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VAT / Sales Tax - Case Laws
Showing 21 to 40 of 27514 Records
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2024 (11) TMI 198
Maintainability of petiiton - availability of alternative remedy - Rejection of appeal filed by the present petitioners - non-attendance of appellant before the Authority either in person or through an agent - Section 26 (5) (a) of the Maharashtra Value Added Tax Act - HELD THAT:- The plea of availability of an alternate remedy, cannot be construed as a Bar for exercising the powers under Article 226 of the Constitution of India. More so, in the instant case, when the challenge is, to the passing of the impugned order by the Appellate Authority in contradistinction to the mandate as provided in Section 26 (5) (a) of the Maharashtra Value Added Tax Act. The plea therefore, is being turned down.
It is a settled position of law, that between a Statute and a Rule, it is the Statute, which has primacy and therefore, prevails upon the Rule. In that view of the matter, while deciding the appeal, the Authority will have to be governed by the mandate of Section 26 (1) (a) of the Maharashtra Value Added Tax Act and decide the appeal in the manner as indicated therein, the Rule being subservient to it.
The position in this regard has been considered in BALAJI STEEL RE-ROLLING MILLS VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS [2014 (11) TMI 531 - SUPREME COURT] in which considering similar provisions as contained in the Central Excise Act and Rule 20 of the Rules framed thereunder, which provided for dismissal of an appeal on account of the absence of the petitioner, it has been held that the substantive provisions of the Act would prevail and would be the manner in which the appeal has to be decided.
In that view of the matter, the impugned order is hereby quashed and set aside and the matter is remitted back to the respondent No. 2 for decision afresh - petition allowed by way of remand.
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2024 (11) TMI 118
Non-refund of the excess tax amount paid by the petitioner for different assessment years - rejection of refund claim on the ground of time limitation - HELD THAT:- It is evident that the Rule 29 clearly prescribes the period before which the refund claims are required to be filed. However, proviso to Rule 29 (1) (a) empowers the prescribed authority to admit an application for refund beyond the period prescribed, namely, 180 days from the date of assessment or reassessment, if the authority is satisfied that the sufficient cause has been made out to justify the delay for not making the application within the said period.
From a perusal of the impugned orders it is evident that the refund applications were rejected on the ground that these were time barred. Impugned orders do not reflect that the petitioner was given any notice to explain the cause of delay. The affidavit-in-opposition filed by the respondents also does not explain the position as to whether the petitioner was put to notice and given an opportunity to explain the reasons for the delay in filing the refund applications prior to issuance of the impugned orders.
There is no dispute also that claims for refund sought for by the petitioner is also not disputed by the respondent Department denying the claims that the petitioner is otherwise not entitled under the law to claims the refund. The notices issued for the proceedings that the assessment by the Department which are referred to in the writ petitions are also not disputed by the Department. Under such circumstances, it is evident that the Department did initiate a proceeding for assessment which, however, was not carried out for the reasons best known to the Department.
The impugned orders dated 16.11.2016, 15.09.2016 and 07.01.2017, therefore, are set aside. The matter is remanded back to the concerned respondent(s)/prescribed authority and this Court permits the asessee to explain the causes of delay that may have occurred in filing the refund application - Petition allowed by way of remand.
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2024 (11) TMI 117
Challenge to order of Sales Tax Appellate Tribunal - no C-Form register - transactions in respect of which the assessee has claimed exemption under Section 6(2) of the Central Sales Tax Act, 1956 challenged on the ground that the transactions were transit sales - HELD THAT:- In the absence of any records such as the C Form Register or the communication from the assessing authority of Sattur Assessment Circle, it is not inclined to disbelieve the claim of the petitioner.
There are no reason to disallow the C Forms produced. No doubt, it is for the assessee to establish its claim of exemption. In this case, primary particulars such as the details of selling dealers and the C Forms issued by the officer have been produced.
The presumption is, no doubt, rebuttable, and the Department is at liberty to establish that the particulars produced are false. Though the Department has alleged so, it has failed to prove the falsity of the claim, as it alleges. There is nothing to disprove the C Forms produced by the petitioner. As regards the cancellation of the registration of the selling dealers, the factum of cancellation was not available in public domain as it is today, and the petitioner cannot be made to suffer on this count. Their burden hence stands discharged.
The appellate authority has rendered a categoric finding that there was no willful default on the part of the assessee in claiming the exemption and reliance is placed on the C Forms produced. Hence, the existence of the C Forms, and their genuineness has been accepted in the deletion of penalty and this order has been accepted by the Commercial Taxes Department - the impugned order is set aside and this writ petition is allowed.
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2024 (11) TMI 116
Seeking to withdraw charges and raise attachment levied by their office over the mortgaged property exclusively charged in favour of this Petitioner - Section 48 of the SARFAESI Act - HELD THAT:- It would be germane to refer to the decision of this Court in case of PARTNERS OF SIDDHESHWAR TAX FAB & ORS. VERSUS STATE OF GUJARAT & ORS. [2024 (7) TMI 1547 - GUJARAT HIGH COURT] wherein, it is held 'the charge in respect of the property in question created for sales tax dues or VAT dues is of no availand 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.'
In view of the above settled legal position, the attachment order of the respondent-State would not survive and is accordingly ordered to be quashed and set aside and consequently, the mutation entries in the revenue record also stand cancelled.
Petition disposed off.
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2024 (11) TMI 115
Priority of charge under SARFAESI Act over VAT Act charge - seeking declaration that the Petitioner Bank has first charge over the promo mortgaged by the Respondent no. 3 u/s 26E of the SARFAESI Act, which would override the charge of the Respondent No. 2 under Section 48 of the VAT Act - HELD THAT:- In case of PARTNERS OF SIDDHESHWAR TAX FAB & ORS. VERSUS STATE OF GUJARAT & ORS. [2024 (7) TMI 1547 - GUJARAT HIGH COURT], this Court held that 'the charge in respect of the property in question created for sales tax dues or VAT dues is of no availand 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.'
In view of the above, the respondent No. 2 is directed to remove the charge over the property (in question) as it is not in dispute that the petitioner-Bank has created the charge prior in point of time and hence, as per the settled legal position, the charge created by the respondent No. 2 in the year 2019 would not survive and accordingly, the mutation entry in Revenue Record stands deleted.
Petition disposed off.
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2024 (11) TMI 114
Seeking declaration that the action of the respondent No.2-Sales Tax Department of continuing charge over the property in question was invalid and illegal on the ground that the petitioner is a successful auction purchaser of the property in public auction held by the secured creditor - HELD THAT:- It would be germane to refer to the relevant paras of the decision of this Court in case of PARTNERS OF SIDDHESHWAR TAX FAB & ORS. VERSUS STATE OF GUJARAT & ORS. [2024 (7) TMI 1547 - GUJARAT HIGH COURT] wherein the question as to whether the auction purchaser would be liable to discharge the dues of the sales tax department is no more res integra. This Court in the aforesaid decision has held '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.'
The respondent authorities are directed to remove the charge in respect of the property in question created for sales tax dues in view of the provisions of the RDB Act as the sale certificate and sale deed is executed and the petitioner has become the absolute owner of the property. Accordingly, the charge created by the respondent-State over the property in question in the year 2014 cannot be sustained and is quashed and set aside and as a consequence, mutation entry in revenue record being Entry No. 5303 also stands deleted.
Petition disposed off.
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2024 (11) TMI 50
Application for condonation of delay dismissed - provisions of Section 12-B of the J&K GST Act, 1962 ignored, which provide that the provisions of Sections 5 & 12 of the Limitation Act, Samvat 1995 shall apply to the appeals, revisions, filed under this Act before Appellate, Reviewing Authorities or the Tribunals - it was held by High Court that 'the order passed by the appellate authority has attained finality because in view of the provisions of Section 12(d) of the J&K GST Act, which is a special Act, has excluded the applicability of Section 5 of the Limitation Act.'
HELD THAT:- This Special Leave Petition is disposed off by reserving liberty to the petitioners herein to agitate this issue in any other appropriate case.
The question of law, which sought to advance, is kept open - Application disposed off.
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2024 (11) TMI 49
Taxability of panel boards purchased by a manufacturer of submersible pumps - whether panel boards purchased against Form XVII declarations should be taxed separately at a higher rate or as part of an integrated unit with submersible pumps? - HELD THAT:- In the present case, there is a finding of fact by the assessing authority that reveals that the goods supplied are integrated sets, comprising both submersible pump and panel board. In such circumstances, where the department has accepted the nature of final product supplied, it is found difficult to accept the stand that the two items must be treated as separate products liable to tax under different rates as stipulated in the schedules.
In the case of Northwest Switchgear Ltd [2006 (2) TMI 169 - SUPREME COURT], the assessee was engaged in the manufacture of switches, fan regulators and distribution boards that fell under Chapter Sub-Headings No. 8536.90, 8414.20 and 8537.00 of the Central Excise Tariff Act, 1985. The appellants had classified fan regulators under Sub-Heading 8414.20 of the Tariff Act which covers electric fans, on the strength that there is no other use of these items and these are used principally and solely with the electric fans - The issue framed to be determined was whether fan regulators would be classified along with electric fans at the same rate of duty or as parts and accessories attracting higher rate of duty - On facts, the position in that case was that regulators had been sold without the electric fan and as independent, stand-alone products. On that admitted factual basis, the Supreme Court accepted the contention of the Department that fan regulators manufactured by that assessee without any electric fans were only classifiable as a part or accessory of a fan and not as a fan itself.
In the present case, undoubtedly, submersible pumps and panel boards are governed by separate entries. Under the Schedules, submersible pumps are taxable @ 10% under entry 26 of part 'C' of the First Schedule and panel boards are taxable under entry 14 (iii) of part 'D' of the First Schedule taxable @ 12%.
The Assessing Authority appears to have invoked the proviso to Section 3(3) of the Act although there is no reference to the proviso in the order of assessment. The officer proceeds on the basis that the petitioner, after purchasing the panel boards on the strength of Form XVII declarations, has failed to make use of the panel boards for the purpose stated in the declarations, but has sold them as independent commodities - his conclusion cannot be accpeted in the light of categoric admission in the assessment order to the effect that the submersible pumps have been sold with the panel boards as integrated kits.
Reference made to three assessment orders all dated 27.01.2005 for the periods 2002-2003, 2004-2005 & 2005-2006 where the claim of concessional rate of tax under Section 3(3) has been accepted by the Assessing Officer. Needless to say, it is necessary that the Department adopts a sustained and uniform view in assessment and cannot waver, taking conflicting stands, especially in the absence of any variation in facts or legal position - the decision that Form XVII declarations are legitimate and liable to be accepted for the earlier and later years, there are no justification in the officer having deviated from that view for the intervening year alone.
The impugned order of the Tribunal dated 03.12.2007 is set aside and this writ petition stands allowed.
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2024 (11) TMI 2
Levy of Additional Sales Tax (AST) - turnover had not exceeded the threshold of Rs. 100 Crores during the year in question - challenge to amendment to the provisions of Section 2(1)(a) of the TNAST Act - HELD THAT:- The amendment to the TNAST is effective from 01.08.1996. As a result of this amendment, the threshold for the levy of AST stood enhanced from Rs. 10.00 lakhs to Rs. 100 Crores.
It is true that if the turnover of the writ petitioner is taken for the year in entirety, it would be less than a sum of Rs. 100 Crores. However for the purpose of assessment, the assessing authority is bound to apply the provisions of the Act strictly from their dates of insertion into the Act. Hence for the period 01.04.1996 to 31.07.1996, as the turnover of the petitioner is in the region of Rs. 15.66 Crores, which is far in excess of Rs. 10.00 lakhs, the petitioner cannot avoid liability under the TNAST Act.
Writ Petition is dismissed.
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2024 (10) TMI 1458
Maintainability of the petitions in view of availability of the alternative remedy of filing statutory appeal under Section 73 of the Gujarat Value Added Tax Act, 2003 - whether the liability of payment of Value Added Tax would include ‘service tax’ component collected by the petitioner from customers or not? - HELD THAT:- The petitioner is required to calculate the taxable turnover of its sales under the provisions of Section 14 of the Act by excluding the amount of turnover of sales not subjected to tax under the Act and turnover of goods declared exempt and in case of turnover of sales in case of the works contract, charges towards labours, service and other like charges and subject to such conditions as may be prescribed. Accordingly, VAT is payable upon the taxable turnover and as per the provision of Section 3 read with Section 14 of the Act, it provides for option for payment of lump sum tax in lieu of tax on turnover of sales.
On perusal of the interpretation made by the respondent authority, whether the ‘service tax’ component collected by the petitioner could be said to be ‘sale price’ or not is answered by this Court in the case of Ambuja Cement Ltd. [2016 (4) TMI 1399 - GUJARAT HIGH COURT] while deciding the issue as to whether the total taxable turnover of purchases liable for purchase tax would include ‘Value Added Tax’ component or not. It is pertinent to note that definition of ‘taxable turnover of purchase’ is mirror image of definition of ‘taxable turnover of sales’ under Section 2(33).
When the word “includes” is used in the definition of Section 2(24) of the Act, it is clear that legislature does not intend to restrict the definition, it makes the definition enumerative and not exhaustive as held by this Court and therefore, in ordinary meaning, it has to be extended to bring within the term certain matters which in its ordinary meaning it may or may not comprise. Inclusion of the words “duties levied or leviable under the Central Excise Tariff At, 1985 or Customs Act, 1962” and any sum charged for anything done by the dealer in respect of the goods before the delivery thereof would indicate that the legislator intend to include only those duties/taxes within the purview of the expression “sale price”. Therefore, the intention of the legislature to exclude the service tax component from the ambit of sale price is clear, as otherwise, the same would also have found place in the categories enumerated thereunder.
The impugned orders passed by the respondent authority setting aside the permission granted under Section 14D of the Act for payment of composition tax only on the ground that petitioners have not paid the VAT on the ‘service tax’ component which ought to have been included in the sale price is squarely covered in favour of the petitioners and on the same analogy for excluding ‘Value Added Tax’ from purchase price in case of Ambuja Cement Ltd., the petitioners are not liable to include ‘the service tax’ component as part of the ‘sales price’ so as to pay VAT thereon.
All these petitions succeed and are accordingly allowed.
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2024 (10) TMI 1331
Quashing of disciplinary proceedings midway, i.e., at the stage when the enquiry had been completed - jurisdiction of the disciplinary authority - HELD THAT:- There was no adversarial order, resulting in no cause of action to canvass or maintain the Writ Petition. The mere pendency of the inquiry or the Writ Petitioner’s apprehension of any adverse orders cannot be a ground to maintain the Writ Petition. It is apparent that no rights of the Writ Petitioner have been abridged, nor has the inquiry resulted in altering the service conditions. In that context, the mere issuance of the show cause notice would not confer jurisdiction on this Court to entertain and appreciate the Writ Petition. In the absence of any right of the litigant being adversely affected, it is not seen how the learned Single Judge could have heard and ordered the Writ Petition.
Appreciation of the facts is the domain of the statutory authorities, specifically the disciplinary authority in this case - the Appellant/Department is directed to produce the records relating to the refund claim, which has been the contention between the Appellant/Department and the Employee.
The learned Single Judge has erred in taking up the role of the disciplinary authority and in attempting to substitute the opinion of the disciplinary authority with the opinion of this Court, which is impermissible. The learned Single Judge could not have usurped or pre-empted the statutorily empowered disciplinary authority from forming an opinion on imposing or not imposing any penalties. The authority to impose or not impose any penalty, as provided under the rules, is in the exclusive domain of the disciplinary authority, an action that has now been pre-empted by the impugned order. The Writ Petition itself was premature in the absence of any adverse impact on the rights or service conditions of the Writ Petitioner.
There are no hesitation in allowing the appeal. Accordingly, the appeal is allowed in part. The impugned order is set aside, and the matter is remitted back to the disciplinary/competent authority for consideration of the reply to be submitted by the Respondent/Writ Petitioner. Thereafter, the disciplinary/competent authority shall pass necessary orders within six (6) weeks from the date of receipt of the reply to the second show cause notice - appeal allowed by way of remand.
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2024 (10) TMI 1248
Benefit of the concessional rate of tax under Section 8 (a) (ii) of the Kerala Value Added Tax Act (KVAT Act), 2003 - import of any goods into the State or Country 'for incorporation in the works contract' - goods imported were not incorporated in the works contract for the year 2015-16 and the goods were returned to the supplier.
HELD THAT:- While it may be a fact that in the absence of any material to suggest the actual return of the imported goods, the revenue may have been justified in presuming that the goods imported were in fact for incorporation in the works contract, and in such a situation would have been justified in insisting on the assessee discharging the tax liability @ of 7% on the contract value in accordance with Section 8 (a) (i) of the KVAT Act, we find that when the Appellate Tribunal was satisfied on facts regarding proof of return of the imported goods without incorporation of the same in the works contracts undertaken by the assessee for the assessment year in question, the assessee cannot be denied the benefit of the concessional rate of tax of 4% in terms of Section 8 (a) (ii) of the KVAT Act.
The pre-condition for attracting the higher rate of tax under Section 8 (a) (i) cannot be seen as attracted on the facts of the instant case where the assessee did not hold a CST registration during the assessment year in question, and further, had returned the imported goods to the supplier without incorporating any part of it in the works contracts undertaken during the said year.
There are no reason to interfere with the impugned order of the Appellate Tribunal - OT. Revision petitions are thus dismissed by answering the questions of law raised against the revenue and in favour of the assessee.
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2024 (10) TMI 1247
Levy of Octroi by the various Municipal Councils - SIM Cards issued by the Bharti Mobile Limited and distributed in the State of Punjab, being sold in their municipal limits - whether SIM Card can be treated as “goods”? - HELD THAT:- The said question is no more res intergra, keeping in view the judgments passed by the Hon’ble Supreme Court in BSNL Vs. Union of India [2006 (3) TMI 1 - SUPREME COURT] and Idea Mobile Communication Ltd. Vs. Commr. of C. Ex. & Cus., Cochin [2011 (8) TMI 3 - SUPREME COURT] wherein the Hon’ble Apex Court while examining the imposition of sales tax on the usage of SIM, held that sales tax can be imposed.
The question of SIM card be “goods” was left to be further examined. However, in Idea Mobile’s case , the Hon’ble Apex Court has found that the SIM Cards to be never sold as “goods” independent from services provided. In view thereto, independently the SIM Cards cannot be termed as “goods” for the purpose of Octroi.
There are no hesitation to hold that the SIM Cards which have been distributed in various Municipal Councils for the relevant period were not leviable to Octroi. Accordingly, the present writ petition is allowed and the notifications dated 26.07.2001(Annexure P-6), 08.08.2001 (Annexure P-7) and 30.10.2002 (Annexure P-8) are hereby set aside.
Petition allowed.
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2024 (10) TMI 1176
Seeking to challenge review orders 15 of the Maharashtra Settlement of Arrears of Taxes, Interest, Penalties or Late Fees Act, 2022 (Settlement Act) - refund amount for financial year 2016-2017 is sought to be adjusted against the outstanding demand for the financial years 2013-2014, 2015-2016 and 2017-2018 - seeking to review settlement orders passed under Section 13 (1) of the Settlement Act.
Whether the Respondents were justified in exercising the review powers under Section 15 of the Settlement Act to review the settlement orders passed under Section 13 (1) of the said Settlement Act and recalculating the amount of ‘arrears’ which were initially accepted by the Respondents while passing the settlement orders? - HELD THAT:- On an analysis of the Settlement Act, it is found to be a self-contained code in itself, inasmuch as, it defines various terms for the purpose of the said Act. It provides for the designated authority for implementation of the said Act. It provides for eligibility for the settlement of the arrears, the amount which is to be considered for the settlement of the Act, the time within which the amount determined for settlement is required to be paid, the conditions to be satisfied for availing the settlement, order to be passed accepting or rejecting the settlement, power of rectification, review and appeal. Consequences of settlement order obtained by suppression and conclusiveness of the proceedings covered by settlement.
Whether authorities under the Settlement Act can abdicate and exercise powers granted to authorities under the MVAT Act? - HELD THAT:- It is important to note that the Settlement Act nowhere provides or empowers the authorities under the said Act to import the provisions of the MVAT Act and more particularly provisions of Section 50 of the MVAT Act for determination of the requisite amount to be paid under the Settlement Act. Therefore, the action of the Respondents in passing the review order by importing the provisions of Section 50 of the MVAT Act is wholly without the authority of law and without jurisdiction. If the legislature wanted to empower the authorities under the Settlement Act with the powers conferred under the MVAT Act then nothing prevented them from providing the same under the Settlement Act. The legislature while enacting the Settlement Act in Section 2 (2) provided that the “words and expressions” used in the Settlement Act, but not defined in the said Act shall have the same meanings assigned to them under the Relevant Act. However, the legislature consciously and rightly so did not empower the authorities under the Settlement Act with the powers conferred under the MVAT Act and, therefore, any action of the authorities under the Settlement Act by encroaching upon the powers conferred under the MVAT Act would be without jurisdiction.
Whether, on a reading of the Settlement Act, amount for considering for settlement is to be arrived at after adjusting refund of other years against the dues of the years for which application is made under the Settlement Act? - HELD THAT:- There is no provision under Settlement Act which provides for calculation of outstanding arrears of a particular year to be arrived at after adjustment of refund for another year moreso in a case where there is no such adjustment of the refund order on the date of application or on the date of settlement order under Section 13 of the Settlement Act. Therefore the impugned action of the Respondents to recalculate the outstanding arrears for the financial years 2013-2014, 2015-2016 and 2017-2018 after passing the settlement order by invoking provisions of Section 15 of the Settlement Act admittedly without there being an order Section 50 of the MVAT Act is certainly without jurisdiction.
Whether in the absence of any order under Section 50 of the MVAT Act for adjustment of refund order, are the authorities under the Settlement Act justified in invoking review powers under Section 15 of the Settlement Act? - HELD THAT:- On conjoint reading of Section 50 and Rule 60, unless an assessee desires for adjustment of refund of one year against demand of another year, the Commissioner cannot, under Section 50 adjust the same on its own volition and even if he proposes to do so he has to do so by giving an opportunity of hearing - In the instant case, admittedly there is neither such desire expressed by the Petitioner nor we have been shown any order under Section 50 which is passed for adjusting the refund of Financial Year 2016-2017 against demand for the years 2013-2014, 2015-2016 and 2017-2018. Therefore, in absence of any order under Section 50 read with Rule 60 of the MVAT Rules, the impugned action of the Respondents to adjust refund by resorting to the provisions of the Settlement Act is wholly without jurisdiction.
In the absence of any order under Section 50 of the MVAT Act by the authorities under the said Act, review orders passed by authorities under the Settlement Act conferring power upon itself powers under Section 50 of the MVAT Act is without jurisdiction and also there is no provision under the Settlement Act to adjust such refund for arriving at the amount to be considered for the settlement and, therefore, there cannot be any error in the settlement orders for the authorities to exercise review powers under Section 15 of the Settlement Act.
The impugned review orders dated 17th July 2023 passed under Section 15 of the Settlement Act for the years 2013-2014, 2015-2016 and 2017-2018 are hereby quashed and set aside and consequently impugned communication dated 13th October 2023 is also quashed and set aside - Respondents are directed to refund sum of Rs. 2,72,08,381/- being refund for the financial year 2016-2017 alongwith interest as per the Act and the said refund should be credited to the Petitioner’s account within four weeks from the date of uploading the present order.
Petition disposed off.
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2024 (10) TMI 1175
Violation of principles of natural justice - declination to grant waiver of pre-deposit to the appellant without assigning any reasons for such decision - declination to grant waiver of pre-deposit to the appellant even though the entire demand is based upon Section 61 of the VAT Act which is wholly irrelevant to the issue of determination of “sale price” - declination to grant waiver of pre-deposit to the appellant even though adjustment of tax liability is clearly permissible under Section 8 of the VAT Act - declination to grant waiver of pre-deposit to the appellant even though the appellant has a strong prima facie case squarely supported by decision of Hon’ble Supreme Court in the case of Southern Motors [2017 (1) TMI 958 - SUPREME COURT].
HELD THAT:- On perusal of the impugned order passed by the Tribunal dated 16.06.2022 as well as the order dated 18.11.2022 dismissing second appeals on the ground of non-payment of pre-deposit, it is opined that the Tribunal has admittedly not considered the prima facie case of the appellant while determining the amount of pre-deposit which ought to have been considered as per the decision of this Court in case of Kavya Marketing [2022 (4) TMI 1202 - GUJARAT HIGH COURT].
The impugned order passed by the Tribunal is accordingly quashed and set aside. The appeals are therefore allowed by remanding the matter back to the Tribunal to consider the prima facie case of the appellant for deciding the quantum of pre-deposit, if required.
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2024 (10) TMI 1125
Input tax credit - non-existing or bogus entities - HELD THAT:- The appeal is disposed off in light of ratio in Ecom Gill Coffee Trading Private Limited [2023 (3) TMI 533 - SUPREME COURT] where it was held that 'Both, the second Appellate Authority as well as the High Court have materially erred in allowing the ITC despite the concerned purchasing dealers failed to prove the genuineness of the transactions and failed to discharge the burden of proof as per section 70 of the KVAT Act, 2003.'
Appeal allowed.
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2024 (10) TMI 1124
Demand of central sales tax on movement of goods from the manufacturing units of the appellants situated in the State of Rajasthan to their depots in the State of Bihar and the State of Jharkhand - inter-state supply of goods or inter-state stock transfers? - HELD THAT:- Mere transfer of goods from a head office to a branch office or inter-branch transfer of goods which broadly come under the phrase “branch transfers” cannot be regarded as sale in the course of interstate trade for the simple reason that a head office or branch cannot be treated as having traded with itself or sold articles to itself by means of stock transfers. A contract of sale of goods would be effective when a seller agrees to transfer the property in goods to the buyer for a price and that such a contract may be either absolute or conditional. If the transfer is in presenti, it is called a “sale”; but if the transfer is to take place at a future time and subject to some conditions to be fulfilled subsequently, the contract is called an “agreement to sell”.
When the conditions subject to which the property in goods is to be transferred are fulfilled, the “agreement to sell” becomes a “sale”. When the “sale” or “agreement to sell” causes or has the effect of occasioning the movement of goods from one State to another, an inter-state sale would ensue and would result in exigibility of tax under section 3(a) of the Central Sales Tax Act.
Under the Liquor Policy, the Corporation is the wholesaler for all kinds of liquor, including beer. A manufacturer desirous of supplying beer to the Corporation for subsequent distribution shall have to submit documents, including the Master Agreement. The Corporation issues OFS on the depots of Carlsberg in the State of Bihar based on the stock requirements of the Corporation, but the Corporation has the right to decide the quantity for which OFS can be issued and the Corporation is also under no obligation to procure any specified minimum quantities of any brand of beer during the currency of the contract - The stocks have to be delivered at the concerned depots of the Corporation at the cost and risk of the manufacturer. Any delivery that deviates from the OFS is not acknowledged by the Corporation and would not be unloaded at the depots.
In the present case, in terms of the Liquor Policy of the State of Bihar, the Corporation is under no obligation to procure any specified minimum quantities of beer. The Corporation issues the OFS on the local depots of the appellants situated in the State of Bihar for supply of specified quantity of beer. The OFS have a validity period within which the goods are required to be delivered to the Corporation. Clause 10.1 of the Liquor Policy clearly provides that the supply of beer to the Corporation against OFS shall be construed as an agreement to sell under section 4(3) of the Sale of Goods Act. Clause 5A of the License also requires Carlsberg to maintain a minimum stock of liquor at its depots in the State of Bihar as prescribed by the Corporation from time to time and to recoup the stock within seven days in case it goes below the minimum limits - it is the OFS that concludes the contract of sale between Carlsberg and the Corporation. The movement of goods from the State of Rajasthan to the depots of Carlsberg in the State of Bihar, therefore, cannot be said to have been occasioned by reason of any sale agreement. The appellants treated the sale from its depots in the State of Bihar to the Corporation in the State of Bihar as sale and paid local VAT.
There can, therefore, be no manner of doubt that the movement of goods from the manufacturing units of the appellants situated in the State of Rajasthan to the depots of the appellants in the State of Bihar or the State of Jharkhand was not occasioned by any prior contract of sale or agreement to sell. The appellants had merely stock transferred beer from the manufacturing units of the appellants situated in the State of Rajasthan to the depots of the appellants situated in the State of Bihar or the State of Jharkhand. The movement of goods did not occur from the State of Rajasthan to the State of Bihar or the State of Jharkhand pursuant to the Master Agreement or the Liquor Policy.
The Master Agreement, therefore, cannot be treated to be an agreement to sell. It would, in fact, be in the nature of a standing order or a tender which does not amount to a sale or an agreement to sell. It is, therefore, clear that none of the clauses of the Master Agreement contemplate or refer to any inter-state delivery of the goods from the State of Rajasthan to the State of Bihar or the State of Jharkhand. The movement of goods cannot also be considered incidental to the Master Agreement. Reliance placed by the Rajasthan Tax Board and the learned senior counsel for the State of Rajasthan on clause 2 of the Master Agreement to justify that the movement of goods occurred incidental to the Master Agreement, is not correct.
It will, therefore, not be possible to sustain the order dated 24.11.2014 passed by the Rajasthan Tax Board. It is, accordingly, set aside and all the fourteen appeals filed by Carlsberg, United Breweries and Mount Shivalik are allowed.
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2024 (10) TMI 1050
Evasion of tax - person responsible for such evasion - whether the petitioner can be seen as person who sought to evade the tax payable in respect of the consignment of jewellery that was brought by him from Mumbai to Cochin? - HELD THAT:- Taking in isolation the fact that the petitioner had not covered the consignment that was brought by him from Mumbai to Cochin by a valid Form 8FA declaration as mandated under the Kerala Value Added Tax Rules, the Commercial Tax Authorities in the State were perhaps justified in assuming that but for the detection, the petitioner might have well evaded his tax liability by clandestinely selling the consignment of jewellery within the State of Kerala. The imposition of a penalty on him in that event would have been acceptable. In the instant case however, we find that it is admitted by the Commercial Tax Officer at the Check Post in Walayar that the very goods that were brought by the petitioner from Mumbai to Cochin were taken back in their entirety to Mumbai via Coimbatore. The document produced by the petitioner as Annexure IV along with the O.T. Revision sufficiently corroborates the said fact.
As a matter of fact, there was no sale occasioned of the jewellery items brought by the petitioner from Mumbai to Cochin within the State of Kerala. Although at the stage of determining the penal liability of the petitioner under Section 67 of the Act, the State was justified in presuming that but for the detection/apprehension of the petitioner, the petitioner could well have evaded the tax due to the State, in the light of the subsequent events which clearly points to the petitioner not having actually sold any items within the State, and having taken the goods outside the State a lenient view in the matter of the imposition of penalty is called for.
The O.T. Revision is disposed off.
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2024 (10) TMI 889
Classification of goods - electric motor - falling in capital goods under entry 27 of Schedule-IV or not - HELD THAT:- There are no reason to interfere with the impugned judgment and order passed by the High Court. Hence, the Special Leave Petitions are dismissed.
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2024 (10) TMI 802
Challenge to assessment order - impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard - violation of principles of natural justice - HELD THAT:- The impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard, and by erroneously recording that the Petitioners’ representative was heard on 23 May 2023, when the impugned order was made on 20 March 2023. Even in this case, the impugned order, though allegedly made on 20 March 2023, was served upon Petitioner No.3 only on 1 July 2023, after four months.
This Petition is accordingly disposed of by quashing and setting aside the impugned order dated 20 March 2023 and the corresponding demand notice dated 20 March 2023. The request for remand is not acceded to, again, for the reasons set out in the judgment and order disposing of Writ Petition No.11929 of 2023, which apply in the facts and circumstances of this case.
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