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VAT / Sales Tax - Case Laws
Showing 221 to 240 of 27514 Records
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2024 (5) TMI 663
Jurisdiction - power of revision under Section 32 (2) of the Andhra Pradesh Value Added Tax Act, 2005 - error apparent on the face of record or not - HELD THAT:- In Sanjay Kumar Agarwal v. State Tax Officer [2023 (11) TMI 54 - SUPREME COURT] on considering various pronouncements on the subject, the Hon’ble Apex Court summarized the gist on the scope of review, holding that 'An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of record justifying the court to exercise its power of review.'
There are no apparent error in the Judgment under challenge in review petition. No case for review is made out - The Review Petition is dismissed.
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2024 (5) TMI 662
Exemption from tax - Levy of turnover tax under Section 5-A (vi) of the APGST Act - second sales of Pulp Moulded Egg Trays which fell under Item 19 of the First Schedule - G.O. Ms. No. 1091 dated 31.10.1994 under Section 9 (1) of the APGST Act, 1957 grants ‘general’ exemption, from levy of turnover tax under Section 5A (1) 2nd proviso (vi) of the APGST Act, 1957 on the sales of Pulp Moulded Egg Trays manufactured by Small-Scale Industrial Units or not - exemption on the sale of Pulp Moulded Egg Trays manufactured by S.S.I is available to the manufacturing unit alone or it would also be available to the sales of such commodity by other Small-Scale Industrial Units - exemption from levy of tax under Section 8(2-A) of the Central Sales Tax Act 1956.
Whether the G.O. Ms. No. 1091 dated 31.10.1994 under Section 9 (1) of the APGST Act, 1957 grants ‘general’ exemption, from levy of turnover tax under Section 5A (1) 2nd proviso (vi) of the APGST Act, 1957 on the sales of Pulp Moulded Egg Trays manufactured by Small-Scale Industrial Units? - HELD THAT:- In exercise of the powers conferred by Section 9 (1) of the Andhra Pradesh General Sales Tax Act, 1957, the State Government issued Notification-I in G.O. Ms. No. 1091 dated 31.10.1994 granting exemption from the tax payable under A.P.G.S.T Act on the sale of Pulp Moulded Egg Trays manufactured by the Small-Scale Industries (SSI) - G.O. Ms. No. 1091 thus grants exemption on the sale of the Pulp Moulded Egg Trays manufactured by the Small-Scale industrial units. The Pulp Moulded Egg Trays which are manufactured by the Small-Scale industrial units, only, call for exemption. If not manufactured by the Small-Scale industrial units it would not be exempted.
In THE STATE OF MAHARASHTRA VERSUS SHRI VILE PARLE KELVANI MANDAL & ORS. [2022 (2) TMI 720 - SUPREME COURT], the question was whether the charitable educational institution was entitled to the exemption from payment of electricity duty post 01.09.2016 i.e. as per the provisions of the Maharashtra Electricity Duty Act, 2016? The Hon’ble Apex Court while answering the aforesaid question/issue laid down as to how to interpret and/or consider the statutory provisions in the taxing statute and the exemption notifications - The Hon’ble Apex Court held that it is for the assessee to show by construction of the exemption clause/notification that it comes within the purview of exemption. The assessee/citizen cannot rely on ambiguity or doubt to claim benefit of exemption. The rationale is not to widen the ambit at the stage of applicability. However, once the hurdle is crossed, the notification is constructed liberally.
In GIRIDHAR G. YADALAM VERSUS COMMISSIONER OF WEALTH TAX AND ANR. [2016 (1) TMI 826 - SUPREME COURT] it was held that in a taxing statute it is the plain language of the provision that has to be preferred where language is plain and is capable of one definite meaning. Purposive interpretation can be given only when there is some ambiguity in the language of the statutory provision or it leads to absurd results.
In the present case, the G.O. Ms. No. 1091 dated 31.10.1994 is under consideration which was not under consideration in the aforesaid cited judgments. Therefore, whether the notification of G.O. Ms. No. 1091, issued under Section 9 (1) falls under the ‘general’ exemption for the purposes of the APGST Act is to be considered, independently, applying the principle of law, the precedents in various judgments, depending inter alia upon the language of the Government Order as also other relevant factors.
The question whether G.O. Ms. No. 1091 is a notification granting general exemption under Section 9 (1) for the purpose of the State tax is be construed from its language for the purpose of the A.P.G.S.T Act. But that would not mean that it is a notification granting general exemption also for the purpose of the C.S.T Act. Under C.S.T Act the word ‘generally’ has been explained in Section 8(2A) of that Act, and for the G.O. Ms. No. 1091 to qualify for exemption to the assessee it will have to fulfill the requirements of Section 8(2A), which aspect would be considered shortly under Question ‘C’ as framed.
Whether the exemption from levy of tax under G.O. Ms. No. 1091 dated 31.10.1994 on the sale of Pulp Moulded Egg Trays manufactured by S.S.I is available to the manufacturing unit alone or it would also be available to the sales of such commodity by other Small-Scale Industrial Units? - HELD THAT:- In DELHI TRANSPORT CORPORATION VERSUS BALWAN SINGH AND ORS. [2019 (2) TMI 2105 - SUPREME COURT] the Hon’ble Apex Court held that it is a well settled principle of interpretation that when the words of a statute are clear and unambiguous, there cannot be a recourse to any principle of interpretation other than the rule of literal construction.
In Dr.(Major) Meeta Sahai v. State of Bihar [2019 (12) TMI 1672 - SUPREME COURT] the Hon’ble Apex Court held that it is a settled canon of statutory interpretation that as a first step, the Courts ought to interpret the text of the provision and construct it literally. Provisions in a statute must be read in their original grammatical meaning to give its words a common textual meaning. However, this tool of interpretation can only be applied in cases where the text of the enactment is susceptible to only one meaning. Nevertheless, in a situation where there is ambiguity in the meaning of the text, the Courts must also give due regard to the consequences of the interpretation taken.
The notification in clear words grants exemption on the sale of Pulp Moulded Egg Trays which are manufactured by the Small-Scale industrial units. So the exemption is on the sale if the commodity is manufactured by Small-Scale industrial units. From the plain language of the notification it does not follow that the sale should also be by the Small-Scale industrial units alone, which has manufactured it - Since the respondent herein is the Small-Scale industrial unit, we are considering the sale by SSI only and not making any observation with respect to the sale by any other dealer/assessee. So far as the respondent assessee is concerned the sale by it of the kind of the commodity exempted under G.O. Ms. No. 1091, would be entitled for exemption.
Whether the Respondent Assessee-Dealer is entitled for exemption from levy of tax under Section 8(2-A) of the Central Sales Tax Act 1956? - HELD THAT:- The Hon’ble Apex Court in Pine Chemicals Ltd. [1994 (10) TMI 262 - SUPREME COURT] observed that for attracting the exemption provided by the government order, it had to be established that (i) the goods, the sale or purchase of which is claimed to be exempt from tax, are manufactured by a large or medium scale industry and (ii) that the said goods are manufactured and sold within five years from the date the said industrial unit has gone into production - The Hon’ble Apex Court held that the idea behind sub-section (2-A) of Section 8 of the Central Sales Tax Act was to exempt the sale or purchase of the goods from the Central Sales Tax where the sale or purchase of such goods was exempt generally under the State sales tax law. It was held that due regard must be given and due meaning to the expression ‘generally’ which occur in sub-section (2-A) and which expression has been defined in the explanation. The Hon’ble Apex Court observed that if the said expression had not been there, it could probably have been possible to argue that inasmuch as the goods sold by a particular manufacturer-dealer were exempt from the State tax in his hands, they must equally be exempt under the Central Act.
G.O. Ms. No. 1091, dated 31.10.1994 grants exemption from the tax payable under Andhra Pradesh General Sales Tax Act on the sale of pulp moulded egg trays manufactured by the Small-Scale Industrial Units. On comparing G.O. Ms. No. 1091, dated 31.10.1994 with G.O. Ms. No. 159, dated 26.03.1971 of Jammu & Kashmir as was involved in Pine Chemicals Ltd. what is found is that the pulp moulded egg trays is mentioned in G.O. Ms. No. 1091, whereas in G.O. No. 159 of Jammu & Kashmir the goods were not mentioned. What was mentioned was with reference to the industrial unit, so long as it was (i) a large or medium scale industry, and (ii) it manufactured and sold goods within the five years of its going into production - the exemption vide G.O. Ms. No. 1091, dated 31.10.1994 is not a general exemption within the meaning of Section 8 (2A) of the Central Sales Tax Act. It cannot be covered under the expression ‘generally’ under Section 8 (2A) read with its explanation. Exemption under G.O. Ms. No. 1091 may be available under the State Act, Section 5-A (i) (vi), but the same would not be available under the Central Sales Tax Act, Section 8 (2A), only because exemption is available under the State Act.
All the Tax Revision Cases are dismissed.
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2024 (5) TMI 615
Classification of goods - rate of tax - Nylon Chips - plastic granules or not - absence of Form-C and F - to be classified under Section 29 (1) (c) of Uttarakhand Value Added Tax Act - re-assessment on the basis of change of opinion - Extended period of Limitation - HELD THAT:- In the present case, the department has taken a different view by changing the nature of the product, and not on account of wrong application of rates. Re- assessment, in such type of situation, is prohibited. The assessment order was a clear change of opinion, and was not under Section 29 (1) (c).
The other ground taken by the respondent was that the impugned order was illegal, as Section 29 (4) of the Uttarakhand Value Added Tax Act does not apply to the present case. In the instant case, the assessment year ended on 31.03.2012, and the period of limitation is to be counted from 31.12.2012. Three years & nine months from that date is 30.09.2016, and the authorization notice dated 27.02.2017, under Section 29 (4) of the Act, was issued beyond the period of limitation. The second notice was sent on 29.11.2016, and limitation had expired on 30.09.2016.
Extended period of Limitation - HELD THAT:- For seeking the benefit of enlarged period of limitation, under Section 29 (4) of the Act, reasons in writing have to be given. Moreover, there is no suppression of facts, or evidence by the respondent, with the intention to evade the payment of VAT. There is no reason given in the authorisation order and the impugned order, justifying the applicability of Section 29 (4) of the Act, where the time period of assessment, under the regular Section 29(3), had already expired.
In the present case, the Assessment Year is 2010-11, and before the end of six years, the reassessment order can be passed. The reassessment order has been passed on 25.03.2017, which is before the end of six years of the Assessment Year 2010-11, and hence the reassessment order passed under Section 29 (4) of the Act was done within limitation, and this aspect has been affirmed by the Tribunal, and the Appeals, qua this ground, has been rightly dismissed.
Whether Nylon Chips manufactured by the appellant are covered by Entry 83 of Schedule-(II) (B) of the Act? - HELD THAT:- Nylon will come under the plastic group, i.e. Plastics. The polymer manufactured by the respondent-company has been accepted to be cut into small sizes of 2 to 4 millimeters and sold to the customers. This can be called granules, which was evident from the samples presented by the respondent-company before the Tribunal at the time of hearing.
After going through the order passed by the Tribunal, the appellant-department have themselves accepted that, with respect to the Plastic Granules, when they are put into procedure by adding fillers and additives, the strength of the plastic becomes better. Further, as per the opinion given by the British Plastics Federation, and Central Institute of Plastics Engineering & Technology (CIPET), Nylon refers to a group of Plastics known as Polyamide, and there is no change in the original material (raw material) in this manufacturing process of Nylon-6. Hence, the use of raw material, i.e. Plastic Granules to produce Nylon Chips will not alter the character of Nylon Chips, being a Plastic, and under the British Plastics Federation, Nylon is considered under the Plastics group.
There is no substantial question of law, which requires to be considered in the present Revision. The Nylon Chips have been rightly held to be falling in Entry 83 of Schedule II (B) of the Act by the Tribunal.
There is no merit in the present Revision, and the same is, accordingly, dismissed.
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2024 (5) TMI 409
Waiver of penalties imposed for late deposit of tax u/s 54(1)(1)(a) of the U.P. V.A.T Act, 2008 - application for waiver were rejected by Revenue - opportunity of hearing not granted - violation of principles of natural justice - HELD THAT:- The orders passed by the revenue authorities appear to be defective. While the petitioner may be allowed to amend the writ petition and formally seek proper relief, it is also noted that the above orders have been passed by the revenue authorities without affording opportunity of hearing to the petitioner.
Thus, no useful purpose may be served in keeping the writ petition pending or calling for Counter Affidavit at this stage, especially in view of the order proposed to be passed.
Purely in the interest of justice and on prima facie consideration, it appears, the penalty sought to be waived was penalty imposed for late deposit of tax. Therefore, impugned ex parte orders rejecting the petitioner's applications seeking waiver of penalty dated 23.12.2020 are set aside. A direction is issued to the respondent no. 4 to pass a fresh order on the petitioner's application after affording due opportunity of hearing to the petitioner. Such compliance may be made within a period of three months from today.
Petition disposed off.
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2024 (5) TMI 360
Exemption from Tax - Classification of goods sold - emery cloth - unclassified item or not - tarpaulins - cotton fabrics or not - covered by item-174 of First Schedule to APGST Act or not - whether the first sales of emery cloth and tarpaulins are not excisable to the tax under APGST Act? - HELD THAT:- In Feno Plast Pvt. Ltd. [1994 (12) TMI 309 - ANDHRA PRADESH HIGH COURT] it has been held that the words “cotton fabrics, man-made fabrics and woolen fabrics” in item-5 must therefore be read as item-59.03 of the First Schedule to the Additional Duties Act 1957, which refers to textile fabrics, impregnated cloth-covered or laminated. It is evident from the impugned judgment that it was not disputed before the Appellate Tribunal that the based material for emery material was cloth and it was described as textile fabrics in item-59.03 which was to cover of any cloth which was impregnated covered or laminated. The emery cloth even if is based with, sand, for the purpose of its use, that does not change the basic nature of it being a cloth covered in item-5 read with item-59.03 of the First Schedule to the Additional Duties Act.
With respect to tarpaulin, in Binny Limited [1997 (9) TMI 555 - MADRAS HIGH COURT] it was held that ‘tarpaulin’ falls within the meaning of the expression ‘cotton fabrics’ under item-5 of the Fourth Schedule to APGST Act.
By reason of Section 8 of APGST Act, Tarpaulin cloth was exempt from tax and the inclusion of this item in item No. 174 made no difference - The Appellate Tribunal rightly concluded that once tarpaulin falls under cotton fabrics in item-5 of the Fourth Schedule to the APGST Act, inclusion of it in item-174 of the First Schedule would make no difference.
A perusal of the Order of the learned Appellate Tribunal (at internal page-3) shows that the emery cloth was covered under item-59.03 and was exempted as the same was liable for additional duties of excise under the Additional Duties of Excise (Goods of Special Importance) Act 1957.
There are no illegality in the order of the Appellate Tribunal. No case is made out for interference, inasmuch as the Appellate Tribunal has neither failed to decide any question of law nor has decided the question of law erroneously.
The Tax Revision Case is dismissed.
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2024 (5) TMI 323
Computation/quantification of interest on the delayed refund in terms of Section 42 of Delhi Value Added Tax Act, 2017 w.e.f. 01.06.2015 - Time Limitation - expiry of two months from the date of filing of refund of the application till 23.05.2023 when the refund was disbursed to the petitioner - HELD THAT:- Section 42 (1) of the Act mandates grant of simple interest at the annual rate notified by the Government from time to time, to a person who is found entitled to refund in case of any delayed payment.
In the instant case, refund has been sanctioned without any interest. It is an admitted position that annual rate notified by the Government for the purposes of Section 42 of the Act is simple interest @ 6% per annum.
The petition is disposed off.
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2024 (5) TMI 188
Attachment by the sales tax authorities over an apartment in Mumbai - priority of charges - whether as a matter of law, the Petitioner, the auction purchaser of the Walkeshwar Flat under the SARFAESI Act, is a valid recipient of free and marketable title to it? - HELD THAT:- The Lender Bank had first priority in enforcement against the Walkeshwar Flat with effect from 24th January, 2020, having been the first to register with CERSAI, which was done on 2nd January, 2020 - Encore ARC, which conducted the auction on 28th February, 2023, acquired the entitlement to priority from the Lender Bank along with the assignment of the loans to the borrowers with attendant security interests on 21st March, 2020 - Although the DCST has repeatedly issued orders of restraint, there is no evidence of registration with CERSAI. The DCST has fairly stated on oath in an additional affidavit filed pursuant to directions by this Court, that no proclamation of sale has been issued. Therefore, in view of the law laid down in Jalgaon Janta, it cannot be said that there is a competing charge in favour of the DCST over the Walkeshwar Flat.
The attachment orders issued prior to 24th January, 2020 are of no assistance in giving priority to the DCST in claims over the Walkeshwar Flat. With no registration with CERSAI having been made by the DCST, and no proclamation of sale having been issued, the Lender Bank’s entitlement to priority has not been undermined. That entitlement flowed to Encore ARC. The consequences of such priority has led to the Petitioner having a free and marketable title free of the encumbrance claimed by the DCST.
Any attachment sought to have been issued in respect of value added tax and central sales tax dues owed by SMI, insofar as it relates to the Walkeshwar Flat, is hereby quashed and set aside. The Petitioner is entitled to have the Walkeshwar Flat registered in his name and the DCST can have no objection to such registration.
Petition allowed.
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2024 (5) TMI 123
Recovery of dues by adjusting them against the refund amount - Delay in processing refund - The default notices were issued after the period within which the refund should have been processed - requirement to follow timeline for refund under Section 38(3) of the Delhi Value Added Tax Act, 2004 - HELD THAT:- The language of Section 38(3) is mandatory and the department must adhere to the timeline stipulated therein to fulfil the object of the provision, which is to ensure that refunds are processed and issued in a timely manner.
In the present case, Section 38(3)(a)(ii) is relevant as both the refunds in the present case pertain to quarter tax periods. Therefore, as per Section 38(3)(a)(ii), the refund should have been processed within two months from when the returns were filed (31.03.2017 and 29.03.2019), which comes up to 31.05.2017 and 29.05.2019. The default notices are dated 30.03.2020, 23.03.2021, 30.03.2021, and 26.03.2022. It is therefore evident that the default notices were issued after the period within which the refund should have been processed. Sub-section (2) only permits adjusting amounts towards recovery that are “due under the Act”. By the time when the refund should have been processed as per the provisions of the Act, the dues under the default notices had not crystallised and the respondent was not liable to pay the same at the time.
The appellant-department is therefore not justified in retaining the refund amount beyond the stipulated period and then adjusting the refund amount against the amounts due under default notices that were issued subsequent to the refund period.
The impugned judgment directing the refund of amounts along with interest as provided under Section 42 of the Act affirmed - appeal dismissed.
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2024 (5) TMI 122
Condonation of delay in filing petition - Belated writ petition - by oversight Vakalat was not filed - appellate Tribunal by two separate cryptic orders has allowed the appeals filed by the Commercial Tax Department - HELD THAT:- Although there is a delay in approaching this Court, the substantive right of an assessee cannot be denied, particularly in a peremptory manner by passing a cryptic order. The dismissal of the application for restoring the appeal and allowing the appeal of the Commercial Tax Department without any reasonings especially when the order of the Appellate Commissioner is detailed has to be construed as an arbitrary order and therefore, it is liable to be set aside. It could have been different, if the order is passed on merits.
The impugned orders can be set aside and the appeals be restored back to the file of the Sales Tax Appellate Tribunal for disposal of all the four appeals together on merits and in accordance with law. The petitioner is directed to file Vakalat and file the notes and submissions, if any, as per the procedure followed by the Appellate Tribunal.
Petition allowed.
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2024 (5) TMI 61
Recovery of Tax Dues versus Secured Creditors - Continued assertion of rights by the State of Maharashtra against the purchaser of two properties auctioned - priority of security interest and its enforcement over the Secured Assets - enforcement of a mortgage created by an erstwhile owner of the properties - HELD THAT:- Once an enforcement of a security interest is effected against a secured asset, the enforcement of the subsequently registered security interest would lead to an entitlement to any surplus or residual proceeds arising out of the enforcement of the prior security interest, and by no stretch could the subservient security interest be regarded as a fresh and wholesome security interest to be enforced again against either the asset in question or against the purchaser of such asset.
Following directions and declarations have been issued:-
a) SBI enjoys priority of security interest and its enforcement over the Secured Assets, as compared with the interests of the State;
b) SBI having sold the Secured Assets pursuant to the enforcement measures under the SARFAESI Act (not only by reason of the priority under Section 26-C(2) but also by reason of Section 26-E of the SARFAESI Act), was entitled to be paid in priority over the State tax authorities. By a conjoint reading of the two provisions, the enforcement against the Secured Assets led to a clean and clear title free from the purported encumbrance claimed by the State’s tax authorities being vested in the Petitioner, who is the purchaser of the Secured Assets in the auction;
c) The State’s tax authorities are indeed entitled to any residual proceeds from the sale towards discharge of the Borrower’s dues owed to them. Towards this end, SBI is directed to provide to the State, a statement of accounts in respect of the dues owed by the Borrower to SBI and the appropriation of sale proceeds by SBI pursuant to the auction of the Secured Assets;
d) Consequently, mutation entries indicating an interest enjoyed by the State’s tax authorities over the Secured Assets towards tax dues are directed to be removed within a period of two weeks from today. The registrar’s office is also directed to register the transfer of the Secured Asset from the erstwhile owners to the Petitioner in accordance with law, within a period of two weeks from today; and
e) Nothing contained in this judgement is an expression of an opinion on the right of the State’s tax authorities to undertake enforcement action in accordance with law against any other assets, properties and persons that are not subject matter of a registered security interest registered in favour of any secured creditor under the SARFAESI Act, and which may therefore be amenable to enforcement for recovery of tax arrears owed by the Borrower.
The Writ Petition is disposed of accordingly.
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2024 (5) TMI 2
Permission for withdrawal of petition - new management of the petitioner will not be held responsible for any outstanding statutory dues and other claims for the period prior to the commencement of CIRP - HELD THAT:- Bearing in mind the developments that have taken place in the matter, the Special Leave Petition stands disposed of as having become infructuous - The Special Leave Petition is, accordingly, disposed of as withdrawn.
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2024 (4) TMI 1035
Penalty for diversion and unlawful sale of foreign liquor - Applicability of the relevant rule for imposition of penalty - whether it is the rule that existed when the violation occurred during the license period of 2009-10 or the rule that was substituted in 2011 when proceedings for penalty were initiated? - HELD THAT:- The operation of repeal or substitution of a statutory provision is thus clear, a repealed provision will cease to operate from the date of repeal and the substituted provision will commence to operate from the date of its substitution. This principle is subject to specific statutory prescription. Statute can enable the repealed provision to continue to apply to transactions that have commenced before the repeal. Similarly, a substituted provision which operates prospectively, if it affects vested rights, subject to statutory prescriptions, can also operate retrospectively.
The principle governing subordinate legislation is slightly different in as much as the operation of a subordinate legislation is determined by the empowerment of the parent act. The legislative authorization enabling the executive to make rules prospectively or retrospectively is crucial. Without a statutory empowerment, subordinate legislation will always commence to operate only from the date of its issuance and at the same time, cease to exist from the date of its deletion or withdrawal. The reason for this distinction is in the supremacy of the Parliament and its control of executive action, being an important subject of administrative law.
The regulatory process requires the Government to deal with the problem of diversion and unlawful sale of foreign liquor and also provide an appropriate penalty and punishment. The process of identifying a crime and prescribing an appropriate punishment is a complex and delicate subject that the State has to handle while making rules and enforcing them. The gravity of the offence, its impact on society and human vulnerability are taken into account to provide the required measure of deterrence and reform - depending on the nature of offence, the proportionate penalty is required to be modulated from time to time.
The single Judge as well as the Division Bench have adopted two different approaches and we have not agreed with either of them. The single Judge was of the view that the amendment by way of substitution has the effect of repealing the law which existed as on the date of repeal. We have already explained the limitation in this approach. The Division Bench on the other hand, held that levy of penalty is substantive law, and as such, it cannot operate retrospectively. This again is a wrong approach. The substituted penalty only mollifies the rigour of the law by reducing the penalty from four times the duty to value of the duty.
The judgment of the Division Bench of the High Court set aside - appeal allowed.
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2024 (4) TMI 957
Validity of assessment order - Levy of penalty u/s 53(1)(ii) of the AP VAT Act - wilful evasion of tax or not - SCN also do not categorically mention that it was a case of wilful evasion of tax - SCN barred by time limitation - Section 21(4) of AP VAT Act, 2005 - HELD THAT:- As seen from the show cause notice dated 24.06.2021 there is a mention of under declaration of 14.5% purchases during the year 2016-17. It is also mentioned that penalty proceedings would also be issued separately as the dealer was found to have committed offence under the provision of AP VAT Act. In the revised show cause notice also it is mentioned that the petitioner consumed lot of time and avoided production of records in-time. Provisions of Section 21(5) of the Act were made applicable to the facts of the case.
Now coming to the applicability of the extension of period of limitation by the Hon’ble Supreme Court in view of the then prevailing Covid situation. The Hon’ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER] has considered the difficulties that may be faced by the litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings and extended the period of limitation in all such proceedings irrespective of limitation prescribed under the general law or special laws whether condonable or not.
The period of limitation has to be extended to all proceedings including the issuance of show cause notice or passing of assessment orders or filing of appeals before the Appellate Tribunals against the orders which arise out of the show cause notices and the assessment orders - That apart, Section 21(5) of the AP VAT Act would entitle the authorities to conduct the assessment within a period of six years of the date of filing of the return or the first return relating to such offence. It is explicitly mentioned in the show cause notice dated 24.06.2021 that it was the case of under declaration of purchases during the year 2016-17. In our considered opinion this would suffice for proceeding with the assessment within a period of six years from the date of filing of the return or first return relating to such offence. That apart on these grounds the writ petitions deserves to be dismissed. There is an efficacious, alternate and statutory remedy available for the petitioner.
Petition dismissed.
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2024 (4) TMI 956
Interest on delayed refund - relevant period for calculation of refund - Section 42(1) of the DVAT ACT, 2004 - HELD THAT:- Reference may be had to Article 25 of the Schedule to the Limitation Act, which stipulates that the period of limitation for “money payable for interest upon money due from defendant to the plaintiff” is 3 years and the time from which the period begins is when the interest becomes due.
The petitioner would be entitled to interest for a period of three years immediately preceding the filing of the subject petition till the date payment was made of the petitioner. The rate of interest applicable would be @ 6 % per annum in terms of Notification No. F.3(59)/Fin.(T&E)/2005-06/903 Dated 30th November, 2005 whereby the annual rate notified by Central Government is 6% per annum.
This petition is disposed of directing the respondents to pay interest @6% on Rs. 37,99,453/- refunded on 28.07.2022 for the period of three years immediately preceding the filing of the petition till the date of disbursal of refund to the petitioner.
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2024 (4) TMI 955
Time limitation for passing assessment order - Classification of goods - Polymer Nylon Chips - classifiable under Entry 83 Schedule-II(B) of the Uttarakhand Value Added Tax Act, as “Plastic Granules” or not - whether re-assessment, under Section 29(4) of the Act could be made on the change of opinion, especially keeping in view that the same records had already been scrutinized by the Assessing Authority?
Time limitation for passing assessment order - HELD THAT:- As per Section 29(7) of the U.P. Commercial Tax Act, reassessment can be made within a period of 8 years after expiry of the Assessment Year. In the present case, as per the Uttarakhand Value Added Tax Act, Section 29(4) deals with the procedure for doing reassessment - In the present case, the Assessment Year is 2011-12, and before the end of six years, the reassessment order can be passed. The reassessment order has been passed on 27.03.2017, which is before the end of six years of the Assessment Year 2011-12, and hence the reassessment order passed under Section 29(4) of the Act was done within limitation, and this aspect has been affirmed by the Tribunal, and the Appeals, qua this ground, has been rightly dismissed.
Whether Nylon Chips manufactured by the appellant are covered by Entry 83 of Schedule-(II)(B) of the Act? - HELD THAT:- The appellant-department have themselves accepted that, with respect to the Plastic Granules, when they are put into procedure by adding fillers and additives, the strength of the plastic becomes better. Further, as per the opinion given by the British Plastics Federation, and Central Institute of Plastics Engineering & Technology (CIPET), Nylon refers to a group of Plastics known as Polyamide, and there is no change in the original material (raw material) in this manufacturing process of Nylon-6. Hence, the use of raw material, i.e. Plastic Granules to produce Nylon Chips will not alter the character of Nylon Chips, being a Plastic, and under the British Plastics Federation, Nylon is considered under the Plastics group - There is no substantial question of law, which requires to be considered in the present Revision. The Nylon Chips have been rightly held to be falling in Entry 83 of Schedule II(B) of the Act by the Tribunal.
There is no merit in the present Revision, and the same is, accordingly, dismissed.
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2024 (4) TMI 898
Prayer for listing the review petitions in open Court/oral hearing - Taxability - gutka/gutkha/guhtka - appellants argued that state legislatures were not empowered to levy sales tax on those articles, in view of the provision in the Constitution enabling the Union to levy additional duties of excise, and further that in any case, the rate of state tax cannot exceed the limit prescribed by the Central Sales Tax Act, 1956.
HELD THAT:- Prayer for listing the review petitions in open Court/oral hearing is rejected - no case for review of the common judgment dated 4-5-2023 is made out.
The review petitions are, accordingly, dismissed.
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2024 (4) TMI 857
Interest on delayed refund - relevant time for calculation of interest - HELD THAT:- Reference may be had to Article 25 of the Schedule to the Limitation Act, which stipulates that the period of limitation for “money payable for interest upon money due from defendant to the plaintiff” is 3 years and the time from which the period begins is when the interests become due.
In terms of Section 30 (4) of Delhi Sales Tax Act, 1975, interest becomes due and payable on delayed refund on expiry of 90 days from the date of making the claim under Sub-Section 3. Accordingly, the period of limitation for claiming interests on the delayed payment would be three years from the expiry of 90 days. Since the refund was delayed, for every passing month the interest accrued @1.5% per month. Accordingly, with every passing month with effect from the commencement of the period of limitation, interest for the preceding one month in the block of three years would extinguish and interest for succeeding one month would accrue.
Petitioner would be entitled to interest for a period of three years immediately preceding the filing of the subject petition till the date payment was made of the petitioner. Since the delay is beyond the period of one month as provided under Section 30 (4), the rate of interest applicable would be 1.5% per month - this petition is disposed off.
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2024 (4) TMI 815
Seeking grant of anticipatory bail - bailable offence or not - failure to make payment of tax - wilful attempt to evade any tax or payment of any tax - Section 74(2) of the MVAT Act - HELD THAT:- Under Section 76 of the MVAT the offences under that Act were bailable. Therefore, question of grant or refusal of anticipatory bail would arise only if Sections 406 and 420 of the I.P.C. are made applicable in the present case.
The F.I.R. and the investigation carried out so far reveals that, there was evasion of tax or non payment of tax to the tune of Rs. 1,47,56,486/-; as mentioned earlier. There is no dispute that this amounts to an offence U/s. 74(2) of the MVAT. The main question is, whether in this background, simultaneously, the applicant can be prosecuted for commission of the offence punishable under sections 420 and 406 of the I.P.C. as well, or as to whether there is a bar in conducting investigation and prosecution for the offences under the I.P.C. in this case.
Thus, the ratio of the Division Bench Judgment in the case of G.S. Oils Ltd.’s [2012 (10) TMI 1274 - BOMBAY HIGH COURT] is squarely applicable to the present facts of the case. The said Judgment in G.S. Oils Ltd.’s case specifically refers to the I.P.C. offences U/s. 406 and 420, as well as, to Section 74(2) of the MVAT. In this view of the matter, it is not necessary to refer to the ratio in Gagan Sharma’s case [2018 (10) TMI 1832 - BOMBAY HIGH COURT] which was in respect of a different statute altogether.
In this particular case, investigation and the prosecution under both the enactments i.e. the MVAT and the I.P.C. can go on simultaneously. The ingredients of section 74(2) of the MVAT, as well as, Sections 420 and 406 of the I.P.C. are clearly made out. Evasion of the tax is of a huge amount. There is no acceptable justification offered by the applicant. His custodial interrogation is necessary to trace all these transactions. Besides this, the offence is quite grave and serious; considering the amount involved. In this view of the matter, no protection U/s. 438 of the Cr.p.c. can be granted to the applicant.
The Application is rejected.
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2024 (4) TMI 814
Recovery of alleged outstanding dues of unpaid tax amounts - Section 29 of APVAT Act, 2005 - Appeal was dismissed for default due to the petitioner's repeated non-appearance despite being granted several adjournments. - HELD THAT:- Considering the submissions advanced, it is evident from the appellate order dated 19.07.2023 that the appeal is of the year 2015 and inspite of several adjournments, the petitioner was not turning up for hearing and consequently, the appeal was dismissed for default against which application for restoration of appeal filed recently is pending.
To provide opportunity of hearing to the petitioner on the merits of the application, and if allowed by the appellate authority, to provide opportunity of hearing on merits of the appeal, it is considered to be in the interest of justice, by moulding the relief, to direct the respondent No.4 to consider and decide the petitioner’s application for restoration (Ex. P4) within a period of six weeks from the date of a copy of this order is produced before the said authority and if the appeal is restored, to decide the same also expeditiously and till such time, any coercive action, pursuant to the notices for recovery of outstanding dues towards the alleged unpaid tax amounts, deserves to be stayed, subject to the condition that the petitioner deposits 25% of the disputed amount, additionally.
The Writ Petition is disposed of finally.
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2024 (4) TMI 813
Benefit of Exemption from CST - stock transfer or inter-state sale - Whether the movement of goods in the instant case is only a stock transfer to the branches and liable to be exempted under Section 6A of the CST Act 1956 or the transaction is an interstate sale under Section 3(a) of the CST Act and liable for tax under CST Act 1956? - HELD THAT:- The impugned order shows that the works orders sent by the HO contain the details of individual customer companies and item wise description of the rubber sheets with specific design and quantity which manifests that rubber sheets are being tailor-made to suit the needs of the individual customers. The invoices are also raised on customers. It may be true that the finished goods are dispatched to the different branches. However, that fact is insignificant because in the entire process the branches are acting only as conduits between the manufacturing unit and customers. Where once movement of goods from one state to another state takes place on account of sale or purchase, the transaction assumes the character of inter-state sales in terms of Section 3(a) of CST Act, 1956.
The judgment in SAHNEY STEEL AND PRESS WORKS LTD. AND ANOTHER VERSUS COMMERCIAL TAX OFFICER AND OTHERS [1985 (9) TMI 313 - SUPREME COURT] squarely apply to the case on hand. In the instant case also the movement of goods shall be regarded as inter-state sales rather than mere stock transfer - the argument of the petitioner in this regard, cannot be countenanced. The other contention of the petitioner is concerned, as rightly submitted by learned Government Pleader, the 2nd respondent has exercised his power under Section 9(2) of CST Act, r/w Section 20 (2) of APGST Act but not under Section 6A(3) of CST Act.
There are no merits in the petitioner’s case and accordingly the Writ Petition is dismissed.
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