction of sale has taken place nor any other satisfactory report/ evidence was there to substantiate case of tax evasion. Evidently the order of Assessing Officer suffers from arbitrariness and non-compliance of mandates of law in the matter of just opportunity of hearing.
In KALRA GLUE FACTORY VERSUS SALES TAX TRIBUNAL AND OTHERS [1987 (3) TMI 110 - SUPREME COURT], Hon’ble Apex Court upset the conclusion of Assessing Authority which was based on statement of a witness, who was not cross-examined.
Coming to the facts of this case, it is evident that the Assessing Authority did not enquire about correctness of averments made in reply to the notice by the petitioner. In other words it was not verified that the entries in the Saudanoon Register were genuinely a sale transaction. A due enquiry might have given a different result and in absence of enquiry, correctness of the conclusion is not sustainable - The learned Tax Board has not considered this legal infirmity committed by the Assessing Authority while upsetting the reasoned order of the appellate court, therefore, the impugned order of Tax Board is fit to be set aside on this ground alone.
Whether the judgment and order of Tax Board is sustainable in law for non-consideration of the reasons of the Appellate Authority, whose order was under challenge before the Tax Board? - HELD THAT:- The Tax Board for the first time interpreted the abbreviation “WB” as without bills. This aspect was not touched by any of the Lower Authority including the Commercial Taxes Officer. The petitioner had interpreted the said abbreviation as delivery without bardan. The Tax Board has assumed without any precedent or supporting document or other reliable evidence that the abbreviation “WB” would be interpreted as without bill only and no other interpretation is acceptable - The initial order imposing tax, penalty etc., dated 23.03.1999 reveals that the Commercial Taxes Officer had asked the petitioner to deposit Rs. 5 Lacs for compounding. Later on the compounding failed. The Tax Board assumed that since the petitioner had deposited Rs. 5 Lacs, the petitioner admitted evasion of tax.
It is evident that the impugned order and judgment of the Tax Board is bad in law, hence the same is set aside and the order of the Appellate Authority is affirmed - Revision allowed.
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2024 (6) TMI 997
Power to grant exemption in respect of categories other than “registered dealers” under Section 8 (5) (b) of the CST Act - Scope of the expression “ to such person or class of persons as may be specified in the notification” as used in Section 8 (5) (b) of the CST Act - limited to “registered dealers” or not - HELD THAT:- Sections 8 (5)(a) and 8 (5) (b) empowered the State Government to grant total or partial exemption not only in respect of sales of any goods or class of goods to a registered dealer/government, but also empowered to grant total or partial exemption in respect of inter State sales to unregistered dealers of any person or class of persons specified in the notification. - Section 8 (5) (b) remains untouched even after the amendment of 2007, therefore, empowers the State Government to grant exemption in respect of categories other than registered dealers.
This view duly supported by judgment in Prism Cement Limited vs. State of Maharashtra, [2013 (7) TMI 668 - BOMBAY HIGH COURT], wherein it was held as under: "the argument of the Revenue that reference to the words 'sub-section (2)' and the words 'any person or class of persons' in Section 8 (5) as amended by Finance Act 2002 are redundant or surplus cannot be sustained. In this view of the matter, we do not consider it necessary to deal with the decisions relied upon by the counsel for the Revenue in support of their contention that the redundant or surplus words in a statute must be ignored."
To the similar effect is the judgment rendered in Diebold Systems (P) Limited vs. Additional Commercial Tax Officer (Iac), Puducherry, [2010 (2) TMI 1103 - MADRAS HIGH COURT], wherein question No. 3 was framed whether under Section 8 (5) (b) of Central Sales Tax Act, 1956 Act, Government still had power to issue notification without requirement of form C in respect of sales "to any persons or class of persons, who were non-dealers”
Unjust Enrichment - HELD THAT:- The respondent(s/assessee(s) cannot automatically be held entitled to refund of the said amount unless the assessee(s) establishes that it has not passed on the tax liability to the consumers as any person carrying on the activity of manufacture of goods utilizing some raw material which had already suffered some tax would normally include both the tax component and the cost of such raw material into the cost of the final product and pass on the same to the consumer of the manufactured product.
Hon’ble Supreme Court in DECCAN CEMENTS LTD. VERSUS ASST. DIRECTOR OF MINES AND GEOLOGY [2014 (8) TMI 1247 - SUPREME COURT] held that 'Though it appears from the said judgment, their Lordships relied upon the language of Section 27 of the Customs Act in support of their conclusion. In our opinion, the existence or otherwise of such a provision makes no difference for the correctness of the above stated principle of law Any person carrying on the activity of manufacture of goods utilising some raw material which had already suffered some tax would normally include both the tax component and the cost of such raw material into the cost of the final product and pass on the same to the consumer of the manufactured product.'
There are no reason to interfere with the impugned judgment under revision. Consequently, the revision petitions are dismissed.
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2024 (6) TMI 996
Rejection of petitioner’s stay application during pendency of the petitioner’s appeal before the Andhra Pradesh Value Added Tax Appellate Tribunal at Visakhapatnam - seeking grant of stay for the tax period from April, 2015 to June, 2017, during pendency of the appeal before the Tribunal - HELD THAT:- Once the statutory appeal is pending before the Appellate authority for adjudication, ordinarily the recovery of the balance amount deserves stay unless for special reasons, to be recorded in the order, recovery of the balance amount deserves not to be stayed or the balance amount has to be recovered even during pendency of the appeal, which is a statutory and valuable right. The stay may be the subject to imposing some conditions, which is also contemplated by Section 33 (b) of APVAT Act, 2005.
The impugned order does not record any cogent reasons to reject the stay petition. So far as the production of evidence in support of the petition, is concerned, as mentioned in the impugned order to dispute the revisional order, the appeal being pending, such matter has to be seen by the Appellate authority, on merits while deciding the appeal.
The order of rejection of the stay was passed with the conditions. In that case, in addition to the statutory deposit of 25%, the petitioner therein had deposited in total 50% inclusive of 25% of the statutory deposit under the orders of the Court passed in Writ Petition No. 10 of 2023 and considering that total 50% deposit, the stay was granted during pendency of the appeal before the Appellate Tribunal - the respondent No. 1 is not justified in rejecting the petitioner’s stay application. The impugned order, therefore, is set-aside.
Subject to the petitioner depositing 25% more of the disputed tax i.e., total 50% inclusive of the statutory deposit in filing appeal before the Appellate Tribunal, within a period of six (06) weeks, before the assessing authority/ respondent No. 3, the recovery proceedings for the balance of the amount i.e., in respect of 50%, shall remain stayed during the pendency of appeal before the Appellate Tribunal - Petition allowed in part.
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