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VAT / Sales Tax - Case Laws
Showing 301 to 320 of 27514 Records
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2024 (2) TMI 495
Validity of assessment order - entitlement for benefit of deemed assessment - period of limitation expired prior to the issuance of the revision notice - breach of principles of natural justice - HELD THAT:- The petitioner did not participate in the proceedings. The documents on record also reflect that the tax liability was determined largely in view of the mismatch between data provided by the petitioner when compared with data provided by the petitioner's suppliers. It is in the interest of justice to provide an opportunity to the petitioner to place relevant documents on record and contest the tax demand. Solely for that reason, the impugned orders warrant interference.
Assessment orders dated 27.08.2021 in respect of assessment years 2011-2012 and 2012-2013 are quashed on the ground of being barred by limitation - assessment orders pertaining to assessment years 2013-2014, 2014-2015 and 2015-2016 are quashed and these matters are remitted for re-consideration - Petition disposed off.
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2024 (2) TMI 494
Validity of SCN issued - barred by limitation under Section 31 of the Bihar Value Added Tax Act, 2005 or not - HELD THAT:- It has to be noticed that the show-cause notice is totally without jurisdiction since the limitation prescribed as per the Statute has expired.
The contours of the jurisdiction under Article 226 of the Constitution of India to interfere with appellable orders laid down by the Hon’ble Supreme Court in State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr.; (2005) 6 SCC 499 [2005 (7) TMI 353 - SUPREME COURT] is noticed - It has been held that if an assessee approaches the High Court without availing the alternate remedy, it should be ensured that the assessee has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. While reiterating that Article 226 of the Constitution confers very wide powers on the High Court, it was clarified that nonetheless the remedy of writ is an absolutely discretionary remedy. The High Court, hence, can always refuse the exercise of discretion if there is an adequate and effective remedy elsewhere.
Article 226 can definitely be invoked by the assessee, since the re-assessment notice is after the limitation period - the Assessing Officer-respondent no. 2 in both the writ petitions is restrained from proceeding against the assessee based on the impugned show-cause notices - The writ petitions, hence, are allowed.
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2024 (2) TMI 297
Rejection of Refund of unutilised Input Tax Credit (ITC) - HELD THAT:- The petitioner has made the refund claims in time and cannot be faulted for the delayed processing of such claims by the respondent. If such claims were not processed on account of Circular No.22, which was superseded by Circular No.12, at a minimum, the limitation period should be reckoned from the date of such Circular. For such reason, the impugned order is unsustainable.
Notwithstanding the above conclusion, the refund claim has to be examined and determined based on documents pertaining to the availing of ITC as well as the export of products on zero rated basis. This factual determination cannot be undertaken by this Court. For such purpose, it becomes necessary to remand this matter.
Petition disposed off by way of remand.
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2024 (2) TMI 296
Seeking grant of regular bail - availing input tax credit on bogus billings during the assessment period of 2011-2012 - fraudulently obtaining refund of Rs. 4,32,578/- by using false and fabricated documents which includes sale invoices of cigarettes regarding interstate sale to Rajasthan - HELD THAT:- It transpires that the petitioner is behind the bars since 28.06.2023. Investigating Agency has already completed the investigation and filed the final report under Section 173 and none out of the 18 prosecution witnesses have been examined so far. Culpability, if any, would be determined at the time of the trial and the similarly situated co-accused have already been granted the concession of regular bail by this Court vide Annexures P-3 and P-4 respectively.
In view of the ratio of law laid down by Hon’ble Supreme Court in Prabhakar Tiwari Vs. State of UP and Anr. [2020 (1) TMI 1528 - SUPREME COURT] and MAULANA MOHD. AMIR RASHADI VERSUS STATE OF U.P. AND ORS. [2012 (1) TMI 407 - SUPREME COURT], the involvement of accused in other criminal cases cannot be the sole ground to deny him the concession of bail.
Thus, without commenting upon the merits of the case lest it may prejudice the outcome of the trial, the petitioner- Ashok Sukhija is ordered to be released on regular bail during trial on his furnishing bail bonds/surety bonds to the satisfaction of Illaqa Magistrate/Trial Court - Petition allowed.
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2024 (2) TMI 295
Attachment Order - recovery of sales tax dues - secured creditor or not - priority over the dues payable to the petitioner - Non-Performing Asset (NPA) - HELD THAT:- The full bench of this Court in Janta Jalgaon Sahakari Bank [2022 (9) TMI 163 - BOMBAY HIGH COURT] was considering an issue as to who between the secured creditor [as defined in section 2(1)(zd) of the SARFAESI Act and section 2(1) (la) of the RDDB Act], and the taxing/revenue departments of the Central/State Governments, can legally claim priority for liquidation of their respective dues qua the borrower/dealer upon enforcement of the ‘security interest’ [as defined in section 2(1)(zf) of the SARFAESI Act] and consequent sale of the ‘secured asset’ [as defined in section 2(1)(zc) of the SARFAESI Act], in view of the extant laws, was the broad question the Full Bench was tasked to decide - the Court held that dues of secured creditor (subject of course to CERSAI registration) and subject to the proceedings under the Insolvency and Bankruptcy Code would rank superior to the dues of the relevant department to the State Government.
Thus in view of the clear position in law as laid down by the full Bench, the Sales Tax Department cannot claim priority over the dues payable to the petitioner who is the secured creditor as held by the Full Bench.
Petition allowed.
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2024 (2) TMI 294
Taxability of Latex in the Hands of Company - Exclusion of from the scope of "Agriculturist" - income received by the revision petitioner from out of the rubber trees provided for slaughter tapping to third parties, is taxable or not - Ought not the learned tribunal have held that the receipts of the revision petitioner from out of the slaughter tapping agreements is only a licensee fee and there is no sales tax liability under the provisions of the KVAT Act? - HELD THAT:- For the purposes of the Kerala Value Added Tax Act, there is a transfer of the property in the latex that is extracted from the rubber trees from the petitioner to the third party. It is also relevant that the consideration that flowed from the third party to the petitioner was for the latex that was obtained by him and not merely for the right to collect the latex.
The reliance placed by the learned counsel on the decision of the Karnataka High Court in MUNINAGAIAH VERSUS STATE OF KARNATAKA AND OTHERS [1996 (6) TMI 321 - KARNATAKA HIGH COURT] also cannot come to his aid since we find that, that was a case that concerned the grant of a right to collect tamarind from specified forest areas which was conferred on the forest contractor through a public auction as per the provisions of the Karnataka Forest Act, 1964. While the contractor in the said case was given a permission to collect, remove and dispose tamarind, the court found on a perusal of the agreement that it was not one for the sale of tamarind but more in the nature of the grant of a right of profit a prendre and hence there was no authority for the Karnataka State Government to levy sales tax on the said transaction. We find the agreement in the instant case to be wholly different in nature, more so when it is not in dispute that unlike a Government grant over forest land the right granted in these cases was to collect latex (goods) from rubber trees owned and cultivated by the petitioner Company. The only reason why the petitioner was called upon to pay tax on the sale of latex, despite being an agriculturalist in the general sense of the term, is because the definition of 'agriculturalist' and 'turnover' respectively under the KVAT Act excluded Companies.
There are no reason to interfere with the well reasoned order of the assessing authority as affirmed by the 1st Appellate Authority and the Tribunal. These OT revisions are therefore disposed by answering the questions of law raised by the petitioner against the assessee and in favour of the revenue.
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2024 (2) TMI 293
Jurisdiction - power of Sales Tax Officer u/s 67 of the VAT Act to seize the books of accounts - HELD THAT:- Section 3 of the VAT Act confers powers upon the Commissioner. Sub-Section (4) of Section 3, subject to such restrictions and conditions as may be prescribed, empowers the Commissioner to delegate by an order in writing any of those powers under this Act, except those under sub-Section (13) of Section 93. In the present set of facts we are not concerned with the power confers by the VAT Act upon the Commissioner or delegation of any of the powers by the Commissioner. Therefore, Section 3 of the VAT Act has no relevance with respect to the controversy involved in the present appeal.
Since the Sales Tax Officer, who seized the books of accounts, does not lack power or jurisdiction to seize under Section 67 of the VAT Act, therefore, learned Single Judge has committed a manifest error or law to quash the seizure of books of accounts, etc. of the petitioner.
The judgement and order dated 17.02.2016 passed by the learned Single Judge in WP 641 (W) of 2016, cannot be sustained and is hereby set aside - Petition dismissed.
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2024 (2) TMI 292
Violation of principles of natural justice - prior to the passing of the impugned order, neither opportunity for filing the reply nor the opportunity of personal hearing was provided by the respondent to the petitioner - HELD THAT:- In the present case, it appears that the notices dated 24.12.2021, 24.03.2023 and 15.05.2023 and the assessment order dated 25.05.2023 have been uploaded in the web portal in the “View Additional Notices and Orders” column and the same were not at all physically served to the petitioner, due to which, the petitioner was unaware about the said notice. Hence, the reasons provided by the petitioner for being unaware of the notice, which was uploaded in the web portal, are appears to be genuine - Further, this Court is of the view that no order can be passed without providing sufficient opportunities to the petitioner. However, in the present case, no reply was filed by the petitioner and no opportunity of personal hearing was provided to the petitioner. Hence, the impugned order is liable to be set aside.
The impugned order dated 25.05.2023 is set aside. While setting aside the impugned order, this Court remits the matter back to the respondents. The petitioner is directed to file the reply to the show cause notice dated 24.03.2023 within a period of 21 days from the date of receipt of copy of this order. Thereafter, the respondent is directed to dispose of the matter after providing sufficient opportunities to the petitioner.
Petition disposed off.
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2024 (2) TMI 192
Extension of time for payment under Section 8(1) of the Jammu & Kashmir General Sales Tax Act, 1962 - Compliance with the requirements of proviso to Section 11 (1) of the Act - HELD THAT:- The scope and purport of ‘‘Explanation’ to 3rd proviso to Sub Section (1) of Section 11 the Act would be that even if any appeal has been preferred challenging the correctness of the assessment of the tax and other demands made under Section 8 of the Act, in the meantime, if the applicant assessee seeks extension of time for making payment under Section 8 of the Act, the provisions of Sub-section (1) of Section 11 of the Act will not be applicable, inasmuch as, if the assesee decides to make the payment of the assessed amount by seeking extension of time, the question of filing appeal within 30 days from the date he is served with the notice of demand, or making any deposit as required under Clauses (a), (b) and (c) will not arise. The ‘Explanation’ cannot be invoked to seek deferment of payment stipulated under Clauses (a), (b) and (c), which will be necessary for the appellant authority to entertain the appeal as the statute is very clear that no appeal shall be entertained unless the appellate authority is satisfied that the payments required under Clauses (a), (b) and (c) have been made.
Nothing prevented the petitioner from filing the return with the claim of ‘nil liability’ towards the taxes by taking the plea that he was not liable to pay any tax, as all taxes were to be paid by the Principal Contractor and not by the petitioner. Thus, the above assessment order dated 29.03.2021 clearly shows that the petitioner assessee was given an opportunity to appear and produce relevant documents, and though a representative of the assessee petitioner had appeared, he failed to produce any such document or explain his position which is sought to be explained. Similarly, the assessee also failed to file the return showing absence of any liability to pay tax as per the terms and conditions of the contract and the Letter of Intent.
The petitioner himself has to be blamed for the situation he finds himself now. Though the statutory requirement for payment of the amount as stipulated under Clauses (a), (b) and (c) of the second proviso to the Section 11(1) of the Act may appear to be harsh against the petitioner, yet, this is a situation he could have avoided by presenting relevant documents before the Assessing Authority at the time of hearing and also by filing return showing a nil Tax liability.
The petitioner will be liable to pay necessary amount as contemplated under Clauses (b) and (c) to the second proviso to Sub-Section (1) of Section 11 of the Act for the appeal to be entertained by the appellate authority, and no case has been made out to interfere with the impugned order dated 27.03.2023 passed by the respondent no. 2 - Petition dismissed.
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2024 (2) TMI 71
Granting benefit of ITC as claimed and in deleting the amount of demand raised by the assessing authority - case of the State is that the ITC benefit is available to the assessee only with regard to goods that has been purchased in the State of Uttar Pradesh and which are the goods on which VAT is paid - HELD THAT:- The Tribunal has examined the provisions of the Act and come to a finding that the assessee claimed ITC of Rs. 1,43,83,587/- in the relevant year against which tax of Rs. 13,27,46,784/- has been deposited on the sale of manufactured urea, which is many times more than the claimed ITC. Accordingly, Tribunal held that Section 13(1)(f) would not be applicable to the assessee, and accordingly, upheld the order of the Appellate Authority.
Upon perusal of the documents, the finding of the Tribunal seems to be crystal clear and leaves no room for doubt. The assessee has paid far more tax than the ITC claimed, and accordingly, the rigours of Section 13(1)(f) of the Act would not be applicable to the assessee. There does not appear any need for interference in the order passed by the Tribunal.
This writ petition is dismissed.
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2024 (2) TMI 70
Classification of goods - Whether the cello used by the assessee were capital goods or merely usable containers used for sale of the ink manufactured by the assessee? - HELD THAT:- Upon a plain reading of what has been written by the Tribunal, it appears that Cello is an apparatus that is fitted to the plant and machinery where the final product is stored, and once the Cello is filled up, the same is removed from the plant and machinery and it is replaced with another Cello. The fact that the Cello is directly sent to the customers for consumption would not take away from the fact that it is used as a storage device for the manufactured ink. Mere fact that the Cello is a moveable apparatus that is sent to the customers, would not take away from the fact that it is only a storage tank in the factory. This by itself makes it an essential part of the manufacturing process and would qualify it under Section 2(f)(iii) of the Act.
There are no justification to intervene in the decision made by the Tribunal. As a result, both the revisions are, accordingly, dismissed.
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2024 (2) TMI 69
Condonation of delay of 239 days in preferring the instant Revision Petition - Section 5 of the Limitation Act, 1963 - HELD THAT:- It appears on a perusal of the decision of the Apex Court in Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board [2019 (11) TMI 6 - SUPREME COURT] that the instant revisional provisions under Section 72 of the TVAT Act are in pari materia to Section 48 of the Himachal Pradesh VAT Act, 2005 relating to revisional power of the High Court. A limitation of 90 days from the date of communication of the order for preferring a Revision before High Court was provided under Section 48 of the Act of 2005. The Himachal Pradesh VAT Act, 2005 also did not provide for a separate provision for condonation of delay. The Apex Court upon consideration of a number of decisions on the issue arrived at an opinion that in the absence of express exclusion or even implied exclusion the application of Limitation Act to such a special law cannot be denied.
The Apex Court upon consideration of a number of decisions on the issue arrived at an opinion that in the absence of express exclusion or even implied exclusion the application of Limitation Act to such a special law cannot be denied. Since the ratio of the Apex Court covers the present case as well, this Court is of the opinion that though the relevant provisions under Section 72 of the Act are silent on the aspect of the condonation of delay beyond the period of 60 days prescribed therein, there is no express exclusion or implied exclusion of the application of Limitation Act.
The delay condonation application is maintainable under Section 5 of the Limitation Act, 1963 - respective interlocutory applications seeking condonation of delay of 239 days in preferring the revision petitions against the common order dated 15.10.2022 passed by the Commissioner of Taxes (Revisional Authority), Government of Tripura in batch of revision petitions concerning different assessment years A.Y. 2015-16, 2016-17 & 2017-18 are allowed.
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2024 (2) TMI 10
Refund claim - It is the case of the petitioner that bearing in mind the provisions of Section 38(3)(a)(ii) of the DVAT Act, the refund application was liable to be granted within two months from the submission of the revised return and thus latest by 31 May 2015 - it was held by High Court that The respondents are consequently directed to refund the amount of Rs. 6,62,74,405/- along with interest from the date it fell due - HELD THAT:- There are no. reason to interfere with the judgment and order(s) impugned passed by the High Court. Hence, the Special Leave Petition is dismissed.
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2024 (2) TMI 9
Proper forum - whether the direction issued by this Court to the petitioner herein to submit the necessary documents before the “authority concerned” was intended to mean the 'Tribunal' or the 'Assessing Authority'? - HELD THAT:- The expression “authority concerned” mentioned in the order dated 22.04.2022, was only meant the 'Tribunal' and not the 'Assessing Authority'. Resultantly, the orders of the second respondent dated 31.05.2022 were made erroneously assuming jurisdiction and thus, a nullity. As a sequitur, the orders dated 03.06.2023 passed by the 1st Respondent, which were made, on the premise that the orders dated 31.05.2022 of the 2nd Respondent are prejudicial to the interest of the Revenue, would no longer survive rather also become non est.
Since it is found that the direction issued by this Court vide order dated 22.04.2022 made in W.P.Nos.34578 and 36676 to 36691 of 2015 has been misconceived by both the petitioner and the Revenue, in the peculiar circumstances, we are inclined to permit the assessee / petitioner herein to submit the documents in support of his claim before the Tribunal within a period of four weeks from the date of receipt of a copy of this judgment.
Petition disposed off.
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2024 (2) TMI 8
Reversal of input tax credit - registration of the selling dealer was already cancelled - HELD THAT:- A combined reading of Section 19(15) and Section 40 of the Act will clearly indicate that in order to avail Input Tax Credit, a registered dealer has to furnish the original tax invoice of the sale evidencing amount of Input Tax and in case where registration certificate of the selling dealer is cancelled by the appropriate authorities, the purchasing dealer who had availed by way of Input Tax Credit shall pay the amount availed on the date from which the order of cancellation of registration certificate tax effected. Apart from that, the purchasing dealer shall by liable to pay interest also. Section 40 prohibits an unregistered dealer from collection any amount by way of tax.
In the present case, admittedly, the petitioner has not produced the original tax invoice from a registered dealer and therefore, he cannot complaining that the authorities are attempting to reverse the Input Tax Credit in his favour. In fact, the petitioner has effected purchase five months after cancellation of the registration of the selling dealer. Since the registration of the selling dealer had already been cancelled in April 2008, he would not have paid the tax. Therefore, the allegation of the petitioner that the notice issued by the respondent authorities for reversing the Input Tax Credit would amount to double taxation is not legally sustainable.
Though the petitioner has challenged the constitutional validity of a fiscal legislation, neither the grounds nor the submissions made on the side of the writ petitioner point out violation of any constitutional provisions. The present writ petition has been filed only to drag on the proceedings initiated by the respondent authorities for reversal of the Input Tax Credit.
There are no merit in the writ petition. The writ petition stands dismissed.
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2024 (2) TMI 7
Classification of goods - granite stone block and pieces sold by the dealer - taxable under entry no.109 of the Schedule II Part A as per notification No.KANI-2-421/XI-9(1) dated 31.03.2011 or not - HELD THAT:- On an interpretation of the intention of the Legislature, the 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 6
Revision petition filed under Section 72 of the TVAT Act, 2004 - invoking Article 227 of the Constitution of India - HELD THAT:- Let CRP No. 45 of 2023, CRP No.46 of 2023 and CRP No.47 of 2023 be tagged along with the instant revision petition - List the matters on 05.12.2023.
Prayer for dispensing the requirement of filing of certified copy of the impugned order as it has already been filed in the main matter, i.e. CRP No.44 of 2023 - HELD THAT:- Since photocopy of the common impugned order has been filed in the other connected revision petitions, the prayer for dispensing the requirement of filing of certified copy is allowed.
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2024 (2) TMI 5
Impleadment of additional respondent - refund claim - it is submitted that officer now designated to consider the refund application is the Additional Commissioner State Taxes (Administration), Darbhanga, who is not a party here - HELD THAT:- The Additional Commissioner State Taxes (Administration), Darbhanga is impleaded as the additional respondent herein suo motu - the Deputy Commissioner Commercial Taxes is directed to return the application filed, within a period of one week from today. The application shall be produced before the additional respondent i.e. Additional Commissioner State Taxes (Administration), Darbhanga. The application shall be considered, as having been filed in the year 2015 itself, in accordance with law, after hearing the petitioner, within a period of one month from the date of production of the certified copy of this judgment.
Writ petition stands disposed of.
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2024 (1) TMI 1299
Rejection of appeal - rejection of books of accounts - best judgement assessment - HELD THAT:- Admittedly, an adverse inference has been drawn against the revisionist due to survey dated 23.12.2008 in which 14 loose papers were found as well as variation in the stocks, on the said basis, the assessing authority while framing the assessment order has rejected the books of accounts and made a best judgment against the revisionist against which first appeal was preferred which was partly allowed as 12 loose papers out of 14 loose papers got tallied only two papers, i.e. 13 & 14, an adverse inference was drawn against the revisionist granting partial relief, against which second appeal was filed by both the revisionist as well as by the respondent. Further, an adverse inference has been drawn against the revisionist with regard to Parcha Nos. 13 & 14 as well as variation of stocks, which could not properly been explained even before the appellate authority while rejecting the appeal.
Once, the finding of fact with regard to variation of stocks has not been challenged which was also basis for rejecting the books of accounts and make the best judgment assessment, therefore impugned order cannot said to be bad in the eye of law.
The present revision fails and is dismissed accordingly.
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2024 (1) TMI 1264
Input tax credit - eligibility of benefit of input tax credit claimed after six months from the date of invoice - Section 10(3) of the K-VAT Act - it was held by High Court that The assessees shall be eligible to avail the input tax credit as and when the tax is paid by them, without any limitation of time - HELD THAT:- In the facts and circumstances of the present case and particularly having regard to the nature of the transactions involved, it is not required to interfere in the matter.
SLP dismissed - since this special leave petition is dismissed on merits of this case, in the interest of justice, the delay is also condoned.
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