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VAT / Sales Tax - Case Laws
Showing 381 to 400 of 27514 Records
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2023 (12) TMI 607
Levy of penalty u/s 86 of the Delhi Value Added Tax Act, 2004 - case of appellant is that the Tribunal has not only misconstrued the earlier orders of remit as framed by this Court, it has also proceeded in complete ignorance of the ambit of the penalty provision - principles of natural justice - HELD THAT:- A reading of the order dated 26 September 2016 clearly establishes that the Court had not only accepted the contention of the appellant that the levy of penalty was unjustified since the question of taxability itself was contentious, but also that imposition of penalty at 200% was unjustified and disproportionate. It was in the aforesaid backdrop that it was pertinently observed that since the point had remained arguable, the levy of penalty at 200% would not sustain. It was on an overall conspectus of the aforesaid conclusions that the Court ultimately proceeded to remit the mater for the consideration of the Tribunal - It is opined that the order of 26 September 2016 cannot possibly be interpreted or understood as confining the challenge of the appellant to the issue of proportionality alone.
There are other sub-sections of Section 86 which embody the principles of a statutory penalty. For instance, sub-section (5) deals with the contingency of an assessee failing to comply with Section 21(1). The aforesaid provision obliges a registered dealer to apprise the Commissioner of circumstances which may warrant amendments in its registration. A similar example of a statutory penalty stands embodied in sub-section (6) and which authorises the levy of a penalty in case a dealer violates Section 22(2). An assessee becomes liable to be penalized under Section 86(9) consequent to a failure to furnish a return or failing to append requisite documents with a return or its refusal to comply with a direction to revise a return. As would be manifest from a close scrutiny of sub-sections (5), (6) and (9) of Section 86, those provisions envisage the levy of penalties consequent to a failure on the part of a registered dealer to discharge certain obligations or a failure on the part of an assessee to comply with statutory duties as imposed. In such situations, the Act envisages penalty to be imposed as a necessary corollary. The aforenoted provisions do not vest the Assessing Officer with any discretion in the matter of imposition of a penalty.
Sections 86(10), (14) & (15) of the Act cannot by any stretch of imagination be construed or viewed as provisions pari materia to Sections 45(6) and 47(4A) of the 1969 Act, which formed the bedrock for the ultimate decision rendered by the Supreme Court in STATE OF GUJARAT AND ANR. VERSUS M/S SAW PIPES LTD. (KNOWN AS JINDAL SAW LTD.) [2023 (4) TMI 761 - SUPREME COURT] - the conclusion of the Tribunal cannot be sustained to the contrary and when it proceeded to observe and interpret Sections 86(10), (14) & (15) of the Act as provisions embodying the principles of statutory penalty.
Turning then to the merits of the imposition of penalty itself, it is found that the same is not based on any “false, misleading or deceptive” statement or disclosure made by the appellants. The appellants had while furnishing their returns proceeded on the bona fide belief that revenues generated from the sale of reprocessed vehicles would not be exigible to tax under the Act.
In fact, the invocation of the Proviso placed in Section 34(1) lends further credence to our conclusion that the order of the Court dated 26 September 2016 cannot possibly be interpreted as restricting the scope of inquiry to the question of proportionality alone. Accepting such a contention as advanced by the respondents would compel to construe the aforesaid decision as intending to empower the respondents to levy a penalty even though the same may not find sanction under the provisions of the Act. This too leads to the irresistible conclusion that the order of 26 September 2016 did not detract from the right of the appellant to question the very basis for invocation of the penalty provisions.
The question of law as framed is answered in favour of the appellant/assessee and against the Department - appeal allowed.
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2023 (12) TMI 599
Rebate claim - purchase of food grains from the State agency on which 4% trade tax was paid - Notification dated 21.05.1994.
Tribunal while rejecting the said revision has noticed that the revisionist could not produced any document to indicate that the wheat sold to the roller flour mills was from the wheat on which tax had already been paid and merely on the said basis rejected the revision preferred by the revisionist.
HELD THAT:- The goods supplied to the roller flour mills were in fact goods on which tax had already been paid tax @ 4%. This fact is also evident from the order of assessing authority, but relevant documents could not be produced by the revisionist before the assessing authority. In the said situation, it would be in fitness of things that an opportunity is given to him to demonstrate that the goods supplied to the roller flour mills is covered by Notification dated 21.05.1984 and the conditions made therein are fulfilled.
With a view to giving opportunity to the revisionist to demonstrate the fulfillment of the conditions prescribed in the aforesaid order, the matter is accordingly remitted to the Trade Tax Tribunal. In the remand proceedings, the Tribunal if thinks proper may further remit the matter for the limited purpose to the assessing authority or may call for a report from the assessing authority to satisfy himself that the conditions mentioned in the Notification dated 21.05.1994 are either fulfilled or not. In case the revisionist is able to demonstrate that all the conditions of notification dated 21.05.1994 are fulfilled then the Tribunal shall proceed to pass orders accordingly.
Considering that much time has lapsed since pendency of the present revision, it is provided that necessary orders may be passed expeditiously, say, within a period of six months from the date of a certified copy of this order is produced before him.
Revision allowed.
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2023 (12) TMI 598
Default assessments - recovery of demand was stayed upon the payment - HELD THAT:- Considering the time gap between the hearing of the petitioner and the passing of the impugned order, the same is liable to be set aside. It is also liable to be set aside on the ground that the concerned officer, who had passed the impugned order, had not heard the petitioner.
The present petition has been pending as the petitioner also seeks to resist an order remanding the matter to the concerned authority for considering it afresh. It is the petitioner’s contention that the impugned order was void and, therefore, now the option of the Department to proceed against the petitioner stands foreclosed by lapse of time. However, the learned counsel does not press this issue.
The impugned order is set aside and the matter is remanded to the OHA to decide afresh. The concerned OHA shall pass a speaking order uninfluenced by the impugned order, after affording the petitioner, sufficient opportunity to be heard - Petition allowed.
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2023 (12) TMI 561
Enhancement of turnover - Best Judgement assessment affirmed - rejection of books of accounts - first appellate authority has not given any basis of fixing the turnover - undisclosed purchase of cloth and tailoring material - benefit of ITC not given - HELD THAT:- From perusal of the finding recorded by the Tribunal, it is evident that the Tribunal being the last court of fact has recorded a finding that authorities have not given any substantial reason for enhancing the turnover. On the said finding, the books of account can be rejected but it is not necessary to enhance the turnover.
Again this Court in the case of RATAN HARI ROLLING MILLS LTD. VERSUS COMMISSIONER OF TRADE TAX, UP., LUCKNOW [2007 (1) TMI 539 - ALLAHABAD HIGH COURT] have categorically held that estimate for whole year is not justified when suppression was found in a particular period.
Once the findings of fact has been recorded in favour of the petitioner, there is no cogent reason for enhancing the turnover. The tribunal was not justified in confirming the enhancement of turnover in view of the fact that at the time of survey loose papers were found which have been explained by the revisionist and merely on that ground the books of account can be rejected but enhancement should not be made.
The revision is partly allowed and the order of the tribunal is modified to the extent that taxable turnover of the revisionist relating to the assessment year in question, is hereby accepted.
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2023 (12) TMI 518
Classification of goods - rate of tax - mobile phone chargers sold along with mobile phone in a composite pack - it was held by High Court that question answered in favour of the assessee and against the Revenue holding that definition contained in the Notification issued under the KVAT Act includes the ‘Charger’ which is sold along with the mobile phone in one set and accordingly taxable at 5%.
HELD THAT:- No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India. The Special Leave Petitions are, accordingly, dismissed.
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2023 (12) TMI 431
Levy of tax on 25% of chemicals used as consumables in the process of job work of dyeing of fabric by assuming that property in the goods has passed on to the principals - levy of tax on the entire value of dyes used by the appellant in the job work process of dyeing of fabric ignoring the quantity of dyes which are wasted during the process in which property is not transferred to the principals - dyes and chemicals is transferred to the principals in the job work of dyeing the fabric - HELD THAT:- The issue having already been decided against the State and the matter being covered by the judgment of the Apex Court in THE STATE OF HARYANA & ANR. VERSUS M/S. A.P. PROCESSORS [2023 (7) TMI 942 - SC ORDER], order passed by the Tribunal and the Authorities below are not sustainable.
The matter is remanded to the Assessing Officer to conduct the factual enquiry by giving liberty to the parties to take all the pleas in support of their respective case as observed in M/s. A.P. Processors case.
Appeal allowed by way of remand.
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2023 (12) TMI 366
Maintainability of revision petition - application seeking condonation of delay of 136 days in filing the Revision Petition before the High Court was not filed along with the Revision Petition but subsequently - HELD THAT:- No doubt the application seeking condonation of delay has to be filed along with the Revision Petition. But if the same had not been filed by the learned advocate appearing for the appellant, the appellant cannot be prejudiced on account of the failure of the advocate in not filing it along with the memorandum of Revision Petition.
Therefore, the Revision Petition not being heard on merits, on that short ground alone, the impugned order is set aside - Appeal allowed.
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2023 (12) TMI 365
Refund of duty deposited - Constitutional validity of proviso to Section 3(1) and sub-section (5A) of Section 3 of the Bombay Entertainment Duty Act, 1923, inserted by the Bombay Entertainment Duty (Amending) Act, 1998 - whether the Petitioner can justify in invoking Article 14 of the Constitution of India, to claim refund of duty deposited on the ground that the respondents have not collected duty from similarly placed persons?
HELD THAT:- There are separate provisions dealing with the amusement park and the water sports activity. If the legislative intent was to cover only water sports activity by amusement park then the Acts would not have made a distinction between the amusement park and water sports activity. The levy is on the activities and not on the entity carrying on the activities. Therefore, whether water sports activity is carried on by amusement park or by non amusement park, both would be liable to pay the entertainment duty - It is also important to note that third proviso to Section 3(1) expressly provides that water sports activity whether situated within or outside the amusement park would be liable for entertainment duty. Therefore, the scheme of the Act clearly negatives the contention raised by the petitioners by relying on legislative debate that only water activities by amusement park are liable for duty.
It is important to note that the petitioners have admitted that they are covered by the Entertainment Duty Act. After having admitted the same, the petitioners cannot turnaround and contend at the fag end of the proceedings that since the intention of the legislature is to cover water activities in amusement park and since their activities are not in amusement park, they are not liable for duty. Section 3(1) of the Act which is charging section imposes levy, not only on entertainment as defined by Section 2(a) of the Act but also covers various other activities including water sports activity and admittedly, the activities of the petitioners like water sking, wind surfing, sailing, kayaking, Jet boating etc. are water sports activities and hence covered by charging section.
The petitioners having made an application and having taken benefit of no duty for the first three years now cannot turnaround, on expiry of three years when they are liable to pay duty at the rate of 50% and full amount thereafter, that their activities are not covered by the Bombay Entertainment Duty Act and therefore, the petitioners rightly began the arguments by stating that they are covered by the provisions of the Bombay Entertainment Duty Act. The petitioners are now estopped from contending otherwise. The claim of refund by the Petitioner is made of the duty which they themselves and rightly so paid. On these facts, in our view, the petitioners now cannot contend that their activities are not covered by the Entertainment Duty Act.
The Supreme Court in case of Supreme Court in case of THE STATE OF TRAVANCORE-COCHIN AND OTHERS VERSUS THE BOMBAY COMPANY LTD., ALLEPPEY AND OTHERS [1952 (10) TMI 28 - SUPREME COURT] held that speeches made by the Members of Constituent Assembly in the course of debates on the draft constitution is unwarranted. The Supreme Court observed in the said judgment that this form of extrinsic aid cannot be used for interpreting any provisions of the statute and same has been generally accepted in England and in the construction of Indian Statutes as well.
The petitioners are not justified in relying upon the views of some members in the course of the debates in the Legislative Assembly for interpretation of provisions of Entertainment Duty Act when the Act itself is clear on this issue - Petition dismissed.
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2023 (12) TMI 298
Violation of principles of natural justice - impugned order Annexure P/4 rejecting the application for rectification was passed without affording opportunity of being heard to petitioner - HELD THAT:- From bare perusal of Section 54 of the MP VAT Act, it is obvious that Commissioner is vested with the power to rectify clerical/ arithmetical mistakes or error arising from any omission in an order passed earlier. The said power is circumscribed by an exception in subsection (1)(ii) of Section 54, that if rectification leads to enhancing the tax or reducing the amount of refund then a prior opportunity of being heard shall be afforded to the Revenue by issuing notice - However, the provision is silent as regards affording of any opportunity to the assessee who preferred the application for rectification.
Since the Revenue has not denied that petitioner-assessee was not afforded prior opportunity of being heard before passing the impugned order dated 27.03.2017 (Annexure P/4) and dated 17.04.2017 (Annexure P/6), this Court deems it appropriate to interfere in the impugned order for having been passed without affording reasonable opportunity of being heard to petitioner-assessee - Petition allowed.
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2023 (12) TMI 297
Classification of goods - home UPS which is marketed / advertised as meant for use in homes - to be classified under S.No. 68 of Part B of the First Schedule to the TNVAT Act which covers Information Technology products notified by the Government or not - HELD THAT:- This Court finds that the impugned order has been made in perfunctory manner and thus liable to be set aside. However there is lack of clarity as to whether the product namely the UPS in question is capable of being used along with Information Technology products.
The matters are remanded back to the assessing authority for the limited purpose of examining whether these UPS sold by the petitioner are capable of being used with Information Technology products. If it is found that it is capable, the assessing authority shall levy tax at 5% treating it as falling under S.No. 68 of Part B of the First Schedule to the TNVAT Act, though it is capable of multiple uses and some of such use being general in nature and not in relation to Computers / Information Technology. The above exercise shall be carried out after providing the petitioners an opportunity of hearing and the same shall be completed within a period of 8 weeks from the date of receipt of copy of this Order.
Petition disposed off.
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2023 (12) TMI 242
Denial of adjustment of entry tax paid on the damaged cement against VAT liability - liability to pay entry tax on damaged cement under the provisions of the Entry Tax Act - entitlement for the refund or adjustment of the same - imposition of interest under Section 39 (4) of the VAT Act.
HELD THAT:- INDIAN OIL CORPORATION LIMITED VERSUS STATE OF BIHAR AND ANR. INDIAN OIL CORPORATION LIMITED VERSUS STATE OF BIHAR AND ANR. [2017 (11) TMI 747 - SUPREME COURT] is a case on point, dealing with the set-off of entry tax when the imported goods did not suffer further liability to tax within the State of Bihar at the hands of the importer itself. The assessee therein imported crude oil from outside the State of Bihar, manufactured high speed oil, petrol etc. at its refinery within the State and transferred it to its branch at Patna from where it was sold inter alia to other oil marketing companies (OMC) who in turn sold it to retailers, end consumers through its own petroleum outlets inside and outside Patna; which sales were effected by the assessee too.
The appellant paid entry tax at the rate of 16% and was liable to sales tax @ 24.5%, from which total liability, set-off was claimed and accepted by the department; which later stood reversed giving rise to proceedings before the Advance Ruling Authority. After copious reference to the provisions the Hon’ble Supreme Court held as follows:
Since the set-off in question depends upon the interpretation of Section 3(2) of the Entry Tax Act, it is necessary to state, at the outset, that the following conditions need to be satisfied for claim of set-off under the said provision:
(i) First and foremost, under Section 3(2) itself, the tax leviable by way of entry tax can only be paid by every dealer liable to pay tax under the VAT Act;
(ii) The set-off can only be granted if the assessee is an importer of scheduled goods, who is liable to pay tax under the VAT Act;
(iii) The assessee must incur tax liability at the rates specified under Section 14 of the VAT Act;
(iv) This must only be by virtue of the sale of imported scheduled goods; and
(v) “His” tax liability under the VAT Act will then stand reduced to the extent of tax paid under the Act.”
The assessee being a registered dealer under the Finance Act was found to be satisfying the first condition and though the assessee was the importer of the goods, it had no liability to pay VAT on its sales to OMCs thus not satisfying the second & third condition. The assessee also did not satisfy the fourth condition since the words employed in the provision; ‘or sale of goods manufactured by consuming such imported scheduled goods’ which connotes a sale by the importer itself, who alone is entitled to the set-off as per the fifth condition - The dictum squarely applies in the instant case where admittedly the appellant- assessee did not suffer tax on the imported goods within the State of Bihar thus disabling the appellant from claiming set-off to the extent of such imported goods which did not suffer tax within the State of Bihar.
Associated Cement Company Limited [2004 (9) TMI 380 - SUPREME COURT] strongly relied on by the assessee was distinguished in Ĭndian Oil Corporation Ltd. on two counts; one, that there the question was raised of an exemption which does not efface the liability to tax and next that the words: ‘by virtue of sale of imported scheduled goods or sale of goods manufactured by consuming such imported scheduled goods’ was added to the provision granting set-off by way of an amendment, later to the ACC case. It was categorically held that set-off is a concession which none can claim as a matter of right unless the specific conditions under which it is granted are satisfied.
The instant appeal by the assessee has to fail and the questions of law are answered against the assessee and in favour of the respondents.
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2023 (12) TMI 166
Interpretation of statute - Deemed sale - transfer of right to use the cranes - proper construction of Section 2(24) of Maharashtra Value Added Tax Act, 2002 - right to transfer the cranes - transaction entered into by the Respondent with its customers with specific reference to the discernible and distinguishing contract clauses amount to “sale” under the Maharashtra Value Added Tax Act, 2002 or not - HELD THAT:- The Tribunal has compared the attributes of transfer of the right to use goods as discussed in General Cranes [2015 (5) TMI 32 - BOMBAY HIGH COURT] with those in the present matter, i.e., the clauses of the contracts in both matters. The Tribunal has observed that the clauses in both the cases are substantially similar. No clause in the contract in this case can be construed so as to conclude that there was intention to transfer the right to use the cranes in favour of SISL. Every clause in contract and in particular the emphasized portion as quoted above, unmistakably lead to the conclusion that the cranes were under effective control and possession of Respondent herein and during the contract period, the same were in the custody of SISL. It indicates there was no transfer at all, let alone transfer of the right to use. It was a clear case of giving on hire of cranes.
The corresponding provision under the Act is the definition of ‘sale’ in Section 2(24) of the Act. Comparing the two corresponding provisions, the Tribunal has found full support in the contention of Respondent that the same are in ‘pari materia’. Hence the Tribunal has held that the decision in General Cranes is totally applicable to the present case and thus, the ultimate control over the cranes being retained by Respondent, there is no question of transfer of right to use. Thus, the Tribunal allowed the Appeal of Respondent.
All the clauses indicate that the effective control and possession have always remained with Respondent and what was being provided to SISL was only the deployment of the cranes on hire. The work order/contract clearly indicates the intention of parties that the custody and effective control of the cranes was to remain with Respondent. In these circumstances, it would be incorrect to contend that there was a transfer of right to use the cranes.
Appeal of the revenue dismissed.
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2023 (12) TMI 165
Direction to the 3rd respondent to furnish the shipping document or best evidence in respect of the supplies made by the petitioner to the Union Territory of Lakshadweep Administration for the purpose of availing concessional rate of tax - Rejection for want of copies of the shipping documents - HELD THAT:- In the counter affidavit filed on behalf of the 3rd respondent, the Administrator, Union Territory of Lakshadweep it is stated that the petitioner is seeking shipping documents from the Administrator after lapse of several years. the petitioner never claimed or insisted for shipping documents at the time of delivery/supply of goods. The purchases were made during 2005 to 2010 and once the petitioner’s claim for concessional rate of tax @ 4% was rejected, the petitioner started litigation.
Considering the fact that at the earlier round of litigation before this Court, this Court has not granted similar reliefs as sought for in this writ petition, the present writ petition is not maintainable. The Union Territory of Lakshadweep Administration may be correct in saying that for supplies made during 2005 to 2010, at this point of time documents may not be available.
There are no ground to issue direction as sought in this writ petition - Therefore, the present writ petition is hereby dismissed.
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2023 (12) TMI 164
Impugned notice dated 13.12.2019 issued for the assessment year 2007-2008 under the TNVAT Act - barred by limitation or not - HELD THAT:- Although a faint attempt was made by the learned counsel for the respondent that the assessments are related to Section 22(4) of the Act. On a reading of the impugned order, it is evident that the Assessing Authority has himself understood that the impugned order as having been made in exercise of the power under Section 27 of the Act, in which case the limitation of six years from the date of assessment provided under Section 27 of the Act must be reckoned from the date of deemed assessment i.e., 30.06.2012 and thus any proceeding under Section 27 of the Act must be initiated within six years thereof i.e.,30.06.2018.
The impugned proceedings under Section 27 is initiated only on 30.12.2018 thus barred by limitation. An order barred by limitation is a nullity and lacking jurisdiction.
The impugned notice dated 13.12.2019 is set aside - Petition allowed.
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2023 (12) TMI 110
Maintainability of appeal - appellant submitted that these appeals have been rendered infructuous as they are against an interim order passed by the High Court and since the main matter has been disposed of by the High Court, nothing further would survive for consideration by this Court.
HELD THAT:- The Civil Appeals are dismissed as having been rendered infructuous.
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2023 (12) TMI 109
Liability of interest for the delay in remitting the turnover tax - Rate of interest was not prescribed during the relevant period - HELD THAT:- Under the notification dated 26.03.2022 in Ext. P2, the turnover tax under Clause (i)(a) of Subsection (2) of Section 5 of the KGST Act on sale of foreign liquor sold for the period 22.05.2020 to 21.12.2020 and 15.06.2021 to 25.09.2021 by the Bar hotels has been reduced to 5%. Not only this, if some dealer has paid the excess turnover tax for the said period, the same was to be adjusted towards the existing or future liability - The notification itself prescribes that for the said period, the turnover tax would be 5%. Thus, it has been given effect to for the period 22.05.2020 to 21.12.2020 and 15.06.2021 to 25.09.2021. Since the rate has been prescribed for parcel sale by the Ext. P2 notification for the said period, the tax paid on the said sale at the rate of 5% on or before 30.04.2022 should be deemed to be within time as per the Cabinet Decision and no interest would be payable on the turnover tax in respect of the said sale up to 30.04.2022. However, if any dealer has paid the tax after 30.04.2022, he would be liable to pay interest and penalty as may be determined by the competent authority.
From the notification in Ext. P1, though the petitioners were permitted to effect the parcel sales, the rate was not prescribed, and the rate has been prescribed only by the notification in Ext. P2 dated 26.03.2022 - in the absence of the rates prescribed before 26.03.2022, any demand and levy of tax could not have been valid. After the rate of the turnover tax has been prescribed, the petitioners ought to have remitted the tax before 30.04.2022.
In cases where the returns are filed by 31.03.2022, and ToT was cleared on or before 30.04.2022, the FL3/FL11 licensees are not liable to pay interest for delayed payment of the turnover tax for the period 22.05.2020 to 21.12.2020 and 15.06.2021 to 25.09.2021 in Financial Years 2020-21 and 2021-22 - If any FL3/FL11 licensees did not file the return of ToT in respect of the taxable turnover of the parcel sales of IMFL for the period of authorised sale on or before 31.03.2022 and not paid the ToT at 5% by 30.04.2022, such a licensee/dealer would be liable to pay interest for delayed payment of ToT with effect from 01.05.2022 till the date of payment and for delay in filing returns - cases are remitted back to the Assessing Authority to pass fresh Assessment Orders.
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2023 (11) TMI 1162
Levy of purchase tax and the related component of interest - benefit of notification - HELD THAT:- On perusal of the impugned order, it is noted that the impugned order has been passed on the basis of the submissions made by appellant’s counsel herein as well as the learned counsel for the respondent, before the High Court inasmuch as the High Court has recorded that the controversy involved in the present case was squarely covered by the decision rendered in COMMERCIAL TAXES OFFICER, CIRCLE 'D', JODHPUR VERSUS BHAWANI EXPORTS, AND M/S. BHAWANI EMPORIUM [2008 (10) TMI 617 - RAJASTHAN HIGH COURT] where it was held that For whatever reason the tax was not charged or collected, the operation of the said notification dated March 7, 1994 is plain and clear; and in view thereof, there would arise no question of the Revenue suggesting levy of purchase tax in the present cases. The said notification dated March 7, 1994 appears to be taking in its sweep the transactions of the present nature too and existing such notification, demand of purchase tax does not appear to be justified.
The appeal is disposed off, reserving liberty to the appellant herein to avail the remedies available in law, before the High Court vis-a-vis the impugned judgment - If an endeavour is made by the appellant to avail of the remedies available in law before the High Court within a period of four weeks from today, the issue of limitation may not be raised by the High Court.
Appeal disposed off.
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2023 (11) TMI 1161
Recovery of the amount refunded to the respondent assessee - respondent submitted that the impugned order has been complied with by the State Government inasmuch as the amount to be refunded to the respondent has in fact been refunded and therefore, the correctness or otherwise of the impugned order would not call for further consideration in this appeal - HELD THAT:- Having regard to the compliance of the directions issued by the Division Bench of the High Court made by the appellants herein the correctness or otherwise of the impugned order would not call for any further consideration. However, since the dispute between the parties is still at large and in the event the appellants herein are successful, liberty is reserved to the appellants to seek recovery of the amount refunded to the respondent-assessee in accordance with law.
Appeal disposed off.
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2023 (11) TMI 1160
Validity of notices issued under Section 12 (2) of TNGST Act - SCN issued beyond Period of limitation - limitation prescribed under TNGST Act to assess the income of the petitioner under Best Judgment Assessment - HELD THAT:- It appears that the present notices have been issued under Section 27 under the Best Judgment Assessment for the Assessment Years 2002-03, 2003-04 , 2004 – 05 and 2006-07 on 12.03.2015. The Assessment Years 2002-03, 2003-04, 2004-05 which would fall under TNGST Act, notices were issued under Section 12 (2) of the Act and for the Assessment Year 2006-07, notice was issued under Section 22 (4) of the VAT Act which came into effect on 01.01.2007. Therefore, notices were issued under TNGST Act and VAT Act by referring to Section 12 (2) after a period of nine months and under Section 22 (4) under VAT Act after a period of three months. In all these cases, no proceedings have been initiated within the maximum time limit provided in the Act, for the escaped turnover. Since no time limit has been fixed under the Best Judgement Assessment, the Court has taken into consideration with regard to the reasonable time limit, that is the maximum time limit provided under any other assessment proceedings which can be taken only if there is no time limit prescribed under any other provision.
In the present case, for the escaped turnover, the assessment under TNGST Act, the maximum time limit under Section 16 is five years and under the VAT Act, under Section 27, it is six years. No doubt, in the present case, Show Cause Notices were issued beyond the period of five years and six years against the respective assessment years. As this Court has taken a view that the time limit for passing an order under Section 22 (4) and 27 co-exist and no order under Section 22 (4) can be passed beyond the period of limitation, as prescribed under Section 27 of the Act.
This Court is of the view that the present notices came to be issued beyond the period of limitation, this Court is inclined to quash the impugned Show Cause Notices issued by the respondent - Petition allowed.
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2023 (11) TMI 1159
Violation of principles of natural justice - no notice was issued to the petitioner and no opportunity of personal hearing was afforded before passing impugned orders - Attachment of petitioner’s bank account - HELD THAT:- Had it been the real intention of the respondent-Department to provide an fair opportunity of personal hearing to the petitioner, then, the respondent- Department would obviously, granted sufficient time to the petitioner to hear them in person and waited for the petitioner's reply/objections. Whereas, the respondent-Department proceeded to confirm the proposals contained in the show cause notice, without waiting for reply to be filed by the petitioner.
Even the show cause notice, dated 04.03.2023 was not served upon the petitioner directly by means of post or any other communication, whereas, the same was uploaded in the online Portal. All these would go to show that the opportunities, alleged to have been granted to the petitioner are not the real ones, but were the opportunities provided at nominal level and the same cannot be construed as fair opportunities - as rightly pointed out by the learned counsel for the petitioner, the impugned order is in gross violation of principles of natural justice and liable to be set aside.
The matter is remanded to the first respondent/State Tax Officer for re-consideration - petition allowed by way of remand.
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9911796707
