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VAT / Sales Tax - Case Laws
Showing 281 to 300 of 27514 Records
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2024 (2) TMI 1298
Rectification of mistake - Refusal to exercise the jurisdiction under Section 31 of the U.P. V.A.T. Act, 2008 - miscarriage of justice or not - failure to exercise a jurisdiction duly vested by the authority of law - HELD THAT:- Perusal of Section 31 of the U.P. V.A.T. Act, 2008 would indicate that there is no such restriction in the learned Tribunal exercising its power of rectifying the mistake in as much as Section 31 of the U.P. V.A.T. Act, 2008 does not provide that such power can only be exercised by learned Tribunal in exparte orders rather Section 31 of the Act 2008 goes to the extent of empowering any officer, authority, learned Tribunal or this Court on its own motion or on the application of the dealer or any other interested person to rectify any mistake apparent on the face of record in any order passed under the provisions of the Act, 2008. Once no such restriction is contained under the provisions of the Section 31 of the Act 2008 as such it is apparent that learned Tribunal has patently erred in law in rejecting the said application vide the order dated 16.04.2018.
The matter is remitted to learned Tribunal to decide the application of the petitioner filed under Section 31 of the Act, 2008 in accordance with law - the revision is partly allowed.
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2024 (2) TMI 1247
Classification of goods - Ujala Supreme - classifiable under Entry No. No.54 (113) of Schedule-A, Part II-A of H.P. VAT Act, 2005 as ‘synthetic organic colouring matter’ or not? - It was held by High Court that The product ‘Ujala Supreme’ is held liable for VAT under H.P. VAT Act at the rate which is applicable for items against Entry 54(113) of the Part-II of Schedule-A of H.P. VAT Act - HELD THAT:- It is not required to interfere in the matter(s) - SLP dismissed.
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2024 (2) TMI 1246
Maintainability of petition - Jurisdiction - powers of AO to re-assess the escape turnover - Power of suo moto revision.
Maintainability of petition - HELD THAT:- The Supreme Court of India in the case of Godrej Sara Lee Limited Vs. Excise and Taxation Officers-cum-Assessing Authority and Others [2023 (2) TMI 64 - SUPREME COURT] has observed that the power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and the Article 226 does not, in terms, impose any limitation or restraint on the exercise of powers to issue writs. Mere existence of an alternative statutory remedy would not oust the jurisdiction of this court to entertain writ petitions and to issue prerogative writs under Article 226 of the Constitution of India, if the case of the petitioner falls within any of the exceptions carved out in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai [1998 (10) TMI 510 - SUPREME COURT].
There appears to be no dispute at bar that the power of assessment under Section 14 of the Nagaland (Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants) Taxation Act, 1967 has been delegated to the Superintendent of Taxes by the Commissioner of Taxes under Section 45 of the said Act. In the instant case also, in all the writ petitions, the original assessment orders were passed by the Superintendent of Taxes.
The petitioner’s contention, in all three writ petitions, is that the powers to re-assess the escape turnover is primarily vested by Section 14 on the Assessing Officer and same is to be exercised subject to certain limitations and that in exercise of power under Section 20(1) of the Act, the Additional Commissioner does not have the power to re-assess the escape turnover which is outside the purview of the powers of suo-motu revision conferred on the Additional Commissioner. In the present bunch of writ petitions, the petitioner has challenged the very jurisdiction of the respondent authorities to issue impugned show cause notices as well as to pass impugned order.
From a reading of subsection (1) of Section 20, it is clear that the power of suo-moto revision can be exercised by the Commissioner only if, on examination of the records of any proceeding under this Act, he considers that any order passed therein by the person appointed to assist him is “erroneous in so far as it is prejudicial to the interest of revenue” - The Commissioner cannot initiate proceedings with a view to starting fishing and roving inquiries into matters or orders which are already concluded. Such actions will be against the well accepted policy of law, and there must be a point of finality in all legal proceedings. That stale issue should not be re-activated beyond a particular stage, and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must be in other spheres of human activity.
For exercising powers under Section 20 of the Nagaland (Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants) Taxation Act, 1967, the Commissioner must come to a conclusion that the orders passed by the person appointed under Section 5 of the Act to assist him is erroneous, however, in the instant case, bare perusal of the orders dated 09.09.2020 passed in connection with the Assessment year 2014-2015, 2012-2013 and 2013-2014, it appears that though it is observed therein that the assessment orders are erroneous so far as it is prejudicial to interest of revenue, however, it is also mentioned therein that it requires further inquiry and verification, which itself shows that the respondent No. 3 had not arrive at a conclusion that the order of assessment passed by the Assessing Officer were erroneous, rather, it appears that the respondent No. 3 had embarked upon reverification and recalculation of the assessment proceedings which were already examined by the assessing authority at the time of completion of the original assessment - The finding that the assessment orders are erroneous and prejudicial to the interest of revenue must be based on the materials available from records called for by the Commissioner and for arriving at the said conclusion, he cannot call for the documents from the assessee himself as it would amount to reexamination and reverification of the returns filed by the assessee.
The respondent No. 3 cannot initiate proceedings with a view to start a fishing and roving inquiry in matters or orders which are already concluded unless there are materials available on records called for by him from which he arrives at a conclusion that the assessment orders are erroneous and prejudicial to the interest of revenue - the power under Section 20 of the Act cannot be exercised by the Commissioner without satisfying the two components mentioned in the Section 20(1) of the Act, the Commissioner does not have the power to reexamine the accounts and determine the turnover himself at a higher figure merely because he is of the opinion that the estimate made by the assessing authority was on the lower side.
This Court is of considered opinion that the respondent No. 3 acted beyond jurisdiction in issuing show cause notices dated 28.04.2020 to the petitioner for the assessment years mentioned therein and also in issuing orders by which the assessment for the years 2012-2013, 2013-2014 and 2014-2015 were revised and turnover escaped assessment and short payment of notice taxes were determined. The respondent No. 4 has also acted beyond jurisdiction in issuing demand notices dated 09.09.2020 on the basis of orders passed by respondent No. 3 - The proceeding for suo-motu revisions under Section 20 (1) of the Act in all three cases pending before the Additional Commissioner of Taxes are hereby quashed.
Petition allowed.
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2024 (2) TMI 1217
Validity of recovery certificate dated 12.6.2019 issued by the respondent No. 3 - refund the amount of advertisement tax paid in advance by the petitioner - HELD THAT:- The interest of justice would be subserved if the interim order dated 05.08.2019 is continued till the disposal of the writ petition. Since the matter is remanded to the High Court, the parties are directed who are represented by their respective counsel to appear before the High Court on 11.03.2024 without expecting any separate notices from the High Court and bring to the notice of the concerned Roster Bench the remand of the matter so that it could be considered and disposed of expeditiously as possible. With the cooperation of the parties it is expected that the High Court will dispose of the matter as expeditiously as possible.
Appeal disposed off.
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2024 (2) TMI 1216
Seeking review - error apparent on the face of record or not - rate of tax on Bar attached Hotels and shops - HELD THAT:- Review jurisdiction is to be exercised in a very limited manner where there is an error apparent on the face of the record. This Court has considered each and every document and the submissions while rendering the Judgment in SREEVALSAM RESIDENCY, M/S. SNEHA REGENCY, A UNIT OF KOLLENGODE HERITAGE HOTELS & TOURISM PVT. LTD., M/S HOTEL JEENA AND UDAYA BAR, HOTEL ZODIAZ INTERNATIONAL, SAMS PROPERTY DEVELOPERS AND HOTELS P LTD, DAHLIA TOURIST HOME, VERSUS STATE OF KERALA, STATE TAX OFFICER, COMMISSIONER, KERALA STATE GST DEPARTMENT, STATE TAX OFFICER (ARREAR RECOVERY) AND OTHERS [2023 (12) TMI 109 - KERALA HIGH COURT]. Furthermore, these documents were not part of the pleadings. Review does not mean rehearing or appeal. There has to be finality to a litigation. This Court, based on the submissions, documents and evidences, has rendered the Judgment sought to be reviewed.
There are no error apparent on the face of the record which warrants this Court to reconsider this Judgment under review. There is no substance in these review petitions - petition dismissed.
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2024 (2) TMI 1155
Refund claim - rejection of refund on the ground that the assessment order dated 23.08.2012 was not available on the DVAT Portal - HELD THAT:- It is informed by the learned counsel for respondents that petitioner had produced the relevant original documents, certified copy of the order as well as original F- Forms which have been duly verified.
In view of the fact that the basis of the impugned order was non-availability of certain record, which has now been verified by the department, the impugned order dated 24.02.2022 is liable to be set aside and the matter calls for a remit.
The matter is remitted to the competent authority to pass consequential orders in respect of the refund application of the petitioner - petition disposed off.
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2024 (2) TMI 1076
Validity of grant of permission to the petitioner’s assessing authority, namely, Deputy Commissioner, Sector-7, Commercial Tax, Ghaziabad, to re-assess the petitioner for the A.Y. 2012-2013 (U.P. and Central), in the extended period of limitation provided under Section 29 (7) of the Act - petitioner’s regular assessment proceeding for A.Y. 2012-13 was reopened - Effect of Section 27 of the Act - HELD THAT:- There did not pre-exist any principle of law where under an assessee could claim a deemed assessment or a consequence in law, equivalent to that. The U.P. Trade Tax Act that was repealed by the Act, did not contain a concept of a deemed assessment. Under that law, whenever limitation to frame assessment lapsed, no assessment arose. However, Section 27 of the Act made a clear departure from that pre-existing law. In no uncertain terms it provided that the annual return of turnover and tax filed under Section 24(7) of the Act would constitute a deemed assessment. It would arise on the last day of filing of the annual return. Further, the facts disclosed, and figures mentioned in that return were deemed to be part of the assessment order.
The deeming fiction in law revived upon order dated 01.02.2016 being passed. Earlier, it may have remained in the shadow and thus dormant in face of the specific/conscious assessment order dated 04.01.2016 yet, in view of that order being recalled on 01.02.2016, it got resurrected by the force of law. It became absolute upon expiry of period of limitation to make a fresh assessment i.e. on 30.09.2016. Since, the assessing officer failed to make any specific order of assessment in terms of Section 29(6) of the Act till 30.09.2016, his powers to make the regular assessment stood exhausted. It is on the occurrence of that passive event on 30.09.2016 i.e. lapse of limitation to make a regular assessment that the deeming fiction of law created by Section 27 of the Act became absolute.
If however, as in the present case, jurisdiction to reassess had remained from being assumed within the normal period of limitation - that expired on 31.03.2016, the subsequent setting aside of the regular ex parte assessment order would have no effect as to jurisdiction to initiate such reassessment proceeding - Therefore, in the present facts the assessing authority was obligated to first obtain an approval of his higher authority namely the Additional Commissioner to proceed to reassess the petitioner in the extended period of limitation namely eight years.
There was neither any relevant material nor any reason was recorded by the assessing authority that any part of the turnover of the petitioner had escaped assessment. Consequently, the jurisdiction to reassess the petitioner never arose with the assessing authority for A.Y. 2012-13. Unfortunately, that basic aspect escaped the attention of the Additional Commissioner, who appears to have granted the permission to the petitioner- assessing authority to reassess the petitioner in the extended period of limitation, in a mechanical exercise of his power.
It is not examined whether the reassessment order dated 17.03.2021 is ante dated or not. Since the jurisdiction never arose, the entire proceedings were conducted without jurisdiction and are a nullity.
There are no hesitation to record satisfaction that the order dated 30.01.2021, as modified on 08.02.2021 passed by that authority, granting permission to the assessing authority, namely, Deputy Commissioner, Sector-7, Commercial Tax, Ghaziabad as well as the reassessment order dated 17.03.2021 for the Assessment Year 2012-2013 (U.P. and Central) are a nullity. They are quashed.
Petition allowed.
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2024 (2) TMI 953
Validity of two Notices dated 13.01.2020 issued by the first respondent for the assessment year 2012-2013 and 2013-2014 - notices are within Jurisdiction or not - no certificate was issued to the petitioner in Form S to claim exemption under proviso to Sub Clause (c) to Section 13(1) of the TNVAT Act, 2006 read with Rule 9 of the TNVAT Rules, 2007 - HELD THAT:- Whether the petitioner was liable to pay tax under Section 5 or 6 of the TNVAT Act, 2006 is not clearly forthcoming from the documents filed before this Court. It is quite possible that the petitioner had opted to pay tax under Section 5 of the TNVAT Act, 2006 and therefore had obtained Form S Certificate of no tax liability under proviso to Section 13(1) of the TNVAT Act, 2006 read with TNVAT Rules, 2007 but had failed to pay the tax. This would require a fresh determination.
However, it remains unexplained, as to why, by the CMRL having opted to pay tax at compounded rate under Section 6 of the TNVAT Act, 2006, the petitioner would procure Form S from the Commercial Tax Department under proviso to Section 13(1) of the TNVAT Act, 2006 read with 9(2) of the TNVAT Rules, 2007. This require a proper explanation by the petitioner.
Therefore, if CMRL had failed to deduct the amounts under Section 13(1) of the TNVAT Act, 2006, machinery under Section 13(8) of the TNVAT Act, 2006, is to be directed only against CMRL. Therefore, to that extent the Impugned Notices are without jurisdiction. The 2% demand proposed in the Impugned Notices is to be directed only against CMRL and not on the petitioner.
Therefore the proposed demand in the Impugned Notices are quashed. However, liberty is given to the Commercial Tax Department to complete the assessment if the petitioner was liable to pay tax under Sections 5 and Section 6 of the TNVAT Act, 2006.
Petition allowed.
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2024 (2) TMI 952
Validity of assessment order - challenge on the ground of time limitation - last date for reopening the assessment under Section 27 TNVAT, 2006 would have expired or not - no deemed assessment - HELD THAT:- There is no justification in the challenge to the impugned assessment order on the ground of limitation under section 27 of the Tamil Nadu Value Added Tax Act, 2006 - The limitation under section 27 of the Tamil Nadu Value Added Tax Act, 2006 will apply only in case where there is an escaped assessment after an assessment order was passed earlier where there is a deemed assessment under Section 22 of the Tamil Nadu Value Added Tax Act, 2006.
Whether the returns filed were incomplete or incorrect can be determined only by the Assessing Officer. Therefore, there cannot be a determination of the disputed facts in a summary proceedings before this Court under Article 226 of the Constitution of India. The limitation under section 27 of the Tamil Nadu Value Added Tax Act, 2006 will apply only where there is a deemed assessment strictly in accordance with section 22 (2) of the Tamil Nadu Value Added Tax Act, 2006.
There is no merits in these present writ petitions. They are therefore liable to be dismissed. Accordingly, these writ petitions are dismissed.
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2024 (2) TMI 951
Rectification of mistake - exercise of Revisional Jurisdiction - Power of review - seeking rectification of assessment order on the ground that the Assessing Authority had wrongly taxed the sale of wheat flour at the rate of 3% instead of 2%, as provided under the Act by virtue of Notification dated 28.09.1989 - HELD THAT:- A perusal of Section 33 of HGST Act, 1973 would reveal that the same provides for rectification of clerical mistakes and errors. The Assessing Authority or any such authority, as may be prescribed, may rectify any clerical or arithmetical mistake apparent from the record, at any time, within two years from the date of any order, passed by him and subject to such conditions, as may be prescribed. Further, Section 40 of HGST Act, 1973, empowers the Commissioner to call on his own motion for the record of any case pending before, or disposed of, by any officer appointed under sub-section (1) of Section 3 of HGST Act, 1973 to assist him or any Assessing Authority or Appellate Authority, for the purposes of satisfying himself as to the legality or to propriety of any proceedings or of any order made therein and may pass such order in relation thereto, as he may think fit.
As far as rectification of an order is concerned, the same can be done by the concerned authority within a period of two years from the date of the order. As regards the initiation of revisional proceedings is concerned, the said power is circumscribed by the first proviso as well as third proviso to Section 40 (1) of HGST Act, 1973, in as much as that the order, which is sought to be revised, cannot be revised after the expiry of five years from the date of the order and in terms of third proviso to Section 40 (1) of HGST Act, 1973, the assessee or any other person shall have no right to invoke revisional power under this sub-section.
As regards the scope and ambit of exercise of revisional jurisdiction under Section 40 of HGST Act, 1973 is concerned, same is no more res integra as the same was considered by a Division Bench of this Court in MAHABIR TECHNO LIMITED VERSUS THE STATE OF HARYANA AND ANOTHER [2016 (8) TMI 298 - PUNJAB AND HARYANA HIGH COURT] wherein it was held thatThe proceedings initiated for revision of the orders of assessment having not concluded within the period of five years from the date of order sought to be revised, as envisaged under Section 40 of the Act, the Revisional Authority now does not have any jurisdiction to pass the order.
In view of aforesaid judgment rendered in the case of Mahabir Techno Limited, it is manifest that in case the revisional proceedings are initiated by the Revisional Authority under Section 40 (1) of HGST Act, 1973, the same are required to be concluded within a period of five years from the date of the order sought to be revised and after the expiry of the said period of five years, the Revisional Authority does not have any jurisdiction to pass any order. Apparently, in the instant case, the Revisional Authority had initiated the revisional proceedings in respect of assessment order dated 17.07.1992 with regard to Assessment Year 1991-92, however, since revisional proceedings were not concluded within a period of five years i.e. upto 17.07.1997, the same were rightly dropped by the Revisional Authority, vide its order dated 20.03.2001.
The power to review was available with the Tribunal below in terms of Section 41 of HGST Act, 1973 and the errors apparent on the record have been culled out by the Tribunal below in its order dated 28.08.2017 - The Tribunal below has correctly appreciated the facts as well as law on the issue and the Tribunal below was fully justified in exercising its review jurisdiction in passing the order dated 28.08.2017 - there are no illegality or perversity in the order dated 28.08.2017 (Annexure A-13), passed by the Tribunal below, which has been rendered after correctly appreciating the facts and as well as the law.
There is no merit in this appeal and the same is accordingly dismissed.
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2024 (2) TMI 950
Applicability of doctrine of finality and res-judicata - Levy of entry tax on craft paper purchased by the applicant from outside the local area - craft paper purchased by the applicant has been used in manufacturing of coated abrasive sheet (Regmar paper), and is not meant for writing, printing and packing as provided by notification no.104 dated 15.1.09 - non-consideration of identical issue been decided in favour of the applicant by this Hon'ble Court for the assessment year 2010-11 in THE COMMISSIONER COMMERCIAL TAX LKO. VERSUS S/S JOHN OKAY AND MOHAN LTD. [2015 (12) TMI 1898 - ALLAHABAD HIGH COURT] - HELD THAT:- The principles of res-judicata do not apply squarely for one assessment year to the other. However, keeping in mind the doctrine of finality, unless there is a marked change from one assessment year to the other, the department cannot be allowed to take a different stand. The above principle has been upheld by the Supreme Court in a catena of judgments including BHARAT SANCHAR NIGAM LTD. (BSNL) VERSUS UNION OF INDIA [2006 (3) TMI 1 - SUPREME COURT], wherein the Supreme Court has held Where facts and in a subsequent assessment year are the same, no authority whether qushi-judicial or judicial can generally be permitted to take a different view. This mandate is subject only to the usual gateways of distinguishing the earlier decision or where the earlier decision in per-incuriam. However, these are fetters only on a coordinate bench which, failing the possibility of availing of either of these gateways, may yet differ with the view expressed and refer the matter a Bench of superior strength or in some cases to a Bench of superior jurisdiction.
In the light of the above, it is clear that as no new facts have emerged in the present case, the questions of law have to be decided in favour of the assessee - Accordingly, the revision petition is allowed.
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2024 (2) TMI 949
Jurisdiction - violation of principles of natural justice - whether the authority did not have jurisdiction to make a demand in the teeth of the assessment order by which the assessment for the financial year was already made? - reassessment made without a show cause notice or an opportunity of a hearing being granted to the petitioner - HELD THAT:- There is much substance in the contentions as urged on behalf of the petitioner, namely that at the hands of the Deputy Commissioner (VAT) / respondents, an assessment order was passed on 1 September 2018 whereby taking into consideration the declaration of forms namely C, F & H forms and the amounts as involved, the Tax liability was calculated at Rs. 1252/- for non-submission of C & F forms. The said amount was admittedly paid. Once such assessment stood finalised in terms of the order dated 1 September 2018, the only course of action available to the department was to reopen such assessment as the law would mandate. Also the department could have taken recourse to the provisions of Regulation 58(4) of the 2005 Regulation which pertains to “reassessment”.
It is quite clear that such procedure as the law would recognize was not followed by the Deputy Commissioner in issuing the impugned communication. Thus, an incongruous position is reflected by the record of the department namely, on one hand an assessment order which is not set aside or invalidated in any manner known to law has remained to operate and on the other hand, in the course of processing of the refund application the impugned demand has been raised without any re-assessment of the assessment order and/or invalidating the returns filed by the petitioner as per the procedure the law would mandate the department to follow. This apart, the basic requirement in law of the department following the principles of natural justice, has also been overlooked in issuing the impugned communication.
Admittedly, the impugned order is an ex-parte order. There is nothing on record to justify that the petitioner was issued any show cause notice or the petitioner was heard, before the deputy commissioner could come to a conclusion that the demands as set out in the impugned order are required to be made against the petitioner.
The impugned orders/communications dated 2 September 2020 Exhibit-A & Exhibit-B are quashed and set aside - The respondents is at liberty to follow the due procedure in law, in the event, the department is not accepting the assessment order dated 1 September 2018 passed by the Deputy Commissioner and/or to raise a demand against the petitioner for the financial year 1 April 2015 to 31 March 2016, on any ground as the law may permit. All contentions of the parties in respect of any proposed proceedings are expressly kept open.
Petition allowed.
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2024 (2) TMI 869
Valuation - Tax on Luxuries - inclusion of an amount towards ayurveda income after giving all deductions as per law in calculation of assessable value - HELD THAT:- The contention of the petitioner with regard to the inclusion of an amount of Rs. 3,12,13,293/- towards ayurveda income after giving all deductions as per law cannot be legally countenanced - it is based on the submissions of the assessee himself and the figures declared by the assessee that the said turnover was subjected to tax under the Kerala Tax on Luxuries Act. In the absence of any figures substantiated by the accounts maintained by the assessee, produced at any stage before the authorities below, there are no reason to doubt the correctness of the decision of the Tribunal confirming the demand of tax under the said head.
Addition of miscellaneous income - HELD THAT:- During the pendency of this OP(TAX), the assessing authority passed the consequential order (Ext. P12) purportedly in compliance with the direction issued by the Tribunal in Ext. P10 order - if the petitioner has any grievance regarding the correctness of the said order of the assessing authority, to the extent it does not adhere to the directions of the Tribunal in Ext. P10 order, it is for him to agitate the same before the appellate authority, on merits.
Petition dismissed.
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2024 (2) TMI 766
Seeking grant of regular bail - evasion of tax under Haryana VAT Act and in light of Section 37 read with Section 38 - power of custodial interrogation - HELD THAT:- There is no denial to the fact that the economic offences constitute a separate class of their own, but trite it is that presumption of innocence is one of the bedrocks on which the criminal jurisprudence rests. Time and again, Apex Court has reiterated the need to integrate the right of investigating agencies to have effective interrogation of the accused with the right of liberty of the accused. While dealing extensively with the rights of the accused in the economic offences, Apex Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and another, [2022 (8) TMI 152 - SUPREME COURT] held There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.
Keeping in view the facts, without commenting on the merits of the case, the incarceration suffered by the petitioners and the fact that investigation already stands concluded and in view of dictum of law laid down in Satender Kumar Antil's case, the present petitions are allowed. The petitioners are ordered to be released on bail on their furnishing bail bonds/surety bonds to the satisfaction of the Trial Court/Duty Magistrate concerned.
Petition allowed.
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2024 (2) TMI 724
Validity of assessment order under Section 25(1) of the Kerala Value Added Tax Act, 2003 - suppression of turnover - evasion of tax - petitioner never bothered to file a reply to the show cause notices and notices for producing the relevant records for completing the assessment - HELD THAT:- The assessment order would disclose that the petitioner was given notice for producing the relevant records to complete the assessment. The petitioner never bothered to file reply to the notices. The proposed assessment order was also served on the petitioner requiring him to file objection, if any. The petitioner did not file any objection to the proposed assessment order and not appeared for the personal hearing granted by the assessing authority - the impugned order is not without jurisdiction or against the express provision of the law.
This court cannot examine the merit of the impugned assessment order as this court does not exercise the appellate jurisdiction. While exercising the writ jurisdiction, this court has to consider whether the order passed by the authority is within jurisdiction or without jurisdiction or it is against the express provision of the law. Both the conditions are absent in this present case and therefore, there are no ground to grant any indulgence to the petitioner against the impugned assessment order.
The present writ petition is dismissed.
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2024 (2) TMI 723
Classification of goods - granite stone block and pieces - rate of tax 14.5% or 5%? - applicability of entry no. 109 of the Schedule II Part A as per notification No. KA.NI-2-421/XI-9(1) dated 31.03.2011 - HELD THAT:- Entry No. 109 specifically includes "stone" with the caveat that the same shall not include glazed stone, marble and marble chips.
On an interpretation of the intention of the Legislature, it is found that glazed stone, marble and marble chips have been specifically excluded from the definition of "stone" in Entry No. 109. If the Legislature wanted to exclude granite stone, the same could have very well been done by the amendment carried out on March 31, 2011 - if one were to agree with the submission made by the revenue, one would have to exclude several items that would ordinarily be termed as "stone", which is not permissible in law.
Upon perusal of the order passed by the Tribunal, one finds that the Tribunal has held that stones that have not been processed in any manner, would be included in Entry No. 109 whereas processed stones that have gone through some kind of procedure would be excluded. The above finding is in consonance with the fact that glazed stone has been specifically excluded from Entry No. 109.
There is no scope of interference in the well reasoned order passed by the Tribunal, and accordingly, this revision petition is dismissed.
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2024 (2) TMI 664
Revisional jurisdiction of High Court - Clandestine Removal - cigarettes - committed error in counting the stock which resulted in noting shortage of 480 cartons - HELD THAT:- It is settled principle of law that the Tribunal is the primary body responsible for fact-finding, and when this Court exercises its revisionary authority, it does not re-examine facts already adjudicated upon by the Tribunal. The revisional jurisdiction exercised by High Courts is limited, focusing primarily on jurisdictional errors, perversity and procedural irregularities. In a revision petition, the High Court should abstain from undertaking a fresh enquiry into factual matters already adjudicated by the tribunal, unless compelling reasons necessitate an intervention of such a nature by the High Court.
In VINOD KUMAR TEWARI VERSUS STATE OF U.P. AND ORS. [2015 (3) TMI 1433 - ALLAHABAD HIGH COURT], this Court outlined the difference between “appeal” and “revision” and marked the boundaries within which revisional jurisdiction is to be exercised.
What becomes apparent from a reading of the aforesaid judgment is that legislature’s conferment of the right to “appeal” in one instance and the discretionary remedy of “revision” in another. This implies the creation of two distinction jurisdictions, differing in scope and content. While “appeal” typically entails a comprehensive review encompassing both law and fact initiated by an aggrieved party, “revision” is akin to a power of superintendence, sometimes invoked even without the party’s initiative. The extent of revisional jurisdiction is circumscribed by the statue conferring such authority, generally aimed to ensuring conformity to legal principles and procedural propriety. Appeal can be seen as a judicial examination seeking the reversal of a lower authority’s decision by the superior court. Meanwhile, revision empowers the superior court to scrutinize the records of an appeal to assess its legality, propriety, or regularity of procedure, and to issue orders accordingly.
Revisional jurisdiction, as envisaged under the UPVAT Act, 2008, is meticulously tailored to address jurisdictional errors and excesses of law that may have permeated the adjudicative process at lower echelons of the judicial hierarchy. It is incumbent upon High Courts, when exercising revisional jurisdiction, to vigilantly scrutinize the legal landscape and ascertain whether the impugned judgment or order suffers from any infirmities of jurisdictional import or egregious deviations from the normative contours of legal propriety - Revisional jurisdiction is not conceived as a vehicle for the protracted re-examination of factual matrices, or the interminable redressal of grievances already exhaustively adjudicated upon by the lower courts or tribunals. Rather, it constitutes an instrumental mechanism for rectifying egregious legal errors or jurisdictional excesses that may have vitiated the adjudicative process, thereby ensuring the equitable and efficacious administrative of justice.
The Revisionist in the instant case, has tried to invite this court to reassess the factual matrix, as adjudicated upon by the second appellate authority. Such an exercise, in absence of any perversity in the factual adjudication by the second appellate authority runs counter to the settled principles governing the exercise of revisional jurisdiction. The second appellate authority, in my opinion, has cogently addressed the nuances of this case and rendered a reasoned decision, devoid of any palpable error of infirmity - In the absence of any glaring defect or legal transgression warranting revision, it is not inclined to interfere with the impugned order dated January 25, 2023, passed by the second appellate authority.
The impugned order dated January 25, 2023, does not warrant any intervention - the instant revision is dismissed.
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2024 (2) TMI 663
Recovery of 22 (twenty-two) different brands of non-duty paid Overseas foreign Liquor - unlawful transport, storage, possession of unregistered & non-duty paid Foreign Liquor in contravention of Sections 10, 12, 16, 18(1) of the B.E. Act 1909 read with Rule 118 of W.B. Excise (F.L) Rules 1998 - Commitment of offence punishable under u/s 46A(c), (e) & Sec 52 of the said Act - HELD THAT:- The petitioner herein has filed documents of the custom office to show valid import of the articles specifically marked “Samples Not for Sale” - Duty as required has been paid to the Custom Authorities.
From the materials on record, it appears that the petitioner and another accused Chhote Prasad have been made accused’s in this case, but the Company, Duomo Distribution Pvt. Ltd. AC-120 Prafulla Kanan, Krishnapur Baguiati has not been made an accused. The petitioner admittedly is a director of the said Company, and it is from the company premises that the accused was arrested and the articles seized.
The Supreme Court in Dayle De’ Souza Vs Government of India Through Deputy Chief Labour Commissioner (C) and Anr., [2021 (11) TMI 67 - SUPREME COURT], held Criminal law should not be set into motion as a matter of course or without adequate and necessary investigation of facts on mere suspicion, or when the violation of law is doubtful. It is the duty and responsibility of the public officer to proceed responsibly and ascertain the true and correct facts. Execution of law without appropriate acquaintance with legal provisions and comprehensive sense of their application may result in an innocent being prosecuted.
In the present case, a) The company has not been made an accused. b) The petitioner a director of the company has been made an accused. c) The place of seizure and the seized articles on which the case has been initiated, is the registered office of the company. The petitioner has also been arrested from the office of the company - Therefore, in the absence of the company being arraigned as an accused, a complaint against the petitioner is not maintainable - This is in clear violation of Section 46B of the Bengal Excise Act, 1909.
Admittedly the company has not been made as an accused - Thus the proceedings in this case being not in accordance with law is an abuse of the process of law.
Revision allowed.
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2024 (2) TMI 662
Waiver of pre-deposit condition or grant right to appeal subject to a part-deposit or security - usage/lease rental charges are not being paid by the aforesaid holding company i.e., WWIL, which is now before the National Company Law Appellate Tribunal - Section 63(4) of KVAT Act - HELD THAT:- The judgments in Hare Krishna Enterprises Vs. State of Karnataka and others [2023 (3) TMI 1458 - KARNATAKA HIGH COURT] and Bharat Electronics Ltd Vs. State of Karnataka and others [2016 (4) TMI 609 - KARNATAKA HIGH COURT] will clearly indicate that it cannot be said that this Court while exercising its power under Article 226 of the Constitution of India is powerless either to reduce the quantity of pre-deposit or to waive it completely depending on the facts obtaining in the specific cases.
Insofar as the judgments relied upon by learned HCGP is concerned, the same were rendered in the facts and circumstances obtaining in the said case and no ratio, much less any principle of law is laid down to the effect that this Court does not have powers / jurisdiction under Article 226 of the Constitution of India to waive / reduce the pre-deposit.
Depending on the peculiar / special facts and circumstances of a case, it is always open for this Court to waive / reduce, etc., the pre-deposit condition prescribed under Section 63 (4) of the KVAT Act, especially in the light of the judgment of this Court in Hare Krishna Enterprises’ case and Bharat Earth Movers Limited - In the instant case, the material on record discloses that the petitioner has not earned any revenue for over five years and being a holding company, petitioner is also undergoing corporate insolvency resolution process / proceedings. Further, moratorium has been declared as long back as on 20.02.2018 and there is complete and total financial instability insofar as the petitioner is concerned as is clear from the financial statements produced by the petitioner, which is sufficient to come to the conclusion that the petitioner is not in a position to pay any amount for the purpose of maintaining the appeal, much less pre-deposit of 30% as required under Section 63(4) of the KVAT Act.
The cumulative effect of the facts and circumstances narrated and the judgments of this Court in BEML’s case and Hare krishna Enterprises case is sufficient to come to the conclusion that in the peculiar / special facts and circumstances obtaining in the case on hand including the financial distress and inability on the part of the petitioner to make payment of 30% pre-deposit.
Petitioner is permitted to maintain and prosecute Sales Tax Appeal No. 400/2018 before the Karnataka Appellate Tribunal, Bengaluru, which is hereby directed to entertain the appeal and pass appropriate orders on merits without insisting for payment of 30% pre-deposit, in accordance with law, as expeditiously as possible - Petition allowed.
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2024 (2) TMI 559
Adjustment of Demand with the Refund while objections were pending - Refund the amounts claimed along with interest as per the return which was submitted by the petitioner for the first quarter of Financial Year 2016-2017 - it was held by High Court that The respondents shall consequently compute the amounts which would become refundable to the petitioner in light of our observations appearing hereinabove and affect disbursement accordingly. The aforesaid refunds shall be disbursed along with interest in terms of Section 42 of the Act.
HELD THAT:- There are no reason to interfere with the impugned judgment and order passed by the High Court - SLP dismissed.
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