|
Advanced Search Options
VAT / Sales Tax - Case Laws
Showing 41 to 60 of 27514 Records
-
2024 (10) TMI 800
Challenge to assessment order - impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard - violation of principles of natural justice - HELD THAT:- The impugned order was made without service of any notice on the Petitioners, without giving the Petitioners an opportunity to be heard, and by erroneously recording that the Petitioners’ representative was heard on 23 May 2023, when the impugned order was made on 20 March 2023. Even in this case, the impugned order, though allegedly made on 20 March 2023, was served upon Petitioner No.3 only on 1 July 2023, after four months.
This Petition is accordingly disposed of by quashing and setting aside the impugned order dated 20 March 2023 and the corresponding demand notice dated 20 March 2023. The request for remand is not acceded to, again, for the reasons set out in the judgment and order disposing of Writ Petition No.11929 of 2023, which apply in the facts and circumstances of this case.
-
2024 (10) TMI 799
Challenge to assessment order - non-application of mind - violation of principles of natural justice - HELD THAT:- Though the impugned assessment order dated 24 May 2023 may be vitiated by non-application of mind, failure of natural justice, and even breach of Section 23 (4) of the MVAT Act, which statutorily incorporates the requirement of personal hearing, we cannot infer any manipulation, backdating, or subterfuge. Besides, there was no unreasonable delay in communicating the impugned assessment order dated 24 May 2023. The issue of this order being made beyond the statutorily prescribed limitation period also does not arise in this matter.
The facts and circumstances that persuaded not to accede to the prayer for remand in Writ Petition Nos. 11929 of 2023 and 11915 of 2023 are not the facts involved in the present Petition. Therefore, by balancing the interest of the Revenue and the Petitioners’ entitlement to fair treatment, it is satisfied that a remand would be in order after quashing the impugned assessment order.
The impugned assessment order dated 24 May 2023 is quashed and set aside - the matter is remanded to the assessing officer to make a fresh assessment order for FY 2015-2016 after giving the Petitioners reasonable opportunity of being heard - petition disposed off by way of remand.
-
2024 (10) TMI 798
Seeking refund alongwith interest in terms of Section 38 and 42 of the Delhi Value Added Tax Act, 2004 - non-furnishing of declaration forms - compliance with timelines or not - HELD THAT:- Admittedly, the refund was not released within the stipulated period of two months from the date of submitting the Form DVAT 2 in terms of Section 38 (3) (a) (ii) of the DVAT Act.
The State having received the money without rights and having retained and used it, is bound to make the party good, just as an individual would be under the circumstances. The obligation to refund the money received and retained without right implies and carries with it the right to interest. Interest is the return or compensation for use or retention of another’s money. Section 42 of the DVAT Act deals with payment of interest.
There is no material on record to indicate that the petitioner was in any manner responsible for delay in processing of the refund. There is not even any such allegation in the counter affidavit filed by the respondent. In terms of statutory time frame which stands constructed by Section 38 (3) (a) (ii) of DVAT Act, the refund had become payable on 26.12.2021. It is a clear case of illegal retention of money of the petitioner. The petitioner cannot be denied interest on the amount of interest withheld unjustifiably.
The petitioner is entitled for interest on refund. Admittedly, statutory rate of interest is 6% by virtue of notification dated 30.11.2005. Petitioner shall be therefore entitled to simple interest @ 6% per annum from the date it became due - Petition allowed.
-
2024 (10) TMI 797
Interest alongwith interest on refunds of excess amount deposited - non-furnishing of declaration forms - said amount not reflected in the returns filed for the relevant period, nor adjusted against the demands - no revised return filed within one year to claim the refund as envisaged under Section 28 of the DVAT Act - refund has been claimed after a gap of more than five years - HELD THAT:- It is clear from the language of Section 28 of the DVAT Act that if there is any discrepancy in the return furnished for the tax period, the assessee is liable to furnish a revised return. It is not the case of the respondent that there was any discrepancy in the return furnished by the petitioner and therefore the petitioner was not under any obligation to file the revised return under Section 28 of the DVAT Act, inasmuch as, the amount of Rs. 3,50,00,000/- deposited by the petitioner was not a tax but an amount deposited with the department, out of which, tax amount, if any, was to be deducted.
As is manifest on a conjoint reading of Section 35 (2) and 38 (2) of the DVAT Act, as long as objections remained pending with OHA, any amount claimed by the respondent would clearly not answer the description of an amount due or payable as contemplated under Section 38 (2). Respondent, therefore, cannot possibly seek to justify the retention of the refund claim on account of being barred by limitation. The delay in processing the refund is endemic to the DVAT authorities and if the same is considered, the delay, even if any, on the part of the petitioner approaching the authorities is not long. Respondent cannot possibly seek to justify the retention of refund claim on account of its having been deposited voluntarily or being barred by limitation. It is a clear case of unjust retention of the money of petitioner. Respondent clearly appeared to have acted arbitrarily in illegally depriving the petition of the refund as claimed, in flagrant violation of the mandate of Section 38 of the DVAT Act.
Grant of interest on refund - HELD THAT:- Interest is the return or compensation for use or retention of another’s money. The State having received the money without right, and having retained and used it, is bound to make the party good, just as an individual would be under the circumstances. The obligation to refund money received and retained without right implies and carries with it the right to interest. Section 42 of the DVAT Act deals with the payment of interest - In terms of Section 42 of the DVAT Act, a person is entitled to interest from the date the refund was due to be paid or the date when the amount was over paid by the person, whichever is later - A harmonious reading of Section 38 and 42 makes it clear that the interest is payable to the petitioner from the date when it accrued in terms of Section 38 (3) (a) (ii) of 2004 Act - petitioner would also entitled to interest along with refund of Rs. 3,50,00,000/- in terms of Section 42 (1) of the DVAT Act.
The impugned Refund Rejection Order dated 31.10.2023 is hereby quashed. Respondent is consequently directed to refund the amount of Rs. 3,50,00,000/- along with statutory interest as also the interest on refunds for the 1st, 2nd, 3rd and 4th quarters of AY 2012-13 from the date it fell due - Petition allowed.
-
2024 (10) TMI 796
Levy of Penalty in terms of Section 16(2)(d) of Tamil Nadu General Sales Tax Act, 1959 - sales/purchase suppression - addition on account of purchase suppression towards Aluminium winding wires, freight and Gross Profit - HELD THAT:- The trading account, if at all such document existed, ought to have been produced before the authorities at the time of inspection or at least before the assessing officer. No reason has been assigned for such nonproduction at the relevant point in time and neither has the Appellate Assistant Commissioner assigned any reason for permitting the admission of the document, belatedly. There is thus no evidence whatsoever to prove the assessee's argument that the stock relating to the turnover added as suppression of purchase/sales, formed part of the closing stock for the previous period. This argument of the petitioner is rejected and the conclusion of the Tribunal in this regard is confirmed.
Two equal time additions towards purchase suppression is unwarranted. The business premises of the petitioner has been subjected to inspection and the authorities had full access to the documents and books of accounts. They were thus in full possession of all particulars to enable a proper quantification of turnover. The books of accounts maintained by the petitioner have been accepted and the assessing authority has not rejected the same. The authority however found some material/evidences indicating purchase suppression and have made additions on this account, which is confirmed.
In the absence of any other material/evidence over and above what was found to lead to the addition made to turnover, there is no justification in estimating any further addition. The double equal estimates made amount to pure speculation as they are admittedly not based on any adverse material.
The two equal time additions deleted - the additions towards the purchase/sale suppression as well as the penalty sustained - petition disposed off.
-
2024 (10) TMI 783
Challenge to impugned order and the impugned demand notice - failure of natural justice - non-application of mind - legal mala fides - HELD THAT:- In the gross facts of the present case, there is no question of relegating the Petitioners to the alternate remedy of appeal under the provisions of the MVAT Act. In a case where the violation of the principles of natural justice is apparent, the objection based upon the non-exhaustion of alternate remedies is rarely entertained. In this case, the Respondents did not even raise or, in any event, press the objection based upon the non-exhaustion of the alternate remedies.
Though the impugned assessment order is dated 14 March 2022, the same was served upon the 3rd Petitioner (though it relates to the 1st and 2nd Petitioners) only on 1 July 2023, after 15 months. In the Affidavit filed on behalf of the 3rd Respondent, there is no explanation for this inordinate delay in communicating or serving the impugned assessment order dated 14 March 2022.
The impugned assessment order refers to notice being served upon the Petitioners and the Petitioners filing their reply to the show cause notice. However, in the Affidavit, it is admitted that no show cause notice was ever served upon the Petitioners, and therefore, the Petitioners had no opportunity to file any reply. Section 23 (4) of the MVAT Act provides for the issue of a notice followed by a reasonable opportunity to be heard before assessing any assessee to the best of his judgment. Since neither any notice was issued to the Petitioners nor that the Petitioners granted any opportunity of being heard, the impugned assessment order is liable to be set aside for failure of natural justice and breach of the provisions of Section 23 (4) of the MVAT Act.
The impugned assessment order is vitiated by legal mala fides - the impugned assessment order dated 14 March 2022 is entirely unsustainable and is required to be quashed and set aside for gross failure to comply with the statutory provisions in Section 23 (4) of the MVAT Act and the principles of natural justice and fair play, non-application of mind and legal mala fides.
The impugned assessment order needs to be quashed and set aside on the grounds of breach of Section 23 (4) of the MVAT Act, violation of the principles of natural justice and fair play, non-application of mind, and legal mala fides.
Whether in the facts of the present case, accede to Ms Vyas’s submission about remanding the matter to the assessing officer for fresh adjudication after granting full opportunity to the Petitioners of being heard in the matter? - HELD THAT:- The Petitioners have made out the strong prima facie case that the impugned assessment order dated 14 March 2022 was, in fact, not made on the said date but made beyond 31 March 2022, on which date the statutorily prescribed period for making an assessment order expired given the proviso to Section 23 (4) of the MVAT Act. Under the proviso, the Assessing Officer had eight years to assess the Petitioners and make the assessment order.
Any indulgence by way of remand would not only reward the respondents with an enhanced limitation period to complete the FY 2013-2014 assessment proceedings but embolden unscrupulous tax officials to manipulate orders or otherwise mistreat the assessees - it is declined to remand the matter to the assessing authority after quashing and setting aside the impugned assessment order purportedly made out on 14 March 2022.
The impugned assessment order, purportedly made on 14 March 2022, is quashed and set aside - petition allowed.
-
2024 (10) TMI 615
Challenge to demand notice for recovery of outstanding dues - whether the claims if any under the Gujarat Value Added Tax Act, 2003 which are not considered in the Resolution Plan would stand extinguished? - HELD THAT:- From the record, it is noticed that in the proceedings filed before NCLT, during CIRP process, the Assistant Commissioner of State Tax, as one of the operational creditors, lodged a claim of Rs.38,86,63,983/- for its dues under the Gujarat Value Added Tax Act, 2003 for the assessment years 2006-07, 2009-10, 2010-11 and 2011-12. Thus, it cannot be denied that the respondent authorities were not aware about the pending liquidation proceedings. Further, from record it appears that objections were not raised by the respondent authorities against approval of the plan. Since, respondent did not object to approval of the plan, question of respondent not being heard would not arise. No application was filed before NCLT in the pending proceedings by the State authorities.
In view of settled principle of law that once the resolution plan is approved, the claim, if any, stands extinguished and no claim can be made by any entity including the State Tax Authority, it is deemed appropriate to quash and set aside the demand notice dated 16.07.2020. Therefore, the demand notice dated 16.07.2020, issued by State Tax Officer (1), Unit-7, Ahmedabad is hereby quashed and set-aside.
Petition allowed.
-
2024 (10) TMI 559
Levy of commercial tax under the Commercial Tax Act as well as the Entry Tax Act - challenge to assessment orders - works contract or not - Build, Operate and Transfer (BOT) contract - scope of registered dealer as defined under Section 2 (gg) of the M.P. Entry Tax Act, 1976 - HELD THAT:- It is a settled law that no person has a right to collect a toll or any tax from private persons for using the road. The State Government gave a right to collect the toll to the petitioner from the vehicle passing through the road for a definite period to recover the only cost of construction i.e. the sale amount or the contract value, therefore, the Dy. Advocate General for the State has rightly contended that in this case, the contract amount or sale price is liable to be made to the contractor as a deferred payment by authorizing him to recover the toll tax and except this, there is no difference in the work done under the BOT scheme and in the normal works contract.
This issue has been considered in detail by the Full Bench of this Court in the matter of Viva Highways [2017 (5) TMI 1622 - MADHYA PRADESH HIGH COURT] before the Apex Court in which it has been held that the works contract means an agreement must be in writing, it must be executed of any work related to the construction, repair or maintenance of any building, superstructure or other amenities mentioned in the definition. Any agreement by whatever name is called, if it falls within the meaning of a definition of works contract as per the definition of 1983 it must be treated as the works contract.
The petitioner is misconstruing the terms of the agreement and the construction of Dewas by-pass road on a BOT basis that it does not amount to execution of works contract, the petitioner executed the works contract on the land belonging to the State Government and recovered the construction and maintenance cost by way of toll with the due permission from the State Government, it is nothing but a deferred payment by a mode of recovery of toll. Hence, there are no substance in the writ petition.
The petition being devoid of merit and substance are hereby dismissed.
-
2024 (10) TMI 558
Imposition of Entry Tax on the crude Soyabean Oil brought by the petitioners within the State of MP for manufacturing/refining Soyabean Refined Oil - revision filed u/s 62 of the MPCT Act read with the relevant provision of the Entry Tax Act - levy of tax also challenged on the ground that in case, the refining of Soya crude oil is treated as a process of manufacture then even in such case, soya crude oil being Raw material would be exempted under N/N. A-3-10-2000-ST-V(82) dated 06-09-2001.
HELD THAT:- In the case of Commercial Trade Tax V/s M/s Kumar Paints and Mills Store [2023 (3) TMI 943 - SUPREME COURT] the Apex Court considered the question with respect to the product which underwent mixing of base paint with different colours did not result in the new product after undergoing the process of manufacturing as defined under the U.P. Trade Tax Act. The revenue department contended that the sale of paints which had undergone mixing through a computerized process amounts to manufacture thereby resulting in new products.
The case in hand, admittedly the petitioner brought Soyabean crude oil within the State and after the process manufactured the refined oil. According to the petitioner, the entry tax on oil entered into the State of M.P. and after refining sent to the outside State hence the entry tax is not leviable because there is neither any consumption nor use of oil. The petitioner claimed the non-liveability on the ground that the process of refining does not constitute the process of manufacturing oil because before and after refining it remains the same commodity - The process of so-called refining has been explained in the aforesaid paragraphs with the help of the diagram clearly establishes that a big manufacturing plant is required to be installed for making Soyabean oil from crude Soya oil, therefore, the tax on entry of the goods into the local area has rightly been imposed for consumption/use or sale therein.
The petitioner is trying to avoid the payment of the entry tax solely on the ground that the petitioner is engaged in refining the crude Soya oil to Soyabean oil, no entry tax is leviable in view of Proviso 2 of Section 3 (1) of the Entry Tax Act, only in case of consumption or use of oil by the Assessee. It is correct that the Revisional Authority while rejecting the aforesaid contention has held that the process of refining crude oil does not constitute a process of manufacture in view of the said exclusion of the process of refining under notification No. 18 dated 01.04.1995 issued by the State under Section 2(o) of the MPCT Act, 1994.
As per Entry No.52 of List 2, VIIth Schedule of the Constitution of India, the tax on the entry of goods into the local area is leviable for consumption, use or sale therein even if it is called by whatever name manufacturing or refining. In the case of the petitioner, a new product Refined Soyabean oil emerges after applying various processes to the crude Soyabean oil. The cued soya oil is used in making finished consumable soyabean oil. Refined soyabean oil is a new commodity that is packed in bottles and cans of different sizes for sale in the market after undergoing various processes as explained. Therefore, there is a consumption/use in the local area before the sale of finished refined oil to other States by the petitioner. Even if the Revisional Authority has held that under notification No.18 dated 01.04.1995, the processing of refining of crude oil into refined soyabean oil cannot said to be manufacturing even then under N/N. 82 dated 06.09.2001 it is leviable for the Entry tax.
There are no ground to interfere with the order of the Assessment Authority and the Revisional Authority, therefore, all the Writ Petitions are hereby dismissed.
-
2024 (10) TMI 557
Entitlement of interest for grant of interest on the principal amount - bone of contention of the learned counsel for the petitioner is that the respondents were bound to refund the amount within six months from the date of the order of the Supreme Court i.e., 02.03.2006, they refunded the amount only on 25.04.2012 - HELD THAT:- A plain reading of Section 33-B of Andhra Pradesh General Sales Tax Act, 1957 makes it clear that when refund is as a result of order passed in an appeal or other proceedings, the amount must be paid without there being any claim preferred in that behalf by the assessee or licensee.
In the instant case, Section 33-B of the Act is applicable with full force. Admittedly, the order dated 02.03.2006 was passed by the Supreme Court, pursuant to which, refund was necessitated. Section 33-F of the Act talks about grant of interest, where no claim needs to be made - in a case of this nature, where the petitioner has succeeded in appeal from the Supreme Court, no claim was required to be made. Thus, Section 33-F of the Act is squarely applicable in the instant case.
A conjoint reading of Section 33-B and 33-F of the Act shows that the argument of learned counsel for the petitioner has substantial force. There is a statutory mandate ingrained in Section 33-B and Section 33-F of the Act to pay the statutory interest @ 12% per annum, after six months from the date of passing of the judgment of the Appellate Court, till the date of actual refund i.e., 24.04.2012. Thus, the respondents are directed to calculate and pay the said interest to the petitioner. The entire exercise of calculation and payment of interest to the petitioner shall be completed within (90) days from the date of communication of this order.
Petition allowed.
-
2024 (10) TMI 556
Maintainability of petition - availability of alternative remedy - Time Limitation - Challenge to Re-assessment Order and the consequential demand notice - claim for exemption from payment of Value Added Tax on “facility charges” disallowed - HELD THAT:- It is necessary to peruse Section 40 (4) of the JVAT Act, which specifies that no order of assessment and reassessment shall be made under section 40 (1) after the expiry of five years from the end of the year in respect of which the tax is assessable - In the present case, the Assessment Year is 2015-16 and five years from the end of the relevant year would be 31.03.2021. However, the order in the present case has been passed belatedly on 07.09.2021 and hence is clearly without jurisdiction and barred by limitation.
The Respondents have specifically admitted that the present reassessment proceedings have been initiated pursuant to an audit objection, under Section 42 (3) of the JVAT Act. In this regard it is pertinent to mention here that section 42 (3) of the JVAT Act only specifies one of the categories pursuant to which reassessment can be initiated and is therefore also subject to the rigours of limitation as provided under Section 40 (4) of the JVAT Act. Such period of limitation of five years cannot be given a complete go-by the Respondents as the stipulation has been inserted by legislature to give finality to proceedings to a certain assessment year. Completion of assessment of an assessee confers valuable right upon the said assessee and the said assessment proceeding can be subjected to re-assessment strictly in accordance with the statutory provisions contained under the Act.
This issue has already been decided by this Hon’ble Court in M/s. Rungta Mines Ltd. [2023 (8) TMI 786 - JHARKHAND HIGH COURT]. It is therefore, beyond cavil that the Order dated 07.09.2021 having been passed beyond the period of limitation, is void and bad in law.
Further, reassessment order being a nullity is without jurisdiction and hence its invalidity can be set up at any time. Since the present Order has been passed beyond the period of limitation, it has rendered the entire proceedings as a nullity.
Since the Order is a nullity, its invalidity can be set up at any point of time and alternative remedy is not a bar when the order is wholly without jurisdiction.
Re-assessment Order dated 07.09.2021 (Annexure-5) and the consequential demand notice dated 07.09.2021 (Annexure-6) demanding Rs. 2,37,69,924/- in respect of the Assessment Year 2015-16, are hereby, quashed and set aside - Application allowed.
-
2024 (10) TMI 500
Rate of tax applicable to the tread rubber that was sold by the assessee to the customers in the course of execution of the works contract - transfer of goods not in the form of tread rubber but in some other form - applicable rate would be 12.5% / 14.5% for the assessment years 2011-12 / 2013-14 respectively or not - HELD THAT:- It is found that apart from the fact that the clarificatory order dated 7.4.2016 admittedly governed the parties for the assessment years 2011-12 and 2013-14 respectively, the process adopted by the assessee for the purposes of retreading works involved the incorporation of a tread rubber strip manufactured by it on to the old tyres that were brought by the customers for retreading. The process of works contract apparently involved the scraping of the outer layer of the old tyre so as to make it suitable for the affixation/fusion of the tread rubber strips manufactured by the assessee onto it. There may have been other processes including vulcanization which were necessary for the purposes of effective retreading done on an old tyre. In our view, the processes undertaken by the assessee were sufficient to rob the tread rubber strips manufactured by it of their original identity and shape while being incorporated into the works contract of retreading the old tyre.
As rightly noticed by the First Appellate Authority and in the clarificatory order dated 7.4.2016, that the transfer of goods involved in the execution of the works contract in the instant cases was not in the form of goods but in some other form. The impugned orders of the Appellate Tribunal cannot be legally sustained. The appropriate rate of tax on the sale of tread rubber by the assessee would have to be taken as @ 12.5% for the assessment year 2011-12 and 14.5% for the assessment year 2013-14.
The O.T. Revisions are thus disposed by answering the questions of law raised in favour of the Revenue and against the assessee.
-
2024 (10) TMI 499
Classification of goods categorized as “vitamins and minerals pre-mix” - to be categorised in the category of Entry 29 of Schedule II of the Act, 2008 under the heading “chemicals” and to be taxed @ 4% or under the Entry 89 under the heading “ores and minerals” taxable @ 12.5%? - HELD THAT:- Section 4 of the Act, 2008 which a charging section clearly states that the “tax payable on sale of goods under this Act, shall be levied and paid.” accordingly tax is levied on the goods and not individually on the raw material from which the goods are prepared. Undisputedly, items given in Entry 29 are not the goods which are being sought to be taxed in the present case, but it is the finished product which is “vitamins and minerals pre-mix” - this Court is unable to accept contention of the revisionist that goods classified as “vitamins and minerals pre-mix” would fall under the category ‘chemicals’.
Whether “vitamins and minerals pre-mix” would fall under the category “drugs and medicines” as provided under Entry 41? - HELD THAT:- Entry 41 also specifically in its contents excludes medicated soap, shampoo, antiseptic cream, face cream, massage cream, eye gel and hair oil etc. This entry very clearly defines the products which are used for alleviation of any disease or its symptoms - “vitamins and minerals pre-mix” does not fall in the category of “drugs and medicines” nor has any material adduced either before the authorities below or before this Court that it would qualify for being classified as “drugs and medicines” and accordingly, there is no reason to accept the contention of the revisionist that “vitamins and minerals pre-mix” would fall under the category of “drugs and medicines”.
Inclusion of “vitamins and minerals pre-mix” under “ores and minerals” as defined in Entry 89 of Schedule II of the Act, 2008 - HELD THAT:- The said entry provides only for raw “oars and minerals”, without mentioning “vitamins and minerals pre-mix” falling under the said entry, and hence it is clear that “vitamins and minerals pre-mix” would not fall under the category of “oars and minerals”.
This Court does not find any infirmity in the order passed by the Additional Commissioner or the Tribunal that “vitamins and minerals pre-mix” would be termed as unclassified item and liable to be taxed as such - the revision is dismissed.
-
2024 (10) TMI 140
Challenge to assessment order on the ground of time limitation - assessment orders passed by the Assessing Officer for the Assessment years 2007-2008 to 2009-2010 were passed within the period of limitation prescribed for completion of the Assessment under the provisions of Pondicherry Value Added Tax Act, 2007 or not - work of powder coating undertaken by the Assessee amounts to execution of works contract or not - powder coating work involves transfer of property or not?
HELD THAT:- The definition of work-contract in Section 2(zp) is very wide. It includes any improvement modification, repair or commissioning or any movable or immovable property. Thus, without doubt the work undertaken by the Respondent–Assessee for 'powder coating' the products like yokes, links and tubes etc amounts to works contract. Since the activity of powder coating is in the nature of works contract, it is to be construed that there is a transfer of property in the execution of works contract. Therefore, the Respondent-Assessee is liable to pay tax under Section 15(1) of the PVAT Act, 2007. Therefore, both the substantial questions of law answered in favour of the Petitioner-CTO and against the Respondent-Assessee.
As per Section 24(1) of the Puducherry Value Added Tax Act, 2007, the Respondent–Assessee was required to file a tax return within a period of 15 days after end of the period in such manner as may be prescribed. A return submitted by the dealer along with tax due is to be accepted as self-assessed. As per proviso to Section 24(2) of the Act, the Assessing Authority may select either at discretion or as directed by the Commissioner any dealer for detailed assessment - As per Section 24(4), the Assessing Authority has to serve a notice, on completion of the Assessment and the dealer is required to pay balance of tax in accordance with terms of that notice. As per sub-section (5) to Section 24, no Assessment under Section 24 shall be made after a lapse of three years from the end of the year to which, the returns filed under the Act relates.
Admittedly, return pertains to the Assessment year 2007-08 to 2009-2010 as mentioned above. An earlier notice was issued on 05.03.2011 calling upon the Respondent-Assessee to show cause as to the basis on which exemption was claimed for issuance of C-Form for purchases made under Inter-State purchase and was followed by pre- Assessment notice dated 25.09.2014.
As far as the present case is concerned, a limitation is prescribed under Section 24(5) of PVAT Act, 2007 for completing assessment. As per Section 24(5), no assessment shall be made after a period of three years from the end of the year to which the return under the Act relates - the test to be applied is whether the notice for completing the assessment was issued within limitation i.e., three years to which the returns relates to. If so, even if the Assessment Order is passed beyond the period of three years, it will be in time.
In the present case, since notices were issued on 05.03.2011 i.e., within three years contemplated under Section 24(5) of the PVAT Act, 2007, the assessment orders passed on 12.12.2014, 22.12.2014 and 31.12.2014 are held to have been passed in time.
The substantial questions of law framed are answered in favour of the Petitioner- Commercial Tax Department - tax cases allowed.
-
2024 (10) TMI 139
Dismissal of Revision Application for non-compliance of direction of pre-deposit - HELD THAT:- As the issue involved in this petition with regard to whether the VAT Tribunal was justified in directing the petitioner to pre-deposit the outstanding tax amount in the revisional proceedings filed under Section 75 of the VAT Act is already decided by this Court in the case of M/S LAXMI DYE CHEM VERSUS STATE OF GUJARAT [2023 (12) TMI 1353 - GUJARAT HIGH COURT]. This Court, after having considered the provisions of Sections 73, 74 and 75 of the Gujarat Value Added Tax Act, 2003, held 'On bare perusal of Section 75 of the GVAT Act, it does not provide for passing any order of pre-deposit as it is provided under Section 73(4) of the GVAT Act. Therefore, the impugned order of the Tribunal dated 21st March 2023 is beyond the scope of Section 75 of the GVAT Act insisting for pre-deposit to entertain the revision applications filed by the petitioner.'
The impugned order dated 25th August 2023 passed by the VAT Tribunal is hereby quashed and set aside. Consequential order dated 29th September 2023 passed by the VAT Tribunal for non-compliance of order dated 25th August 2023 is also required to be quashed and set aside and is accordingly quashed and set aside.
Petition allowed.
-
2024 (10) TMI 45
Assessment order for recovery of alleged dues pertaining to the Financial Year 2014-15 - order issued post approval of resolution plan under IBC, 2016 - HELD THAT:- Considering the observation of the Hon’ble Apex Court in case of M/s. Ghanashyam Mishra & Sons (P) Ltd. [2021 (4) TMI 613 - SUPREME COURT], it is opined that the petition deserves to be allowed - it was held in the said case that 'That once a resolution plan is duly approved by the Adjudicating Authority under sub-section (1) of Section 31, the claims as provided in the resolution plan shall stand frozen and will be binding on the Corporate Debtor and its employees, members, creditors, including the Central Government, any State Government or any local authority, guarantors and other stakeholders. On the date of approval of resolution plan by the Adjudicating Authority, all such claims, which are not a part of resolution plan, shall stand extinguished and no person will be entitled to initiate or continue any proceedings in respect to a claim, which is not part of the resolution plan.'
Impugned assessment order dated 08.01.2021 and the subsequent notices issued by the respondent are hereby quashed and set aside - petition allowed.
-
2024 (10) TMI 44
Challenge to demand notice - petitioner seeks set-off of VAT payment as against entry tax liability - HELD THAT:- Section 4 of the Entry Tax Act provides for reduction in tax liability and states that where the importer of a motor vehicle remits entry tax, and becomes liable to pay sales tax under the General Sales Tax Act and additional sales tax under the Tamil Nadu Additional Sales Tax Act, 1970 as well, then liability under the General Sales Tax Act shall be reduced to the extent of entry tax paid.
For the availment of benefit under Section 4 of the Act, the assessee is required to establish a one-to-one nexus between the entry tax and VAT payment and prove that the payments relate to the same motor vehicles. It is only upon such onus being discharged, then the benefit of Section 4 would be available to the assessee.
The respondents have only taken note of the shortfall under statement II. The conflict can only be resolved if the liability under both enactments is crystallized. The admitted position as on date is that while returns filed under the TNVAT Act have been processed and assessments completed, the returns of entry tax filed on 16.04.2008 are pending.
This Writ Petition is disposed off.
-
2024 (10) TMI 1
Remission of interest and penalty since tax amount has already been paid by the Petitioner no. 1-Company - benefit of the Amnesty Scheme - HELD THAT:- It is not in dispute that the petitioner filed a Purshis to avail the benefit of the Amnesty Scheme and made a prayer to remand the matter back to the first appellate authority so as to enable the petitioner to furnish C-Forms/F-Forms which were available with the petitioner. The Tribunal accordingly passed order on 10th January, 2020 which was communicated to the petitioner on 29th January, 2020 and thereafter the petitioner furnished C-Forms/F-Forms before the first Appellate Authority who passed the order on 28th February, 2020. It also appears from the record that the petitioner received the order from the first appellate authority on 16th March, 2020 and thereafter COVID-19 pandemic has started.
The benefit of COVID-19 pandemic situation is required to be extended to the petitioner, more particularly in view of the order passed by the Hon’ble Supreme Court in Miscellaneous Application No. 21 of 2022 in Suo Motu Writ Petition No.3 of 2020, by which the period from 15th March, 2020 till 28th February, 2022 was to be treated as a relaxation period for granting benefit of limitation.
The petitioner has already deposited sum of Rs. 06,04,393/- which is not disputed by the respondent to be payable under the Amnesty Scheme by 18th March, 2020. Thus, the petitioner has availed the benefit of the Amnesty Scheme, however the same is not given effect to by the respondent authorities on failure of the petitioner to communicate with the department because of the aforesaid two major factors viz. COVID-19 pandemic as well as death of the Consultant in the month of August, 2020.
The impugned communication dated 29th March, 2022 and consequential action taken by the respondents are hereby quashed and set aside and the respondents are directed to pass necessary order granting benefit of the Amnesty Scheme to the petitioner accepting amount of Rs. 06,04,393/- towards full and final settlement of the dispute for the year under consideration - Petition allowed.
-
2024 (9) TMI 1489
Local Body Tax (Entry Tax) - Constitutional Validity of Chhattisgarh Sthaniya Kshetra me Mal Ke Pravesh Par Kar Adhiniyam, 1976 - seeking quashing of notification dated 04/03/2014 - violative of Article 301 and 304 of Constitution of India and also violative of Article 14 of the Constitution of India - whether the impugned legislation is violative of Article 304 (a) of the Constitution of India? - whether entire State can be declared as local area in light of Judgment of the Hon’ble Supreme Court in Jindal’s case? - HELD THAT:- The validity of Act of 1976 came up for consideration before this Court in Steel Authority of India Vs. State of Chhattisgarh and others (and other cases), [2009 (9) TMI 911 - CHHATTISGARH HIGH COURT] in which this Court upheld the validity of the Act of 1976. The same was subject to challenge by petitioners therein before the Hon’ble Supreme Court. After the reference was answered by the Hon’ble Supreme Court in Jindal’s case (9 Judges). The matter were placed before the regular bench of the Hon’ble Supreme Court and liberty was reserved in favour of the petitioners to file a fresh writ petitions in light of Judgment of the Hon’ble Supreme Court in Jindal’s Case [2016 (11) TMI 545 - SUPREME COURT (LB)].
The argument of higher tax being imposed on goods imported from other state is violative of article 14 of Constitution of India cannot hold water in view Malwa Bus Service (Private) Ltd. v. State of Punjab and others [1983 (4) TMI 290 - SUPREME COURT] wherein Hon’ble Supreme Court held that a difference in the rate of tax by itself cannot be considered to be discriminatory and offensive to the equality clause.
The Power to State to grant tax reduction to local goods non discriminating as observed by the Hon’ble Supreme Court in Jindal’s Case (9 Judges) [2016 (11) TMI 545 - SUPREME COURT (LB)]. It has been further observed that constitutional validity of any taxing statute has, therefore, to be tested only on the anvil of Article 304 (a) and if the law is found to be non discriminatory, it can be declared to be Constitutionally valid without legislation having to go through the test or process envisaged by Article 304(b). It has been further observed that suffice to say that a fiscal statute shall be opened to challenge only under Article 304 (a) of the Constitution without being subjected to test of Article 304(b) either in terms of existence of public interest or reasonableness of the levy. Therefore, the validity of the impugned legislation and the notification to be tested on the anvil of Article 304 (a). The Court has to see as to whether the impugned legislation and notification are the tested of Article 304 (a) of Constitution of India.
It has to be brought on record that by virtue of any legislation, the party has suffered loss or it is restricted to perform trade and commerce in the given State in which the legislation is enacted. The impugned notification only prescribes the rates on the goods imported from outside and goods inside the State. The notification does not debar the petitioner to trade and commerce inside the State of Chhattisgarh - The power to impose tax is a plenary power with the State subject to the fact that while imposing higher tax rate on the goods imported from outside is not discriminatory. The fact remains as stated above that the notification does not debar the petitioners for trade and commerce in the State of Chhattisgarh.
The legislation cannot be declared ultra vires lightly. The taxing statute cannot be challenged only on the ground that the rate of taxation is higher. Until and unless it is said be colourable piece of legislation. It has not been established by the petitioner that the impugned legislation is enacted with colourable exercise of power or it is fraud on the legislative power. The argument was advanced that since there is a higher tax imposed on the goods imported from outside of the state hence it is discriminatory and cannot pass the test of Article 304 (a) of Constitution of India - it is also admitted that entire State is not local area and it is defined in section 2 (d) of definition clause of the Act of 1976. It is to be seen that there is no ambiguity in the definition clause. As to whether the petitioners suffered entry tax at multiple levels has not been substantially demonstrated. Hence, appropriate writ as claimed in this regard cannot be issued.
Placing reliance on the judgments of the Hon’ble Supreme Court and the discussion made herein, the petition is dismissed.
-
2024 (9) TMI 1407
Waiver of tax under CST Act - difficulties in obtaining C-Forms - HELD THAT:- A decision has been taken in regard to these issues by this Division Bench in SRI SRINIVASA RICE MILL VERSUS COMMERCIAL TAX OFFICER AND OTHERS [2024 (9) TMI 1316 - ANDHRA PRADESH HIGH COURT], where it was held that 'It would be inequitable, to grant relief to those dealers who approached in the year 2019 while denying such relief to the dealers who approached later. In any event, the applications are only for the purposes of ascertaining the eligibility of the dealers/petitioners for grant of waiver'.
Following the above said Judgment, these Writ Petitions are disposed of with the following directions:-
1. The Endorsements issued by the respective tax authorities are set aside.
2. The respective tax authorities, shall consider the applications of the petitioners afresh and grant waiver to those petitioners who are able to comply with the requirements of the documents set out in the memos.
Petition disposed off.
........
|
9911796707
