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VAT / Sales Tax - Case Laws
Showing 421 to 440 of 27514 Records
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2023 (11) TMI 407
Validity of impugned order - barred by limitation under Section 8(5) of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act 1990 - HELD THAT:- The Division Bench in SRI BALAKRISHNA TRANSPORT VERSUS COMMERCIAL TAX OFFICER, TAMBARAM I ASSESSMENT CIRCLE, CHENNAI [2009 (2) TMI 787 - MADRAS HIGH COURT] has categorically held that the authorities cannot make an assessment when the assessee had not filed any return. In other taxes like income tax there are provisions to take action if the assessee has not filed any return. The income tax authorities are empowered to take action, to impose penalty, if returns are not filed. Such provisions are not available in the present Act. The Act only states every person liable to pay tax under the Entry Tax Act ought to file a return. If return not filed, then the Act is not empowering the authorities to take action. In such circumstances, the authorities are not having jurisdiction to pass any order if return is not filed. In the present case since the order is passed beyond the period of limitation of three years, the order cannot be sustained.
Whether as per the definition of “Motor Vehicle”, the “Fork Lift” will not come under the definition or not? - HELD THAT:- On perusing the photos and brochures of the said vehicle, this Court is of the considered opinion that the vehicle can be used only in the enclosed premises and it cannot be used on the roads. Therefore, on perusing the brochures and the usage of the vehicle, this Court is of the considered opinion that the vehicle cannot come under the definition of “Motor Vehicles”.
Section 3 clearly states if vehicle is not liable for registration, then the respondent is not empowered to levy tax. In the present case, the vehicle is not liable for registration. Therefore, the respondent is not empowered to levy tax. When there is no jurisdiction to levy tax, then the respondent cannot levy tax. Since under Article 265 of the Constitution of India, any tax can be levied, by the authority of law. If there is no authority, the respondent is not empowered to levy tax. Therefore, the respondent is not empowered to levy tax, since there is no jurisdiction.
This Court is of the considered opinion that the impugned order is liable to be quashed and accordingly quashed - Petition allowed.
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2023 (11) TMI 298
Interpretation of statute - Section 13(1)(f) of the UP VAT Act - Claim of full ITC on inputs - amount of tax paid towards the purchase of raw Rice Bran - scope of the word “goods” as defined under Section 2(m) of the UP VAT Act as outlined in Section 13(1)(f) of the UP VAT Act should be limited to only “taxable goods” or not - applicability of decision of this Court in the case of M.K. Agro Tech [2017 (9) TMI 1308 - SUPREME COURT].
HELD THAT:- A bare perusal of the scheme under Section 13 of the UP VAT Act [and specifically under Section 13(1)(a)] makes it abundantly clear that in cases where the purchased goods (in the present case Rice Bran) are used in the manufacture of taxable goods (in the present case RBO and physically refined RBO) except the non-VAT goods, and where such manufactured goods are sold within the State or in the course of inter-state trade and commerce, the registered dealers (like the assessee herein) are entitled to claim input tax credit of the full amount. The charging section of the UP VAT Act, therefore, entitles the assessee to claim full amount of tax paid on the purchases as ITC - Furthermore, Section 13(3)(b) of the UP VAT Act, introduces the concept of proportionality in the scheme of the enactment and by means of a deeming fiction provides that where during the manufacture of VAT goods, exempt and non-VAT goods (except as by-product or waste product) are produced, the amount of ITC credit may be claimed and may be allowed in proportion to the extent they are used or consumed in manufacture of taxable goods other than the non-VAT goods and exempt goods.
Explanation (iii) to Section 13, therefore, forbids the Assessing Authority as well as the assessee from raising any dispute in regard to the allowability of the ITC in cases where exempted goods are being produced as a by-product or waste product during the process of manufacture.
Whether the High Court was right in placing on the decision of this court in the case of M.K. Agro Tech? - HELD THAT:- In the case of M.K. Agro Tech, the assessee was engaged in the manufacture of sunflower oil (taxable goods), which is extracted from sunflower cake, by employing solvent extraction process. Sunflower oil cake is the input/raw material on which VAT was payable. During the extraction process, a ‘by-product’ in the form of de-oiled sunflower oil is produced. The said by-product was also exempted under the Karnataka VAT Act - This Court while examining Section 17 of the KVAT Act, read with Rule 131 of the KVAT Rules, held that ITC was admissible to the extent of inputs used in the sale of taxable goods.
In the case of M.K. Agro Tech, this Court held that only partial ITC was permitted to the assessee as they were making taxable and exempted sales from the dutiable raw materials procured by them. In Para 28, this Court has elaborated on the scheme under the Karnataka VAT Act, to emphasise that the provision which allows partial rebate is made applicable on the ‘sales’ of taxable goods and goods exempt under Section 5. It refers to ‘sale’ of ‘goods’, taxable as well as exempt, and is not relatable to the ‘manufacture’ of the goods. Further elaboration has been made to hold that upon the ‘sale’ of goods exempted under Section 5 of the Karnataka VAT Act, partial rebate shall only be admissible - The High Court committed an error in passing the impugned judgment relying on the decision of this Court rendered in M.K. Agro Tech.
The impugned common judgment and order passed by the High Court of Allahabad is hereby set aside and the orders passed by the Commercial Tax Tribunal dated 04.05.2016 and 05.07.2017 are hereby restored - appeal allowed.
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2023 (11) TMI 251
Interest on refund - relevant period - interest for the period commencing from the date when two months elapsed [which in turn would commence from the date when the return was filed], and running till the date when the refund was paid, or not - It was held by Delhi High Court that In the instant matter, since the revised return was filed on 10.07.2015, the refund in terms of Section 38(3)(a)(ii) of the 2004 Act accrued in favour of the assessee on 10.09.2015.
HELD THAT:- There are no requirement to interfere with the judgment and order(s) impugned in these petitions. The Special Leave Petitions are dismissed.
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2023 (11) TMI 213
Validity of recovery notice - notice issued seeking recovery without even serving a copy of the assessment order - violation of principles of natural justice - availing of ineligible Input Tax credit - Evasion of tax - HELD THAT:- Almost an identical issue came up before this Court in W.P.Nos.37044 & 37045 of 2016 in the case filed by M/s.Hansa Enterprises, Park Town Chennai, from a same location in Parrys Corner, in Chennai [ [2020 (6) TMI 357 - MADRAS HIGH COURT] . There also, the petitioner therein had similarly alleged that the petitioner's login ID was misused by a third party, who filed returns and had passed on huge Input Tax credit to third party.
The Court after considering the submission of the petitioner therein and the learned Government counsel, directed the Commercial Tax Officer to pass a proper order after thorough investigation with the help of Economic Offence and Cyber Crime Wing of the State as to whether indeed there was a misuse of login ID or whether the petitioner therein was masquerading as an unknown person to make it seem as if the said login ID was misused by an unknown person facilitating availing of ineligible Input Tax credit and to evade tax - In the present case, the petitioner has also filed a complaint before the Cyber Crime in FIR.No.100 dated 06.04.2017 for the alleged misuse of the login ID of the petitioner from 01.01.2014 to 31.08.2015. The status of the investigation pursuant to the above FIR registered based on the complaint of the petitioner is not known.
Considering the above fact and to balance the interest of the parties, Court is inclined to suo motu implead The Inspector of Police, Cyber Crime Cell, Central Crime Branch, Vepery, Chennai – 600 007 is impleaded as the 4th respondent in this Writ Petition to carryout thorough investigation on the complaint filed by the petitioner as to whether the complaint filed by the petitioner was genuine or not or whether the petitioner was facilitating a third party to use his login ID to evade tax and to pass an ineligible Input Tax credit to unknown persons or whether the petitioner was himself masquerading as an unknown person to evade tax.
Writ petition disposed off.
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2023 (11) TMI 212
Classification of goods - rate of tax - Wire Nails - to fall within the meaning of “Fastener” as per entry 79 Part-II of Schedule II of VAT Act or under residuary entry in part IV of Schedule? - tax chargeable in entry 79 Part II of Schedule II is 5% and 14% in residuary entry Part IV of Schedule II?
HELD THAT:- In case of Bharat Forge and Press Industries (P) Ltd. [1990 (1) TMI 70 - SUPREME COURT] the Supreme Court held that only such goods which cannot be brought under the various specific entries in the tariff schedule should be attempted to be brought under the residuary entry. In other words, unless the department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort can be had to the residuary item.
Fasteners means is a device that mechanically joins or affixes two or more objects together. It is a device to attach especially by pinning, tying or nailing. Nuts, bolts, screws and fasteners are included in Entry 79 Part II of Schedule II of VAT Act. The function of Screw and Wire Nails is more or less similar and are normally used to attach two or more items. The respondent has to show as to why wire nails are put in residuary entry and not in Entry 79 Part II of Schedule II of VAT Act. What are the distinguishable features of wire nails to put it in the residuary entry has not been placed. There is nothing cogent on record that the wire nails cannot be put to any other entry than to residuary entry. With due respect the case law cited by the state is not applicable in the facts of the present case.
The impugned order Annexure P/1 and P/6 are set aside holding that wire nails would fall within the meaning of fasteners under entry 79 of PART II of Schedule II of VAT Act - Petition allowed.
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2023 (11) TMI 144
Levy of penalty under Section 51(7)(b) of PVAT Act - deficiency in the documents with regard to correct name and address of consignee, despite the fact that documents were produced voluntarily at the ICC, which rules out any evasion of tax - HELD THAT:- The Tribunal while dismissing the appeal of the appellant observed that all previous transactions running into crores had correctly been entered at Mohali. However, it was held that this fact could not absolve the appellant from producing true and correct invoice pertaining to the current transaction - the findings so given by the Tribunal are liable to be set aside, as it was merely a clerical mistake, that only the name of the consignee was wrongly mentioned while picking the name of the appellant from drop-down menu in the software used by the Noida Head Office of the appellant. Futher, it is not being disputed that the Dehradun Branch in whose favour, the invoice was mistakenly generated, does not deal with the goods, which were being transported, vide invoice No. 157. Penalty can be imposed to evade tax and not for bona fide mistake. The driver in the present case voluntarily reported the goods at ICC Jharmari for generating necessary information and goods were accompanied by all the necessary documents.
The substantial questions of law are answered in favour of the appellant and against the revenue, as penalty cannot be imposed upon the appellant on account of a clerical mistake - The appeal stands allowed.
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2023 (11) TMI 54
Recovery of dues - first charge over the property of the Corporate Debtor - Waterfall mechanism - prevalence of Section 48 of the Gujarat Value Added Tax 2003 over Section 53 of the Insolvency and Bankruptcy Code 2016 - whether the Review Petitioners have been able to make out any case within the ambit of Order XLVII of Supreme Court Rules, read with Order XLVII of CPC, for reviewing the impugned judgment?
HELD THAT:- It is well settled proposition of law that a co-ordinate Bench cannot comment upon the discretion exercised or judgment rendered by another co-ordinate Bench of the same strength. If a Bench does not accept as correct the decision on a question of law of another Bench of equal strength, the only proper course to adopt would be to refer the matter to the larger Bench, for authoritative decision, otherwise the law would be thrown into the state of uncertainty by reason of conflicting decisions.
Apart from the well-settled legal position that a co-ordinate Bench cannot comment upon the judgment rendered by another co-ordinate Bench of equal strength and that subsequent decision or a judgment of a co-ordinate Bench or larger Bench by itself cannot be regarded as a ground for review, the submissions made by the learned Counsels for the Review Petitioners that the court in the impugned decision had failed to consider the waterfall mechanism as contained in Section 53 and failed to consider other provisions of IBC, are factually incorrect - As evident from the bare reading of the impugned judgment, the Court had considered not only the Waterfall mechanism under Section 53 of IBC but also the other provisions of the IBC for deciding the priority for the purpose of distributing the proceeds from the sale as liquidation assets.
The well-considered judgment sought to be reviewed does not fall within the scope and ambit of Review. The learned Counsels for the Review Petitioners have failed to make out any mistake or error apparent on the face of record in the impugned judgment, and have failed to bring the case within the parameters laid down by this Court in various decision for reviewing the impugned judgment.
All the Review Petitions are dismissed.
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2023 (11) TMI 53
Rejection of Form E - 1 and C, filed along with application for filing additional evidence - appeal dismissed without considering that the application for additional evidence was already on record and a report from assessing authority was sought by the Tribunal - violation of principles of natural justice - HELD THAT:- It is admitted that inter-State transaction has been made. In the event the forms submitted by the applicant are not accepted, the applicant will be compelled to pay higher rate of tax - In the peculiar facts & circumstances of the case, when the transaction has already been made and covered by the requisite forms, the applicant, if due to unavoidable circumstances, could not obtain the forms and had produced the same upto the state of Tribunal, even in the subsequent stage, providing the claim has already been made for the same, the form should be accepted.
This view has been taken by this Court in the case of M/s Dhan Prakash Cane Crushers Vs. Commissioner of Sales Tax [2002 (4) TMI 898 - ALLAHABAD HIGH COURT], where, this Court accepted the form, which was furnished for the first time in the revisional jurisdiction and had remanded the matter to the Tribunal to reconsider the same.
The impugned judgements & orders passed by Commercial Tax Tribunal in these revisions cannot be sustained and the same are modified to the extent that the Tribunal is directed to accept the forms submitted by the applicant and thereafter, decide the issue in accordance with law - the matter is remanded back to the Tribunal by restoring the case to its original number before the Tribunal - Revision allowed.
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2023 (11) TMI 3
Benefit of Group Insurance purchased by the State for "Registered Dealer" under VAT - Application for cancellation of registration before the death of registered dealer - Consideration of claim for insurance money being paid to the petitioner - HELD THAT:- It appears that the respondent-authorities have misdirected themselves in not looking at the application dated 18.03.2013 without considering the fact of the pre-existing registration, that stood in the name of the deceased. If the deceased held a registration certificate prior to the occurrence of his death and that registration did not stand cancelled on the date of occurrence of his death, the status of the deceased would remain to be of a registered dealer for the purpose of Group Insurance Policy.
Since the respondents have not applied their mind on this aspect of the matter, the writ petition is disposed off with the direction upon the respondent no. 3 to examine the correct facts in light of the observations made and issue appropriate reasoned communication to the petitioner within a period of one month from today.
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2023 (11) TMI 2
Maintainability of petition - Jurisdiction of Revision proceedings under Section 32 of the AP VAT Act - classification of goods - iron and steel items - HELD THAT:- In the case of POTLAPELLI RAVINDER RAO VERSUS STATE OF TELANGANA [2022 (10) TMI 1212 - ANDHRA PRADESH HIGH COURT], a Division Bench of this High Court set aside the earlier revision proceedings in R.F.No.18/2019-20 dated 12.01.2021 passed by the 1st respondent and remanded the matter back to 1st respondent with a direction to issue notice to the petitioner, in which case the petitioner shall appear with his documents if any and thereupon the 1st respondent shall hear both parties and pass an appropriate order on merits in accordance with governing law and rules expeditiously.
The impugned revisional order is set aside and matter is remitted back to the 1st respondent with a direction to afford an opportunity of hearing to the petitioner - Petition allowed.
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2023 (10) TMI 1448
Classification of proprietary food items - Kurkure and Cheetos - classifiable under Entry 131 of Schedule IV to the RVAT Act, which reads as “Sweetmeat Deshi (including Gajak & Revri), bhujiya, branded and unbranded namkeens.” or under the residual/orphan entry in Schedule V to the RVAT Act? - restricted meaning for the term “namkeen” in interpreting the scope of Entry 131 of the Schedule IV - HELD THAT:- As per settled position of law, a specific entry would always trump a general entry and the burden would always be on the Revenue to prove that the goods in question would have to fall in general entry as opposed to the specific entry.
The reliance placed by the Tax Board on Co-ordinate Bench judgment of Pepsico India Holding [2016 (12) TMI 1740 - RAJASTHAN HIGH COURT] is onerous for the simple reason that the Co-ordinate Bench had classified the goods in the more specific entry, especially after observing that the goods in question can technically be considered namkeen. Merely because the specific entry of ‘preserved food articles’ did not transition from RST Act to RVAT Act is no reason to automatically place the goods in question in the residual entry. In these circumstances, the correct approach would have been independent analysis of the relevant entries under the RVAT Act and examining whether the Revenue had discharged its onus to establish that the goods in question cannot, by any conceivable means, be included in any of the specific entries. Accordingly, the conclusion of the Tax Board, to the extent that it is based on Co-ordinate Bench judgment of Pepsico India Holding cannot be sustained.
Whether the Revenue has successfully discharged its onus to establish that the goods in question cannot be placed in any specific entry and had to be placed in the residual entry? - HELD THAT:- The Tax Board held that since the goods in questions are snacks, which do not find its place in any specific entry, the same had to be placed in residual entry. However, this conclusion of the Tax Board, in the opinion of this Court, is not supported by any cogent reason or evidence - It is noted that the Revenue neither sought any technical / expert opinion, nor brought any evidence on record to prove their point. It appears that the Tax Board merely relied on a basic Google search result wherein the goods in question were described as namkeen snacks.
Considering that the Revenue and all the authorities below have misinterpreted the Co-ordinate Bench judgment of Pepsico India Holding that Revenue has failed to discharge its onus to establish that the goods in question would fall in general/residual/orphan entry and not the specific entry; that no cogent reason has been assigned to hold the goods in questions as ‘snacks’; that the goods in question have been classified as namkeen as per the FSSAI license; that the goods in question have been held to be namkeen by Apex Court in Frito Lays India [2009 (8) TMI 98 - SUPREME COURT] and Pepsi Foods Ltd. [2002 (9) TMI 184 - CEGAT, COURT NO. IV, NEW DELHI], this Court is inclined to answer the questions of law framed herein-above in favour of the petitioner-assessee and against the respondent-revenue.
The order impugned of the Tax Board and the authorities below are quashed and set aside - all these STRs are allowed.
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2023 (10) TMI 1343
Levy of penalty - non deposit of TDS on the amount alleged to have been received by the revisionist for construction of Stadium at Narendra Dev University of Agriculture & Technology, Faizabad - HELD THAT:- This Court is of the considered view that the Tribunal has rightly imposed penalty upon the revisionist for not deducting TDS on the amounts which were paid to the U.P. Awas Evam Vikas Ltd. as they were given task of constructing Stadium. The Accountant of the revisionist in his statement before the Tribunal has admitted that payments were infact made directly to the Agency on which TDS was to be deducted and deposited with the State authorities.
Once it is admitted that payment was made by the revisionist directly to U.P. Awas Evam Vikas Nigam Ltd. then they were mandated to deduct the amount of TDS on such payments. Non deduction of TDS would be deemed to be intentional for which the penalty has rightly been imposed.
No interference is required by this Court in the order dated 14.03.2019, passed by the Tribunal - The revisions being devoid of merits are rejected.
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2023 (10) TMI 1338
Denial of grant of bail - refund obtained without any actual movement of goods during the course of interstate sale - use of forged and false documents of sale - HELD THAT:- The allegations against the petitioner are subject to trial. The trial’s progress has been slow, and it is anticipated to take a considerable amount of time. Bail serves the purpose of allowing an accused to remain free until their guilt or innocence is determined. In contrast, the petitioner has been in detention since May 29, 2023, for more than 04 months.
The petitioner’s continued preventive custody is based on an unsubstantiated suspicion that he might tamper with evidence or influence witnesses. There is no probability of tampering with evidence as it has already been seized by the investigating agency - The petitioner is stated to be a 67-year-old senior citizen having family to look after. Being a family man and having a family to look after, a fixed abode, it is unlikely that he poses any flight risk and/or will flee from trial proceedings.
Thus, no useful purpose would be served by keeping the petitioner in further preventive custody - the petitioner is ordered to be released on bail upon furnishing bail bonds and surety bonds to the satisfaction of the learned trial Court, where his case is being tried, and in case he/she is not available, before the learned Duty Judge, as the case may be - bail application allowed.
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2023 (10) TMI 1296
Rejection of application, partly, under Vera Samadhan Yojna, 2019 (Amnesty Scheme- 2019) for A.Y. 2011- 12 and A.Y. 2012-13 - issuance of C-Forms or not - HELD THAT:- In this case, the respondent verified the ‘C’ form through “TINXSYSY” website resulting into allowing the ‘C’ forms of Rs. 1,45,87,986/- (without tax) and disallowing the amount of Rs. 1,85,82,948/- (without tax). Thus, the verification by the respondents was made prior to the passing of the order dated 15.2.2020 for A.Y. 2011-2012, and for A.Y. 2012-13. Since, the order under Amnesty-2019 Scheme was to be passed latest by 15.2.2020, the authority passed an order on 15.2.2020 after verification of the ‘C’ forms which was available on record and therefore, in our opinion there is no illegality committed.
Moreover, heavy reliance placed by the petitioner on the certificate dated 17.2.2020 at Annexure ‘G” is of no consequences since the same was made available after 15.2.2020 i.e. after the cutoff date to pass the order. Therefore, accepting the request or the prayer made by the petitioner would amount to extending the benefit of the scheme beyond the due date which is not permissible under law and, therefore, we do not find any error in the order passed by the authority dated 15.2.2020.
Further, the rectification application was rightly rejected by observing that there is no error apparent on the face of the record which requires rectification.
There are no illegality in the orders dated 15.2.2020 and 29.5.2020 - petition dismissed.
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2023 (10) TMI 1212
Development of MSTT’s Website - in affidavit placed on record it is inter alia stated that as soon as the proposal for the development of website from the President, MSTT is received to the Finance Department it would expedite the process of approval at the earliest - HELD THAT:- In the present era, the courts and tribunals which cater to demands of the consumers of justice cannot be expected to function without the basic requirement of an official website to say the least. It also cannot take so long to create and make the website functional. As observed by the Supreme Court, the technology plays an essential role in securing access to court rooms and, as a result, access to justice for citizens across the country. In embracing technology, the tribunals in a progressive State like Maharashtra cannot remain primitive. Providing of a website would certainly enhance the efficiency in the working of the tribunal and make effective the access to justice.
Thus, it is of utmost necessity that the President of the MSTT on urgent basis forwards a proposal to the State Government in regard to making available video conferencing facilities in conducting Court proceedings, unless the same are already in place.
The present proceedings are adjourned at the first instance to 28th November 2023 so that the further progress on all these aspects can be informed to us by the President, MSTT as also by the State Government.
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2023 (10) TMI 1155
Maintainability of first appeals - first appeals were dismissed by the appellate authority summarily on the ground of non-compliance of the directions of pre-deposit.
It was the case of the appellants before the Tribunal that the orders dismissing the first appeals summarily were bad inasmuch as of the total tax dues under various assessment orders which came to Rs. 204 crores and odd, an amount of Rs. 119 crores were already deposited under protest which were approximately more than 20% of the tax payable and therefore the appeals could not have been dismissed summarily on the ground of failure to pre deposit.
HELD THAT:- Perusal of the order of the Tribunal indicates that it was the case of the principal appellant that the transactions in question were not bogus and the appellant cannot be liable for the other business done by the agents. Effectively, the tax dues against the appellants is Rs. 204 crores of which Rs. 119 crores has been paid under protest. The case of the appellants before the Tribunal was that the deposit so made be considered towards pre-deposit under Section 73 of the GVAT Act. Merely because the amount was paid, as ‘protest amount’, the first appellate authority could not have directed the pre-deposit without considering the payment already made by the appellant, particularly, when such amounts were paid before passing of the assessment orders.
The decision of the Hon’ble Apex Court in the case of VVF India [2021 (12) TMI 477 - SUPREME COURT] was in context of Section 26(6A) of the Maharashtra VAT Act which did not have a stipulation of the discretion in the appellate authority as is evident from the language of Section 73 of the GVAT Act.
There is no reason why the appeals on the facts of the present case need to be entertained - Appeal dismissed.
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2023 (10) TMI 1147
Review petition - Jurisdiction of Section 41(7)(b) of the KGST Act - re-visiting an issue settled by the Amnesty Order - HELD THAT:- The golden rule of interpretation means that the words of a Statute must prima facie be given their literal and natural meaning and that the language of the Section is read as it is. Applying the said interpretative tool, Sub-section (7) of Section 23B means that (a) the amount settled under Section 23B has been a subject matter of appeal or revision; (b) such appeal and revision may be continued and if the final orders of such appeal or revision results in the reduction of tax payable under this Act; (c) so the tax received more than legally payable will be refunded.
In the case of the State, if the appeal or revision is allowed, the excess amount to be collected from the dealer is collected. The sine qua non for operating the last two stages referred to above is that the amount settled has been a subject matter of appeal or revision. The protection under Section 23B(7) cannot be logically extended to appeal and revision filed ex-post to the Amnesty order. For the above view, it is sufficiently clear that the precedents on which the dealer relied are distinguishable, both in law and fact.
Thus, no ground is made out warranting interference with the judgment - review dismissed.
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2023 (10) TMI 1103
Quashing of penalty - forged document or not - necessary document not considered on the sole ground that it was produced after 08 days and presumption has been made that it was a forged document - import of badam for which the additional duty of custom is paid and this duty is also refunded.
HELD THAT:- In M/s Anand Refrigeration Co. (P) Ltd’s case [2010 (1) TMI 1116 - PUNJAB AND HARYANA HIGH COURT], the Division Bench has considered Section 14-B (7) of PGST Act, 1948 and held that the combined reading of these provisions would reveal that the appropriate authority under the Act, is under legal obligation to conduct an enquiry after serving a notice to the consignor or consignee and give him an opportunity of being heard. If after the enquiry, such officer finds that there has been an attempt to avoid or evade the tax due or likely to be due under this Act, he shall, by order, impose on the consignor or consignee of the goods, a penalty, which shall not be less than twenty per cent and not more than thirty per cent of the value of the goods and in case he finds otherwise, he shall order the release the goods and the vehicle.
In the present case, the only ground for imposing penalty was given that the document (P-8) was given by the petitioner after 08 days. However, giving the documents after 08 days would not make it a forged document. Further the invoice has been issued by a Company from U.S.A. The finding that this invoice is forged and fabricated has been given without verifying the contents of the invoice (P-8). This finding cannot be given without enquiry and there was no attempt of evading tax. Moreover, the petitioner was importing the badam for which he has paid the additional duty of custom and this duty is also refunded.
Petition allowed.
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2023 (10) TMI 1102
Validity of continuing the criminal proceedings on the same set of facts, which the Adjudicating Authorities declared that the allegations against the petitioners of having contravened the provisions of the VAT Act with an intent to evade tax cannot be sustained - Purchase of new vehicles from secret routes to avoid the barriers established by the Punjab Govt. on the basis of fake papers with an intent to evade tax - HELD THAT:- In view of the ratio of law laid down in Radheyshyam Kejriwal's case [2011 (2) TMI 154 - SUPREME COURT] this Court is of the view that the twin test prescribed for determining the effect of the orders passed by Adjudicating Authority/Tribunal on the criminal proceedings is :
(i) Whether the allegations in the adjudication proceedings as well as the proceedings for prosecution are identical? and
(ii) Whether the exoneration of the person concerned in the adjudication proceedings is on merits ?
The afore-prescribed twin test when applied to the present case, this Court finds that the case of the petitioners is fully covered by the ratio of law laid down in Radheyshyam Kejriwal's case and thus merits acceptance.
Keeping in view the fact that the Tribunal has already quashed the penalty against the Firm and has found that there was no case of tax evasion as being alleged by the Revenue, this Court finds that the FIR on the same set of allegations cannot be allowed to continue.
Petition allowed.
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2023 (10) TMI 1078
Best Judgement assessment - non-service of SCN - non-communication of the assessment orders to the Petitioner with the prescribed period.
The edifice of the case set out by the Petitioner in the three writ petition is that the Respondent No. 4 could not have exercised the power under Section 37 of the Act of 2003 without issuance of notice as mandated under Section 37(1) of the Act of 2003.
HELD THAT:- When a notice is issued under Section 36 in Form-20, the dealer or the assessee is completely at dark as to why the prescribed authority have initiated audit assessment proceedings. Under such circumstances, if any adverse steps are taken in terms with Sub-Section (5) of Section 36, the principles of natural justice has to be followed. The failure to adhere to the same by giving a reasonable opportunity of being heard at a time of exercising power under Section 36(5) which are adversarial to the interest of the dealer/assessee violates the principles of natural justice.
This Court further finds it very pertinent that Sub-Section (5) of Section 36 only empowers the Prescribed Authority to either confirm the self-assessment under Section 35 or set aside the self-assessment made under Section 35 and assess the tax amount from the dealer or assess the amount of tax due from the dealer if no assessment has been made under Section 35. Therefore, as per Section 36(5), what can be assessed by the Prescribed Authority other than confirming the self-assessment is only the amount of tax due and nothing more.
This Court had decided that the impugned assessment orders dated 21.12.2017, 21.12.2017 and 24.06.2019 are bad in law and stands vitiated for non-compliance of notice. However, this Court further finds it relevant to take note of the second submission made by the learned counsel appearing on behalf of the Petitioner wherein it was mentioned that the assessment orders both dated 21.12.2017 for the Assessment Year 2012-13 and 2013-14 respectively are also bad in law in view of the provisions of Section 39 of the Act of 2003.
Whether the non-communication of the assessment orders to the Petitioner with the prescribed period would render the Assessment Orders for the Assessment Year 2012-13 and 2013-14 fatal? - HELD THAT:- In the instant case, it would be seen that though the period as stipulated under Section 39 ended on 31.03.2018 and 31.03.2019 for the assessment years 2012-13 and 2013-14, but the notice of demands were issued in the month of July and August, 2019. There is no mention by way of affidavit or even from a perusal of the records as to why there was a delay in issuance of the said notice for more than two long years - Under such circumstances, this Court taking into account the judgment of the Supreme Court more particularly in the case of M. Ramakishtaiah and Company [1994 (2) TMI 260 - SUPREME COURT] is further of the opinion that the impugned assessment orders for the Assessment Years 2012-13 and 2013-14 cannot be presumed to have been passed on 21.12.2017 as the same could have been made after the expiry of the period prescribed. For this reason also, the assessment orders for the period 2012-13 and 2013-14 are set aside.
All the assessment orders i.e. 21.12.2017, 21.12.2017 and 24.06.2019 along with the demand notices dated 10.08.2019, 02.07.2019 and 01.07.2019 are all set aside and quashed - petition allowed.
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